ASSIGNMENT

CREEPING & EPISTOLARY JURISDICTION

IN PUBLIC INTEREST LITIGATION

Prepared & Submitted By

Pankaj Kumar
6th Semester, 3 years LLB
Registration Number : 190150057817
Enrolment Number : 1921115049005
SISTER NIVEDITA UNIVERSITY, KOLKATA
Epistolary Jurisdiction
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declares law has been replaced by the concept of Judicial Activism.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 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.

The concept of Public Interest Litigation had its origin in the American legal system during the period
of 1960’s. 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. In that judgment Justice Iyer did not use the terminology ‘Public Interest Litigation’. But in
Fertilizer Corporation Kamgar Union v. Union of India , the terminology ‘Public Interest Litigation’ was
used by Justice Iyer. In this judgment he used the expression ‘epistolary jurisdiction’. The Hon’ble
Supreme Court held that the procedure had to be relaxed to meet the ends of justice. This article
would give the insights in furtherance of Public Interest Litigation in India since the inception of the
concept.

Public Interest Litigation- The Beginning

The term ‘Public Interest Litigation’ (PIL) means the litigation which is beneficial to general public. It
means action necessarily taken for public purpose. The Supreme Court of India in Janata Dal v. H.S.
Chowdharv observed that lexically the expression public interest litigation means a legal action
initiated in a Court of law for the enforcement of public interest or general interest in which the public
or a class of the community have pecuniary interest or some interest by which their legal rights or
liabilities are affected.

The word "Litigation" means legal action initiated in a Court of law with the purpose of enforcing right
or seeking remedy. Therefore, the term public interest litigation means a legal action initiated in a
Court of law for the enforcement of public interest in which the public or a class of the community
have pecuniary interest or some interest by which their legal rights or liberties are affected.

The concept of public interest litigation had its origin in the American legal system during the period of
1960’s. The Council for Public Interest Law set up by the Ford Foundation in the United States of
America stated that Public Interest Law is the name which was able to provide legal representation to
previously unrepresented groups. Such efforts had been undertaken in recognition that the ordinary
market place for legal services failed to provide such services to significant segments of the
population and to significant interests. Such groups and interests include the poor, environmentalists,
consumer, racial and ethnic minorities and others.

The concept of public interest litigation evolved in the American legal system was in order to provide
legal representation to previously unrepresented groups. It has now been recognized in many parts of
the world. The seed of the Public Interest Litigation was initially sown in India by Justice Krishna Iyer
in 1976 in Mumbai Kamgar Sabha v. Abdul Bhai . However, in that Judgement Justice Iyer did not use
the terminology "Public Interest Litigation". But in the celebrated case of Fertilizer Corporation Kamgar
Union v. Union of India , the terminology "Public Interest Litigation" was used by Justice Iyer. In this
particular judgement he used the expression ‘Epistolary Jurisdiction’. The Hon'ble Supreme Court
held that the procedure had to be relaxed to meet the ends of justice.
The concept of Public Interest Litigation took its roots firmly in the Indian Legal System only after the
period of post emergency. During the period of emergency in 1975 the rule of law suffered a partial
eclipse and anyone who opposed the action of the government was susceptible to police action. This
resulted in spate of petitioners in the Hon'ble High Courts and the Hon'ble Supreme Court under
Articles 226 and 32 of the Constitution respectively in the form of Habeas Corpus. The Government of
India argued that Article 21 of the Constitution guaranteeing right to life had been suspended for the
duration of emergency. The Government of India wanted what is called a ‘Committed Judiciary’ and
accordingly Justice A.N. Ray was appointed as the Chief Justice of India by superseding three senior
colleagues Justice Shelat, Justice Hegde and Justice Grover. The Apex Court lost its credibility when
in A.D.M. Jabalpur v. Shrikant Shukla  , popularly known as Habeas Corpus Case, totally abandoned
its responsibility towards the protection of individual liberty.

The post-emergency Court had to make a great effort to re-establish its institutional credibility. During
the last three decades the Indian judiciary has been playing a very creative role in the administration
of justice which is the departure from the ‘committed judiciary’ of the past to the activist judiciary of
today. This has been possible due to the creative role played by some of the judges like Justice
Krishna Iyer, Justice P.N.Bhagwati, Justice A.M. Ahmadi, Justice Kuldip Singh and Justice S.P.
Bharusha under the principle of public interest litigation that was innovated by the Apex Court through
judicial activism. The innovation of this type of litigation by the Court was a dire need in order to
vindicate public interest where fundamental and other rights of the people who were poor, ignorant or
in socially or economically disadvantageous position and was therefore unable to seek legal redress.
The Courts have stressed the importance of non-adversarial jurisprudence which would deal with
cases relating to the ‘have-nots’.

The purpose of the Public Interest Litigation is to promote the public interest which mandates that
violation of legal or constitutional rights of poor, down trodden, socially and economically
disadvantaged sections of the society should not go unredressed. In this context Justice
P.N.Bhagwati observed .

