Starting the PIL revolution

Krishnadas Rajgopal  in Indian Express Jan 26

Thirty-one years ago, a woman lawyer confidently climbed the 17 steps of the Supreme Court and walked into a cold, thick-walled courtroom without a thought for the frowns trained at her from the high priests of Indian judiciary and her male colleagues.

Senior Advocate Pushpa Kapila Hingorani had a mission that day in December — one that the Supreme Court had never heard of before and one which would eventually kick off a revolution called the Public Interest Litigation (PIL) across the country. It was the same year she had resolved to give up her law practice and stay home.

The two pages she carried to the court contained the plight of undertrial prisoners languishing in jails in Bihar— men, women, children, lepers and mental patients cast away into jails and forgotten by the state. She wanted the court to intervene immediately and give orders to release them on bail. The historic case, later known to every law student in India as Hussainara Khatoon Vs Home Secretary, Bihar, drew its name from one of the prison inmates. It was the first PIL in India.

A shocked Supreme Court Bench led by Justice P.N. Bhagwati went on to release over 40,000 undertrial prisoners from various jails nationwide.

“The success of the Khatoon case was so widespread that the Supreme Court in the 1980s opened a new section in the Registry devoted to PILs. Officers used to sift through the incessant bombardment of letters or petitions from citizens everyday and choose the ones which should be brought to the court’s attention,” says Hingorani, who was born at the Kenyan Capital Nairobi into an Arya Samaj family.

“The Supreme Court held in the Hussainara Khatoon case that speedy trial and legal aid to the poor are the two essentials of a PIL. Today, as a woman who gave birth to PIL, I get hurt when people misuse it or judges do not understand the public problem laid before them,” she says.

Her title— “Mother of PIL” — is well-deserved. She has over the past 30 years done nearly 100 PILs, free of cost, including the Bhagalpur Blinding case of 1981 and Rudul Sah case of 1983. Her personal favourite among the PILs she did was one in which the Delhi Development Authority (DDA) agreed to pay Rs 1,000 to lepers to build their jhuggies. “I asked the court how people who could not even eat with their hands, build jhuggies? I sought the court to order the DDA to build them jhuggies and build them better,” she remembers before slowly walking indoors to escape the winter evening nip.

Constitution under threat


The Constitution is about politics. And the real problem about politics in India is its unpredictability. That doyen of American journalists, James Reston, started his newspaper career as a sports writer. Some years before he died, he told the Washington Post that he preferred sports to politics because “at the end of the day you know who has won; in politics, you have to wait 60 years to see how it all comes out.” We have waited — 60 years, and it is still not certain how it will all come out. But one thing is certain. Our Constitution has survived — and that is a plus point.

It took two years 11 months and 17 days to finalise the draft of the Constitution of India 1950 — years, months and days of much effort, of accommodation and compromise, and untiring devotion. We all thought our Founding Fathers had done a great job. But (as Sir Alladi’s son recalls in the biography of his great father) the year after the Constitution was promulgated Sir Ivor Jennings (Constitutional historian of the Commonwealth) was asked by the University of Madras to deliver a lecture on its provisions. Jennings was critical of our Constitution. He characterised it in one cynical sentence — “Too long, too rigid, too prolix”. And to add insult to injury, he said that the dominance of the Constituent Assembly by lawyer — politicians had contributed to the Constitution’s complexity!

When I related this a few years ago to my friend Desmond Fernando, then President of the International Bar Association, he said something which pleased me immensely. He said that the same Jennings, who was so critical of India’s Constitution, had taken great pains to draft Sri Lanka’s first Constitution — and it lasted only seven years! Which only shows that the success of a written Constitution is measured by one criteria alone — viz. whether it works!


Our Constitution did work — and worked well for the first 19 years after independence. What happened after that? I think the answer lies in this — it ceased to work well the moment politics in this country became immoral and unprincipled. We have not been able to work the Parliamentary system — we cannot work any system — unless we re-inject some degree of idealism and morality into politics. Some years ago that prestigious English weekly “The Economist” expressed an opinion (which was both frank and brutal), and to which, I believe, we must all pay heed. It said: “India will continue to be misgoverned until politics becomes more of a vehicle for policies instead of the other way round” — i.e. instead of policies being fashioned to suit the politics of the day. To govern this country well, we must recognise (and then attempt to overcome) some problems which hinder good government. I would like to mention a few:

First: the problem of governing India begins with numbers — and the hydraulic pressure they exert on national resources. We are just too many to govern. Politicians have not dared to address themselves to this “mother-of-all-problems”(!) — particularly after the nightmare of forced sterilisations during the Emergency era.

