Human Rights Law, Development and Social Action Litigation in India

Wouter Vandenhole*

I. Human Rights and Human Development______________________________________3

II. Social Action Litigation____________________________________________________7

A. Procedural Characteristics of Social Action Litigation_______________________101. Relaxation of the Rules of Locus Standi___________________________________102. Access to Justice: Epistolary Jurisdiction__________________________________133. Investigative and Collaborative Justice____________________________________144. Remedies___________________________________________________________175. Supervision on Implementation__________________________________________20

B. Cases and Outcome____________________________________________________221. Labour and Labourers_________________________________________________242. Child Labour________________________________________________________263. Forced Evictions_____________________________________________________27

C. Impact______________________________________________________________28

III. Integrated Human Rights Social Action Litigation____________________________29

A. Characteristics of Human Rights Social Action Litigation____________________311. Collective and Deformalised Access to Justice______________________________31

a. Collective Access to Justice___________________________________________31b. Deformalised Access________________________________________________34

2. Inquiry Commissions__________________________________________________343. Remedies___________________________________________________________364. Monitoring__________________________________________________________38

B. Delineation From Other Doctrines and Institutions_________________________391. Public Interest Litigation_______________________________________________392. Legal Aid___________________________________________________________423. Ombuds and Human Rights Commission__________________________________42

C. Preconditions_________________________________________________________431. Social Action Groups__________________________________________________442. An Independent and Socially Activist Judiciary_____________________________453. Human Rights Catalogue and Social Welfare Law___________________________504. The Rule of Law_____________________________________________________50

D. Integrated Human Rights Social Action Litigation__________________________51

E. Integrated HRSAL: Is Generalisation for the South Feasible?________________52

IV. Conclusions____________________________________________________________54

1. There is a growing interest in the role human rights can and should play in development (nowadays often framed in terms of poverty reduction). At the international level, the right to development has long been the central focus. Since a

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number of years however, the field has fortunately been opened up to a number of other issues.

The internet pages of the Office of the High Commissioner for Human Rights are representative of this trend: till recently under the heading of “Right to Development”, they now cover issues like poverty, rights-based approaches, mainstreaming human rights, globalisation, good governance and right to development under the heading of “Human Rights in Development”.1

2. By integrating human rights in development work, a rights-based approach to development links human rights to development both normatively and operationally. Normatively, it offers a conceptual framework for development that is based on international human rights standards. Operationally, it is directed to promoting and protecting human rights.

In the UNDP Human Development Report 2000 on Human Rights and Human Development, an attempt was made to conceptualise the added value of this human rights perspective for development.2

In the present article, the focus is on the operational aspect, and it is narrowed down to the issue of the contribution of human rights law to development at the national level.

Considering the contribution of human rights law to development, it is argued first that procedural aspects of human rights law, namely human rights litigation, should receive more attention; secondly, that the procedural rules of human rights litigation need liberalisation;3 and thirdly, that the national level should not be lost out of sight in the conceptualisation of the operational side of a rights-based approach to development.

The option for emphasizing human rights litigation has to be understood against the background of the one-sided attention paid so far on the conceptual level to the elaboration of a new substantive human right, the right to development, rather than to the reorientation of human rights litigation procedures towards the poor and vulnerable. The latter is more in tune with the general shift from norm-setting to effective protection, and with growing “judicialisation”4 of society. It corresponds also 1* Post-doctoral fellow Research Fund Catholic University of Leuven, Institute for Human Rights, Faculty of Law, Catholic University of Leuven (Belgium). This text is based on Ph.D.-research conducted between 1995 and 2001 (wouter.vandenhole@law.kuleuven.ac.be)? See http://www.unhchr.ch/development/ (last consulted 16 April 2002).2 UNDP, Human Development Report 2000: Human Rights and Human Development, New York, Oxford University Press, 2000, 21-23. See further, nos. 6 and following.3 See for South Africa, V. GOVENDER, “Economic, Social and Cultural Rights in South Africa: Entitlements, Not Mere Policy Options” in B.K. GOLDEWIJK, A. C. BASPINEIRO and P.C. CARBONARI (ed.), Dignity and Human Rights. The Implementation of Economic, Social and Cultural Rights, Antwerp, Intersentia, 2002, 79: “Ideally courts should be seen as the last option, especially in light of the fact that access to court in South Africa is almost impossible to the most vulnerable (in terms of procedure and costs).”4 See N. TATE, “Why the Expansion of Judicial Power?” in N. TATE and T. VALLINDER (ed.), The Global Expansion of Judicial Power, New York, New York University Press, 1995, 27-37; N. TATE and T. VALLINDER, “Judicialization and the Future of Politics and Policy” in N. TATE and T. VALLINDER (ed.), o.c., 515-528. Compare with R. COOMARASWAMY, “Toward an Engaged Judiciary” in N. TIRUCHELVAM and R. COOMARASWAMY (ed.), The Role of the Judiciary in Plural

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to some of the lessons learnt in the field of law and development studies, in particular with regard to the failure of legal instrumentalism and to the crucial importance of the rule of law.

The need for liberalisation of procedural rules is deduced from the very instructive experience of pro-poor human rights litigation, termed Social Action Litigation (SAL), in India. It will serve as a starting point for our conceptualisation of a potential human rights law contribution to development at the national level.

In the context of globalisation, a lot of attention is being paid to new developments in international human rights law, like the accountability of non-state actors and international organisations, and interest is shown in the possible relevance of economic, social and cultural rights as a check on neo-liberal economic globalisation. Little attention has been paid however to the actual relevance of human rights law on the ground. In our view, although it is crucially important to adapt human rights law so as to enable it to face the new challenges posed by globalisation, it is equally important to improve and strengthen the existing human rights mechanisms to make them more relevant to real life situations and peoples, in particular at the national level.

The focus on the national level is moreover informed by both a pragmatic and a legal-technical argument. From a pragmatic point of view, it seems preferable to locate pro-poor human rights litigation as closely as possible to the poor, so before national courts, in order to allow them to keep some control over events. Legally technically speaking, exhaustion of domestic remedies is often an admissibility requirement for complaints before a regional or UN human rights body.

3. In what follows, first the conceptualisation of the human rights contribution to human development as elaborated in the Human Development Report 2000 is shortly scrutinised; at the same time, a working definition of development is suggested. Secondly, Social Action Litigation in India is succinctly presented. Thirdly, a conceptual framework is developed – termed “Integrated Human Rights Social Action Litigation” – to grasp the operational relationship between human rights law and development on the national level.

I. Human Rights and Human Development

4. Although human rights rhetoric has been mainstreamed more and more in development thinking, little progress has been made so far in thinking out a comprehensive conceptual framework on the human rights contribution to development in both normative and operational terms.

It is now generally accepted in scholarly literature and in political documents alike that human rights relate positively to development, so that any development concept should include human rights, but the nature of the relationship has hardly been clarified. Some interesting starting points can be mentioned however.

Societies, New York, St. Martin’s Press, 1987, 1.

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5. In the first place, the integration of human rights in development and the ensuing (human) rights-based approach to development have been qualified as a qualitative change in development thinking, as development is no longer merely a goal to be reached by the state, but also a right of individuals belonging to that state. Human rights allow these individuals “to hold the state accountable on the fulfilment of its development mission”.5

6. Secondly, a very inspiring attempt was made in the UNDP Human Development Report 2000 to conceptualise the added value of a rights-based approach to development. First that conceptualisation will be briefly presented. Secondly, it will be argued that more refinement is necessary, in particular on the operational side.

In the report, it is stressed several times that human rights and (human) development have a common motivation and purpose: “Human rights and human development share a common vision and a common purpose – to secure the freedom, well-being and dignity of all people everywhere.”6 “Human rights and human development are both about securing basic freedoms.”7

What is meant by both terms? Human rights are said to “express the bold idea that all people have claims to social arrangements that protect them from the worst abuses and deprivations – and that secure the freedom for a life of dignity.”8 The main characteristic of human rights is that they entail some entitlements to help from others in defence of one’s substantive freedoms.9

Human development is considered to be a process of enhancing human capabilities – to expand choices and opportunities so that each person can lead a life of respect and value.10 Capabilities include the basic freedoms of being able to meet bodily requirements, enabling opportunities, “social” freedoms.11

7. The relationship between human rights and human development is one of mutual reinforcement,12 mainly because of their different strategic form and focus, thanks to which a value added is in each of them.

The value added of human rights is to be found on four issues. First of all, human rights bring in the idea that others have duties to facilitate and enhance human development. Invoking duties in turn focuses attention on accountability, culpability and responsibility. Locating accountability for failures within a social system can be a powerful tool in seeking remedy.13 So human rights bring legal tools and institutions such as laws, the judiciary, the process of litigation as means to secure freedoms and human development.14

5 K. DE FEYTER, World Development Law. Sharing Responsibility for Development, Antwerp, Intersentia, 2001, 283.6 UNDP, o.c., 1. See also 19.7 Ibid., 2. See also 20.8 Ibid., 2.9 Ibid., 20.10 Ibid., 2.11 This development concept draws heavily on Sen’s Development as Freedom, see A. SEN, Development as Freedom, New York, Knopf, 2000, 366 p.12 UNDP, o.c., 2.13 Ibid., 21.14 Ibid., 2.

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Secondly, the language of claims holds important empowerment potential: rights lend moral legitimacy to the objectives of human development.15

Thirdly, human rights offer tools that focus attention on the process of development: they “express the limits on the losses that individuals can permissibly be allowed to bear, even in the promotion of noble social goals.” Equally, human rights thinking gives special weight to threats from institutions and official sources.16

Fourthly, the human rights perspective helps to shift focus to the most deprived,17

and finally, it directs the attention to the need to consider civil and political rights as integral parts of the development process.18

Applied to poverty eradication, the human rights perspective makes one to consider poverty eradication not just as a development goal, but as a matter of social justice, fulfilling the rights and accountabilities of all actors.19

The added value of human development for human rights is to be situated on four levels as well. First, the tradition of qualitative and quantitative human development analysis can give concreteness to human rights analysis. Secondly, assessment of the human rights impact of policies can be informed by human development analysis. Thirdly, human development literature emphasizes the importance of institutional complementarity and resource constraints, thus pointing out the socio-economic context, both in terms of constraints and of resources and policies. Lastly, human development insists on a dynamic view and adds the perspective of change and progress in conceptual and practical reasoning:20 “Human development thus contributes to building a long-run strategy for the realization of rights.”21

In sum: “Human development and human rights are close enough in motivation and concern to be compatible and congruous, and they are different enough in strategy and design to supplement each other fruitfully.”22

8. Notwithstanding the merits of the conceptualisation of the human rights contribution to development in the UNDP Report, some questions remain to be answered. In our (legal) view, the main being what specific role is to be expected from human rights law and litigation in the overall picture.

