Public Interest Litigation in India: A Tool for Disadvantaged or Power of Elites

I. Introduction

Emergence of PIL in India is classic example of instances where judiciary tried to protect the citizens from government tyranny. It provided a mechanism which helped the people to raise their voice and gain access to justice despite of the hurdles like poverty, illiteracy etc. But with the further social and economic development of the country during 1990s when liberalisation was adopted, the role of PIL has shifted from being institution for protection of rights of people to institution which is politically influenced and motivated by outcome which is intended to be achieved. Thus, the objective of the concept diminished with time.

PIL provided judiciary with enormous power with the aim of substantial justice but with time it has been realised that how giving judiciary unlimited power without strict procedural requirement negatively impacts the need of the people who are disadvantaged and requires some mechanism like PIL to raise their voice. How judiciary has distorted the traditional liberal understanding of democracy by encroaching administrative and political functions of legislature. The scope of Article 21 been relied upon to expand the scope and articulating right to privacy and other socio-economic rights which includes air, food, clothing, education, death in custody etc.

In part I of the paper, we will try to understand how PIL mechanism has evolved and what was the aim and objective of such a concept in country like India. How emergency period has made the judiciary feel the requirement of such mechanism.

In part II of the paper, we will try to answer the question that whether the judiciary has stood by the expectation of filling the gap between legitimacy and representation. Post emergency period, restructuring the people confidence on judiciary was the key objective and legitimacy was the ground on which judiciary was trying to intervene in the other branches of government which has been criticised by the author citing instances.

In part III of the paper, we will illustrate how court has tried to impose its will using the justification of speaking for the people. It has also somehow acted in the same way the political class was acting during emergency period.

In part IV of the paper, we will illustrate how judiciary has expanded its scope which has been provided under constitution with the help of international law. We will discuss how judiciary has intervened in the parliamentary function of deciding whether international law is to be implemented in the domestic framework or not. How judiciary has shifted from dualism to monism theory through its various recent judicial pronouncements.

II. Conceptualisation

Public Interest Litigation is a kind of litigation which aims to secure public interest ensuring access to justice to people who are disadvantaged such as constructional hazards, prison reform, police brutalities, pollution, terrorism etc. It was first introduced by Justice P.N. Bhagwati and first reported case of PIL was Hussainara Khatoon v. State of Bihar.² It provides relaxation of locus standi. It can be filed by any person in the interest of public and thus it is also called as bona fide litigation in India. A PIL is filed by revoking writ jurisdiction under Article 32 of the constitution of India.

Article 253 provides that parliament has the power to make laws for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.³

With time Judiciary started abusing the power in the name of judicial activism. Political pressure groups started using the courts to achieve their aims and interest through means of PIL which they could not achieve through administrative process and political process.

III. Literature Review

An article “Competing Populism: Public Interest Litigation and Political Society in Post-Emergency India” written by Bhuwania has discussed emphasis on the importance of procedure and process in delivering justice.⁴ He has also taken example of Delhi urban governance cases i.e. Delhi vehicular Pollution case and Delhi slum demolition case⁵. The auto drivers had to leave their own job because of the fuel change and permit freeze which could be cited as failure of PIL at ground level. The judiciary has ignored the policy requirement to provide housing to slum dwellers while removing them from their own locality.

An article “Supreme Court and PIL: Changing Perspectives under Liberalisation” written by Prashant Bhushan published by Economic and Political Weekly discussed Supreme Court has failed to decide for poor and disadvantaged which shows its change in attitude. The article focussed on the impact of PIL on economic reforms in the country. Supreme Court cannot interfere in the disinvestment and implementation in BALCO because it is an administrative function where Supreme Court can’t interfere. The need to revisit PIL framework was discussed so that there is no misuse of the framework by political groups. The article also discussed the interference of Supreme Court in environmental cases though the channel of PIL. There are various cases discussed in the article which indicates that Supreme Court is favouring rich and elite through the tool of PIL.