"Public interest litigation is brought before the Court not for the purpose of enforcing the right of one
individual against another as happens in the case of ordinary litigation, but it is intended to promote
and vindicate public interest which demands that violations of constitutional or legal rights of large
number of people who are poor, ignorant or in a socially or economically backward position should not
go unnoticed and unredressed"

The Court has liberalized the strict rule of Locus Standii under the principle of public interest litigation
with a view to facilitating the common man who is not in a position to approach the Court for
vindication of their rights owing to socially and economically disadvantaged position. The traditional
rule of standing is that only the person aggrieved can move to the Court for judicial redress. With the
advent of public interest litigation this traditional strict rule of standing has been broadened and
liberalized. As a result of this any person acting bona fide having no personal gain or political motive
can move the Court alone for the enforcement of constitutional or legal rights of socially or
economically disadvantaged sections of the immunity  . The Supreme Court of India viewed that the
strict rule of standing has adversely affected in the developmental activities and also to bring about
socio-economic change. Therefore, the rule of standing needs to be liberalized in order to meet the
challenges of time. The cause of justice cannot be allowed to over look on the technical ground of
Locus Standii or absence of personal loss or injury.

The Supreme Court and the High Courts throughout various judgments’ have widely enlarged the
scope of public interest litigation by relaxing the rule of standing. The Court even proceeded without
clear frame work. In Sunil Batra v. Delhi Administration , the Supreme Court accepted a letter written
by one Sunil Batra, a prisoner from Tihar Jail complaining inhuman torture by the Jail Warden to
another prisoner serving life term in the same jail. The Court treated the letter as Writ Petition under
Article 32 of the Constitution. Delivering the judgement the Court issued directions inter alia for taking
suitable action against the erring official.
The most important pronouncement of the Supreme Court in the field of public interest litigation
involving the question of Locus Standii is S.P. Gupta v. Union of India , popularly known as ‘Judges
Transfer Case’.

In this case the Locus Standii of the petitioners was challenged. Delivering the judgement the Court
held that,"Where a legal wrong or legal injury is caused to a person or to a determinate class of
persons and such persons are unable to approach the Court due to socially or economically
disadvantaged position, any member of the public acting bona fide and having sufficient interest in the
matter can maintain an application for appropriate directions or orders." 

The decision of this case had made a far reaching impact on the question of Locus Standii. Similarly,
the Supreme Court gave historic judgments’ in Akhil Bhartiya Soshit Karmachari (ABSK) Sangh v.
Union of India , People’s Union for Democratic Rights v. Union of India and Bandhua Mukti Morcha v.
Union of India conferring standing to the petitioners.

The scope and ambit of public interest litigation is to assure socio-economic justice to the poor and
weaker sections of the community. It is the powerful weapon in the hands of poor masses that
constitute low visibility area of humanity Tor combating exploitation and injustice. Public interest
litigation is not in the nature of adversary character which is totally different from the ordinary
traditional litigation. In public interest litigation it is intended to promote and vindicate public interest
contrary to ordinary litigation where enforcement of the right of one individual against another is
intended. Hence, it can be stated that the public interest litigation is a highly effective weapon in the
armory of the judiciary to make basic human rights meaningful to the deprived and vulnerable
sections of the community and to assure them socio-economic justice. 

It has been stated above that the public interest litigation is the outcome of judicial activism. The need
for innovation of public interest litigation in India arose due to failure of discharging the constitutional
obligations as well as the voluntary abdication of powers by the executive and the legislature. In such
a situation judicial pronouncements have brought a sense of relief to people even at times when the
executive and the legislature appeared to have approached a dead end. Activism in the Court has
taken on new dimensions through public interest litigation. Judges have begun to enter realms of
decision making previously reserved for the legislative or executive wings of the government. This
assumption of powers by the judiciary was not for vain glory. Self abdication of powers and the
rampant corruption among the executive and the legislature forced the people to bring the issues
before the Court. The Court had no option but to interfere in the day to day affairs of the executive and
the legislature through the principle of public interest litigation.

The subject matter of the public interest litigation initially began with the conditions of prisoners where
the Court took steps in broadening the scope of jurisdiction and relaxing procedural barriers. Lack of
access to justice had been the major obstacle preventing those confined illegally or in terrible
conditions from approaching the Court. By invoking Article 39A of the Constitution and discussing the
need for legal aid, the Court responded to the horrific situations brought before it . The first public
interest litigation order in the Supreme Court came in a habeas corpus case filed by an advocate on
the basis of a news report in the matter of speedy trial of undertrial prisoners who had been
imprisoned for longer than the maximum sentence that could be imposed upon conviction. On being
apprised of the facts of the use the Supreme Court relaxed the procedural rule that a habeas corpus
petition can only be filed with a power of attorney or by a close relative. The distinction between a
letter petition and public interest litigation has never been fully clarified because of the connection
between habeas corpus petitions and public interest litigation . The Courts have always allowed
letters to be sent for habeas corpus matters, but it is only with the advent of public interest litigation
that the letter - petition was admitted for all kinds of relief. The letter became the key to gaining access
to the Court, and often the Court was urged to give orders covering a whole class, be they prisoners
or undertrials.
From the underlying principle of public interest litigation it transpires that the concept of Public Interest
Litigation innovated by the Court to give relief to the poor and vulnerable sections only. The Court
intended that public interest litigation will be the mechanism through which the grievances of the poor
and down trodden could be redressed. But in practice public interest litigation has evolved beyond
these parameters. Cases involving broad public interest issues began to come within the scope of
public interest litigation. It has now entered into the domain of general public interest issues like
environmental pollution, complaint relating to consumer, governmental accountability and the conduct
of examinations that fall within the category of civic participation rather than the issues of direct
concern for the poor.