Second: Our failure to learn from the legacies of our political past — the British built a wall of separation between those in governance, and the governed. When the British left, we kept this wall of separation but discarded the idealism which had inspired generations of public officials in British India. We also jettisoned two other aspects of British rule: mentioned (somewhat pompously) by the British historian G.M. Trevelyan: The reason why the British ruled India for so long (he says) was that (i) “we were looked upon a nation which kept our promises”; and (ii) “as rulers we took no bribes’.”

We too started, as a nation, by making promises — and then did not keep them. The second part of the Trevalyan quote: “`85` rulers we took no bribes” may be exaggerated but, in the main it is true: ministers and public servants in British India, as a class, were not dishonest. But today 60 years after independence we cannot say the same. There are two types of corruption; secret isolated instances; they happen everywhere; they are endemic: they take place without infecting the body politic. The other type is what has engulfed us — it is known as tidal corruption: it floods the entire State apparatus, including those at the centre of power. I cannot visualise an era of good government in India until we take emergent steps to exorcise graft and corruption from public life.

Third: When promises are broken by sovereign nations, when it is believed that its leaders and officials (or a majority of them) are corrupt, it devalues and debases the people: actions of governments have an ever-widening ripple effect on the general social milieu of the time. In our country those in positions of power are looked up to — fawned upon — as “great”: and the Gita says that whatsoever a great person does that very thing others also do; whatever standards they set up the generality of human kind follow the same. “We the people” of India (the opening words of our Constitution) learn only by the example of our leaders — not by the precepts they hypocritically profess, and proclaim.

Fourth: there is the failure of Constitutional functionaries to function as is expected of them, especially when times are bad. In India politics begets power, but the men and women in power assume that they owe no responsibility to the people who elected them till election time comes around once again! The connivance in and acceptance of the Internal Emergency of June 25, 1975, by constitutional functionaries in high places can only be explained on this basis. They may be forgiven — but the lesson they have taught us must never be forgotten.

Fifth: there is a crisis of competence: Every election after 1951 has thrown up men and women less and less proficient, less and less scrupulous than the past. The downward trend is most noticeable — it is also significant. It points not to the inadequacy of the parliamentary system of government but the crying need for reforms in the electoral process. Successive political parties have come to power with promises to reform the electoral system but it has gone the way of all promises made by politicians. So long as a politician is voted to power by employing corrupt means — he will remain in power with like methods. Citizens have a vital stake in the reformation of the electoral system: there is no dearth of solutions; only a lack of the will to adopt them.

Sixth: in their euphoria with India’s economic progress and recognition as a world power, those in governance have omitted to notice that current policies have certainly made the rich and prosperous more rich and more prosperous; but a very large majority of India’s populace is still struggling to keep body and soul together, often without much success. The Great Divide is getting wider partitioning one people into two almost warring camps. All the financial wizardry with which this great country is endowed has not been able to find acceptable and viable solutions of the problems of the poor-and-hungry and the poorly educated. Our Constitution cannot long survive if we only pay lip service to the Constitution’s Directive Principles of State Policy: we must implement them. The neglect of the poor and needy in our country is perhaps the greatest single serious threat of survival in this 60th year of independence.

Finally — When members of the Constituent Assembly of India first took a pledge to dedicate themselves in all humility to the service of the country and her people, Dr S. Radhakrishnan, whilst seconding the resolution, had warned that when power outstrips ability, we will fall on evil days. Power has overtaken ability. We have fallen on evil days. There is a crisis of competence and a lack of integrity in almost all fields of activity -more markedly in the political. The public is now fed up with politicians as a class. The phenomenon has been noticed in parts of the Western world. In that delightful book “Yes Minister”, there is this delightful passage:

“If civil servants could remove politicians on grounds of incompetence it would empty the House of Commons, remove the Cabinet, and this would be the end of democracy — and the beginning of responsible government”!