An article “Public Interest Litigation in India as a paradigm for developing Nations” written by Zachary Holladay published by Indiana University press discussed the liberal democratic theory. It discussed the protective democracy and developmental democracy. Sovereignty, Individual rights, separation of powers is important characteristic of liberal democracy. Robust Judiciary in India reflects the liberal characteristics of democracy. It discussed how PIL in India does not comply with the conventional understanding of liberal democracy. Collective action, Creation of positive Rights and Institutional challenge to the separation of powers are the powerful factors which are responsible.

An article “Parliamentary Sovereignty vs. Judicial Supremacy in India” written by D.C. Chauhan and published by Indian Political Science Association discussed the relationship between the legislature and judiciary during various phases of Indian History. In the first phase of 1950-1966, the relationship between them was harmonious. In the second phase of 1967-1972, Golaknath case judgment established the supremacy of judiciary and cold war between judiciary and legislature got started. In the third phase of 1973-1979, Kesvananda Bharti judgment came which tried to balance legislature and judiciary. Justice V.R. Krishna suggested that PIL is necessary to keep democracy on track as it provides opportunity to seek justice to poor and disadvantaged.

IV. Aims/Objective of the Study

This paper will also analyze whether judicially has encroached upon the other branches of government with the help of case studies. We will try to answer the question that whether the judiciary has stood by the expectation of filling the gap between legitimacy and representation.

The paper will analyse how the objective of PIL has not been achieved which was to provide access of justice to poor and disadvantaged. It will also find the cases where Supreme Court has abused the power by deciding in favour of political powers and administrative whims and fancies.

V. Theoretical Framework

There are two theories on liberal democracy which are protective democracy and developmental democracy given by David Held.⁶ These are based on different political goals. Protective democracy is also known as minimalist or libertarian who is aimed towards reducing the size and scope of the government. Developmental democracy is also known as social democracy. Democratic process is comprised of society. It believes in maximizing the political participation. There shall be involvement of public in government elections and decision making.⁷

As per the Habermaison theory referred by Pratap Bhanu Mehta in his article, the reason of the judge is not based on any set of rule or his own predilection but it is based upon the public reason which means the judges reasoning must be accepted by the reasonable people and it must be justified in the eyes of people.

The theory of Monism believes that all living beings are creation of single supreme soul while dualism believes that the supreme soul is distinct from hat of living beings. In international law, monism postulates internal law and international law as a unified legal system.⁸ While dualism, international law cannot be incorporated into national legal system only by ratification.⁹

VI. Methodology

This paper will use the qualitative and analytical research method. The paper will use case analysis with the interpretation of the features and requirement of Article 32 of the constitution of India. This paper will use analytical research method to find out the loopholes and judicial outreach done by the Supreme Court. Qualitative method of case studies will be used in the paper to analyze various Supreme Court judgments. The paper will also use historical research to draw out the evolution of PIL in India after the Indira Gandhi government. Fundamental research will also be used to understand various provisions of Constitution of India and rules pertaining to PIL which has been drawn out by Supreme Court such as locus standi relaxation etc.

VII. Findings

A. How and Why need of PIL Arised: A Justification By Supreme Court (Emergency Period)

India constitutes of a large volume of communities and individuals who are tackling poverty, illiteracy, bonded labour etc.¹⁰PIL was intended to be construed as a means to raise voice to the disadvantaged and underprivileged people of the country.¹¹ It was a mechanism to provide an instrument to judiciary to intervene in other branches of government i.e., legislature and executive to maintain a check and balance and protect the people from the government tyranny, unfairness and arbitrariness. The need was felt after the emergency period where Indira Gandhi Government was accused of misusing the constitutional framework to influence the judiciary for its politically motivated objective to justify their actions of curtailing the civil rights of the citizens of the country. In the case of ADM Jabalpur v. Shivkant Shukla¹², court has supported the executive action of curtaining civil liberties and fundamental right to move freely during the proclamation of emergency which diminished the value and trust that the country has on its judiciary which is also known as the darkest era of Indian democracy.¹³ After this episode, the responsibility was increased on the part of judiciary to recoup its self-esteem and build trust among the people that the judiciary is an institution of governance and it will be an open door for all the people of country to seek redress and adjudication despite of the fact whether the person is financially strong to cope up with the litigation expenses or whether the person is strong enough to raise his voice against the unfair and unjustified actions of legislature and executive. This phenomenon is known as legitimizing the acts of judiciary.