15 Ibid., 2 and 22.16 Ibid., 22.17 Ibid., 2 and 22.18 Ibid., 2.19 Ibid., 13.20 Ibid., 23.21 Ibid., 2 and 23-24. In what follows, focus will be on the human rights contribution to development, rather than on the development contribution to human rights. For the latter, see e.g. J. CLARK, “Human Rights and Democratic Development” in K.E. MAHONEY and P. MAHONEY (ed.), Human Rights in the Twenty-First Century: a Global Challenge, Dordrecht, Martinus Nijhoff, 1993, 685; C. DIAS, “Relationship between Human Rights, Development and Democracy: South/North NGO Solidarity in Fostering Popular Participation” in M. NOWAK (ed.), World Conference on Human Rights Vienna, June 1993, The Contribution of NGOs Reports and Documents, Vienna, Manz, 1994, 42; J. DONNELLY, “Human Rights, Democracy, and Development”, Human Rights Quarterly 1999, 608-632.22 UNDP, o.c., 19.

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In the report, mention is made of the mobilisation of legal institutions as one of the contributions human rights can make to human development thinking. Equally, the importance of institutional capacity, of the rule of law and a fair administration of justice,23 and of a well-functioning independent judiciary24 is fully recognised. On the other hand, it is stressed in very clear words that the analysis given does not focus primarily on legal rights, or in other words, on human rights law.25

9. In what follows, the question is scrutinised what particular contribution from human rights law and litigation can be expected for development, primarily from an operational perspective. The bottom-line of our argument is that human rights litigation can contribute in an important way to development, provided that a number of procedural liberalisations are introduced and provided that some societal minimum preconditions are met.

Two preliminary comments are to be made.

First, the option is taken not to distinguish between social development, economic development, sustainable development or human development. On the contrary, it is believed that the concept of development should always include social and sustainable connotations, so use is made of the general term “development”. Development is understood to be a participative process of structural economic, social, cultural and political change, which aims at the sustainable improvement of the well-being of each individual, the whole population and in particular of the vulnerable groups within a given society.

Secondly, it should be remembered that there exists a whole literature on law and/in development, in which an instrumentalist approach of law and development has long been favoured. It is submitted that the discussion on human rights law and development cannot be conducted but against the backdrop of that field of literature and experience. The lessons learnt there, such as the demise of naïve instrumentalism should be taken into account when conceptualising the contribution of human rights law to development.26

10.Any attempt of conceptualisation of the operational side of a rights-based approach to development should take as a starting point as much as possible real life experiences in the South. In our opinion, a very instructive experience can be found in Social Action Litigation (SAL) in India.

There are a number of reasons for singling out SAL:a. the doctrine of SAL has originated and has been applied in the South. Not being

a product from the North, it may prove a more successful source of inspiration

23 Ibid., 4.24 Ibid., 8.25 See e.g. ibid., 25.26 See inter alia R. MARTIN, “Re-thinking ‘law and Development’”, Journal of Modern African Studies 1985, 133-137; B. TAMANAHA, “The Lessons of Law-and-Development Studies”, The American Journal of International Law 1995, 470-486; D. TRUBEK and M. GALANTER, “Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States”, Wisconsin Law Review 1974, 1062-1102.

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for other countries in the South, being tailored better to the needs of vulnerable groups in the South.27

b. SAL has transcended the experimental phase. It has developed into a comprehensive doctrine, which has been studied extensively in India and abroad, and which allows for a reliable evaluation of its potential and its limits thanks to its application in hundreds of cases.

c. SAL corresponds to the major insights gained from the critical evaluation of the law and development literature on the relationship between law and development.28

The option for SAL does not imply a blind admiration for or uncritical acceptance of the doctrine. However, it is believed that notwithstanding its weaknesses and limitations, it offers a very interesting starting point for the elaboration of a conceptual framework grasping more clearly the potential operational contribution of human rights law to development.

It should be stressed that our study of SAL has been limited largely to its conceptual aspects. Therefore, only SAL-cases before the Supreme Court of India (not those before the High Courts) have been studied exhaustively. Moreover, its societal impact has been examined only in an investigative way, not in a strictly sociological one. It has been deemed important however to offer some insight in its societal impact, in order to show its potential relevance.

II. Social Action Litigation

11.Social Action Litigation has been defined in a number of ways, but a generally accepted definition is lacking. At least three reasons can be found for this. First of all, SAL has developed on a case-to-case base. Secondly, even within the Supreme Court of India, a consensus has never been reached on the basis features of SAL. And thirdly, different legal developments and phenomena have all been labelled Social Action Litigation or Public Interest Litigation.29

Social Action Litigation is defined here as a doctrine of procedural relaxations in cases of human rights violations, in order to make both access to justice and furnishing of proof easier. Furthermore, in allowing specific and detailed remedies to be given and supervision on the implementation thereof to be organized, it attempts to protect effectively the human right(s) under threat in a given case.

SAL boils down to an enforcement and implementation strategy: it aims at the implementation of the fundamental rights in the Indian Constitution, first and 27 It has been argued that “India is a propitious setting for innovative and aggressive legal services. Government has distributed ‘rights’ and ‘legal entitlements’ broadside to the poor and unrepresented.” See M. GALANTER (ed.), Law and Society in Modern India, Delhi, Oxford University Press, 1992, 294.28 See no. 9.29 Here option is made to use consistently throughout the text “Social Action Litigation” as the general term of reference. As the set of procedural innovations characterising SAL has been used for broadly two purposes, namely on the one hand for the protection of the human rights of the weakest and most vulnerable groups in society, and on the other hand for the protection of the public interest, two types of Social Action Litigation can be distinguished: Social Action Litigation sensu stricto to define the former, and Public Interest Litigation to denote the latter.

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foremost for the weakest sections of society. At the same time, like all human rights litigation, it allows people to hold those in power accountable and to make them observe the rule of law.

12.Throughout the years, an important shift in focus has taken place. Broadly speaking, during the 1980s SAL was predominantly concerned with the protection of the weakest and most vulnerable groups in society.30 From the 1990s onwards, SAL has been used mainly in the public interest. This shift in focus does not fundamentally weaken however any inquiry into the conceptual potential of SAL for the protection of the human rights of the vulnerable, as our interest is mainly with the procedural aspects.

13.The reasons for the elaboration of Social Action Litigation have been sought in the Emergency period from 1975 till 1977 in India.31

In the years preceding the Emergency period, the Supreme Court had been marginalized by the legislature and the executive. Moreover, during the Emergency period, it had not been able to safeguard the fundamental rights of the Indian people. Therefore SAL has been characterised as “a strategic reversal of previous judicial priorities in order to win popular support and achieve a more prominent role in Indian society.”32

14.A landmark decision in the conceptualisation of Social Action Litigation was the Gupta case of 30 December 1981.

In this case, the Supreme Court of India relaxed the rules of locus standi in a double sense (see below no. 18).

In a way, the further progressive elaboration of the procedural modalities of SAL could be considered as having been forced upon the Court by its first innovations regarding locus standi. Or put more positively: from the liberalisation of the rules of locus standi ensued almost logically and inevitably the other procedural innovations, like the appointment of commissions of inquiry for the gathering of evidence, the extensive powers to order remedies and the possibility to follow up on the execution of the orders given. Initially considered as a “strategic arm of the legal aid movement”33, SAL developed later on in a human rights litigation doctrine sui generis.

As mentioned earlier, SAL has probably never been whole-heartedly supported by all judges of the Supreme Court. The rise and relative decline of SAL sensu stricto 30 Although not exclusively; the landmark case Gupta for example was a public interest litigation case, dealing with the issue of appointments of judges (see no. 18).31 The emergency state was declared by Indira Gandhi on 25 June 1975 following growing criticism of electoral fraud. From a constitutional perspective, it meant that the enforcement of fundamental rights and of Article 19 (freedom of expression) was suspended, and that the federal government expanded its powers to the detriment of the states. See GOBIND DAS, Supreme Court in Quest of Identity, Lucknow, Eastern Book Company, 1987, 85-86.32 J. CASSELS, “Judicial Activism and Public Interest Litigation in India: Attempting the Impossible?”, The American Journal of Comparative Law 1989, 510-511.33 S.C. (I) 18 September 1982 (People’s Union for Democratic Rights / Union of India) in J. KAPUR (ed.), Supreme Court on Public Interest Litigation. Cases and Materials. The Debate over Original Intent, New Delhi, LIPS, s.d., (hereafter PIL-SCALE), p. 27, § 2.

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could also be read as the career of its “father”, justice Bhagwati. Together with justice Krishna Iyer, justice Bhagwati34 initiated SAL in the Supreme Court and became the main promoter of it. During his tenure as Chief Justice, SAL reached its climax in the Supreme Court. And together with his retirement, SAL sensu stricto disappeared to the background. Although this is not the whole story of SAL, 35 it may explain part of its history.

The reluctance and opposition to SAL within the Supreme Court appears for example from the 10 questions referred to a Constitutional Bench by some Supreme Court judges, shortly after the landmark case Gupta.

These are the questions raised:

“The following questions arise for consideration in the writ petition:1) Should this Court take notice of such letters addressed by individuals by post enclosing some

paper cuttings and take action on them suo motu except where the complaint refers to deprivation of liberty of any individual?

