INTRODUCTION OF EPISTOLARY JURISDICTION BY THE SUPREME COURT IN

INDIA: HOW FAR SUCCESSFUL

SUBJECT: LAW & JUSTICE IN THE GLOBALIZED WORLD

SUBMITTED BY: ANIRUDH SUJORIA

ROLL NO. - 04
TRIMESTER - I

SUBMITTED TO: DR. DEEPAK DAS

(FACULTY OF LAW & JUSTICE IN THE GLOBALIZED WORLD)

SUBMITTED ON: SEPTEMBER 30, 2016

HIDAYATULLAH NATIONAL LAW UNIVERSITY

NAYA RAIPUR, CHHATTISGARH
 ACKNOWLEDGEMENTS

I would like to place on record a special thanks to Dr. Deepak Das, faculty of Law
& Justice in the Globalized World, for his personal care, timely suggestions,
critical evaluation and creative guidance throughout this project research and with
whose help the practical realization of this project has been possible.

The other person I owe a great deal of gratitude is to the Vice Chancellor of this
University, Dr. Sukhpal Singh for providing extensive database resources in the
Library and through internet.

Some printing errors might have crept in, which are deeply regretted. I would be
grateful to receive comments and suggestions to further improve this project
report.

ANIRUDH SUJORIA
Roll No. 04
Trimester I
Batch – X

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 TABLE OF CONTENTS

ACKNOWLEDGEMENTS ……………………………………………………………………..2

TABLE OF CONTENTS ........................................................................................................... 3

LIST OF ABBREVIATIONS & ACRONYMS .............................................................................. 4

TABLE OF CASES .................................................................................................................. 5

INTRODUCTION ...................................................................................................................... 6

O BJECTIVES ......................................................................................................................... 7

RESEARCH M ETHODOLOGY ................................................................................................. 8

EPISTOLARY JURISDICTION OF SUPREME COURT........................................................................ 9

ORIGIN AND DEVELOPMENT OF PIL IN INDIA .......................................................................... 12

THE DEBATE OVER THE LABEL: PIL OR SOCIAL ACTION LITIGATION......................................... 15

EPISTOLARY JURISDICTION AND THE ROLE OF JUDGES.............................................................. 16

PROBLEMS REGARDING THE EXERCISE OF EPISTOLARY JURISDICTION ....................................... 17

CRITICAL EVALUATION OF EPISTOLARY JURISDICTION IN PRESENT SCENARIO ............................ 20

CONCLUSION........................................................................................................................ 23

BIBLIOGRAPHY..................................................................................................................... 25

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 LIST OF ABBREVIATIONS & ACRONYMS
AIR…………………………………………………………...................All India Reporter
CBI………………………………………………….……….Central Bureau of Investigation
CFD………………………………………………...……….…….Citizens for Democracy
DOC…………………………………………………..…………...…………….……….Document
Edn………………………………………………..…………..…………………….Edition
FR………………………………………………...…………………….Fundamental Right
NGO……………………………………………..………Non-Governmental Organization
PIL……………………………………………..……………...…Public Interest Litigation
SAGs…….………………………………………………………..…Social Action Groups
SAL……………………………………………………………….Social Action Litigation
SC…………..……………………………………………………....………Supreme Court
SCC…………………………………………………………………..……...Supreme Court Cases
SCR………………………………………………………………….……..Supreme Court Report
UN……………..………………………………………………...…….…….United Nation
UP……………………………………………………………………..………..……Uttar Pradesh
USA………………………………………………………………………United States of America
WP………………………………………………………………………….………….Writ Petition
www……………………………………………………………...….…..World Wide Web

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 TABLE OF CASES
1. Bandhua Mukti Morcha v. Union of India, (1984) 4 SCC 161.
2. Council for Environment Legal Action v. Union of India, (1996)5 SCC 281
3. Chinnamma Sivdas v. Delhi Admn., WP 2526/1982.
4. D.K. Basu v. State of West Bengal,(1997) 1 SCC 416, AIR 1997 SC 610
5. Fertilizer Corporation Kamgar Union v. Union of India, AIR 1981 SC 149, (1981)
1 SCC 568
6. In Re S. Mulgaonkar, AIR 1978 SC 727
7. Judges Transfer Case, AIR 1982, SC 149
8. Kadriya Pahadiya v. State of Bihar, WP 5943/1980
9. Krishna Swami v. Union of India, (1992) 2 SCC 341.
10. Maneka Gandhi v. Union of India, AIR 1978 SC 597.
11. Marbury v. Madison, 5 U.S. 137 (1803)
12. M.C Mehta v. Union of India, (1988) 1 SCC 471
13. Mumbai Kamgar Sabha v. Abdulbhai, (1976) 3 SCC 832
14. Peoples Union of Democratic Rights and other v. Union of India, 1982 AIR 1473,
1983 SCR (1) 456
15. Rangadurai v. Gopalan, Civil Appeal No.839 of 1978.
16. Sheela Barse v. Union of India, (1988) 4 SCC 233.
17. Shiram Food & Fertilizer case, AIR (1986) 2 SCC 176
18. Sunil Batra v. Delhi Administration, (1978) 4 SCC 409
19. T.M.A. Pai Foundation & Ors. v. State of Karnataka, (2002) 8 SCC 481
20. Upendra Baxi v. State of UP, 1981 (3) SCALE 1136.
21. Unnikrishnan P. J. And Others. v. State of A. P. And Others, A.I.R. 1993 SC 2178
22. Vishakha v. State of Rajasthan, 1997 (6) SCC 241

