Book Review: Courting The People: Public Interest Litigation In Post-Emergency India By - Anuj Bhuwania

In order to understand the significance and strengths of the book it is essential to first know the methodology adopted by Anuj Bhuwania for this book. Critical discourse analysis in the domain of legal and judicial aspects is clear since Bhuwania is a lawyer by training. He does a qualitative analysis of the cases discussed in the book and does ethnographic work including interviews with multiple stakeholders, judges, journalists etc. This book is vital to read to understand the discourse of PIL since most literature around it is set from a particular normative stance whereas this book gives the readers a flipside idea of PILs. The book gives an account of the development of PILs in the Indian Judicial system, even though the book is not a handbook on PILs, it does give a comprehensive explanation for sure. This book is an account of two major PIL cases which are essential for the understanding of PILs, and the author gives a very detailed and simplified account of the same. The book presents a picture of the interplay of the law and politics in the context of PILs because of their protean nature of them.

The narrative and key ideas of the book emerge post the emergency era, the court had to regain its legitimacy because of the various issues of abuse of its power by the parliament. Also, how it became an agent of the parliament rather than an independent safeguard of the Indian constitution and its citizens. PILs thus became a tool for the “exorcism of its guilt” as referred to by Bhuwania to compensate for the habeas corpus case which is considered the lowest point in the history of the Indian Judiciary. PIL emerged through the late 1970s and early 1980s as an attempt to seek legitimacy back from the people. Bhuwania also offers the idea of how PILs were not a white-washed legal construct but an Indian conception with features unique to the Indian paradigm, as an attempt to mitigate the expense and accessibility of the courts.

After laying the foundation of these ideas Anuj builds his argument on how public interest litigations gained an ideological disposition which then would change the entire debate around it. Bhuwania moves on to argue about the ideological concerns about how there a neo-liberal turn in the entire debate around the PILs has been and how there is a lack of compliance and issues of keeping a check on the power of the courts.

In the next chapter- The case that felled the city we are confronted with the dilemma of welfare, procedure, and judicial intervention. The distinction between the ideological and material realms became relevant with the sealing case. It raised a concern of elitism in the Indian Judicial system, while there were allegations of it being called anti-poor.

In the consecutive chapter-Public Interest Litigation as a Slum Demolition Machine

while the idea of PILs is to offer representation to the under-represented people of the society in courts but the slum-dwellers who were forced out due to a certain case are under the garb of PIL. The court's language suggests that the occupation of public land is unlawful and needs to be resolved. However, the court has overlooked any comprehensive examination of this particular situation and instead relied on precedents and laws created for slum inhabitants. This is despite the fact that the writer claims that the state agency's failure to act is the direct cause of the illegal land occupation. Bhuwania argues about the ideas of populism in the context of PILs, he asserts that the changes in procedure, which were made with the belief that procedures are less important than achieving social justice or serving the public good, are more to blame for the wrongdoings of the higher courts than any ideological or political changes in India as a whole. To summarize the impact of the cases and to present a final argument Bhuwania presents the idea of good and bad judges. The critique is viewed from various lenses on the institution, consequentiality etc. offer a structural idea to the issues. He weighs in the aspect of how the procedural boils down to the political and policy domain and the multidimensional impact of judicial activism and intervention.

Law, Politics and Policy; how does the book fit into this domain? Bhuwania’s book offers a fresh perspective on the ideas of rule of law and how the court’s power has a scope of expansion which can have an imbalance in the entire political domain. The interventionistic regime of the courts comes across an idea relevant to our discussion around the law and policy sphere. He also argues the idea of elitism that has taken off the entire social action litigation mechanism. The increasing judicialization of mega-politics does have a rising concern. PILs are often considered a flagship initiative for social justice but based on the case studies under consideration we can comprehend the rather opposite impact on various people belonging to the marginalized or underprivileged sections of society. The distinction between law and politics tends to blur which in turn has an impact on the policy sphere.

While the book has made for itself a permanent place in the literature around judiciary, judicial activism and PILs, one major issue with his ideas on PIL jurisdiction is that Bhuwania primarily talks about the cases pertaining to New Delhi. Thus, the entire book is from an urban lens. He does not pay heed to the judicial issues, and/or accomplishments as discussed in class like the Vishakha Case which laid the foundations for laws to safeguard women in the workplace. There is almost a negligent sense towards the PIL ecosystem apart from a Delhi-centric idea. Also, the cases under consideration were the ones which have an impact of a larger magnitude, but not all cases have the same impact thus lacking a comprehensive approach. The book is written in a way which includes multiple quotes and ideas of various individuals involving a language of high-level legal jargon, both these issues making the book a slightly straining read. The book has a scope of being a part of a multi-series publication which could include more such cases and instances giving it a wider reach and a higher scope of expansion.

To conclude, the book puts forth a bold argument that challenges the traditional perspective of the judiciary and legal system. It thoroughly examines the concept of PIL, shedding light on its origins and current understanding among the masses. Bhuwania argues that the issue with the PIL approach is not its departure from traditional procedures in general, as the procedure is shaped by history and politics. Rather, the problem lies in the procedures created by PIL, which undermine the power of the public. Furthermore, Bhuwania emphasizes that while it may be tempting to adopt departures from traditional models of judicial review or procedure, such as the Anglo-Saxon model, simply for their novelty, it is important to exercise caution and not celebrate such departures blindly. A question that still budges after the reading of this book is if not PIL then what can be an appropriate alternative, despite the issues and controversies around PIL it is still an integral part of the Judicial system and essential for judicial activism. The idea here is that there is a need for reflection upon its role and this book does an exceptional job of giving that analysis.

The author is a Masters Student at Jindal School of International Affairs

References

Bhuwania, A. (2017). Courting the People: Public Interest Litigation in Post-Emergency India. Cambridge University Press.

ORF. (n.d.). The Indian judiciary @ 75: A crucial pillar of democracy. https://www.orfonline.org/. https://www.orfonline.org/expert-speak/the-indian-judiciary-75-a-crucial-pillar-of-democracy/

Frontline. (2009, February 26). Analysing activism. https://frontline.thehindu.com/other/article30183798.ece

Dressel, B. (2012). The Judicialization of Politics in Asia. Routledge.