2) Should such letters be sent to the Supreme Court Legal Aid Society by the Registrar with the request to examine whether there is any prima facie case which requires to be considered by this Court and if it is felt that there is such a case to file a formal petition against appropriate parties after collecting necessary material?

3) Can a stranger to a cause, be he a journalist, social worker, advocate or an association of such persons initate action before this Court in matters alleged to be involving public interest or should a petitioner have some interest in common with others whose rights are infringed by some governmental action or inaction in order to establish his locus standi to make such a complaint?

4) (a) Can this Court take action on such letters though there is no prima facie case of infringement of any fundamental right?(b) Even in cases where a fundamental right is stated to have been infringed, can this Court take action on such letters where there is no allegation that the person concerned is kept in illegal custody?

5) Can this Court take action on such letters in matters for which remedy can be had in ordinary civil, criminal or revenue courts or other offices on the ground that a number of people are affected? To be precise, if the complaint contains an allegation of encroachment of lands of one group or tribe by another group or tribe, can this Court direct the District Magistrate or the District Judge to enquire into the matter and to make a report to this Court? Or should the parties be given necessary legal aid and referred to a local court having jurisdiction over the matter?

6) Can this Court take action on letters addressed to it where the facts disclosed are not sufficient to take action? Should these letters be treated differently from other regular petitions filed into this Court in this regard and should the District Magistrate or the District Judge be asked to enquire and make a report to this Court to ascertain whether there is any case for further action?

7) If after investigation, it is found that by such a letter a baseless complaint had been made, should not costs be imposed on the person who had written it? Can he be treated differently from others?

8) Should a petitioner who has an interest in common with others whose rights are alleged to have been infringed be exempted from paying court fees and from all other relevant rules of the Supreme Court when he writes a letter to this Court complaining about such infringement? Should all the relevant rules be suspended when a complaint is made through a letter?

9) If this Court can take action on such letters in such informal way, why should not the High Courts and others courts, authorities and officers in India also act in the same way in all matters?

10) Would such informality not lead to greater identification of the Court with the cause than it would be when a case involving the same type of cause is filed in the normal way?”36

34 Bhagwati is at present still a member of the UN Human Rights Committee.35 The ideological change from a socialist to a neo-liberal regime does certainly add to that explanation. SAL is in a way concerned with the establishment of a social welfare state. This state model lost most of its political attraction in the early 1990s.36 S.C. (I) 29 November 1982 (Sudip Mazumdar / State of Madhya Pradesh), PIL-SCALE, pp. 141-142, § 1.

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These questions have not been dealt with by a Constitutional Bench so far. Meanwhile, SAL has expanded into a doctrine which deals with much more than only relaxation of the rules of locus standi and the possibility to submit a complaint by other means than a writ petition. SAL itself does not seem to be questioned anymore; discussion and disagreement now deal with the modalities thereof, not anymore with the principle.

A. Procedural Characteristics of Social Action Litigation15.What are the main procedural characteristics of SAL? First of all, the rules of locus standi have been relaxed in a double way. Secondly, the formal requirements regarding the lodging of a complaint have been largely dropped. Thirdly, evidence can be gathered by a commission of inquiry, appointed by the court. Fourthly, the procedure is claimed not to be of an adversarial nature. Fifthly, the court can order far-reaching remedial measures. Sixthly and finally, the execution of the remedial orders is supervised and followed up. The first two innovations concern the start of the procedure, the next two have to do with its course, and the last two with its outcome.

1. Relaxation of the Rules of Locus Standi16.A complaint about the violation of a fundamental right guaranteed in Part III of the Indian Constitution37 can be taken directly to the Supreme Court of India in accordance with Art. 32 of the Indian Constitution, which reads as follows:

“Remedies for enforcement of rights conferred by this Part. -(1) The right to move the Supreme Court bij appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this part.”

17.The relaxation of the rules of locus standi before the Supreme Court is the first and most important innovation SAL is characterised by.

Traditionally, judicial redress is only available to a person who has suffered a legal injury or who is likely to suffer a legal injury by reason of a violation of his legal right or legally protected interest. The basis of the entitlement to judicial redress is personal injury.

18. In the landmark decision IN the Gupta case, the Supreme Court departed explicitly from these traditional rules of locus standi.

First of all, rules of locus standi were relaxed in these cases in which a specific legal wrong or legal injury is caused to a person or a class or group of persons. If a person, class or group of persons legally do have standing, but if they are in fact unable to lodge a complaint because of poverty, helplessness or disability, or because of their socially or economically disadvantaged position, every citizen can file an action on their behalf:37 Part III of the Indian Constitution contains these human rights that are considered enforceable under the Indian Constitution (“fundamental rights”). Most of them belong to the category of civil and political rights. Part IV of the Indian Constitution contains the so-called Directive Principles of State Policy. Most of them relate to social and economic rights. They are not enforceable.

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“It may therefore now be taken as well established that where a legal wrong or legal injury is caused to a person or to a determinate class of persons by reasons of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such 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 action for an appropriate direction, order or writ ….”38

This first relaxation of the rules of locus standi was justified by referring to earlier exceptions made to these rules, e.g. the representation by a third party of those unable to approach the court themselves on account of some disability or because of their socially or economically disadvantaged position, like minors, prisoners or mentally ill persons.

The Court immediately added two qualifications. First, the third party acting on behalf of the disadvantaged must be acting bona fide. Second, this kind of representation should be limited to cases where the rights of a determinate class or group of persons are at stake; cases of individual wrong or injury should be taken care of in principle under the legal aid scheme:

“But we must hasten to make it clear that the individual who moves the Court for judicial redress in cases of this kind must be acting bona fide with a view to vindicating the cause of justice and if he is acting for personal gain or private profit or out of political motivation or other oblique consideration, the Court should not allow itself to be activised at the instance of such person and must reject his application at the threshold […].We may also point out that as a matter of prudence and not as a rule of law, the Court may confine this strategic exercise of jurisdiction to cases where legal wrong or legal injury is caused to a determinate class or group of persons or the constitutional or legal right of such determinate class or group of persons is violated and as far as possible, not entertain cases of individual wrong or injury at the instance of a third party, where there is an effective legal aid organisation which can take care of such cases.”39

The Supreme Court made also clear that a third party cannot act on behalf of a person, class or group “if the person or specific class or group of persons who are primarily injured as a result of such act or omission, do not wish to claim any relief and accept such act or omission willingly and without protest […].”40

19.Secondly, rules of standing were also liberalised in cases of so-called “public injury” or injury to the public interest, namely cases in which the state acts in violation of a fundamental right or fails to carry out an obligation ensuing from a fundamental right in detriment of the public interest and the rule of law:

“[…] [W]henever there is a public wrong or public injury caused by an act or omission of the State or a public authority which is contrary to the Constitution or the law, any member of the

38 S.C. (I) 30 December 1981 (S.P. Gupta / Union of India), All India Reporter 1982 (hereafter AIR), SC p. 188, § 17.39 Ibid., p. 189, § 17.40 Ibid., pp. 219-220, §§ 24-25; S.C. (I) 16 December 1983 (Bandhua Mukti Morcha / Union of India and others), AIR 1984, SC p. 813, § 11; S.C. (I) 27 August 1992 (Krishna Swami / Union of India), PIL-SCALE, pp. 348-349, §§ 22-25. See also I.P. MASSEY, Administrative Law, Lucknow, Eastern Book Company, 1985, 288.Baxi warns this should not be taken to literally. See U. BAXI, Courage, Craft and Contention: The Indian Supreme Court in the Eighties, Bombay, Tripathi, 1985, p. 62, footnote 71.

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public acting bona fide and having sufficient interest can maintain an action for redressal of such public wrong or public injury.”

This second relaxation of the rules of standing was deemed justified for two reasons. First, it was believed that only by liberalising the rule of locus standi, it would be possible “to effectively police the corridors of powers and [to] prevent violations of law”.41 Secondly, it was argued that the traditional scheme of litigation as merely a two-party affair was inadequate to deal with situations of injury to an indeterminate class of persons, especially in the field of socio-economic rights, as no individual rights correspond to the socio-economic duties of the state under the Indian Constitution.42

Here too two qualifications were added: the citizen engaging in a public interest case must be acting bona fide and must have sufficient interest. Whether the condition of sufficient interest has beenmet, is to be determined by the Court in each individual case.43

20.This twofold liberalisation of rules of standing was confirmed44 and specified in later cases.

More recently, it has been suggested by some Supreme Court judges to limit the liberalisation of rules of standing to three cases:

““It is only when courts are apprised of gross violation of fundamental rights by a group or a class action or when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the courts, especially this Court, should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the under-dog and the neglected.”45

2. Access to Justice: Epistolary Jurisdiction21.Together with the liberalisation of the rules of locus standi, the Supreme Court also relaxed the rules of procedure and formalities for moving the court under Article 32 of the Indian Constitution.

According to Article 32, “The right to move the Supreme Court by appropriate proceedings [emphasis added] for the enforcement of the rights conferred by [Part III] is guaranteed.”

41 S.C. India 30 December 1981 (S.P. Gupta / Union of India), AIR 1982, SC p. 190-191, § 18.42 The socio-economic duties of the state are listed in Part IV of the Constitution of India as non-enforceable Directive Principles of State Policy, not as enforceable Fundamental Rights. See S.C. (I) 30 December 1981 (S.P. Gupta / Union of India), AIR 1982, SC p. 191-192, § 19.43 Ibid., p. 192, § 19A.44 See e.g. S.C. (I) 18 September 1982 (People’s Union for Democratic Rights / Union of India), PIL-SCALE, p. 27, § 2; S.C. (I) 16 December 1983 (Bandhua Mukti Morcha / Union of India), PIL-SCALE, p. 1769, § 11; S.C. (I) 28 August 1992 (The Janata Dal / H.S. Chowdhury), PIL-SCALE, pp. 326-341, §§ 44-106.45 S.C. (I) 11 February 1987 (Shri Sachidanand Pandey / The State of West Bengal), PIL-SCALE, p. 1858, § 60; S.C. (I) 14 November 1988 (Ramsharan Autyanuprasi / Union of India), PIL-SCALE, p. 114, § 15; S.C. (I) 25 August 1999 (Malik Brothers / Narendra Dadhich), PIL-SCALE V, p. 199, § 2.Some authors supported this idea, see for example P. SINGH, “Public Interest Litigation” in A. JACOB and T. PAUL (ed.), Annual Survey of Indian Law, New Delhi, The Indian Law Institute, 1987, 147.