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 INTRODUCTION
“Injustice anywhere is a threat to justice everywhere”
-Martin Luther King, Jr.
Till 1960s and 70’s, the concept of litigation in World was still in its rudimentary
form and was seen as a private pursuit for the vindication of private vested interests.
Litigation in those days consisted mainly of some action initiated and continued by
certain individuals, usually, addressing their own grievances/problems. Thus, the
initiation and continuance of litigation was the prerogative of the injured person or the
aggrieved party. Even this was greatly limited by the resources available with those
individuals. There were very little organized efforts or attempts to take up wider issues
that affected classes of consumers or the general public at large.
However, with the emergence of the concept of Judicial Activism in USA during
18th century, it gave all together a different approach to the Litigation. Also in the same
line the Supreme Court of India established the principle of judicial activism in India.
The Apex Court gave all individuals in the country and the newly formed consumer
groups or social action groups, an easier access to the law and introduced in their work a
broad public interest perspective.
Along with the development of Judicial Activism, the concept of Epistolary
Jurisdiction came into existence. The concept of “Epistolary Jurisdiction” is one of the
most important innovations in the Indian Judicial process. It emerged in the late seventies
of the twentieth century in response to the need to make judicial process more accessible
to poor, down trodden, socially and economically disadvantaged section of the Society. It
is primarily the judges of the higher judiciary who have innovated the concept of
epistolary jurisdiction or in layman’s terms ‘Public Interest Litigation’ through Judicial
Activism while exorcizing the jurisdiction for dispensing judges to the poor and
downtrodden.
The concept of Judicial Activism came into prominence in India during the
second half of the twentieth century. During this period the Doctrine of Judicial Review
had assumed a new complexion, which is popularly known as Judicial Activism. The old
orthodox and mechanistic theory that a judge never creates law and only declares law has
been replaced by the concept of Judicial Activism. Thus, the Judicial Activism opened up

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new dimension for the judicial process and has given a new hope to the justice- starved
millions opening scope of judicial redress to the hitherto before passive suffers.
Along with the development of Judicial Activism and the concept of epistolary
jurisdiction, the concept of Public Interest Litigation (PIL) came into existence. The
concept of Public Interest Litigation had its origin in the American legal system during
the period of 1960’s.1 It has now been recognized in many parts of the world. The seed of
Public Interest Litigation was initially was sown in India by Justice Krishna Iyer in 1976
in Mumbai Kamgar Sabha v. Abdulbhai 2 . In that judgment Justice Iyer did not use the
terminology ‘Public Interest Litigation’. But in Fertilizer Corporation Kamgar Union v.
Union of India3 , the terminology ‘Public Interest Litigation’ was used by Justice Iyer. In
this judgment he used the expression ‘epistolary jurisdiction’. 4 The Hon’ble Supreme
Court held that the procedure had to be relaxed to meet the ends of justice.
This project would give the insights in furtherance of Epistolary Jurisdiction by
Supreme Court in India since the inception of the concept.

OBJECTIVES
1) To deal with the evolution of Epistolary Jurisdiction in India.
2) To deal with the evolution of the concept Judicial Activism and PIL System in India.
3) The project seeks not only to understand the role of the bar and the bench in
exercising the epistolary jurisdiction in India but also examine in brief its basis and
the historical context in which it arose.

1 http://www.lawctopus.com/academike/importance-public-interest-litigation-india/, Accessed on 20th

September, 2015
2 (1976) 3 SCC 832
3 AIR 1981 SC 149, (1981) 1 SCC 568
4 Mumbai Kamgar Sabha v. Abdulbhai, (1976) 3 SCC 832: AIR 1976 SC 1455

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 RESEARCH METHODOLOG Y
The research method adopted for the purposes of this project is one which is doctrinal
and analytical in nature. It is doctrinal to the extent that it calls out the legal principles as
enunciated in judgments. It is analytical in the sense that it seeks to go beyond
pronouncements and see the nature and varied role that lawyers and judges have played
in enforcing epistolary jurisdiction.

Legal provisions (procedural and substantive laws), books, reports, journals and other
reference as guided by Faculty have been primarily helpful in giving this work a firm
structure. Websites, dictionaries and web articles have also been referred.

