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(Aayushi Singh is a lawyer who graduated from Institute of Law, Nirma University, Ahmedabad. This is the second article in a three part article series. ) Part one of the series dealt with the issue Public Intrest Litigation and how it has diverted from its original purpose of introduction in the judicial system. The author traced the development of jurisprudence on the issue and argued that the Supreme Court adopted a paternalistic approach in the garb of delivering substantive justice which has ultimately had adverse effects on those approaching the courts. The Supreme Court and its 'Promiscuous' Role Legitimacy in itself is a complex phenomenon and is difficult to decrypt, what we definitely know is that if some action is not legitimate then it is bad in the eyes of law. Supreme Court’s authority, normative aspect of its institutional authority can be perceived from the court’s justification of its authority.[i] The other aspect that is the sociological aspect can be perceived from the acceptance, trust and support that the public gives the court over a relatively long period of time.[ii] Supreme court has been trying to achieve legitimacy from the perspective of both the aspects, its encroaching upon the legislative and executive functions by taking the defense of providing justice to “the people”. It has been focusing more on judicial populism by expanding the scope of PIL, relaxing procedural safeguards to provide access to justice to the most marginalized and the oppressed, issuing guidelines in line with international legal norms in the name of public interest. Supreme courts use of “public interest” is as same as government’s use of the term “public purpose”[iii] for the acquisition of land; the only difference is that later is open to judicial scrutiny and the former is given by the judiciary itself. If one view is taken then the PIL has helped judiciary to achieve public confidence which was lost after the Habeas Corpus case and legitimacy in the society. Democracy compulsorily requires the presence of Independent judiciary but it is also necessary to consider the fact that neither public nor they elect judges accountable to them, as they are not their representatives.[iv] Indian Judiciary has been criticized by people for representing elites and their interests.[v] This criticism has been defended by Rohit De in his book “A People’s Constitution” where he has argued with evidence from case laws that the petitioners were not only non- elite but belonged to the disadvantaged class of society.[vi] This argument of De was challenged by Namita Wahi in her review of the book, she argued that out of four references given in De’s work Parsis and Marwari’s being non- elite is not an acceptable argument as Parsis, though being a religious minority, have been a socially and economically empowered community in India, further, Marwadis are a dominant Hindu community and are socially and economically advanced.[vii] Pratap Bhanu Mehta has argued that the Supreme Court seems to be playing a “promiscuous” role in Indian democracy.[viii] It is not only judging the constitutionality of legislation but also declaring duly enacted amendments unconstitutional, from interpreting the statute to making values judgments, court has gone to the extent of performing executive functions.[ix] This transgression of the judiciary into the functions of executive and legislature has been criticised widely. The question of accountability comes up in cases where the Supreme Court crosses the narrow conception of the rule of law.[x] Court has through creative interpretation has widened the scope of Right to life[xi], in order to include a right as the basic structure of the Constitution court held that the right is protected under Article 21 of the Constitution. Through its judgements, the court has become, as Pratap Bhanu calls it, ‘an institution of governance’. As the role of judiciary expanded with time, it became important to have a mechanism to determine whether the act of court is democratically legitimate or not. One such test is to see whether the decision of the court has been overturned by the legislature or backlash is provoked; such kind of intervention by the legislature would evident that the legislature want to control the judiciary.[xii] P.A. Inamdar v. State of Maharashtra discussed the quantum of reservations faced such friction by the legislature and was countered by constitutional amendments. The court has provided exceptions to its rulings in certain cases because of the fear of democratic backlash. One such case is S.V. Joshi v. State of Karnataka,[xiii] where the court has been seen doing away with its own 51 percent rule on reservation in Tamil Nadu where prescribes a limit of 69 percent.[xiv] The Legislature has been trying to control judicial functions and for that has taken various steps, one of them is the introduction of Judicial appointments Bill, 2014 which was passed to authorise legislature in appointments of judges.[xv] These Steps have generally met with backlash from the side of the judiciary. This backlash is exemplified in the fervour and surety with which the 99th Constitutional amendment, bringing in the National Judicial Appointments Commission, was struck down as unconstitutional. -- The third part of the article will deal with the issue of Public Interest Litigation from the perspective of International Law. -- [i] Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 Harvard Law Review 1787 (2005) [ii]C.K. Ansell, Legitimacy: Political, International Encyclopedia of the Social & Behavioral Sciences, 8704 (2001) [iii] Article 31(2) of R.L. Aurora v. State of Uttar Pradesh AIR 1964 SC 1230 [iv]Surya Deva, Public Interest Litigation in India: A Critical Review, Civil Justice Quarterly Vol. 8, 19 32 (2009). [v] Ibid. [vi]Gautam Bhatia, ICLP Book Discussion: Rohit De’s “A People’s Constitution”- I: Introduction, Indian Constitutional Law and Philosophy, 1st January 2019. https://indconlawphil.wordpress.com/2019/01/01/iclp-book-discussion-rohit-des-a-peoples-constitution-i-introduction/ [vii]Namita Wahi, ICLP Book Discussion: Rohit De’s “A People’s Constitution”- IV: Always of the People?, Indian Constitutional Law and Philosophy, 7th January 2019. https://indconlawphil.wordpress.com/2019/01/07/iclp-book-discussion-rohit-des-a-peoples-constitution-iv-always-of-the-people/ [viii]Pratap Bhanu Mehta, The Indian Supreme Court and the Art of Democratic Positioning, Cambridge University Press, 233 233 (2015). [ix] Ibid. [x]Pratap Bhanu Mehta, The Indian Supreme Court and the Art of Democratic Positioning, Cambridge University Press, 233 242 (2015). [xi] Ibid. [xii] Ibid. [xiii] S.V. Joshi v. State of Karnataka (2002) 7 SCC 1. [xiv] Ibid. [xv] Ibid.
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