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The Supreme Court argued that these wordings did not require a regular petition. It accepted therefore that a complaint could be lodged by an ordinary letter, a telegram or even a post card. It treated letters as writ petitions, with the justification that “procedure is but a hand-maiden of justice”,46 and that it would not be fair to expect a member of the public who is acting pro bono publico to “incur expenses out of his own pocket for going to a lawyer and preparing a regular writ petition […].”47 In line with this, the possibility to send in a letter to complain of human rights violations was accorded to the aggrieved persons themselves too.48

This liberalisation was inspired by the practice in habeas corpus cases, in which the court acted on the grounds of a letter. In the context of SAL, this approach was generalised to all cases.49

In doctrine, this innovation has been coined “epistolary jurisdiction”.50

22. In 1986, a bench of 5 judges institutionalised epistolary jurisdiction. At the same time, a decision was taken on the question whether a letter could be addressed to an individual judge, or whether it should be addressed to the Supreme Court as an institution. In the judgement, the possibility of starting a case by sending a letter not to the Supreme Court, but to individual judges, was confirmed:

“Even if a letter is addressed to an individual Judge of the court, it should be entertained provided of course it is by or on behalf of a person in custody or on behalf of a women or a child or a class of deprived or disadvantaged persons.”51

The justification given was that there was a Public Interest Litigation Cell within the Supreme Court, which all letters either addressed to the court or to individual judges were forwarded to. Consequently, the letters were examined by the staff of that Cell, not by the individual judge the letter had been sent to.

In the Mehta case, it was also pointed out that in support of a letter an affidavit is not necessarily required, the argument being that “[i]f the court were to insist on an affidavit as a condition of entertaining the letters the entire object and purpose of epistolary jurisdiction would be frustrated because most of the poor and

46 S.C. (I) 30 December 1981 (S.P. Gupta / Union of India), AIR 1982, SC p. 189, § 17; this interpretation of “appropriate proceedings” was confirmed in S.C. (I) 16 December 1983 (Bandhua Mukti Morcha / Union of India and others), AIR 1984, SC pp. 813-814, § 12.47 S.C. (I) 16 December 1983 (Bandhua Mukti Morcha / Union of India and others), AIR 1984, SC p. 814, § 12.48 S.C. (I) 11 April 1985 (State of Himachal Pradesh / A Parent of a Student of Medical College, Shimla), PIL-SCALE, p. 1402, § 5: “It is only where a letter is addressed by an aggrieved person or by a public spirited individual or a social action group for enforcement of the constitutional or legal rights of a person in custody or of a class or group of persons who by reason of poverty, disability or socially or economically disadvantaged position find it difficult to approach the court for redress that the Supreme Court or the High Court would be justified, nay bound, to treat the letter as a Writ Petition.”49 See U. BAXI, “Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India” in N. TIRUCHELVAM and R. COOMARASWAMY (ed.), o.c., 39.50 Ibid. and P.N. BHAGWATI, “Judicial Activism and Public Interest Litigation”, Columbia Journal of Transnational Law 1985, 571.51 S.C. (I) 20 December 1986 (M.C. Mehta / Union of India), PIL-SCALE, p. 1519, § 5.

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disadvantaged persons will then not be able to have easy access to the Court and even the social action groups will find it difficult to approach the court.”52

3. Investigative and Collaborative Justice53

23.Traditionally, litigation in common law jurisdictions is characterised by an adversarial procedure, in which each party produces its own evidence, which is tested by cross-examination by the other party. The judge decides the case only on the basis of the materials produced before him by the parties.

24. In the Bandhua Mukti Morcha case it was argued that “when the poor come before the court, particularly for the enforcement of their fundamental rights, it is necessary to depart from the adversarial procedure and to evolve a new procedure which will make it possible for the poor and weak to bring the necessary material before the court for the purpose of securing enforcement of their fundamental rights.”54

The main argument underpinning this position referred to the fact that parties do not always have the same social or economic power. As a consequence, when one of the parties belongs to a deprived section of society, he or she “is bound to be at a disadvantaged [position] as against a strong and powerful opponent under the adversary system of justice, because of his difficulty in getting competent legal representation and more than anything else, his inability to produce relevant evidence before the court.”55

The argument boiled down to the fact that the issues the Supreme Court was confronted with following the liberalisation of the rules of standing were of a different nature than the issues it had faced before:

“It must be remembered that the problems of the poor which are now coming before the court are qualitatively different from those which have hitherto occupied the attention of the court and they need a different kind of lawyering skill and a different kind of judicial approach. If we blindly follow the adversarial procedure in their case, they would never be able to enforce their fundamental rights and the result would be nothing but a mockery of the Constitution. We have therefore to abandon the laissez faire approach in the judicial process particularly where it involves a question of enforcement of fundamental rights and forge new tools, devise new methods and adopt new strategies for the purpose of making fundamental rights meaningful for the large masses of people.”56

25.Two innovations were envisaged. First, the appointment of commissions of inquiry was introduced to free the poor and citizens acting pro bono publico from gathering the relevant materials. Secondly, it was attempted to introduce a form of collaborative litigation, in which the parties were not considered to be opponents, but collaborative stakeholders.

52 Ibid., p. 1520, § 5.53 The terminology has been borrowed from C.D. CUNNINGHAM, “Public Interest Litigation in Indian Supreme Court: A Study in the Light of American Experience” in J. KAPUR (ed.), Supreme Court on Public Interest Litigation. Cases and Materials. The Debate over Original Intent, I, New Delhi, LIPS, s.d., A-74 - A-76.54 S.C. (I) 16 December 1983 (Bandhua Mukti Morcha / Union of India), PIL-SCALE, pp. 1783, § 13.55 Ibid.56 Ibid.

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26.As far as the appointment of commissions of inquiry is concerned, the rationale behind it seems to be that the Supreme Court realised the liberalisation of rules of locus standi fell short of rendering human rights law relevant for the poor. That liberalisation related by and large to the issue of access to justice. In that, was it still in line with the legal aid movement.

The appointment of inquiry commissions is a qualitatively new and innovatory step, which cannot be considered as a mere modality of an already existing procedural rule. On the other hand, it is the inevitable consequence of the liberalisation of access to justice. The Supreme Court realised that opening up the court for the poor was not enough:

“Now it is obvious that the poor and the disadvantaged cannot possibly produce relevant material before the court in support of their case and equally where an action is brought on their behalf by a citizen acting pro bono publico, it would be almost impossible for him to gather the relevant material and place it before the court.”57

To resolve this problem, the Court evolved the practice of appointing a commission to gather facts and data concerning a complaint of a human rights violation. The commission has to report to the court, and is often also expected to formulate suggestions and recommendations for resolving the issue.

The composition of the commissions differs from case to case. Rather exceptionally, the commission is made up out of court staff58 or members of the judiciary like a district judge or a High Court judge.59 In most cases, the commissions are staffed with specialists or people familiar with the problem under discussion.60

57 Ibid., pp. 1783-1784, § 14. See also the arguments developed in doctrine: Bhagwati and Cassels refer to the need to relieve the petitioner of the financial burden of proof (P.N. BHAGWATI, “Judicial Activism and Public Interest Litigation”, l.c., 574 and J. CASSELS, “Judicial Activism and Public Interest Litigation in India: Attempting the Impossible?”, l.c., 500). Cottrell refers to complex issues of fact or the submisson of large quantities of factual material (J. COTTRELL, “Third Generation Rights and Social Action Litigation” in S. ADELMAN and A. PALIWALA (ed.), Law and Crisis in the Third World, London, Hans Zell, 1993, 113).58 S.C. (I) 3 December 1980 (Khatri / State of Bihar), PIL-SCALE, p. 1291, § 1: registrar and an other officer; judge Bhagwati indicated in this judgement that he would have preferred to send a team of lawyers instead, but an order appointing the registrar and an other officer had already been made earlier by a division bench of the Supreme Court.59 See for example S.C. (I) 9 May 1983 (Bandhua Mukti Morcha, through Chairman, Swami Agnivesh / State of Haryana), PIL-SCALE, p. 65, § 4: a district judge; S.C. (I) 4 October 1989 (Delhi Judicial Service Association Tis Hazari Court), PIL-SCALE, p. 176, § 2: a judge of the High Court; S.C. (I) 8 February 1994 (Shri Tirath Ram Saini / State of Punjab), PIL-SCALE, p. 370, § 10: a district judge.60 See for example S.C. (I) 5 March 1982 (Hira Lal / Zila Parishad, Kanpur), PIL-SCALE, p. 10, § 1: a lawyer and a journalist; S.C. (I) 15 February 1983 (Sheela Barse / State of Maharashtra), PIL-SCALE, p. 48, § 1: the director of the “College of Social Work”; S.C. (I) 2 March 1983 (Labourers Working on Salal Hydro-Project / State of Jammu and Kashmir), PIL-SCALE, p. 53, § 1: the Labour Commissioner; S.C. (I) 16 December 1983 (Bandhua Mukti Morcha / Union of India), PIL-SCALE, pp. 1773-1776, §§ 5-7: two advocates for the first report; later on, a researcher of the Indian Institute of Technology and the legal correspondent of a newspaper; S.C. (I) 15 November 1989 (Gaurav Jain / Union of India), PIL-SCALE, p. 179, § 5: a mixed committee of advocates and representatives of women’s organisations; S.C. (I) 19 November 1991 (Rajangam, Secretary District Beedi Workers’ Union / State of Tamil Nadu), PIL-SCALE, p. 1310, § 2: a social organisation; S.C. (I) 10 December 1996 (M.C. Mehta / State of Tamil Nadu), PIL-SCALE, pp. 1646-1647, § 4: three advocates.