Footnotes have been provided wherever needed, either to acknowledge the source or to
point to a particular provision of law. Uniform Bluebook (19th ed.) citation format has
been followed for footnoting.

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 EPISTOLARY JURISDICTION OF SUPREME COURT
Although not being covered by any of the Article of the Constitution of India, the
Supreme Court did not sit idle when called on for exercising its inherent power
manifested through Epistolary Jurisdiction to uphold the Human Rights of the poor. This
has its qualifying characteristics from the jurisdiction known as ‘Suo moto’ so also Public
Interest Litigation (PIL). On being apprised through any means either through newspaper
feature or news item, from a letter, even transcript upon a postcard, telegram or by an oral
information laid before the Judge, the superior Court may exercise such jurisdiction
which meanwhile styled as Epistolary Jurisdiction. 5 The adjective Epistolary6 has its
genus in the word Epistle meaning thereby any of the letters in the new testament of the
Bible and as such the adjective Epistolary generally manifest an expression made in the
form of letter. Through a letter this jurisdiction of the higher judiciary can be invoked but
certainly that must be connected with the question of upholding Human Rights.
The Indian constitution in its Article 39A empowered the High Courts of India to
exercise Epistolary Jurisdiction which provides Equal Justice and free Legal Aid. It
says:
“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”.

Alike Indian constitution Article 39A, the Pakistan constitution of 1973 in its
Article 184 provides that notwithstanding anything contained in Article 199, if it
transpires to the Supreme Court that necessary action must be taken in respect of
upholding fundamental rights involved in a case relating to public interest the court may
pass any order.7 Relying upon such power the Supreme Court of India in a number of
cases acted on non-formal petition specially letters sent to the court by any person or
organization engaged in the cause of upholding Human Rights, treating the letter as writ

5 ibid
6 http://www.merriam-webster.com/dictionary/epistolary, Accessed on 19th September, 2016
7 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1984583, Accessed on 19th September, 2015

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petition one of such is the case of Bandhua Mukti Morcha vs Union of India 8 . The
hurdle the petitioner had to face initially in this case is the question of ‘Locus Standi’ of
the Bandhua Mukti Morcha as it appeared that the said organization not being directly
aggrieved with the time old bonded labor system not entitled to invoke the writ
jurisdiction of the Supreme Court even though formal petition not to speak of through
informal letter. Their Lordship examined the relevant Provision of Article 32 of the
Indian constitution and found that no specific method of proceeding has been provided in
invoking the writ jurisdiction of the Indian Supreme Court and as such the Supreme
Court of India is empowered to initiate writ proceeding either though formal or non-
formal petition. So far the question of ‘Locus Standi’ of Bandhua Mukti Morcha was
raised, the court found that organization long engaged in upholding the interest of a class
of people who have little access to justice due to monetary disability is entitled to initiate
writ proceeding by way of informal petition since the organization can’t be compelled to
expand money in order to set the ball in motion for the poor people with monetary
disability.
Earlier in the case of Peoples Union of Democratic Rights and other vs Union of
India9 , and Sheela Barse vs the State of Maharastra 10 and in many other cases after the
case of Bandhua Mukti Morcha, the Supreme Court of India not only recognized the
Epistolary Jurisdiction of the superior courts of India but also made this informal way of
initiation of writ proceeding in the Supreme Court institutional, especially when the
question of upholding the Human Rights of poor came before the court.
One of such celebrated case was Sunil Batra vs Delhi Administration 11 in which
their Lordship of Supreme Court Mr. Justice V.R. Krishna Iyer, Mr. Justice R.S. Pathak
and Mr. Justice Chinnappa Reddy categorically opined that mere technically cannot be
bar in initiating writ proceeding when the same involves a ‘Habeas Corpus’12 matter.
There lordship specifically expressed the view that the court shall uphold the human
rights of the prisoner by exercising its writ jurisdiction when information reaches the
court by any manner. In this case Sunil Batra, being a co-prisoner in Tihar jail witnessed

8 (1984) 3 SCC 161, AIR 1984 SC 802

9 1982 AIR 1473, 1983 SCR (1) 456
10 (1988) 4 SCC 233
11 (1978) 4 SCC 409
12 https://www.law.cornell.edu/wex/habeas_corpus