The Court is now engaged in public interest cases and more and more lawyers, non-governmental
organizations, journalists, social activists are corning to the Court with grievances of the poor and
illiterate. The Court is not only giving relief to the poor litigants but also provides an effective check
against governmental apathy and negligent attitude of the executive officials by making them
accountable for their lapses or arbitrary acts. Further the Court pronounced judgments’ giving
effective orders in the area of environmental pollution and degradation, violation of human rights,
preservation of historical monuments, directing the eviction of unauthorized occupation of government
bungalow which was brought before the Court by way of public interest litigation . The Court in many
cases has entertained petitions without court fees or affidavit or taken suo motu action on the basis of
news items published in the news papers. The Court has taken a goal-oriented approach in the
interest of justice. In this context Professor Upendra Baxi observed that the Supreme Court of India
for the first time became a Court for Indians. He preferred to describe this legal phenomenon as
"Social Action Litigation".

However, the Court has got to be careful at the time of entertaining petitions for Public Interest
Litigation so that busy bodies, meddlesome interlopers or officious interveners cannot take the
opportunities of personal gain in the name of public interest. The judges and the lawyers must be
careful towards avoiding over-use of Public Interest Litigation. Though the decision of the Courts
relaxing the strict rule of Locus Standii have been welcome greatly at the same time the Court must
not get involved in non-justifiable issues like policy making which is reserved for the legislature. The
Court is not only showing positive response in all Public Interest Litigation brought before it by the
petitioners, there are instances of dismissal of public interest litigation by the Supreme Court and the
High Courts. The judgement in Sachidanand Pandey by the Apex Court has had far-reaching effects
in support of the dismissal of a petition as unsuitable for adjudication by the Court. Similarly, the Apex
Court in S.P. Anand v. H.D. Devegowda observed that in public interest litigation the petitioner is not
entitled to withdraw his petition at his sweet will unless the Court sees reasons to permit withdrawal. 

The author has only selected the topic for research considering the fact that public interest litigation
has been able to bring justice within the easy reach of poor and disadvantaged sections of the
community. The Court has innovated the concept timely which has made an indelible effect on the
Indian judicial process. The Court has given new and liberal dimension to the law of standing with a
view to bring the law into service of the poor and the down trodden. Many cases relating to poor and
vulnerable sections of the community would have gone unredressed without public interest litigation. It
emerged as a boon to them to high light their sufferings . Though procedure existed in the Civil and
Criminal Codes for presentation of petitions but endemic problems of long pending cases, high costs
and lengthy process have discouraged the people. Therefore, the people have started to invoke the
jurisdiction of public interest litigation through which efficient and expeditious justice have been
achieved. But the public interest litigation is not an alternative to the existing system. It is an input
which ameliorates some of the evil of the mainstream system thereby alleviating the suffering of the
litigating public.

Creeping Jursidiction
Significant scholarly attention has focused on the strong role played by the Supreme Court in Indian
constitutional democracy. Exercising its powers of judicial review, the court will invalidate legislation if
it determines it to be in violation of the basic structure of the Constitution. In the judicial appointments
case, for example, it invalidated legislation that would have reformed the judicial appointments
system. When there is no law, but the court finds that certain circumstances in society violate the
fundamental rights of certain groups of people, it may issue its own legislative-like guidelines. It did
this in the internationally famous Vishakha case, in which it created guidelines on sexual harassment.

In some cases, the court may decide that it would be more effective to retain jurisdiction in a case
over a long period of time and prod the executive to create policy or design legislation rather than
fashion its own remedies. Professor Baxi has famously described this as ‘creeping jurisdiction’. The
court uses creeping jurisdiction, according to Professor Baxi, when it holds numerous hearings over
the course of a long period of time without dismissing the case quickly. The court essentially takes
over the administration of an issue or a matter to make sure that its orders to various agencies are
implemented.

The court often exercises creeping jurisdiction in the context of ‘social action litigation’. While the
‘public interest litigation’ is commonly used, Professor Baxi objects to the use of that terminology
because (in part) it gives too much credence to (failed) American techniques and vocabulary. In
honour of Professor Baxi, I use the term ‘social action litigation’ (‘SAL’) to describe litigation brought
by impacted parties or social activists seeking redressal for a violation of their fundamental rights.

The heyday of SAL was the post-Emergency era where the Supreme Court began to assert a role in
rectifying the large-scale inequalities in Indian society. In an article published in 1985 for a global
audience called ‘Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India’,
Baxi gave many examples of social activists who read media stories and brought claims to the courts.
For example, a Supreme Court advocate filed a writ based on a series of articles in a national daily,
the Indian Express, exposing the plight of Bihar undertrial prisoners.