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It has been stressed repeatedly that those appointed in a commission of inquiry should be responsible persons who enjoy the confidence of the court and who can be assumed to carry out the inquiry objectively and impartially.

This requirement is to be understood in part in light of the high evidentiary value attributed to the reports of a commission of inquiry: it enjoys prima facie evidentiary value and is not tested by cross-examination. Copies of the report are to supplied however to the parties so that they can dispute any of the statements in the report by filing an affidavit. It is entirely up to the court then to consider what weight it attaches to the facts and data stated in the report.61

27.The impossibility to cross-examine the statements in the report of the commission of inquiry reveals a second characteristic of SAL with regard to the course of procedure. SAL has been said to be collaborative litigation, in which the usual adversarial procedure is departed from and judges have a more active role to play in the proceedings.

The adversarial procedure is departed from in that the other party is not to be regarded as an adversary.62 On the contrary, SAL “must be looked upon as a collaborative or cooperative effort on the part of the State Government and its officers, lawyers appearing for the parties and the Court for the purpose of making basic human rights available to the weaker sections of the community and reaching to them socio-economic justice.”63 The idea is that the state authority involved in SAL should be as much interested in ensuring the fundamental rights of the poor as the petitioner(s); therefore, it should welcome a petition against it, “as it would give it an opportunity to right a wrong or to redress an injustice done to the poor and weaker sections of the community whose welfare is and must be the prime concern of the State or the public authority.”64 SAL “is not in the nature of adversary litigation but it is a challenge and an opportunity to the government and its officers to makes basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social and economic justice […].”65

From the above it can be concluded that what is meant is not as much a non-adversarial, but rather a non-adversary procedure. As pointed out, the reports of the inquiry commissions – although not being subjected to cross-examination – have to be submitted to the parties for comment and rebuttal. Moreover, justice Bhagwati has stressed that the rules of fair play have to be observed.66 Therefore, the central idea was to win over the public authorities involved in human rights violations of the poor to collaboration and cooperation in order to redress the situation concerned.

61 S.C. (I) 16 December 1983 (Bandhua Mukti Morcha / Union of India), PIL-SCALE, p. 1784, § 14.62 S.C. (I) 5 August 1986 (Sheela Barse / Union of India), PIL-SCALE, p. 1511, § 8.63 S.C. (I) 5 March 1982 (Hira Lal / Zila Parishad, Kanpur), PIL-SCALE, p. 12, § 2; see also S.C. (I) 11 May 1982 (People’s Union for Democratic Rights / Union of India), PIL-SCALE, p. 28, § 2: “Public Interest Litigation, as we conceive it, is essentially a co-operative or collaborative effort on the part of the petitioner, the State or public authority and the court to secure observance of the constitutional or legal rights, benefits and privileges conferred upon the vulnerable sections of the community and to reach social justice to them.”64 S.C. (I) 11 May 1982 (People’s Union for Democratic Rights / Union of India), PIL-SCALE, pp. 28-29, § 2.65 S.C. (I) 16 December 1983 (Bandhua Mukti Morcha / Union of India), PIL-SCALE, p. 1777, § 9.66 P.N. BHAGWATI, “Social Action Litigation: The Indian Experience” in N. TIRUCHELVAM and R. COOMARASWAMY (ed.), o.c., 27.

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Collaborative or co-operative litigation has remained by and large wishful thinking in reality. State authorities have been found to be not co-operative at all, often obstructing the collection of evidence, denying any human rights violation, and blocking remedial action.67

28.Together with the introduction of the idea of co-operative litigation, an active role for judges in the proceedings was also favoured. The judge is expected to participate actively in the case, inter alia by appointing when necessary a commission of inquiry, by ordering innovative remedies or by supervising execution of the orders given:

“[…] [T]he court is not merely a passive, disinterested umpire or onlooker, but has a more dynamic and positive role with the responsibility for the organisation of the proceedings, moulding of the relief and – this is important – also supervising the implementation thereof. The Court is entitled to, and often does seek the assistance of expert-panels, Commissioners, Advisory-committees, Amici etc. This wide range of the responsibilities necessarily implies correspondingly higher measure of control over the parties, the subject-matter and the procedure.”68

4. Remedies29.The Supreme Court has stated that its powers under art. 32 § 2 Indian Constitution are to be understood in the broadest sense. Therefore, its powers are not only injunctive (preventing the infringement of a fundamental right), but also remedial (offering relief against a breach already committed) in nature:

“it will be seen that the power conferred by clause (2) of Article 32 is in the widest terms. It is not confined to issuing the high prerogative writs of habeas corpus, mandamus, prohibition, certiorari and quo warranto, which are hedged in by strict conditions differing from one writ to another […]. But it is much wider and includes within its matrix, power to issue any directions, orders or writs which may be appropriate for enforcement of the fundamental right in question and this is made amply clear by the inclusive clause which refers to in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari […].”69

The relief to be granted is basically focused on the future and is corrective rather than compensatory in nature. The relief is therefore positive and implies affirmative action.70

It goes without saying that the effectiveness of positive relief largely depends on the willingness of the executive to co-operate.

30.Relief has been offered very often by way of interim orders. As interim orders are given before any preliminary examination of the merits of the case, they have been qualified as “remedies without rights”.

67 See for example the remark made by the Court in S.C. (I) 29 August 1988 (Sheela Barse / Union of India), PIL-SCALE, p. 127, § 9: “It is true that with the active and willing co-operation of the respective States, the progress made in the proceedings would have been far more substantial 68 S.C. (I) 29 August 1988 (Sheela Barse / Union of India), PIL-SCALE, p. 123, § 6.69 S.C. (I) 16 December 1983 (Bandhua Mukti Morcha / Union of India), PIL-SCALE, pp. 1781-1782, § 13; see also S.C. (I) 20 December 1986 (M.C. Mehta / Union of India), PIL-SCALE, p. 1518, § 3. Compare with S.P. SATHE, “Constitutional Law I - (Fundamental Rights)” in A. JACOB and T. PAUL (ed.), Annual Survey of Indian Law, New Delhi, The Indian Law Institute, 1987, 99.70 S.C. (I) 29 August 1988 (Sheela Barse / Union of India), PIL-SCALE, p. 123, § 6.

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The reasons behind the frequent use of interim orders can be found in the urgent character of many cases, and in the ongoing nature of many violations of human rights.

31.The Supreme Court has substantially broadened the scope of remedies, aiming at restitutio in integrum. By translating entitlements into concrete benefits,71 the Court’s orders are often very specific and detailed.72

Inevitably, the Supreme Court often infringes on the classic division of powers between the judiciary and the executive. To a certain extent, it plays the role of a policy maker and takes over the task of the executive. Baxi has coined the term “creeping jurisdiction” to indicate the process by which the court, giving consecutive interim orders in a case, progresses from the claims in a specific case to the wider social problems involved.73

The degree of infringement on the area of competence of the executive varies. In a number of cases, the Supreme Court has asked the executive to fulfil its constitutional and legal obligations:

“If the executive is not carrying out any duty laid upon it by the Constitution or the law, the Court can certainly require the executive to carry out such duty and this is precisely what the Court does when it entertains public interest litigation. When the Court finds … that the executive is remiss in discharging its obligations under the Constitution or the law, so that the poor and underprivileged continue to be subjected to exploitation and injustice or are deprived of their social and economic entitlements or that social legislation enacted for their benefit is not being implemented thus depriving them of the rights and benefits conferred upon them, the Court certainly can and must intervene and compel the Executive to carry out its constitutional and legal obligations and ensure that the deprived and vulnerable sections of the community are no longer subjected to exploitation or injustice and they are able to realise their social and economic rights.”74

In line with this, the court has sometimes given orders or recommendations to the executive branch, for example to provide for a sufficient number of homes for the mentally ill75, to set up an effective implementation scheme for the minimum wages act,76 to create iuvenile courts,77 to release adequate funds to improve the management of a psychiatric hospital,78 to release adequate funds for the rehabilitation of released bonded labourers,79 to prosecute police officers for

71 M. GOMEZ, In the Public Interest, s.l., Legal Aid Centre, University of Colombo, 1993, 79.72 J. CASSELS, “Judicial Activism and Public Interest Litigation in India: Attempting the Impossible?”, l.c., 506.73 U. BAXI, “Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India”, l.c., 42; see also C.D. CUNNINGHAM, “Public Interest Litigation in Indian Supreme Court: A Study in the Light of American Experience”, l.c., A-80.74 S.C. (I) 11 April 1985 (State of Himachal Pradesh / A Parent of a Student of Medical College, Shimla), PIL-SCALE, pp. 1401-1402, § 4.75 S.C. (I) 11 May 1982 (Miss Veena Sethi / State of Bihar), PIL-SCALE, p. 15, § .76 S.C. (I) 2 May 1985 (Mukesh Advani / State of Madhya Pradesh), PIL-SCALE, p. 74, § 21.77 S.C. (I) 13 August 1986 (Sheela Barse / Union of India), PIL-SCALE, p. 1512, § 2.78 S.C. (I) 27 September 1988, Rakesh Chandra Narayan/State of Bihar, AIR 1989, PIL-SCALE, pp. 108-109, §§ 33-34 and S.C. (I) 12 November 1991 (People’s Union for Civil Liberties, Delhi State / Union of India), PIL-SCALE, p. 1404, § 6.79 S.C. (I) 26 September 1989 (Balram / State of M.P.), PIL-SCALE, p. 176, § 5.

