JUSTICE PN BHAWATIJURISPRUDENTIAL UNDERPINNINGS Apurva Thakur PrePh D

JUSTICE PN BHAWATIJURISPRUDENTIAL UNDERPINNINGS Apurva Thakur Pre-Ph. D Coursework 2020

Brief Biography • Prafullachandra Natwarlal Bhagwati, who was born on 21 December 1921, was a restless legal crusader, who turned his tenure as a judge of the Supreme Court into a unique opportunity to give effect to some of the embedded aspirations of the founding fathers of the Indian Constitution. His illustrious father, N H Bhagwati, served as a Supreme Court judge (1952– 59) as well as Vice. Chancellor of the University of Bombay. Known popularly as P N Bhagwati, he served on the Supreme Court for 13 long years. He became the 17 th Chief Justice of India and served from 12 July 1985 until his retirement on 20 December 1986

An Activist Judge • Justice Bhagwati then introduced the Postcard revolution of judicial activism. People could send in their petitions and complaints on a postcard, and the apex court would act on it. Any citizen from any part of India or any social action group could now write directly to the Supreme Court, seeking legal remedy in cases where public interest was at stake

Liberalisation of Locus Standi Bhagwati’s moves for radical changes in the process and structure of access to justice in the higher judiciary found theoretical basis in the writings of eminent scholars like Upendra Baxi, who chose to call the litigation by public spirited individuals as “social action” Seeds of this idea, were sown early on by V K Krishna Iyer in Mumbai Kamgar Sabha, Bombay v M/S Abdulbhai Faizullabhai & Ors 1976, where it was held that as “procedural prescriptions are handmaids” and since the “workmen compendiously projected and impleaded through the union, ” any formal defects of locus standi must fade away in the larger interest of justice. The credit, however, goes to Bhagwati for providing flesh and bones as well as a constitutional basis to the idea of public interest litigation

Judicial Activism • J. Bhagwati painstakingly sought to underscore and justify judicial activism and emphasized that judiciary is one of the pillars of the Indian republic. In his address on 3 October 1984 at Columbia University School of Law, Bhagwati emphasised that “judicial activism is an undeniable feature of the judicial process in a democracy and the only relevant question is what should be the degree and extent of judicial activism permissible to a judge” “The modern judiciary cannot afford to hide behind notions of legal justice and plead incapacity when social justice issues are addressed to it. This challenge is an important one, not just because judges owe a duty to do justice with a view to creating and molding a just society, but because a

S P Gupta v President of India and Ors 1982 such a person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the court for relief, any member of the public can maintain an application for appropriate direction, order or writ in the high court under Article 226 and in case of breach of any fundamental right of such person or determinate class of persons, in this court under Article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons.

PUDR v. UOI (ASIAD workers case) A writ petition brought by way of public interest litigaton in order to ensure observance of the provisions of various labour laws in relation to workmen employed in the construction work of various projects connected with the Asian Games. The matter was brought to the attention of the Court by the first petitioner which is an organisation formed for the purpose of protecting democratic rights, by means of a letter addressed to Justice Bhagwati. That letter was based on a report made by a team of three social scientists who were commissioned by the first petitioner for the purpose of investigating and inquiring into the conditions under which the workmen engaged in the various Asiad Projects were working. There were number of workers including women and children employed by a

Legal Engineering • Premised on the belief that judicial activism is necessary and inevitable part of the judicial process, the fine legal engineering resorted to by Bhagwati essentially revolved around social justice. • With his wider horizons, he embarked upon the task of deciphering the meaning of life itself and deduced that it must comprise all finer graces of civilisation. It led to the reading of several hidden aspects of life in Article 21 such as procedural due process, right to free legal aid, right to clean and hygienic environment, etc. It amounted to judicial creativity at its best. In fact, in the last Constitution bench judgment that he wrote is a judicial masterpiece of innovation and boldness as to how a judge could leave his footprint on the sands of the nation’s legal history and

