Emergency gave birth to epistolary jurisdiction as judiciary wanted to regain people’s trust: Justice G S Patel

Justice Patel traced the origins of PIL during the post-Emergency period in the country “when the judiciary sought to regain public trust”.

Acknowledging Justice V R Krishna Iyer and Justice P N Bhagwati in developing epistolary jurisdiction, by allowing petitions through letters and postcards and expanding the concept of ‘locus standi’ (interested parties) in litigations, Justice Patel said, “What PILs do is to expand standing. The PIL petitioner must not have a personal interest in a subject matter — a direct contrast to a writ petition. PILs take a problem and address it for the future and the petitioner is not relevant. It is the cause that matters… in many cases, the petitioner has been turfed out, but the PIL has continued.”

He added, “This form of litigation originated in India in late 1970s and 1980s… may be due to the Emergency when civil liberties were suspended, political dissent was suppressed and thousands were detained without trial. After the Emergency, the judiciary sought to regain public trust and to reaffirm its role as a guardian of constitutional rights. The Supreme Court realised that access to justice in India was limited to the educated, rich and powerful while the majority of citizens were rural and illiterate with no meaningful access to court. Certain judges expanded the concept of locus standi and allowed petitions in the form of letters, petitions and postcards and treated these as writ petitions, giving birth to the epistolary jurisdiction. The judiciary consciously adopted an activist approach to bring justice to prisoners, bonded labourers, women, slum dwellers, children, tribal population…”

He cited the example of the 1997 case of Vishaka vs State of Rajasthan, among many precedents, and said, “The Supreme Court forged the foundations for a future legislation that did not come from advocacy groups or a paternalistic legislature but from the voice of the court and spoke to the conscience of the court…”

While analysing the contrasting views of Justice Srikrishna and Justice Pal, Justice Patel emphasised that the doctrine of separation of powers presupposes functional integrity across all branches of government. Quoting Justice Pal, Justice Patel said that the judiciary helps uphold the constitution.

Quoting from the essay of Justice Pal, Justice Patel said, “Powers, which may be characterised as extraordinary in other jurisdictions, have been exercised by the Indian courts because the country in some way is extraordinary… It is a unique aggregate of different distinct, ethnic, linguistic, cultural and religious groups, with not even a common script to bind them. The differences are relatable to distinct geographical areas in the country and were it not for historical circumstance, each of these geographical areas would have evolved into different countries much like Europe…”

“There are occasional upsurges for regionalism… or religious fundamentalism, both which are fostered and fed on by politicians and yet, the feeling of Indianness persists. The reason for this is difficult to pen down. Perhaps nationalism is based on the events of the past… particularly the flag fight for independence but nationhood is preserved by and operates within the framework of the constitution. In upholding the constitution, the judiciary has helped and is helping the nation survive,” he asserted.

Justice Patel also condemned the misuse of PILs for personal publicity or gain, political rivalry, settling vendettas, extortion and blackmails, delaying projects and corporate competition. He said, “The expansion of PIL jurisprudence, in which our courts thought it fit to step in, have been criticised for several decades as we have seen. Today, those criticisms are getting louder and sharper… are courts truly venturing into the exclusive reserves of the executive and the legislature, are they blurring the boundaries set?… are they actually disrupting the balance in the fabled doctrine of separation of powers?… Is the court supposed to sit idle when the other two organs fail to do what they are constitutionally bound to do?…”

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