According to David Held, there are two theories on democracy which are protective democracy and developmental democracy.¹⁴Protective democracy is more applicable in the framework of PIL because it justifies the intervention of judiciary which is aimed at protecting citizens from the government totalitarianism. Justice Bhagwati has supported the concept by saying that the goal is to support the disadvantaged groups whose rights has been denied and exploited due to the government lawlessness, deviance of administrative institution and the suppression by the state.¹⁵ The intention was to guarantee fundamental rights to the citizens who are at socially and economically at disadvantaged stage through allowing various flexibilities in terms of locus standi and third party standing in the application of writ petition filed under Art. 32 to the Supreme Court.¹⁶

B. Court’s objective of filling gap between legitimacy and representation- achieved or not?

Legitimacy can be conceptually categorized as legal validity, widely shared feeling among people that they have a duty to obey the rule and actual obedience of law by large number of people. Bonded labour is an old age practice which is not in the constitutional framework and despite the constitutional prohibition; Supreme Court has looked into the matter for the justice of those forced labourers.¹⁷ There were social welfare laws but they were not being implemented where judicial intervention was required.

Providing legitimacy to the acts of the courts and the government and striking balance between them is one of the main objectives of emerging of PIL India. Post emergency period, in the case of Indira Gandhi v. Raj Narain¹⁸, judiciary tried to ensure legitimacy to the constitutional basic structure doctrine principle. Court asserted the Keshvanandabharti¹⁹case to limit the power of constitutional amendment which has been given to the parliament to protect the liberty of individual and safeguard the constitutional promises. Court had realized that there is necessity to popularly legitimise the PIL jurisprudence through setting such precedents. Court realised its mistake which it did in Gopalan²⁰ case to narrow down the scope of art. 21 which provide judiciary with very less scope of construction and court supported the liberal stand taken by court in Keshvananda bharti case.

Pratap Bhanu Mehta argues that there exists a gap between the legitimacy and representation and judiciary is supposed to be filling those gaps and balance the interest of the society and individuals as well. The gap here means that the policies which are made while exercising popular authoritarianism are not chosen by the people as a free and equal individual. Thus, the duty of the court is to preserve the rights of the citizens as they must be equal and free in our democracy. The court has intervened time and again to deepen the democracy, protect the political identity of India and provide democratic justice to the people. But the question is whether such judicial intervention is unlimited without any limitation.

Judicial intervention must have democratic legitimacy but how will we test whether exist such democratic legitimacy or not. It can be answered by questioning whether the court decision is overturned by legislature or backlash is provoked. The fear of backlash can be explained with examples like the reservation policy given by the court guidelines that upper ceiling of reservation will be 51%. This has not been implemented in Tamil Nadu. Also, there are many amendments made in the recent years which have not been implemented due to the fear of democratic backlash. Role of judges have transformed from based on purist theoretical concept to base on social need and outcome based which has been criticised by Aparna Chandra.