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one incidence of torture committed by a jail warden in order to extort money from the
concerned prisoner in which the warden pocked a button through the anus of the prisoner.
Sunil Batra managed to send a letter to one of the Judge of the Supreme Court upon
which writ proceeding was initiated.13
The galaxy of opportunity that has appeared from this new innovation in the
jurisprudence has not yet been adequately exploited. The people or class of people having
monetary disability have little access to justice which becoming more costlier due to the
rise in rate of fees charged by the learned Advocates of the Supreme Court. A detained
rickshaw puller has no ability to approach a lawyer of the Apex Court to uphold his
human right in obtaining the constitutional guarantee to be treated only in accordance
with law if he is never brought before the court. The correct exploitation of the Epistolary
Jurisdiction of the superior judiciary could be an instrumental to uphold the Human
Rights of such persons.
But to talk about informal way of invoking writ jurisdiction of the superior court
does not mean to avoid all the age old procedure of the system. It has already been settled
in Indian jurisdiction that even if the Epistolary Jurisdiction is available to an appropriate
petitioner the formal system of proceeding of writ must be followed where it is possible
to follow. The Chief Justice of India in the year 1986 formulated a number of principle to
be followed in exercising Epistolary Jurisdiction which is now being under follow in the
Indian jurisdiction which is worth to mention;

1. To invoke Epistolary jurisdiction informal petition by way of letter, telegram or

by laying information before the court must be addressed to the court and not to a
particular Judge.
2. Informal petitions containing allegation regarding violation of human rights
should only be treated as writ petition when such informal petition is preferred on
behalf of socially in advanced people or class of people when such people or class
of peoples suffers from any sort of disability monetary of physical especially
when such person is a detainee.

13 Ibid

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 3. There should be a public distress cell within the Supreme Court administration,
which will consider these informal petitions and send the same to the appropriate
bench for consideration of the same as writ by the Judges on their leave.
4. When any such informal petition on behalf of people in taken as writ, general
notification in the newspaper must be made allowing impleading parties in the
writ either in favor or against the cause.
5. The court shall appoint amicus curiae in the case and on public hearing decide the
matter.
6. If any of the Judge desires to act on any information published in the newspaper
he must act through the Chief Justice.

Although the CJI has formulated guidelines which should be followed in letter
and spirit still then at some times it can be seen that proper justice can’t be delivered in
due course of time. Hence the purpose of introducing epistolary jurisdiction seems
defeated. Such recognition must first come from the Judges of this august institution prior
to which a change in mind set should occur to some of the Judges who are too acquainted
with formal procedure of the court and reluctant to even step beyond technicality. The
desire to render Justice to the oppressed should be the only measure stick whether
Epistolary Jurisdiction should be exercised in future to uphold the Human Rights of the
poor in India.

ORIGIN AND DEVELOPMENT OF PIL IN INDIA

To strengthen the judiciary and to establish the principle of equity, justice and
good conscience and to help the downtrodden people to reach the doors of justice; the
concept of Judicial Activism was originated in USA in the case of Marbury v.
Madison.14 Over the passage of time this concept is spread throughout the world. As a
matter of fact, new concept of ‘PIL’ was originated in the United States in the mid-1980s.
Since the nineteenth century, various movements in that country had contributed to
public interest law, which was part of the legal aid movement. In the 1960s the PIL

14 5 U.S. 137 (1803)

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movement began to receive financial support from the office of Economic Opportunity.
This encouraged lawyers and public spirited persons to take up cases of the under-
privileged and fight against dangers to environment and public health and exploitation of
consumers and the weaker sections.
Under the Indian law, Public Interest Litigation means litigation for the protection
of public interest. It is litigation introduced in a court of law, not by the aggrieved party
but by the court itself or by any other private party. It is not necessary, for the exercise of
the court's jurisdiction, that the person who is the victim of the violation of his or her
right should personally approach the court. Public Interest Litigation is the power given
to the public by courts through judicial activism. Such cases may occur when the victim
does not have the necessary resources to commence litigation or his freedom to move
court has been suppressed or encroached upon. The court can itself take cognizance of
the matter and precede suo motu15 or cases can commence on the petition of any public-
spirited individual.
PIL’s explicit purpose is to alienate the suffering off all those who have borne the
brunt of insensitive treatment at the hands of fellow human being. Transparency in public
life & fair judicial action are the right answer to check increasing menace of violation of
legal rights. Traditional rule was that the right to move the Supreme Court is only
available to those whose fundamental rights are infringed. But this traditional rule was
considerably relaxed by the Supreme Court in its recent rulings.
In Peoples Union for Democratic Rights v. Union of India 16 , the court now
permits Public Interest Litigation or Social Interest Litigation at the instance of “Public
spirited citizens” for the enforcement of constitutional & legal rights of any person or
group of persons who because of their socially or economically disadvantaged position
are unable to approach court for relief. Public interest litigation is a part of the process of
participate justice and standing in civil litigation of that pattern must have liberal
reception at the judicial door steps.