I believe what has sustained the freedom enjoyed by our people has been a residual basic horse-sense. As you know, “horse sense” has been defined as the good sense that horses have in not betting on people! But in a democracy we have to bet on people and to set store by, and have faith in, the decisions they make. Mercifully we have so far pulled through with this Constitution. And we are still one nation, and pray that we long remain so. What we appear to have lost over the last 60 years, however, is the fine art of conserving the freedom we have won, of nurturing the sense of idealism that had inspired our Founding Fathers. We have over the years lost that spirit is which the Constitution itself was drafted — the spirit of accommodation and consensus, so wanting now in all fields of activity.

The writer is a Senior Advocate, Supreme Court, and eminent jurist


25 January 2010. David Caploe PhD, Chief Political Economist,

On January 21, the US Supreme Court, aka SCOTUS, overturned the most recent attempt to put some kind of limits on political campaign finance activities – the so-called McCain Feingold Act of 2002 – with a far-ranging decision that insures the already broken and corrupt American political system will become even more so almost immediately, barring the unlikely passage of new laws by the current Congress.  While this shocking, if not surprising, decision has already occasioned much commentary, especially in the US, relatively little has been written about the ruling’s equally disastrous likely effects on the US and world economies. In this context, there are six points important for all observers of the world economy to bear in mind about the significance of this strange and unnecessary judicial intervention into the ongoing deterioration of the American political economic scene.

1)   The first is that, as we have often noted, the US remains at the center of the world political economy, and is likely to remain so for the next decade at least. Even China is dependent on the US as its key export market, especially if it hopes to avoid the massive property- and asset-bubble there that many observers feel is imminent. While the Beijing leadership has so far navigated the post-Black September 2008 world with impressive skill – recently raising interest rates to cool down those potentially overheating real estate and stock markets – they will need a healthy US economy to continue to be able to absorb their ever-growing manufacturing capacity.

2)   In that context, as we have also noted previously, the biggest economic problem currently confronting the US is its broken and corrupt political system. Put bluntly, almost every initiative that needs to be taken in order to get the American economy back on its feet is being blocked by the political power of major interest groups – eg, the Too-Big-To-Fail banks and other financial structures like AIG, the ever-dominant “health” insurance companies etc. This bizarre and unwarranted decision will only increase the ability of these highly organized and very liquid special interests to both buy the loyalty of individual legislators and, perhaps even more important, structure public discourse about these key issues in a direction amenable to their own preferences.

3)   As we have also recently argued, the biggest problem confronting the ENTIRE world economy is the lack of monetary velocity – the speed with which it changes hands – due to the increasing IN-equality of income distribution, a fact that affects not just emerging countries like China and India, but the world’s central economy, the United States. We need not re-hash that significant point here. But we DO need to stress unequivocally that income IN-equality is already high in the US, and is growing larger all the time – a direct result of the Cheney / Bush policies that, for reasons that remain unclear, the alleged purveyor of “change,” President Obama, has continued almost unabated.

This decision will further strengthen the power and influence of corporations and wealthy individuals over the political process, hence accentuating and aggravating the unequal distribution of resources within America that – aside from being unjust and, potentially, politically de-stabilizing – ALSO weakens the “vital spirits” of entrepreneurialism and consumer demand, whose re-animation will be absolutely necessary for the US to come out of its seriously stagnating economic situation, which in turn is a crucial pre-requisite for sustained recovery on the global level as well.

4)   From a principled point of view, this decision perpetuates the confusion in American public discourse between FREE speech and PAID speech – a misunderstanding that has already created problems for both the US and world economies.

One of the truly great and distinctive features of American life is the First Amendment right to FREE speech – which means, very simply, that no one need fear any sort of government reprisal for their political opinions. That is, you can say whatever you want without fear of being harassed or thrown into jail merely for expressing an opinion unpleasant to those with political and economic power.

This is quite different from PAID speech – that is, the bombardment of the public space with, and the domination of public discourse by, messages coming from centers of economic and political power specifically calculated to advance their own particular interests. The whole theory of FREE speech is that an open marketplace of ideas provides the best structural opportunity for a free people to be able to inform themselves about the issues of the day and come to a reasoned view of what constitutes the best interest of the public as a whole.

