Later writers on Public Interest Litigation (PIL) have emphasised the discourse of indigeneity and decolonisation to establish the status of the PIL as a “distinctly Indian” legal phenomenon, arguing, for instance, that the PIL “has cut the umbilical cord between the Indian legal system and its mentor systems in the ‘white’ common law world” and that it “entails reconceptualisation of the role of judicial process in at least the Third World societies”. This culturalist manoeuvre to justify the need for the PIL as a peculiarly Indian achievement is part of its enduring appeal.
The need for a truly “Indian” jurisprudence achieved through a gesture as grand as the PIL had not always existed. In 1968, the most well known American commentator on Indian law, Marc Galanter, was struck by the fact that for Indian legal professionals, modern Indian law is “notwithstanding its foreign roots and origin...unmistakably Indian in its outlook and operation”. Indira Gandhi’s assault on the Indian judiciary in the early 1970s tried to undo such a consensus.
She used the indisputable fact of the relative lack of access to Indian legal institutions to delegitimise the higher judiciary.
Soon after the Emergency was declared, Gandhi derided the Indian legal system, saying, “We have adopted the Anglo-Saxon juridical system, which often equates liberty with property [inadequately providing] for the needs of the poor and the weak.”
In 1973, the Expert Committee on Legal Aid, chaired by a recent appointee to the Supreme Court, Justice Krishna Iyer, submitted a report commissioned by the government that “viewed itself as a radical critique of Indian legal arrangements” and spoke glowingly of nyaya panchayats as part of a larger scheme of legal aid and access to the courts. The follow-up Emergency era “Report on National Juridicare: Equal Justice – Social Justice” was headed by Justice PN Bhagwati.
This report argued that “panchayats would remove many of the defects of the British system of administration of justice, since they would be manned by people with knowledge of local customs and habits.” Galanter would later reflect on how these visions of paternalistic indigenous justice, published during the 1975-77 Emergency, provided the basis for future developments like the PIL. As he recounted in 2004, “In the Krishna Iyer and Bhagwati reports, the imagery of indigenous justice was combined with celebration of conciliation and local responsiveness under the leadership of an educated outsider.”
In an essay written a few years after the Emergency, Upendra Baxi described the role these two judges, later the chief architects of the PIL, had played as “legitimators of the [Emergency] regime”:
“During the 1975-76 [E]mergency, legal aid to the people was one of the key points of the 20- programme launched by Indira Gandhi, to which Justices Krishna Iyer and Bhagwati, themselves deeply committed to the spread of the legal aid movement, readily responded. They led a nationwide movement for the promotion of legal services. They organised legal aid camps in distant villages; they mobilised many a High Court justice to do padayatras (long marches) through villages to solve people’s grievances. They, through ‘camps’ and lok adalats (people’s courts), sought to provide deprofessionalised justice. They also in their extracurial utterances called for a total restructuring of the legal system, and in particular of the administration of justice. In a sense, their movement constituted a juridical counterpart of the 1971 Garibi Hatao (eliminate poverty) campaign, as well as of the 20-Point Programme.”
The 42nd Amendment to the Constitution, which was introduced during the Emergency, contained a new Directive Principle titled “equal justice and free legal aid”. It read:
“The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.”
Legal aid was to be the means to mitigate the expense and the general lack of access to courts – by making legal aid itself into a directive principle.
However, while legal aid ordinarily ought to have provided access to legal services in courts at a cost borne by the state, what instead transpired in post- Emergency India was that the legal process itself was selectively transformed, ostensibly to make it easier for people to access the court. Tribunals were created in various arenas as replacements to regular courts.
While legal aid was meant to make access to lawyers less expensive or free, it was decided instead that the judicial apparatus would be transformed to make it so accessible that people could approach them directly. Dr Rajeev Dhavan saw in this trend a desire “to design alternative structures, processes and normative understanding to show a far greater proximity to notions of law and justice in civil society.”
The principal means of solving this problem of judicial access was through institutional changes: at the lowest level, by creating lok adalats, or “people’s courts”; at the intermediate level, by creating tribunals with non-lawyers at the helm; and at the highest level, by innovating the concept of PIL. Legal technicalities, the colonial nature of the Indian legal system and complicated procedures were seen as the principal problems plaguing the system. Law itself, or rather, legal procedure – especially the standard adversarial nature of legal proceedings – was perceived as the enemy of access to justice.
Thus began, as Marc Galanter and Jayanth Krishnan have argued, the phenomenon of “debased informalism” in Indian law. While legal aid was neglected and poorly funded, these other institutional innovations were widely adopted.
It was not as if informal non-state institutions were given power. What happened instead was that state institutions themselves were transformed and made to behave according to inchoate ideas of what informal “traditional” institutions were like. The state’s legal institutions were now set to mimic their fantasy of what they imagined an informal institution would look like.
Anticipating and leading this trend, during the Emergency both Justices Krishna Iyer and Bhagwati “called for thoroughgoing judicial reforms, minimising reliance on foreign models of adjudication, including the system of stare decisis. They advocated a return to ‘swadeshi’ jurisprudence including justice by popular tribunals.” Justice Bhagwati spoke of the Indian judicial system as being ill-suited to “a country where the majority lived in villages and was ignorant of its legal right”.
Here, we see another symptom of what Sudipta Kaviraj has diagnosed as the crisis of institutions in India during that period:
“Legitimacy of institutional power was increasingly giving place to a legitimacy of individuals; and perhaps still more significant, the new rhetoric of socialism, indiscriminately used by nearly all political forces, signified something often fatally misunderstood. Socialist rhetoric often gave a respectable cover for the re-emergence of an essentially pre-capitalist alphabet of social action. It looked upon impersonal rules and application of rationalistic norms with derision, as forms of ‘bourgeois’ fastidiousness.”
Excerpted with permission from Courting the People: Public Interest Litigation in
Post-Emergency India, Anuj Bhuwania, Cambridge University Press.
Anuj Bhuwania is a lawyer and an anthropologist. He currently teaches at South Asian University, New Delhi.