In 2014, finally the Judicial Appointment bill was passed under which law ministers and other also got to be a part of the selection committee which appoints judges. This bill was passed after the phase where judiciary was alleged with charges of corruption and favouritism. Thus, executive again came into play because of diminishing credibility of the judiciary. The question that raised here is who will decide what public and private interest is. Desai and Muralidhar confirm the perception that: ‘‘PIL is being misused by people agitating for private grievances in the grab of public interest and seeking publicity rather than espousing public causes.’’²¹

Also, there is lack of consistency among the judgments. Sometimes judiciary intrude into policy questions while other times it hides behind the shield to protect itself from allegations of being biased and influenced by other branches and its own battle of legitimacy remains debatable. There were many policy questions like to adjust the height of Narmada dam which remained unanswered. ²² No clear or sound theoretical basis for such selective intervention is discernible from judicial decisions.²³

C. Battle between competing populism of court and political class

Edward Shils defines populism as will of the people which is supreme with justice and morality.²⁴ Court has been trying to speak for the people to deliver substantive justice.²⁵There is inherent instability which is present in the concept of populism which allows the shift from poverty in 1980s to environmentalism in 1990s. The language of populism first observed in the Indira Gandhi phase which has been copied by the judiciary in search of legitimacy. In the way achieving the objective of PIL, there were many liberties given by the court in the mechanism such as flexible rules and procedure, locus standi to third party/NGO etc. But these relaxations have been questioned when judiciary goes be young constitutional mechanism to achieve the purpose by expanding scope of fundamental rights. Court has also interfered under Art. 32 in absence of any violation of fundamental rights.²⁶ Court has upheld the validity of MISA under the habeas corpus case under which habeas corpus rights are suspended during emergency. The question that has been raised here was why the court has responded to this situation through PIL. There were other means available with the judiciary. Thus, there has been continuing battle between the competing populism of the court and the political class. There are certain constituents of populism which are present in the court while seeking legitimacy from the people.²⁷ Consent of the people is the basis of democracy.²⁸

Court not only has the power to enforce fundamental rights but all the ancillary and incidentals powers are also assumed by the court and it adopt new strategies and new form of remedies to enforce fundamental rights. The remedy may be both imposed, negotiated or quasi-negotiated.²⁹

No cross examination was not done nor any investigation was conducted which are the rules under Supreme Court rules. Evidence was admitted on the ground of ex-parte statements given by the lawyers who had done the visit to the place where bonded labourer were working.³⁰This was clear violation of principle of natural justice which includes Audi al partum principle. Procedural flexibility must be limited by contrary statutory provisions.

Another procedural flexibility can be seen in Dehradun Quarrying case³¹ where letter has been accepted as writ petition under Art. 32 by the Supreme Court.

We are not denying the fact that locus standi relaxation has been useful to provide justice to the bonded labours in case of PUDR but similarly we can’t deny that there is only one such example which justify the court action of interpreting beyond its scope. In Sheela Barse case³², court has continued with the PIL jurisdiction without presence of the public interest petitioner. Thus, we can say that PIL has been converted into an omnibus which is used to deal with any large-scale social problem.

D. Supreme court expanding its scope using international law as an exotic tool for interpretation (post 1980 period)

During the initial phase, international law was recognised as law governing the issues between the sovereign nations and other recognised state actors under international law. But with the economic and social development, international law has expanded its scope to other areas such as human rights, environmental issues, labour laws, law of the sea etc. which governs the internal matter of the state. One of the major weaknesses of international law is there is no set rule of its application and it is considered as soft law.³³

Under Article 253, it is the power of the legislature to make laws for the country but if we look into the past instance, it is clear that India follows monists approach in reality where it held that India will respect in international law and incorporate the same into municipal law unless there is any conflict of international law with the municipal law.³⁴ It has also been mentioned that the court will try to interpret the case harmonising both international and municipal law.³⁵ Thus Supreme Court has time and again encroached in the power of the legislature in deciding the application of international law in the domestic arena.

This monists approach has been used by the Supreme Court in justifying the actions of the judiciary while using international law as an exotic tool to expand the scope of Indian judiciary itself.