15 Suo Motu v. State of Rajasthan

16 A.I.R. 1982, S C 1473

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 In the Judges Transfer Case17 , Court held Public Interest Litigation can be filed
by any member of public having sufficient interest for public injury arising from
violation of legal rights so as to get judicial redress. This is absolutely necessary for
maintaining Rule of law and accelerating the balance between law and justice. It is a
settled law that when a person approaches the court of equity in exercise of extraordinary
jurisdiction, he should approach the court not only with clean hands but with clean mind,
heart and with clean objectives.
In Shiram Food & Fertilizer case18 , the court through Public Interest Litigation
directed the company manufacturing hazardous & lethal chemical and gases posing
danger to life and health of workmen to take all necessary safety measures before re-
opening the plant.
In the case of M.C Mehta V. Union of India19 , In Public Interest Litigation
brought against Ganga water pollution, so as to prevent any further pollution of Ganga
water, the Supreme Court held that petitioner although not a riparian owner is entitled to
move the court for the enforcement of statutory provisions, as he is the person interested
in protecting the lives of the people who make use of Ganga water.
During the last few years, Judicial Activism has opened up a new dimension for
the judicial process and has given a new hope to the millions who starve for their
livelihood. There is no reason why the Court should not adopt activist approach similar to
Court in America, so as to provide remedial amplitude to the citizens of India. Supreme
Court has now realized its proper role in welfare state and it is using its new strategy for
the development of a whole new corpus of law for effective and purposeful
implementation of Public Interest Litigation. Public Interest Litigation has proved a boon
for the common men. By relaxing the scope of PIL, Court has brought legal aid at the
doorsteps of the teeming millions of Indians; which the executive has not been able to do
despite a lot of money is being spent on new legal aid schemes operating at the central
and state level. Supreme Court's pivotal role in expanding the scope of Public Interest
Litigation as a counter balance to the lethargy and inefficiency of the executive is
commendable.

17 AIR 1982, SC 149

18 AIR (1986) 2 SCC 176
19 (1988) 1 SCC 471

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 THE DEBATE OVER THE LABEL: PIL OR SOCIAL ACTION LITIGATION
Given that the birth of PIL in India was connected to the evolution of PIL in the
United States, it was natural for scholars to draw comparisons between the US experience
and the Indian experience.20 One result of this comparison was that it was argued that PIL
in India should be labeled as social action litigation (SAL). Upendra Baxi was the key
scholar who mooted for such indigenous labeling of PIL because of its distinctive
characteristics. He contended that whereas PIL in the United States has focused on ‘‘civic
participation in governmental decision making’’, the Indian PIL discourse was directed
against ‘‘state repression or governmental lawlessness’’ and was focused primarily on the
rural poor. Writing in the early 1980s, Baxi highlighted another contrast: that unlike
India, PIL in the United States sought to represent ‘‘interests without groups’’ such as
consumerism or environment.21
At least two comments could be made about the desire to designate PIL as SAL.
First, the term ‘‘social action’’ probably implied the role that law could/should play in
social engineering. However, considering that in PIL cases judges (rather than the
legislature) play a key role and the law is judge-made law, one should not over-estimate
what courts could deliver through PIL/SAL in a democracy. No doubt, courts could help
in providing an official recognition to the voices of minorities or destitute that might be
ignored otherwise, but it would be unrealistic to expect that they could achieve social
transformation on their own.
Secondly, the character of the PIL in India has changed a lot in the second phase
in that now it is not limited to espousing the interests of disadvantaged sections of society
or to redressing state repression and governmental lawlessness. In fact, in the second
phase, the focus of PIL in India has shifted from poor to the middle class and from
redressing state exploitation of disadvantaged groups to pleas for civic participation in
governance. Although there are still differences between how the PIL jurisprudence has
unfolded in the United States and India, the distinction as to the subject-matter or the

20 See, e.g. Cunningham, ‘‘Public Interest Litigation in Indian Supreme Court’’ (1987) 29 Journal of Indian
Law Institute 494.
21 Baxi Upendra, Taking Suffering Seriously, Journal of Third World Legal Studies, 1985

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basic objective of the PIL is not that much as it used to be when an argument was made
to label PIL as SAL.

EPISTOLARY JURISDICTION AND THE ROLE OF JUDGES

A striking feature of Epistolary Jurisdiction is that it is primarily judge-led and
even judge-induced. And it is in turn related to juristic and judicial activism on the High
Bench. Many Justices have, on and off the bench, advocated active assertion of judicial
power to ameliorate the miseries of masses. Although the active, almost explosive,
assertion of judicial power in the aid of the dispossessed and the deprived began in the
aftermath of the emergency, judicial populism had become pronounced even before the
emergency, particularly in the great decisions in Golak Nath and Kesavananda Bharati
case.22
The judges have countered theories that PIL action on their part is unwarranted
judicial activism not permitted by the Constitution which has division of powers. Where
the Court embarks upon affirmative action in the attempt to remedy a constitutional
imbalance within the social order, few critics will find that fault with it too so long as it
confines itself to the scope of its legitimate authority. But there is always the possibility,
in public interest litigation of succumbing to the temptation of crossing into territory
which property pertains to the Legislature or to the Executive Government. For in most
cases the jurisdiction of the Court is invoked when a default occurs in executive
administration and sometimes where a void in community life remains unfilled by
legislative action. The resulting public grievance finds expression through social action
groups, which consider the Court an appropriate forum for removing the deficiencies.
Indeed, the citizens seem to find it more convenient to apply to the Court for the
vindication of constitutional rights than an appeal to the executive or legislative organs of
the State.
However judges have also been cautious against the excessive use of PIL and
intervention thereby defeating the purpose of the introduction of Epistolary Jurisdiction

22 R.S.Pathak, “PIL in India”, from Venkat Iyer (ed.), Democracy, Human Rights & the Rule of Law:
Essays in Honour of Nani Palhivala, Butterworths, New Delhi, 2000, p.126.

