Expected Role of Law and Lawyers

The inclusion of matters that might affect the public at large but do not necessarily relate to the protection of fundamental rights of the disadvantaged leads to its misuse

By Priya Hingorani

The principle of separation of powers essentially refers to the division of power among the three branches of government, namely, executive, legislature and judiciary. The areas of responsibility of each branch or organ have been set forth in the Constitution, along with a robust system of check and balances. In contrast to other jurisdictions such as the US, the Indian Constitution does not, however, contemplate a strict separation of powers. As a consequence, there may be overlap of certain functions among the various organs of the state. The nature and scope of the doctrine of separation of powers as applied to the Indian context has been the subject of numerous judicial decisions. The principle that emerges there from is that while each branch at times also performs other functions, the taking over of an essential function of another branch is prohibited so as to preserve the accountability of each branch of government.

Let us now consider the role of the judiciary, which has extensive powers of review over the acts of the executive and the legislature that include an examination of the constitutional validity of such acts. The power of judicial review has been held by the Supreme Court to form part of the basic structure of the Constitution and thus not amenable to amendment by Parliament. Over the years, the scope and ambit of judicial review in India has been enhanced almost beyond recognition, the beginnings of which may be traced to the initiation of Public Interest Litigation (PIL) in India.  

PIL is a unique jurisprudence that was conceived and initiated in 1979 with Hussainara Khatoon’s case (popularly known as the under trial Prisoners’ Case). This case was filed by my late parents, Nirmal Hingorani and Kapila Hingorani, then practicing lawyers in the Supreme Court of India, pro bono publico on the basis of newspaper articles published in the Indian Express. The articles highlighted the pitiable conditions of prisoners languishing in jail in the state of Bihar without trial for cruelly long periods often for simple offences such as ticketless travel. The petition was filed by my parents to secure the release of under trial prisoners who were unknown to them, thereby departing from the traditional requirement of locus standi, and was based on a novel interpretation of Article 32 of the Constitution which guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of fundamental rights. This case resulted in the Supreme Court reading the right to speedy trial as being an integral part of the fundamental right to life and liberty contained in Article 21 of the Constitution, and to the immediate release of about 40,000 under trial prisoners across the country.

Hussainara Khatoon’s case started the trend of reading new implied fundamental rights as part of Articles 14, 19 and 21 of the Constitution, which was followed by the Court in subsequent PIL cases. This has had an immense mobilizing effect throughout the country with innumerable PIL petitions being filed by public spirited citizens. Over time, PIL has developed into an extremely effective remedial jurisprudence and has made courts truly accessible to the disadvantaged and weaker sections of society. 

Furthermore, given the purpose of PIL to protect the fundamental rights of the marginalized lacking access to courts, the expansion of the judicial role to that extent does not impinge upon the principle of separation of powers. This is so even where the Court gets involved in policy issues, or frames guidelines where none exist such as in Vishaka’s case relating to sexual harassment at workplace. As has been pointed out by judges on several occasions, the attention being given by the judiciary to PIL is not prompted by ambitious notions of judicial activism but by the necessity of the situation owing to the inaction or failure of the other branches of government.

Be that as it may, it is true that the scope of PIL as it exists today has been considerably enlarged and is no longer limited to its original purpose. The inclusion of matters that might affect the public at large but do not necessarily relate to the protection of fundamental rights of the disadvantaged has led to its misuse, amid allegations of judicial overreach. It is imperative that such misuse is checked through the collective efforts of lawyers (by not filing frivolous PIL matters or those that do not strictly pertain to basic human rights of the marginalized) and of judges (by promoting judicial restraint and entertaining only those PIL matters aimed at protecting the rights of those who lack access to justice on account of poverty or other disability). Otherwise, the resultant lapse in constitutional accountability would lead to a violation of the concept of separation of powers.

(Author is a Senior Advocate at the Supreme Court of India. Views expressed above are completely personal)