Article 51³⁶ has been incorporated in our constitution which provides that it is the obligation of the state to respect international law and treaty obligation in dealing of organised peoples with one another. The intention of the framers was to imbibe certain provision in the constitution which would guide India to form foreign policy and maintain international peace and security. The power was given to the state initially but it was contended that this comes under part IV of the constitution which makes it unenforceable. B.s. chimni argues that under article 51, international law relates to the customary law because treaty obligations clearly have been written under the provision.³⁷ Thus we can say that any customary international law is deemed to be incorporated in Indian municipal law as per article 51. Lavanya rajmani has argued that the obligation under art. 51(c) is one of making effort and not of achieving result.³⁸

Thus, judiciary tend to incorporate international laws into our domestic conception. I agree with the judiciary’s side that there is lack of legislations to govern various aspects like environment, human rights etc. under the domestic law and there is need to incorporate certain international law principle into the domestic law to expand the scope of substantial justice but the question that arises is to what extent judiciary shall have the power to expand its power and what about the compliance with the rule of law. Rule of law states that there is no body above law but the question is whether the court is also not above the law or court has gained the power to go beyond the law and make its own interpretation justifying the same in the name of justice. The same has been argued by Anuj Bhuwania in his book where he argues that currently we are following Judicial Swaraj where judiciary is above everything. ³⁹

Now the paper will try to answer the above question with the help of various case laws in different phases of constitutional history. We will try to establish the shift which has been taken by the court in the manner in which it will treat international law in the municipal framework. In the case of Jolly George Varghese and Another v. The Bank of Cochin⁴⁰, we can observe that how court has indicated its idea of treating state’s international obligation. Court had made it as national rule to interpret the constitutional framework in accordance with the international obligation of the state.⁴¹The shift which has taken from dualism to creeping monism⁴². In the case of Gramophone Company of India ltd. V. Birendra bahadur Pandey⁴³, we can observe the court has principally shown the shift from the doctrine of transformation to doctrine of incorporation. The court has interpreted the municipal law of Indian copyright act in such a way to establish the consistency with the internal obligation where there is no requirement of parliamentary sanction which has been derived from the earlier judgment.⁴⁴

This shift has been used very smartly in the later judgment to justify the encroachment of judiciary in the matters which it has not been devolved with the power under our constitutional framework. The same can be noticed in the judgment of Vishaka and others v. State of Rajasthan and Others⁴⁵ where court has recognised international treaty obligation as guiding principle to fill in the gaps which is prevalent between the framework and policies and the universal idea of justice such as human rights etc.

India is no doubt growing at speed in terms of judicial activism in order to keep a pace with the increasing legal development which can be traced through the reasoning provided by the court in the present case. India is a party to the convention on Elimination of all forms of discrimination against women 1980 but as per the Indian constitutional framework⁴⁶ it requires incorporation into the domestic law through parliamentary legislation with the object Further describing the above justification, court has said that the intention of the court while incorporating international law obligation without any parliamentary legislation is to enlarge the meaning and content to promote object of the constitution guarantee.

The objective of the convention was to ensure gender equality which also includes protection from sexual harassment and right to work with dignity which is one of the universally recognise basic human right which every human being deserves. There was lack of legislation in India at that time for the protection of women against sexual harassment at workplace which was definitely required and due to the vacuum created; judges referred the international law to prepare guidelines on the same subject matter to protect the right of the women who was victim in the case. Those guidelines were the ground on which judiciary power to make law was questioned because law making power belong to the legislature as per the constitutional framework of India.

No doubt there is a necessity of such domestic legislation which helps to keep pace with the international legal developments but in order to achieve that we need to maintain a balance between international actions (sympathetic to universal values) and domestic constitutional actions (subject to constitutional constraint).⁴⁷ The author would like to make a counter that when there was a framework for making the legislation on the subject matter, what was the need of courts intervention in the law making power of the legislature. Court has gained the power to make rules in this matter under article 32⁴⁸ which gives power to decide the matters which involve enforcement of fundamental right under art. 14, 15, 19 and 21. The court has justified the authority by referring article 141⁴⁹ of the constitution which says that any law made by the judiciary is binding upon the tribunal and courts throughout India. Thus article 32 provides unfettered power to the Supreme Court in the shield of which court has been time and again expanding its scope justifying the same through interpretation of fundamental rights and its enforcement.