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in India. The erudite former Chief Justice M.N.Venkatachaliah in landmark case of
Sheela Barse v. Union of India23 has said, “In the process of correcting executive error
or removing legislative omission the Court can so easily find itself involved in policy
making of a quality and to a degree characteristic of political authority and indeed run the
risk of being mistaken for one. An excessively political role identifiable with political
governance betrays the Court into functions alien to its fundamental character and tends
to destroy the delicate balance envisaged in our constitutional system between its three
basic institutions. The Judge, conceived it the true classical mould, is an impartial arbiter,
beyond and above political basis, the prejudice, functioning silently in accordance with
the Constitution and his judicial conscience. Thus does he maintain the legitimacy of the
institution he serves and honour the trust which his office had reposed in him.”
The elevation of Justice Krishna Iyer to the High Bench in 1974 reinforced the tendency
towards judicial populism. He unremittingly insisted that the law is meant for the people
and not the people for the law. He used every conceivable occasion, on and off the bench,
to further the cause of the ‘toiling masses’ and the ‘weaker sections of the society’. He
also indefatigably demonstrated and critiqued the colonial and alienating nature of legal
processes and institutions and crusaded for a radical reorientation of the bench and bar
towards the urgent tasks of development and justice for the Indian masses.’24 Justice
Krishna Iyer enhanced the sensitivity of judges and lawyers to exploitation and suffering
in a way no other Justice of the Supreme Court had ever done.

PROBLEMS REGARDING THE EXERCISE OF EPISTOLARY JURISDICTION

It seems that the misuse of epistolary jurisdiction along with PIL in India, which
started in the 1990s, has reached to such a stage where it has started undermining the very
purpose for which such concept was introduced. In other words, the dark side is slowly
moving to overshadow the bright side of this noble concept.

23
(1988) 4 SCC 233.
24P.N.Bhagwathi, Dimensions of Human Rights, 1st edn, Scoiety for Community Organisation Trust,
Madurai, 1987, p.41.

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 1) Ulterior purpose: When it comes to Epistolary Jurisdiction the first and foremost
thing comes to our mind is the concept of PIL. Now-a-days it seems public in PIL
stands substituted by private or publicity. One major rationale why the courts
supported PIL was its usefulness in serving the public interest. It is doubtful,
however, if PIL is still wedded to that goal. As we have seen above, almost any
issue is presented to the courts in the guise of public interest because of the
allurements that the PIL jurisprudence offers (e.g. inexpensive, quick response,
and high impact). Of course, it is not always easy to differentiate ‘‘public’’
interest from ‘‘private’’ interest, but it is arguable that courts have not rigorously
enforced the requirement of PILs being aimed at espousing some public interest.

2) Inefficient use of limited judicial resources: No doubt in the fact that if

epistolary jurisdiction is properly utilized then it has the potential to contribute to
an efficient disposal of people’s grievances. And also one can’t deny the fact that
same thing also goes for PIL as well. But considering that the number of per
capita judges in India is much lower than many other countries and given that the
Indian Supreme Court as well as High Courts are facing a huge backlog of cases,
it is puzzling why the courts have not done enough to stop non-genuine PIL cases.
In fact, by allowing frivolous PIL plaintiffs to waste the time and energy of the
courts, the judiciary might be violating the right to speedy trial of those who are
waiting for the vindication of their private interests through conventional
adversarial litigation. A related problem is that the courts are taking unduly long
time in finally disposing of even PIL cases. So in using epistolary jurisdiction and
solving the case of PIL the judiciary should be cautious.

3) Judicial populism: Judges are human beings, but it would be unfortunate if they
admit PIL cases on account of raising an issue that is (or might become) popular
in the society. Conversely, the desire to become people’s judges in a democracy
should not hinder admitting PIL cases which involve an important public interest
but are potentially unpopular. It is submitted that courts should refrain from

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 perceiving themselves as crusaders constitutionally obliged to redress all failures
of democracy. Neither they have this authority nor could they achieve this goal.