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murder,80 or to convene a meeting for the elaboration of principles and a policy on the progressive elimination of child labour.81

Sometimes the court has granted relief beyond what had been asked by the petitioner. It can thereby limit the remedies to the petitioner(s) or those on whose behalf the complaint was lodged,82 or go beyond the concrete case by extending the remedies to the whole class of petitioners or persons on whose behalf the claim was made,83 by making the remedial orders binding for the whole class of defendants,84 or by offering remedies for others than the petitioners or those on whose behalf the complaint was lodged.85

80 S.C. (I) 11 January 1996 (Ranjeet Kumar / Secretary (Home), State of Punjab), PIL-SCALE, p. 519, § 1.81 S.C. (I) 21 February 1997 (Bandhua Mukti Morcha / Union of India), PIL-SCALE, p. 1662, § 13.82 In the Khatri case the Supreme Court ordered that the undertrials who had been blinded by the police in Bihar were to be paid a sum of Rs. 500 to enable them to bring a relation to New Delhi for attending on them while under treatment in a hospital, and a sum of Rs. 300 per month for their maintenance (see S.C. (I) 3 December 1980 (Khatri / State of Bihar), PIL-SCALE, p. 1293, § 7). Later on, the Court ordered that the blinded prisoners were to be given proper vocational training at the cost of the State of Bihar (see S.C. (I) 14 January 1981 (Khatri / State of Bihar), PIL-SCALE, 2, § 1).In the case of Rakesh Chandra Narayan the Supreme Court appointed a Committee of Management to take over the management of a mental hospital from the Health Departement of the State of Bihar because of non-compliance with the directions made by the Court on earlier occasions. It recommended to the Committee of Management to reorganise management along the lines of the management of a hospital in Bangalore, en order that a rehabilitation centre was to be set up (see S.C. (I) 27 September 1988 (Rakesh Chandra Narayan/State of Bihar), PIL-SCALE, pp. 107-109, § 31 en §§ 34-35).83 See for example S.C. (I) 3 December 1980 (Khatri / State of Bihar), PIL-SCALE, p. 1291, § 2 and 1293, § 7, in which the Court made also directions relating to other blinded prisoners than the petitioners; S.C. (I) 16 December 1983 (Bandhua Mukti Morcha / Union of India), PIL-SCALE, p. 1801, § 28: direction to release all bonded labourers in Faridabad and to provide for transportation to their homes; S.C. (I) 10 May 1999 (In re: News Item “Power Crisis Paralyses AIIMS”/ Chief Secretary Govt. of NCT. Delhi), PIL-SCALE V, p. 113, § 1: broadening of the problem regarding insufficient power supply to one public hospital in Delhi to all public hospitals in Delhi.84 S.C. (I) 22 September 1987 (M.C. Mehta / Union of India and others), PIL-SCALE, p. 1585, § 3: all tanneries along the river Ganga; see also J. CASSELS, “Judicial Activism and Public Interest Litigation in India: Attempting the Impossible?”, l.c., 500. After a first hearing, the Court had had published the gist of the petition in the newspapers in circulation in Northern India and had called on all the industrialists and the municipal corporations and the town municipal councils having jurisdiction over the areas through which the river Ganga flows, to appear before the Court.See also S.C. (I) 10 May 1999 (In re: News Item “Power Crisis Paralyses AIIMS”/ Chief Secretary Govt. of NCT. Delhi), PIL-SCALE V, p. 113, § 1: all the authorities concerned with the supply of electric power to the city of Delhi.Compare with S.C. (I) 14 May 1991 (Gaurav Jain / Union of India), PIL-SCALE, p. 253, § 4: all States and Union Territories; S.C. (I) 17 August 1993 (Sheela Barse / Union of India), PIL-SCALE V, 287, § 15: all States; S.C. (I) 13 May 1994 (Public Union for Civil Liberties / State of Tamil Nadu), PIL-SCALE, p. 1357, § 1: all State governments; S.C.(I) 18 December 1996 (D.K. Basu / State of West Bengal), PIL-SCALE IV, p. 303, § 4: all State governments; S.C. (I) 10 December 1998 (R.D. Upadhyay / State of A.P.), PIL-SCALE IV, p. 324, § 4: all States in the same position as the respondent State. In some cases, other States than the respondent State have not been asked to join the respondent. This practice may thus become questionable in the light of the principles of fair trial. In an earlier case, the court had explicitly recognised that its directions were bound to be limited to the respondent(s): see S.C. (I) 16 December 1983 (Bandhua Mukti Morcha / Union of India), PIL-SCALE, p. 1800, § 27: “The other State Governments are not parties before us and hence we cannot give any direction to them ….”85 C.D. CUNNINGHAM, “Public Interest Litigation in Indian Supreme Court: A Study in the Light of American Experience”, l.c., 80. In the Bandhua Mukti Morcha case the Court gave instructions –

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In a few cases, the Supreme Court has assumed the role of policy maker by transgressing its powers into the domain of the legislator. It has ordered guidelines that exceeded by far the concrete case under review: a mechanism for legal aid for prisoners and directions for the protection of women in police detention in the state Maharashtra;86 principles and norms for giving a child in adoption to foreign parents,87 and the direction that an Act should be brought into force by a given date;88 principles governing the duration of the inquiry and of pre-trial detention in cases of offences committed by children under 16;89 parameters in assisting the victims of rape in dealing with complaints thereof;90 procedural safeguards concerning phone tapping in the absence of legislation by the central government;91

safeguards concerning arrest and detention awaiting legislation.92

In a number of other cases however, the Supreme Court has recognised that there are limits to remedial action, and that it should refrain from encroaching on the competence of the executive and the judiciary.93

5. Supervision on Implementation32.A final innovation in SAL concerns the supervision of the Court over the implementation of its interim orders and final judgements.

In a judgement of 1988, the Court has mentioned explicitly the supervision over the execution of its directions as one of the characteristics of SAL:

“”More importantly, the court is not merely a passive, disinterested umpire or onlooker, but has a more dynamic and positive role with the responsibility for the organisation of the proceedings, moulding of the relief and – this is important – also supervising the implementation thereof.[…] [T]he decisions are not “one-shot” determinations but have on going implications. Remedy is both imposed, negotiated or quasi-negotiated. Therefore, what corresponds to the stage of final disposal in an ordinary litigation is only a stage in the proceedings. There is no formal, declared termination of the proceedings.”94

although not requested in any way – to organise periodic camps to create awareness among the workmen in the stonde quaries and stone crushers about their rights (§ 30). The Court seems to be aare itself that it orders more than asked, as it introduces § 33 as follows: “We may now take up a few specific complaints urged on behalf of the workmen.” See S.C. (I) 16 December 1983 (Bandhua Mukti Morcha / Union of India), PIL-SCALE, pp. 1802-1803, § 30 and § 33.86 S.C. (I) 15 February 1983 (Sheela Barse / State of Maharashtra), PIL-SCALE, pp. 49-52, §§ 3-5 and in particular p. 52, § 5.87 S.C. (I) 6 February 1984 (Lakshmi Kant Pandey/Union of India), PIL-SCALE, pp. 1332-1350, §§ 9-23 and in particular pp. 1348-1349, § 24.88 S.C. (I) 20 November 1991 (Lakshmi Kant Pandey/Union of India), PIL-SCALE, p. 1268, § 4.89 S.C. (I) 13 August 1986 (Sheela Barse / Union of India), PIL-SCALE, p. 1513, § 3.90 S.C. (I) 19 October 1994 (Delhi Domestic Working Women’s Forum / National Commission for Women), PIL-SCALE, pp. 411-412, § 16.91 S.C.(I) 18 December 1996 (People’s Union for Civil Liberties (PUCL) / Union of India), PIL-SCALE, pp. 1378-1380, §§ 34-35.92 S.C.(I) 18 December 1996 (D.K. Basu / State of West Bengal), PIL-SCALE IV, pp. 313-314, § 36.93 See for example S.C. (I) 11 April 1985 (State of Himachal Pradesh / A Parent of a Student of Medical College, Shimla), PIL-SCALE, p. 1399, § 1: “… the judiciary has to be extremely careful to see that under the guise of redressing a public grievance it does not encroach upon the sphere reserved by the Constitution to the Executive and the legislature”; S.C. (I) 11 February 1986 (State of Himachal Pradesh / Umed Ram Sharma), AIR 1986, SC p. 854, § 29: “Remedial action in public interest must be with caution and within limits.”94 S.C. (I) 29 August 1988 (Sheela Barse / Union of India), PIL-SCALE, p. 123, § 6. See also S.C. (I) 13 August 1991 (Bandhua Mukti Morcha / Union of India), PIL-SCALE, p. 273, § 5: “… the Court did

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33.Supervision can be organised in different ways.

Sometimes, the Court appoints a supervisory mechanism that has to report to the court from time to time.95 Following the conclusions of such a report, the Court may decide to issue new directions.96

In a number of cases, the Court has itself supervised the implementation, and has left open the possibility for the petitioner(s) to come back to court in case of non-implementation.97

The monitoring of affairs in institutions like hospitals or prisons has proved to be extremely difficult for the Court, inter alia because of long distances between the institution concerned and the Court.98 Therefore, the Court has passed on monitoring in some cases to the High Court99 or the National Human Rights Commission.100