Court has also held that award of compensation under art. 32 is a public law remedy. Sovereign immunity is applied as a limitation but it applies in private law remedies only under art. 3oo.⁵⁰

Another significant source of international law is customs which is termed as customary international law under art. 38 of ICJ⁵¹.Customs are the usage which requires to fulfil certain factors such as state acceptance as legal obligation and has similar binding value but it is different from treaty obligation and considered as soft law because it is difficult to decide whether norm has attained the status of customary international law or not. In India, we consider any obligation arising out of customary international law as part of law of the land and there is no requirement of domestic legislation for the same. Thus, it is easier for the judiciary to justify the reference made to customary international law in deciding cases which is of greater public interest. We will try to question the reference made by the Supreme Court to the international law to enlarge its extent to adjudicate in the case of Vellore Citizens Welfare Forum v. Union of India and Others⁵². In the above case, a PIL has been filed in the Supreme Court under article 32 regarding the sustainable development for which there was no existing domestic legislation. But there were various other environmental law principles like polluter pays principle and precautionary principle which were already recognised under the statutory and constitutional instruments and in order to enlarge the scope of environmental protection policies, court made a reference to the concept of sustainable development which was present in the customary international law which is also known as soft law.⁵³ The issue was that whether this norm has attained the status of customary international law has not been established by the jurists and scholars yet. Without the validation of any substantial authority, it has been assumed to have attained the status of customs.

Rights of transgender has been recognised by various international instruments such as UDHR, ICCPR etc. because right to gender identity and sexual orientation is considered fundamental aspect of human life.⁵⁴ No doubt there was necessity of such a policy in India to protect the rights of transgender looking at the atrocities and stigmatization that they face but it is expected to be achieved by passing required legislation through the constitutional procedure. It is correct that substantial justice is the aim but procedural justice cannot be ignored and any branch of government cannot encroach upon the other without valid justification such as urgent requirement.⁵⁵(2014)

In Navtej Johar case⁵⁶, Justice Chandrachud followed a similar model while invoking comparative case law from various jurisdictions. He used comparative constitutional law as one of the many sources, and not a central one at that to advocate for the decriminalisation of homosexuality. International law should be used in a similar vein to facilitate the development of, and reasoning within, our established constitutional tradition.⁵⁷

VIII. Discussion on findings

Thus, it has been interpreted by the Supreme Court as per their whims and fancy to act as an elite institution ignoring the intent of the dualism theory which initially existed in our constitutional framework. The court has justified its reference by contending that this has been done to establish a balance between ecology and development. Court also referred art. 21 which speaks about right to life and liberty where it has held that there is consistency between international custom and the domestic provision and thus there is no difficulty in accepting it. Thus, it became established principle that customary law which are not contrary to the domestic law shall be deemed to have been part of domestic law and shall be followed by the court.⁵⁸

Beyond the constitutional framework, Indian Supreme Court has taken the power to appoint judges of the higher judiciary. The role of other branches was minimized by the decision which has been questioned time and again.⁵⁹ This ruling has not been challenged for long duration because people would have taken it as interference of politics in the judiciary functions. The justices justified the court’s decision by saying that judicial independence has been curtailed by the politicisation of judicial process done by the government.⁶⁰ The intervention of court was required for the efficient function of courts.⁶¹ Court was trying to uphold the rule of law in other contexts, including government corruption, accountability, human rights, and environmental policy.