4) Symbolic justice: Another major problem with epistolary jurisdiction in India is

that it has often dealt with only symbolic justice. Such a thing can only be seen
only in the cases of PIL. Two facets of this problem could be noted here. First,
judiciary is often unable to ensure that its guidelines or directions in PIL cases are
complied with, for instance, regarding sexual harassment at workplace (Vishaka
case)25 or the procedure of arrest by police (D.K. Basu case)26 . No doubt, more
empirical research is needed to investigate the extent of compliance and the
difference made by the Supreme Court’s guidelines. But it seems that the judicial
intervention in these cases have made little progress in combating sexual
harassment of women and in limiting police atrocities in matters of arrest and
detention.

5) Disturbing the constitutional balance of power: Although the Indian

Constitution does not follow any strict separation of powers, it still embodies the
doctrine of checks and balances, which even the judiciary should respect.
However, the judiciary on several occasions did not exercise self-restraint and
moved on to legislate, settle policy questions, take over governance, or monitor
executive agencies. Moreover, there has been a lack of consistency as well in that
in some cases, the Supreme Court did not hesitate to intrude on policy questions
but in other cases it hid behind the shield of policy questions. Just to illustrate, the
judiciary intervened to tackle sexual harassment as well as custodial torture and to
regulate the adoption of children by foreigners, but it did not intervene to
introduce a uniform civil code, to combat ragging in educational institutions, to
adjust the height of the Narmada dam and to provide a humane face to

25 1997 (6) SCC 241

26 D.K. Basu Vs State of West Bengal, (1997) 1 SCC 416 : AIR 1997 SC 610

Law and Justice in the Globalized World Page 19

 liberalization-disinvestment polices. No clear or sound theoretical basis for such
selective intervention is discernable from judicial decisions.

6) Overuse-induced non-seriousness: Now-a-days everyone needs justice by hook

or by crook. But the fact is that judiciary is solving all cases in a sloppy manner.
Hence by exercising epistolary jurisdiction power, now people are more interested
in filing PILs before the court. But PIL should not be the first step in redressing
all kinds of grievances even if they involve public interest. In order to remain
effective, PIL should not be allowed to become a routine affair which is not taken
seriously by the Bench, the Bar, and most importantly by the masses: ‘‘The
overuse of PIL for every conceivable public interest might dilute the original
commitment to use this remedy only for enforcing human rights of the victimized
and the disadvantaged groups.’’ If civil society and disadvantaged groups lose
faith in the efficacy of PIL, that would sound a death knell for it.

CRITICAL EVALUATION OF EPISTOLARY JURISDICTION IN PRESENT

SCENARIO
The Supreme Court of India has become the center of controversy on account of
the sudden outburst in the level of Judicial Activism towards the end of 1990s. This has
been followed due to growing activities of the Supreme Court in dealing with various
cases involving corrupt practices by politicians, bureaucrats and religious leaders. During
the period the Supreme Court has gone through various sensitive cases like Jain Hawala
Case27 , St. Kitt’s Forgery Case28 , and Urea scandal in which some of the
Parliamentarians, Ministers and Bureaucrats including self-styled Godman Chandra
Swami had to be kept behind the bars for allegedly being involved in corrupt practices. In
a significant order in Jain Hawala Case, the Supreme Court declared that bearing in mind

27 http://indiatoday.intoday.in/story/jain-hawala-case-acquittals-of-advani-shukla-bring-cheer-to-other-
chargesheeted-politicians/1/275697.html, Accessed on 21st September, 2015
28 http://timesofindia.indiatimes.com/india/St-Kitts-case-Chronology-of-events/articleshow/898172.cms

Law and Justice in the Globalized World Page 20

the basic tenet of Rule of Law that ‘Be you ever so high, the law is above you’29 ,
investigation against each and every person, irrespective of the position and status of that
person should be conducted and completed expeditiously for retaining public confidence
in the impartial working of the government agencies. In St. Kitts Forgery Case, Ankul
Chandra Pradhan, an Advocate filed a public interest litigation seeking directions to the
Central Bureau of Investigation (CBI) to investigate inter alia two criminal cases
involving the former Prime Minister, Mr. P.V. Narasimha Rao, Chandraswami and
Kailash Agarwala alias Mamaji. The Supreme Court directed that self-styled Godman
Chandra Swami would not leave India without express permission of the Court. The
Court monitored the progress of the investigations by the Central Bureau of Investigation
till charge-sheet was filed in the St Kitts Forgery case. The Supreme Court had to issue
directions to the Central Bureau of Investigation, to perform its duty properly.
Such activities of the Supreme Court have irked the politicians who are actually in
the dock on account of their alleged wrong doing and also those fearing possible
exposure. The politicians were also greatly upset when Mr. Prem Kumar the Chief
Metropolitan Magistrate, New Delhi summoned the former Prime Minister Mr. P.V.
Narasimha Rao to appear before him in connection with JMM Pay of case.
The Parliament witnessed stormy debate in the last week of July, 1996 in the
matter of Judicial Activism. The matter was mainly raised by the members of Parliament
belonging to the Congress party. They alleged that the judiciary by becoming over
Activism has crossed the ‘Laxman Rekha’. Former Union Minister Margaret Alva felt
that it was high time to take a close and hard look at Judicial Activism. She commented
that it is the Parliament and not the Judiciary, which is sovereign in India. She also added
that the judiciary is not free from corrupt practices but her views were not shared by other
political parties. Rather, the Bharatiya Janata Party supported the activities of the
judiciary as the executive and the legislature have failed to perform their constitutional
obligations. They gave full mars to the judiciary for unearthing some of the scams
involving huge sums of money.
Some members of Parliament belonging to the Congress (I), the then Lok Sabha
Speaker Mr. P.A Sangma and Prime Minister Mr. H.D. Devegowda to call a special