not treat the writ petition as disposed of by its judgment and the application survived for further monitoring”95 See e.g.: S.C. (I) 16 December 1983 (Bandhua Mukti Morcha / Union of India), PIL-SCALE, pp. 1810-1811, § 39: “Joint Secretary in the Ministry of Labour”; S.C. (I) 20 October 1986 (Rakesh Chand Narain / State of Bihar), PIL-SCALE, p. 1614, § 2: Chief Judicial Magistrate; S.C. (I) 30 August 1988 (Rural Litigation and Entitlement Kendra, Dehradun / State of Uttar Pradesh), AIR 1988, SC 2210, § 59: Monitoring Committee composed of civil servants and two public spirited citizens; S.C. (I) 31 October 1990 (M.C. Mehta / State of Tamil Nadu), PIL-SCALE, p. 210, § 13: Committee composed of the District Judge, the District Magistrate, a public activist, a representative of the employees and a local labour officer; S.C. (I) 19 November 1991 (Rajangam, Secretary District Beedi Workers’ Union / State of Tamil Nadu), PIL-SCALE, p. 1311, § 5: the “State Legal Aid and Advice Board” is appointed for a three year period of supervision; S.C. (I) 6 March 1995 (Public Union for Civil Liberties / State of Tamil Nadu), PIL-SCALE, pp. 1359-1360, §§ 4-5: voluntary organisations and a lawyer in respect of each state, and co-ordination by an Supreme Court Advocate and the Secretary-General of Bonded Labourers Liberation Front; S.C. (I) 10 December 1996 (M.C. Mehta / State of Tamil Nadu), PIL-SCALE, p. 1646, § 3; S.C. (I) 5 May 1997 (Public Union for Civil Liberties / State of Tamil Nadu), PIL-SCALE, pp. 1362-1363, §§ 8 en 10: improvement and strengthening of the monitoring by constituting a Committee.96 See e.g. S.C. (I) 30 April 1991 (Rural Litigation and Entitlement Kendra, Dehradun / State of U.P.), PIL-SCALE, 258.97 In S.C. (I) 6 February 1984 (Lakshmi Kant Pandey / Union of India), PIL-SCALE, 1319, the Court developed principles and norms governing cases of inter-country adoption. Later on, the Court clarified these principles and norms in order to facilitate implementation (see S.C. (I) 27 September 1985 (Laxmi Kant Pandey / Union of India), PIL-SCALE, 1240; S.C. (I) 13 February 1986 (L. K. Pandey / Union of India), PIL-SCALE, 1251 and S.C. (I) 3 December 1986 (L. K. Pandey / Union of India), PIL-SCALE, 1251). It also reacted in case of lack of implementation (zie S.C. (I) 19 September 1989 (Laxmi Kant Pandey / Union of India), PIL-SCALE, 1259; S.C. (I) 19 January 1990 (Laxmi Kant Pandey / Union of India), PIL-SCALE, 1261; S.C. (I) 9 February 1990 (Laxmi Kant Pandey / Union of India), PIL-SCALE, 1637; S.C. (I) 12 April 1990 (Laxmi Kant Pandey / Union of India), PIL-SCALE, 1638 and S.C. (I) 20 April 1990 (Laxmi Kant Pandey / Union of India), PIL-SCALE, 1639).98 S.C. (I) 9 December 1987 (Sanjay Suri / Delhi Administration, Delhi), PIL-SCALE, p. 1752, § 2: “Monitoring the affairs of a jail is a difficult job for this Court ….”; S.C. (I) 27 September 1988 (Rakesh Chandra Narayan/State of Bihar), AIR 1989, PIL-SCALE, p. 107, § 32: “We are cognizant of the position that it is difficult for the Court to monitor the management of a hospital - particularly when it is located a thousand kilometers away …”, en § 36: “We must reiterate that Court-monitoring of an institution like the present one is indeed difficult …”.99 S.C. (I) 5 September 1995 (Sheela Barse / Union of India), PIL-SCALE, p. 467, § 7.100 S.C. (I) 11 November 1997 (Dr. Upendra Baxi / State of uttar Pradesh), PIL-SCALE, p. 1395, § 3; S.C. (I) 11 November 1997 (Rakesh Chandra Narayan / State of Bihar), PIL-SCALE, p. 1674, § 1; S.C. (I) 11 November 1997 (Public Union for Civil Liberties / State of Tamil Nadu), PIL-SCALE, p.

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It should be noted that the monitoring of the implementation of court orders remains highly problematic. The Court has therefore tried to improve implementation with a strategy of both threats101 and appeals for willing co-operation.102

34.Apart from procedural innovations, Social Action Litigation has also led to a broadening of the category of duty bearers of fundamental rights obligations, to innovative interpretation of the fundamental rights guaranteed in the Indian Constitution (in particular the right to life in Art. 21 and the prohibition of bonded labour in Art. 23), and to an indirect enforceability of the non-justiciable Directive Principles of State Policy in Part IV of the Constitution. These aspects are not further examined here.

B. Cases and Outcome35.The discussion of SAL serves the purpose of convincing that the procedural innovations in human rights litigation as developed in SAL hold development potential. Above the major procedural innovations have been outlined. In what follows, some SAL-cases are discussed to give an indication of the potential relevance of procedural relaxations in human rights litigation for development purposes.

It should be emphasized that it is not the ambition here to make a full impact assessment of SAL in accordance with the methodological requirements of sociology. The limited ambition of the following paragraphs is to make a reasonable case for the developmental relevance of procedural innovations in human rights litigation, not to give empirical evidence gathered in a scientific way. Two reasons can be given for this option. First, as a matter of competence, sociologists are much better equipped than lawyers like myself to examine the concrete impact of SAL on the living conditions of the Indian poor. Secondly, the purpose of the research undertaken was not as much to show how and to what extent SAL has lived up to its promises, but rather to make plausible that procedural innovations in human rights litigation may be a means to make law and the legal machinery somehow more relevant for the poor in daily life.

36. In the “Guidelines to be followed for entertaining letters/petitions received in this court as public interest litigation”, which were drafted by ten judges of the Supreme

1394, § 1.101 S.C. (I) 16 December 1983 (Bandhua Mukti Morcha / Union of India), PIL-SCALE, p. 1807, § 37: “… we expect the Central Government and the State of Haryana to strictly comply with these directions. We need not state that if any of these directions is not properly carried out by the Central Government or the State of Haryana, we shall take a very serious view of the matter, because we firmly believe that it is no use having social welfare laws on the statute book if they are not going to be implemented”; S.C. (I) 21 November 1986 (Sheela Barse / Union of India), PIL-SCALE, p. 1516, § 4: “We hope and trust that special care will be taken to ensure compliance and this Court will not be forced to take any stringent action.”102 S.C. (I) 29 August 1988 (Sheela Barse / Union of India), PIL-SCALE, pp. 127-128, § 9: “In the matter of affirmative-action the willing cooperation of the authorities must, as far as possible, be explored.” S.C. (I) 5 August 1986 (Sheela Barse / Union of India), PIL-SCALE, p. 1510, § 7: “We hope and trust that there would be strict compliance with these directions now made and there would be no occasion for any further direction to be made for the same purpose”; S.C. (I) 19 November 1991 (Rajangam, Secretary District Beedi Workers’ Union / State of Tamil Nadu), PIL-SCALE, p. 1311, § 6: “We … hope and trust that the authorities and also the employers and the employees would try to implement the directions in true spirit.”

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Court for the use of the Public Interest Litigation Cell, the following ten categories are mentioned as being ordinarily to be entertained as Public Interest Litigation:a. Bonded labour matters;b. Neglected children;c. Non-payment of minimum wages to workers and exploitation of casual workers

and complaints of violations of labour laws (except in individual cases);d. Petitions from jails complaining of harassment for premature release and

seeking release after having completed 14 years in jail, death in jail, transfer, release on personal bond, speedy trial as a fundamental right;

e. Petition against police for refusing to register a case, harassment by police and death in police custody;

f. Petitions against atrocities on women, in particular harassment of bride, bride-burning, kidnapping etc.

g. Petitions complaining of harassment or torture of villagers by co-villagers or by police from persons belonging to Scheduled Castes and Scheduled Tribes and economically backward classes;

h. Petitions pertaining to environmental pollution, disturbance of ecological balance, drugs, food, adulteration, maintenance of heritage and culture, antiques, forest and wildlife and other matters of public importance;

i. Petitions from riot-victims;j. Family pension.103

37.Two main categories of cases can be distinguished, which correlate to the twofold liberalisation of rules of standing (both in the interest of the poor and disadvantaged, and in the public interest). The first category concerns cases about social victimisation and exploitation,104 in which it is attempted to protect the rights of weaker or underprivileged groups like prisoners, labourers, women, children, mentally ill, street vendors, squatters, pavement dwellers, landless people, the untouchables and indigenous communities (the so-called Scheduled Castes and Scheduled Tribes)105. The second category relates to cases in the public interest, mainly concerning corruption, the environment and consumer issues. As mentioned earlier, the number of cases of the second category has risen dramatically since the 1990s, and overshadows now the first category in both number of cases and importance.106

38. The illustrative cases discussed below all belong to the first category.

1. Labour and Labourers39.A landmark case with regard to labour rights is the Asiad judgement of 18 September 1982. The case was taken to court by the human rights NGO People’s Union for Democratic Rights, which addressed a letter to justice Bhagwati. In that letter, it was submitted that the working conditions under which the labourers involved in construction projects for the Asian Games had to work were in violation of labour laws. The government of India had farmed out the construction work to local authorities like the Delhi Administration, the Delhi Development Authority and

103 As cited in S. AHUJA, People, Law and Justice. Casebook on Public Interest Litigation, New Delhi, Orient Longman, 1997, II, 860-861.104 K.P. SINGH, “Social Action Litigation: An Activity of Social Change in India” in K.L. BHATIA (ed.), Judicial Activism and Social Change, New Delhi, Deep & Deep, 1990, 356.105 See B. RUBIN, “India” in J. DONNELLY and R. HOWARD (ed.), International Handbook of Human Rights, New York, Greenwood, 1987, 157, endnote 11.106 See higher, no. 12 and footnote Error: Reference source not found.

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the New Delhi Municipal Committee, who had engaged in turn contractors for the purpose.

40.First, the Supreme Court made clear that the non-observance of the labour laws, which were intented to ensure basic human dignity, was a violation of several fundamental rights: the prohibition of child labour below the age of 14 years, the right to equality before the law, the right to life and the prohibition of forced labour.

With regard to the right to life as guaranteed in Article 21 of the Indian Constitution, the Court referred to its earlier case-law where it had held that the right to life was not confined merely to physical existence, but that it also included the right to live with basic human dignity.107 In this interpretation, a beginning was made with reading a socio-economic dimension in the (civil) right to life.