Environmental Jurisprudence In Shriram Oleum Gas case M C Mehta v Union of India 1987 the Court should be prepared to receive light from whatever source it comes, but it has to build up its own jurisprudence, evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly industrialised economy. Bhagwati proceeded to bypass the rule of strict liability as laid down in 1868 in the landmark Rylands v Fletcher and introduced a new principle of strict and absolute liability. Additionally, he expounded on the scope of Article 12 (definition of State) and justified such “expanded horizon of Article 12” primarily to inject respect for human rights and social conscience in the Indian corporate structure. He also

Due Process and Arbitrariness Doctrine • EP Royappa v UOI, “Article 14 must be tested on the grounds of non-arbitrariness as well” • Maneka Gandhi v UOI, 1978 “The expression personal liberty in Art 21 is of widest amplitude and it covers a variety of rights which go to continue the personal liberty of man and some of them have raised to the status of distinct hndamental rights and given additional protection under Article 19” • Hussainara khatoon v Secretary, State of Bihar, Personal liberty of under-trial prisoners. Treated a postcard as a petition. Right to speedy trail “a procedure prescribed by Law for depriving a person of his liberfy can not be considered as reasonable, fair, and

Crusader for the Underprivileged Bhagwati’s real self came to the fore in his deep empathy for the poor and the underprivileged. It came to be reflected in the tools and techniques of justice delivery such as providing free legal aid to undertrial prisoners. In fact, he was clear in his mind that a judge needs to be guided by his own “social philosophy. ” He saw this as essential for the role of a judge in a traumatically changing society such as India. It is this concern that, in the post-emergency period, led him to gravitate towards unshackling access to justice for the benefit of the large mass of the Indian humanity.

Crusader of Prisoner’s Rights In a number of judgements that has far reaching consequences, he initiated reform in treatment of prisoners and capital punishment. In Sunil Batra v Delhi Administration, 1980 - he stated that prisoners have all the Fundamental Rights and Legal aids available to a free person. In MH Hoskot v Maharashtra, he held that legal aid must be provided to the needy. The deprivation of life and loberty must be done only in extreme cases. In Veena Sethi v State of Bihar , wherein, inmates of unsound mind were kept in custody and subject to inhumane conditions was severely critcised by J. Bhagwati and asked for relocation to hospitals instead of prisons.

Upholder of Personal Liberty In the land mark case of Francis Corallie Mullin v. Union Territory of Delhi, 1981 J. Bhagwati expanded the scope of ART 21 to include right to live with dignity. Life does not mean ‘mere animal existence’ were famous words quoted by him in this case, which has furthered the cause of Article 21 as a repertoire of invisible rights. In Sheela Barse v. Delhi Administration, custodial violence was severely condemned and justice Bhagwati reaffirmed legal aid for under-privileged.

Pioneering Legal Aid J. Bhagwati witnessed the real poverty and misery of the rural masses of the country when he was visited interior parts of the nation as the chairman of the Legal Aid committees and understood the hollowness of the justice administered in the courts. This experience had influenced to change his attitude towards law and administration of justice. He thought that 3 justice would take within its sweep the masses who were victims of poverty and disease, misery, oppression and exploitation. In pursuit, a new idea was born in his mind that is social justice. It is necessary that the Judges should identify themselves with the misery and suffering of the people to ensure the social justice

Some criticisms Much of Justice Bhagwati’s fame rests on his role in pioneering the PIL. In fact, PIL letter petitions would initially be personally addressed to him, rather than the court. This enabled him to sidestep then Chief Justice’s role in allocating cases, also leading to allegations of soliciting petitions. More enduringly, instead of grounding the PIL in rules and principles, his view of legal procedure as the enemy of justice meant that all aspects of procedure in PIL cases were diluted, removing all checks on judicial arbitrariness and making it a juggernaut annihilating all procedure. The dilution of locus standi could have been grounded in some notion of ‘representation standing’. In its absence, most PILs are filed by citizens unconnected to any issue. In the Bandhua Mukti Morcha case, he diluted

In Conclusion Justice Bhagwati was the father of public interest litigation in India and was a friend of justice and those seeking it. He finds a special mention in the judicial history of independent India due to his contribution to human rights development and judicial creativity in the cause of social justice. His immense dedication coupled with the empathy for the underprivileged led him towards unshackling justice for all. He was truly India’s ‘social activist judge’

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