29 Gouriet v Union of Post Office Workers and Others [1977] CA

Law and Justice in the Globalized World Page 21

session of the Parliament to discuss about Judicial Activism. They said the recent
development of Judicial Activism have eroded the harmonious co-existence of the three
institutions- the legislature, the executive and the judiciary. Fears have been expressed by
some people over the activist role of the Judiciary and some even have gone to the extent
of saying that the judiciary is running the country by proxy.
While the advocates of Judicial Activism held that one must understand that this
exercise of authority of the judiciary is not for vain glory but it is in discharge of its
constitutional obligation. When the executive and the legislature are apathetic and fail to
discharge their constitutional obligation the judiciary has no other option but to direct the
two organs to perform their duties.

Law and Justice in the Globalized World Page 22

 CONCLUSION
Till now all of us more or less aware about the various types of jurisdiction of
Supreme Court and the work done by the Apex Court in exercise of those jurisdiction.
But after the introduction of new concept like Epistolary Jurisdiction, it seems difficult to
evaluate the success rate of the courts in solving cases as Epistolary Jurisdiction is having
broader perspective. Apart from that it is wholly based on concept like Judicial Activism
and PIL. It is pertinent to mention that PIL is based on public interest and hence the
success rate is based on the interest of en masse.

All in all, PIL symbolizes the politics of liberation: the ruled and misruled have
added to the might of the adult franchise the quiet dignity of constitutionalism in their
struggle against the myriad excesses of power. And the Supreme Court is thereby slowly
marshalling a new kind of social legitimation, which neither the legislature, nor the
executive nor political parties can contest without appearing to justify injustice and
tyranny.
It was once said that Article 32 is the heart of the Indian Constitution. A few years
after independence the people, common people of India were to realize that justice was
not a right. Justice was a claim only people who had a degree of social and economic
status could ask for. For the vast masses afflicted by poverty and penury justice was a
dream as they were unable to access the judicial system for relief. In light of this
deplorable situation the judiciary with the aid of activists, adopted a correction course and
suggested revolutionary ways of permitting the cause of justice to be served. The
evolution of epistolary jurisdiction and the concept of public interest litigation have
redeemed the faith of the people in the Constitution and its promises that justice is a right,
not a privilege.
In our own country, this new class of litigation is justified by its protagonists on
the basis generally of vast areas in our population of illiteracy and poverty, of social and
economic backwardness, and of an insufficient awareness and appreciation of individual
and collective rights. These handicaps have denied millions of our countrymen access to
justice, Public interest litigation is said to possess the potential of providing such access
in the milieu of a new ethos in which participating sectors in the administration of justice

Law and Justice in the Globalized World Page 23

cooperate in the creation of a system which promises legal relief without cumbersome
formality and heavy expenditure. In the result, the legal organization has taken on a
radically new dimension and correspondingly new perspectives are opening up before
judges and lawyers and State Law agencies in the tasks before them. A crusading zeal is
abroad, viewing the present as an opportunity to awaken the political and legal order to
the objectives of social justice projected in our constitutional system. New slogans fill
the air and new phrases have entered the legal dictionary, and we hew of the “justicing
system” being galvanized into supplying justice to the socioeconomic disadvantaged.
These urges are responsible for the birth or new judicial concepts and the expanding
horizon of juridical power. They claim to represent an increasing emphasis on social
welfare and progressive humanitarianism.
During the last three decades the Supreme Court and the High Courts have tried
their best to bring law into the service of the poor. The Courts have acknowledged that
the judiciary too has accountability towards the people of the country like the executive
and the legislature. The Court does not insist upon the old rule of Locus Standii so that
the administration of justice is done in the interest of all. The Court viewed that the rule
of standing has to be liberalized in order to meet the challenges of time and need. Though
the decisions of the Courts relaxing the strict rule of Locus Standii have been welcomed
greatly, at the same time judges and the lawyers have to be careful towards avoiding over
use of Public Interest Litigation, thereby limiting the use of epistolary jurisdiction of
Supreme Court of India.

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 BIBLIOGRAPHY
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