People, Law, and Justice: A Casebook of Public-Interest Litigation, and: Supreme Court on Public Interest Litigation: Cases and Materials, The Debate over Original Intent,I - IV (review)
- Human Rights Quarterly
- Johns Hopkins University Press
- Volume 22, Number 4, November 2000
- pp. 1110-1114
- Additional Information
- Purchase/rental options available:
Human Rights Quarterly 22.4 (2000) 1110-1114
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People, Law and Justice: A Casebook on Public-Interest Litigation
Supreme Court on Public Interest Litigation: Cases and Materials, The Debate over Original Intent, I - IV
People, Law and Justice: A Casebook on Public-Interest Litigation, II volumes, by Sangeeta Ahuja (New Delhi: Orient Longman Limited, 1997) 906 pp.
Supreme Court on Public Interest Litigation: Cases and Materials, The Debate over Original Intent, I (New Delhi: LIPS, Jagga Kapur, ed. n.d.) 352 pp. [End Page 1110]
Supreme Court on Public Interest Litigation: Cases and Materials, The Debate over Original Intent, II and III (New Delhi: LIPS, Jagga Kapur ed., n.d.) 1880 pp.
Supreme Court on Public Interest Litigation: Cases and Materials, The Debate over Original Intent, IV (New Delhi: LIPS, Jagga Kapur ed., n.d.) 324 pp.
Almost twenty years after the emergence of the phenomenon of "public interest litigation" or "social action litigation" in the Supreme Court of India, two casebooks have been published on the subject in a relatively short time span: People, Law and Justice: Casebook on Public Interest Litigation and Supreme Court on Public Interest Litigation: Cases and Materials, The Debate over Original Intent.
Social action litigation holds the potential to be a strong and effective mechanism for enforcement and implementation of human rights for the poor. It therefore merits attention both in the South and the North. In the South, because it can offer socially committed lawyers and social activists insights in a more effective human rights strategy for defending the case of the poor. In the North, because it can point out new ways for dealing with human rights (violations) in the South through foreign policy and development cooperation.
It is important to emphasize from the outset that social action litigation is not a panacea for all human rights violations. Social action litigation appears to be problematic in at least two ways.
In the first place, the concept itself is far from clear. To begin with, the terms "public interest litigation" and "social action litigation" are used interchangeably to denote the same phenomenon. 1 The expression "social action litigation" (SAL) has been consistently propagated by Baxi as a more appropriate terminology, in order to emphasize the fundamental differences between the phenomenon in India and Public Interest Law in the United States. 2 Furthermore, the Supreme Court of India has never fully developed SAL conceptually. This ad hoc, from case to case development makes it impossible to offer a comprehensive definition of SAL. It can only be circumscribed by a number of characteristics.
The procedural features of SAL now more or less commonly accepted are the following: 3
- Expansion of the rules of standing: when a specific legal injury is suffered by a person or a determinate class or group of persons, but such person or determinate class of persons is by reason of poverty, helplessness or disability, or socially or economically disadvantaged position [End Page 1111] unable to approach the Court for relief, any member of the public can maintain an application (representative standing). The same holds true when there is public injury (citizen standing).
- Epistolary jurisdiction: a letter from a public spirited individual is treated as a writ petition.
- Investigative litigation: the Court takes an active role in investigating the facts. Evidence is gathered by commissions of inquiry, appointed by the Court. The reports of the commissions furnish prima facie evidence of the facts and data, and are not tested by cross-examination.
- Collaborative litigation: social action litigation is (hoped to be) a collaborative effort on the part of the claimant, the Court and the government to make fundamental rights meaningful for the poor.
- Remedies without rights: interim directions are issued to offer immediate relief. There is no preliminary finding of probability of success on the merits. Moreover, relief is not always confined to the case.
- Monitoring of the implementation: the Court monitors the implementation of its orders either by keeping the...