HAS public interest litigation (PIL), an innovation of the Supreme Court in the 1980s, lost its direction and abandoned its original constituency, the marginalised and the underprivileged sections of society? The legal researcher Usha Ramanathan has commented that the Supreme Court, in order to balance competing interests, began to turn away from protecting the interests of the original constituencies of PIL in the 1990s.

In principle, PIL cases justify judicial intervention and judicial activism and the concomitant enhancement of judicial power because, in the words of Usha Ramanathan, the beneficiaries of PIL in the 1980s were caught in the throes of severe disenfranchisement, dispossession and rightlessness. In the 1990s, however, according to her, the very same beneficiaries of the PIL in the 1980s began to emerge as the casualty of that exercise of enhanced judicial power.

Another scholar, after examining a body of case law relating to civil liberties, slum clearance, and labour rights, all of which directly affect the conditions of the poor in India, concluded: “From the beginnings of PIL as pro-poor and trying to effectuate the rights of the exploited, it is increasingly taking a diametrically opposite direction.”

The academic and legal scholar Arun Thiruvengadam tried to classify the recent PIL cases into three categories to illustrate this point. The first category involved the displacement of thousands of people as a result of large dam projects that were ultimately endorsed by the Supreme Court on the grounds that these projects were pursuing broader goals of development. The second set consists of cases that have been cited consistently for their neglect of the concerns of migrant workers and other marginalised groups while upholding the right to environment. In this falls the series of orders passed in M.C. Mehta vs Union of India (1985), a long-running case that oversaw the relocation of thousands of polluting industries outside the limits of Delhi. The third category involves cases where courts have prioritised the interests of the modernising elites and the upper classes over those of the weaker sections. This includes, according to Thiruvengadam,Almitra Patel vs Union of India (decided in 2000), in which the Supreme Court ordered the demolition of slums and unauthorised structures set up by migrant workers and the poor.

In the recent book Comparative Consitutionalism in South Asia, which he edited along with two other authors, Thiruvengadam suggests that even if these cases are few in number they have an impact on a large section of the population.

Varun Gauri, also a legal scholar, studied the entire set of PIL cases decided by the Supreme Court between 1997 and 2007. He found that judicial receptivity in the Supreme Court to Fundamental Rights claims made on behalf of the poor and excluded individuals had declined in this 10-year period. His data show not only a decline in the win rate for marginalised individuals but a simultaneous increase in the win rate for advantaged individuals.

According to Varun Gauri, his findings prima facie suggest that judicial attitudes are less favourably inclined to the claims of the poor than they used to be, either as the exclusive result of new judicial interpretations or, more likely, in conjunction with changes in the political and legislative climate.

The academic and researcher Jayanth Krishnan argues, on the basis of an extensive survey of 73 prominent non-governmental organisations (NGOs) and social advocacy groups, that most prominent social advocacy groups tend to avoid litigation as a deliberate strategy. He explains that these groups have become disenchanted with the slow pace and inconsistent progress of PILs and prefer to focus on alternative strategies, such as grass-roots political mobilisation. The costs and institutional focus required for mounting and sustaining long-drawn PIL campaigns have led some groups to avoid using them altogether.

Thiruvengadam believes that this trend needs to be reversed. He suggests that judges lend support to PIL petitions without appearing to act in partisan or ideologically motivated ways—a characteristic that defined the Supreme Court’s attitude to PIL in the 1980s and the 1990s. In order to regain the trust and confidence of NGOs and social advocacy groups, he suggests that judges adopt a far more modest and facilitative role, where the focus is on the citizens who suffer, the social movements that organise their interests, and the lawyers who represent them. What is required is a much more decentralised form of intervention, where the emphasis is on enabling all possible stakeholders to contribute meaningful inputs, he says. Thiruvengadam holds the ongoing PIL cases dealing with right to food and the police reform cases in the Supreme Court as the model ones where the Supreme Court is evolving this ideal approach.