This is quite different from a situation in which those with very narrow interests are able – as a result of their access to huge revenues generated by corporate activity – to drive out competing viewpoints by overwhelming the public space with unreasoning appeals to emotions like fear and greed – both of which may be legitimate as motivations in a private-interest sphere like a stock market, but are much less constructive in the larger arena of society as a whole.

Public discourse in America has been dominated by such forces since the early 1980s, with not just political but also economic results that have created the havoc the global economy has experienced directly since Black September 2008, and in which it remains enmeshed to this day. This decision will only increase the power of those able to bend public opinion in the direction they want as a result of the massive concentration of PAID speech – with predictably negative results for the US AND world economies.

5)   From a historical point of view, this decision marks the latest distorted interpretation of the 14th Amendment to the US Constitution – originally passed after the Civil War to insure full rights to ex-slaves, but almost immediately transformed into a vehicle for the untrammeled expansion of corporate “rights” by treating them as legal “persons.” This is not the place to go into an extensive examination of how this cruel perversion of an Amendment intended to give freedom and dignity to real people, whose lives had been dominated by the abomination of slavery, somehow became the legitimation for the attribution of the rights of “people” to the legally-constructed, artificial economic entities of corporations. Here, all we need note is how bizarre it is that a tool whose purpose was to rectify the “original sin” of American public life has become the legal instrument by which corporations have been granted many, if not all, the “rights” belonging to individualsin this particular case, “free” speech, which, as we have noted, is in fact not “free” in any substantive way, but, rather, PAID speech of the most venal and self-promoting sort.

6)   In this context, finally, this ruling exposes the utter hypocrisy of American right-wing cant about wanting judges who will “interpret” the law, not “make” it – their alleged campaign against “judicial activism”. Just as in Bush v. Gore – the equally outrageous decision in which a compact Republican majority on the Supreme Court ignored ALL past precedent, including their own previous rulings, to create an outcome conforming to their ownpolitical prejudices – this decision marks one of the most egregious examples of judicial overreaching in the history of the American jurisprudence.

As the New York Times Supreme Court correspondent Adam Liptak so eloquently put it:

So much for judicial minimalism.

Thursday’s big campaign finance decision, arguably the most significant of the Roberts court, showed just how bold that court can be.

The majority converted a minor and quirky case about a movie almost nobody had seen into a judicial blockbuster. “Essentially,” Justice John Paul Stevens wrote for the dissenters in the 5-to-4 decision, “five justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.” … [M]uch of Justice Stevens’s 90-page dissent was devoted to complaints about how the majority got to that result. Those points drew a defensive and defiant concurrence from Chief  Justice John G. Roberts Jr.

The chief justice’s decision to respond separately indicated that “he felt the sting of Stevens’s dissent,” said Heather Gerken, a law  professor at Yale. The dialogue between the two justices about how the court conducts its business revealed the depth of the divisions on the court and the jurisprudential juggernaut that the Roberts court may be in the process of becoming. Pamela S. Karlan, a law professor at Stanford, said Thursday’s decision, Citizens United v. Federal Election Commission, was a telling indicator of the direction of the court.

“This is a deeply divided court with a strong pro-corporate wing,” Professor Karlan said, pointing to a 2008 decision slashing the punitive damages award in the Exxon Valdez oil spill of 1989. That is a big shift, she said, from the sort of conservatism espoused by the Rehnquist court. Chief Justice William H. Rehnquist, who died in 2005, “was not someone who thought corporations had strong rights claims,” Professor Karlan said.

And while this is first and foremost a problem for Americans, for all the reasons cited above:

  • the centrality of the US to the world economy
  • the broken US political system being its major economic problem
  • the implications of this decision for the further increase of income IN-equality in the US, and the negative economic impact of that key fact
  • the confusion of FREE speech and PAID speech, with its predictable increase in corporate domination of the US political system, and
  • the continuing MIS-interpretation of the 14th Amendment in favor of expanding the “rights” of artificial “people” like corporations

the radical judicial activism of a right-wing Supreme Court augurs a continuing deterioration in all of the factors that have already put both the US and world economies in the precarious and weakened state in which they find themselves today. And that is truly bad news for just about everyone connected in any way, direct or indirect, with the US-centered world economy that we have today, and for the foreseeable future.

David Caploe PhD

Chief Political Economist