IX. Conclusion

Thus, we can conclude that the PIL mechanism has been used by the judiciary as a tool to form judicial activism to deal cases beyond their scope in the name of justice to the vulnerable group of society. We can observe the conflict between the legislature and judiciary throughout the judicial trend which indicates how court has been trying to justify its acts in the name of legitimacy and justice. There has been instance where the means chosen by judiciary to achieve a certain result has affected the marginalised people only which is motivated and influenced by elite intellectual worldview of justice. Judicial decision making is not based upon jurisprudence or theoretical understanding of law but there are various other factors involved such as value and though process of judges and their perception. The interpretation of any provision of constitution is not textual but result oriented.

It is not wrong to say that PIL has proved itself to be a hagiographic concept because the judicial trend shows that PIL has been used by the Supreme Court to achieve its ulterior motive and has become back door entry in the court of justice to settle private disputes, political motives or to get publicity among the people. It is important for the courts to realize how this mechanism is encouraging frivolous PIL also and it is important to exercise its power within constitutional boundaries.

It is not possible to pre determine the principle or rules of interpretation that must be followed by the court but it has to be decided along with the judicial developments that is going on. No matter what was the intention at the time of emergence of PIL, but today it is seen to be used frivolous to achieve the will of the judiciary and the elite class.

*****

Footnotes

1. Author is a LLM student in India.

2. AIR 1979 SC 1360. ↩

3. Constitution of India, Art. 253 ↩

4. Anuj Bhuwania, Competing Populism: Public Interest Litigation and Political Society in Post-Emergency India, (2013) https://academiccom mons.columbia.edu/doi/10.7916/D8TB168C ↩

5. Aparna Chandra, substance and process: Courting the people by Anuj Bhuwania, Two Methodological Concerns, (2017) https://indconlawphil.wordpress.co m/2017/01/26/iclp-book-discussion-anuj-bhuwanias-courting-the-people-iii-aparna-chandra-on-substance-and-process/ ↩

6. Held, Models of Democracy ↩

7. Ibid. ↩

8. Difference between net, http://www.differencebetw een.net/language/difference-between-monism-and-dualism/ ↩

9. Ibid. ↩

10. Susan D. Susman, Distant Voices in the Courts of India: Transformation of Standing in Public Interest Litigation, 13 WIs. INT'L L.J. 57, 63 (1994). ↩

11. Holladay, Zachary "Public Interest Litigation in India as a Paradigm for Developing Nations,"Indiana Journal of Global Legal, 555, 561(2012) ↩

12. ADM Jabalpur vs ShivkantShukla [1976] SC, AIR (SC). ↩

13. S.P. Sathe, Judicial Activism: The Indian Experience, 6 WASH. U. J. L. & POL'Y 29, 47 (2001). ↩

14. David Held, Models of Democracy,5 (1996). ↩

15. P.N. Bhagwati, Judicial Activism and Public Interest Litigation, 23 COLUM. J. TRANSNAT'L L. 561, 569 (1985). ↩

16. Bandhua Mukti Morcha v. Union of India, A.I.R. 1984 S.C. 802, 813 (India). ↩

17. id. At 7 ↩

18. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299 ↩

19. Kesvananda Bharti v. State of Kerala, (1973) 4 SCC 225: AIR 1973 SC 1461 ↩

20. A.K. Gopalan v. The State of Madras, 1950 AIR 27, 1950 SCR 88. ↩

21. Surya Deva, Public Interest Litigation: A Critical Review, C.J.Q., VOL 28, ISSUE 1, p. 37 (2009) ↩

22. Desai and Muralidhar in Kirpal et al. (eds), Supreme but not Infallible, pp.176–179 ↩

23. Id. At 14. ↩

24. Anuj Bhuwania, Competing Populism: Public Interest Litigation and Political Society in Post-Emergency India, P. 55 (2013) https://academiccommons.columbia.edu/doi/10.7916/D8TB168C ↩

25. Upendra Baxi, ‘Taking Suffering Seriously’, p. 107 ↩

26. Dc wadhwa v. State of Bihar, (1987) 1 SCC 378: AIR 1987 SC 579 ↩

27. Upendra Baxi, Indian Supreme Court and Politics, p. 126 ↩

28. State of rajasthan v. Union of india, (1977) 3 SCC 592: AIR 1977 SC 1361. ↩

29. Sheela barse v. Union of India, (1988) 4SCC 226,233: AIR 1988 SC 2211 ↩

30. PP Craig and SL Deshpande, ‘Rights, Autonomy and Process: Public Interest Litigation in India’, Oxford Journal of Legal Studies (1989): 9(3): 356-373, p. 363 ↩

31. Shyam Divan, Public Interest litigation, The Oxford Handbook of the Indian Constitution, 9, (2017), https://www.oxfordhandbooks.com/view/10.1093/law/9780198704898.001.0001/oxfordhb-9780198704898-e-37 ↩

32. Id. At 22 ↩

33. Christoph Schreuer, Sources of International Law: Scope and Application, https://www.univie.ac.at/i ntlaw/sources.pdf ↩

34. Apparel Export Promotion Council v. A.K. Chopra, 1999) 1 SCC 759: AIR 1999 SC 625. ↩

35. ADM Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521 ↩

36. Constitution of India, Art. 51. ↩

37. Alexander, International Law in India, 1 ICLQ, 289, 291 (1952). ↩

38. Prabhash Ranjan, Anmolan and Farheen Ahmed, Is the Supreme Court of India Confused about the Application of International Law?, The Wire, (2016) https://thewire.in/law/supreme-court-international-law ↩

39. Anuj Bhuwania, Courting the People, Competing Populism: Revisiting the Origins of Public Interest Litigation in India, 20, (2017) ↩

40. Jolly George Varghese and Another v. The Bank of Cochin, 1980 AIR 470 1980 SCR (2) 913 1980 SCC (2) 360 ↩

41. V.G. Hegde, Indian Courts and International law,Leiden Journal of International Law, 53, 66 (2010) ↩

42. Melissa Waters, ‘Creeping Monism: The Judicial Trend Towards Interpretative Incorporation of Human Rights Treaties’ (2007) 107 Columbia Law Review 628. ↩

43. Gramophone Company of India Ltd. V. Birendra Bahadur Pandey, (1984) 2 SCC 534 ↩

44. Aparna Chandra, India and International law: Formal dualism, functional monism, Indian Jornal of International Law, (2017) ↩

45. Vishaka and Others v. State of Rajasthan and Others, AIR 1997 SC 3011 ↩

46. Constitution of India, Art. 253 ↩

47. Prabhash Ranjan, Anmolan and Farheen Ahmed, Is the Supreme Court of India Confused about the Application of International Law?, The Wire, (2016) https://thewire.in/law/supreme-court-international-law ↩

48. Constitution of India, Art. 32 ↩

49. Constitution of India, Art. 141 ↩

50. Constitution of India, Art. 300 ↩

51. Statute of the International Court of Justice, Art. 38 ↩

52. Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715; (1996) 5 SCC. ↩

53. Neha Jain, The Democratizing Force of International law,319, 323. ↩

54. Neha Jain, The Democratizing Force of International law,319, 325. ↩

55. National Legal Services Authority v. Union of India, (2014) 5 SCC 438. ↩

56. Navtej Singh Johar & Ors. v. Union of India, W. P. (Crl.) No. 76 of 2016 ↩

57. Id. ↩

58. V.G. Hegde, Indian Courts and International law,Leiden Journal of International Law, 53, 60 (2010) ↩

59. Pratap Bhanu Mehta, The Indian Supreme Court and the Art of Democratic Positioning, 230,244 (2015) ↩

60. Manoj Mate, The Rise of Judicial Governance in the Supreme Court of India, 170,241 (2015) ↩

61. ibid ↩