The prohibition of forced labour is guaranteed in Article 23 Indian Constitution. In the present case, the court held that this prohibition was violated by non-payment of the minimum wages to the workmen. It argued that “when a person provides labour or service to another against receipt of remuneration which is less than the minimum wage, he is acting under the force of some compulsion which drive him to work though he is paid less than what he is entitled under law to receive.” 108 The force arises here from the compulsion of economic circumstances and poverty, which leaves no choice to a person as far as job opportunities are concerned.109

It also argued that there was a positive obligation for the state to ensure a fundamental right that is enforceable against private individuals – such as the prohibition of forced labour and the prohibition of child labour below the age of 14 in hazardous employment – is not violated by a private individual, particularly when the person concerned belongs to “the weaker section of humanity”. Therefore, the authorities were held to be under an obligation to ensure observance of the labour laws by the contractors engaged in the construction works.110

Secondly, in more practical terms, it directed inter alia that the minimum wage or any higher wage payable had to be paid directly to the workmen, without the intervention of middlemen. It also appointed three Ombudsmen with the request to make periodical inspections of the sites of the construction work to ascertain whether labour laws were complied with.111 In regard with future construction work farmed out to contractors, it ordered that a provision should be introduced in the 107 S.C. (I) 18 September 1982 (People’s Union for Democratic Rights / Union of India), PIL-SCALE, p. 37, § 11. See in particular S.C. (I) 13 January 1981 (Francis Coralie Mullin / Administrator Union Territory of Delhi), PIL-SCALE, p. 1865, § 8: “We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and mingling with fellow human beings. Of course, the magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human-self.”108 S.C. (I) 18 September 1982 (People’s Union for Democratic Rights / Union of India), PIL-SCALE, p. 43, § 14.109 Ibid.110 Ibid., p. 44, § 14.111 See S.C. (I) 11 May 1982 (People’s Union for Democratic Rights / Union of India), PIL-SCALE, p. 25, § 1.

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contract ensuring that the wage should be paid directly to the workmen and that an effective system of periodic and occasional surprise inspections should be instituted.112

41.A second landmark case regarding labour rights is the Bandhua Mukti Morcha judgement of 16 December 1983 on bonded labour. In this case initiated by Bandhua Mukti Morcha (“Bonded Labourers Liberation Front”), the Supreme Court clarified and specified what the minimum requirements were for a life in human dignity, applied to working conditions. It did so by relying on an number of Directive Principles of State Policy, in particular on clauses (e) and (f) of Article 39 and on the Articles 41 and 42:113

“This right to live with human dignity enshrined in Article 21 derives it life breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 and at least, therefore, it must include protection of the health and strength of workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity […].”114

The Court made also clear that

“[w]here legislation is already enacted by the State providing these basic requirements to the workmen and thus investing their right to live with basic human dignity, with concrete reality and content, the State can certainly be obligated to ensure observance of such legislation for inaction on the part of the State in securing implementation of such legislation would amount to denial of the right to live with human dignity enshrined in Article 21 […].”115

In practical terms, the Court ordered the government concerned first of all to identify bonded labour,116 to repatriate the bonded labourers to their homes and to draw up

112 S.C. (I) 18 September 1982 (People’s Union for Democratic Rights / Union of India), PIL-SCALE, pp. 46-47, § 16.113 Article 39 holds that “[t]he State shall, in particular, directs it policy towards securing – (e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; (f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.”Article 41 reads: “Right to work, to education an to public assistance in certain cases. – The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.”Article 42 reads: “Provision for just and humane conditions of work and maternity relief. – The State shall make provision for securing just and humane conditions of work and for maternity relief.”114 S.C. (I) 16 December 1983 (Bandhua Mukti Morcha / Union of India), PIL-SCALE, p. 1778, § 10.115 Ibid., p. 1778, § 10.116 “A bonded labourer is a labourer who incurs or has or is presumed to have incur a bonded debt and a bonded debt means an advance obtained or presumed to have been obtained by a bonded labourer under or in pursuance of the bonded labour system […].” (Ibid., p. 1797, § 23). See also S.C. (I) 13 August 1991 (Bandhua Mukti Morcha / Union of India), PIL-SCALE, p. 277, § 11, where a bonded labourer is defined as someone who virtually sells oneself to the creditor for a loan at an exorbitant rate of interest, so that he gets bonded usually for a period of life and renders services for the purpose of satisfying the debt. The system is said there to provide a built-in mechanism for continuation of exploitation of the under-privileged section of the society by the privileged few living therein.

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a scheme or program for their rehabilitation.117 Secondly, it also directed the government to ensure immediately the improvement of the actual working conditions in the stone quarries and stone crushers by making the mine-lessees and stone crusher owners to start supplying pure drinking water; to keep the vessels in which the drinking water was kept in clean and hygienic conditions; to provide conservancy facilities which are adequately lighted, ventilated and kept clean; to provide proper and adequate medial and first aid facilities and treatment; to provide training in blasting with explosives to those required to carry out blasting activities. It also impressed on the magistrates and judicial officers to take a strict view of violation of labour laws.118

2. Child Labour42. In a number of cases, the Supreme Court had to deal with the issue of child labour.

In the first place, it made clear that the constitutional prohibition on child labour below the age of 14 in hazardous employment should be abided by, although it had not been followed up by appropriate legislation.119

Secondly, it pointed out that hazardous employment, apart from employment in a factory or mine as mentioned in Article 24 Indian Constitution, also covers construction work,120 employment within match factories directly connected with the manufacturing process up to final production of match sticks or fireworks,121 and tobacco manufacturing.122

In its directions, the Court opted for a pragmatic, progressive banning of child labour. It called for action plans for the progressive elimination of employment of children below the age of 14, ranking the most hazardous employment first in priority. At the same time, it stressed the need for (primary) education.123

3. Forced Evictions43.Finally, an important judgement regarding pavement dwellers and forced evictions is discussed briefly.

In the Olga Tellis case of 10 July 1985 the Court further elaborated the meaning of the right to life. It held that the right to life includes the right to livelihood:

117 S.C. (I) 16 December 1983 (Bandhua Mukti Morcha / Union of India), PIL-SCALE, pp. 1798-1801, § 25-28.118 Ibid., pp. 1803-1807, §§ 33-38.119 S.C. (I) 18 September 1982 (People’s Union for Democratic Rights / Union of India), PIL-SCALE, p. 32, § 6.120 Ibid.; S.C. (I) 2 March 1983 (Labourers Working on Salal Hydro-Project / State of Jammu and Kashmir), PIL-SCALE, p. 59, § 6.121 S.C. (I) 31 October 1990 (M.C. Mehta / State of Tamil Nadu), PIL-SCALE, pp. 208-209, § 5.122 S.C. (I) 19 November 1991 (Rajangam, Secretary District Beedi Workers’ Union / State of Tamil Nadu), PIL-SCALE, p. 1311, § 4.123 See S.C. (I) 2 March 1983 (Labourers Working on Salal Hydro-Project / State of Jammu and Kashmir), PIL-SCALE, p. 59, § 6; S.C. (I) 31 October 1990 (M.C. Mehta / State of Tamil Nadu), PIL-SCALE, pp. 209-210, §§ 9-10; S.C. (I) 19 November 1991 (Rajangam, Secretary District Beedi Workers’ Union / State of Tamil Nadu), PIL-SCALE, p. 1311, § 4; S.C. (I) 10 December 1996 (M.C. Mehta / State of Tamil Nadu), PIL-SCALE, pp. 1654-1656, §§ 28-32; S.C. (I) 21 February 1997 (Bandhua Mukti Morcha / Union of India), PIL-SCALE, p. 1662, §§ 12-13.

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“The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken aways as, for example, by the imposition and execution of the death penalty, except according to procedure established by law. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life.”124

Its decision was informed by two Directive Principles of State Policy, namely Article 39 (a) and Article 41. Article 39 (a) states that the State should in particular direct its policy towards securing that the citizen have the right to an adequate means of livelihood. Article 41 deals with securing the right to work and to public assistance in the case of unemployment and other cases of undeserved want.125

When it came to the application of the above-stated principle to the facts in the case, the Court held that the eviction of the pavement dwellers would lead to deprivation of their livelihood and consequently to the deprivation of their life. Next, the Court argued that there was no absolute prohibition on the deprivation of life; there was only the constitutional requirement that a deprivation had to be in accordance with a procedure established by law, and the related case-law that the procedure had to be fair, just and reasonable. The Court concluded that in the given case, these requirements had been satisfied. As a transitional measure, it ordered that the end of the monsoon season had to be awaited before the evictions could take place. Moreover, it directed that pavement dwellers who had been given census cards in 1976 were to be given alternative pitches (though not as a condition precedent to eviction), and slum dwellers who had been given identity cards and whose dwellings had been censused were to be given alternate accommodation before being evicted.126

The practice of the Court to give a very broad interpretation of a right in theory, but of substantially stripping it in the application to the case has been coined “rights without remedies”.127

C. Impact44.The sustainable impact of the judgements is difficult to assess, predominantly due to the lack of sociological data. From the existing data to be found in literature, interviews and judgements it can be drawn however that the bounded labour system for example is very hard to root out, and that governments are reluctant or negligent in complying with the directions of the Supreme Court. Rehabilitation in particular has proved to be a very difficult but at the same time crucially important exercise: when failing, people were forced back to the bonded labour system.128

124 S.C. (I) 10 July 1985 (Olga Tellis / Bombay Municipal Corporation), PIL-SCALE, p. 1493, § 32.125 Ibid., p. 1493, § 33.126 Ibid., pp. 1495-1506, §§ 37-57.127 See C.D. CUNNINGHAM, “Public Interest Litigation in Indian Supreme Court: A Study in the Light of American Experience”, l.c., A-81.128 S.C. (I) 10 August 1988 (Hav. P.V. Sivaswamy / State of Andhra Pradesh), PIL-SCALE, p. 98, § 8 (“… how difficult it is to work out the Act and to give effect to the scheme of rehabilitation

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The improvement of working conditions too has been less than optimal. Jain, the commissioner appointed by the Supreme Court to monitor working conditions in the stone quarries, reported failing compliance with the directions of the Supreme Court.129

Equally, the elimination of child labour, especially in hazardous employment, has not been very successful.130

45. In sum, it has to be admitted that the direct impact of the Supreme Court orders and judgements in SAL has been rather limited. That does not however jeopardize in any way the potential developmental relevance of SAL. First of all, the fact that the actual impact has been limited is in our opinion not so much to be attributed to conceptual weaknesses of SAL, but to real obstacles to development likely to be encountered in every strategy.

Secondly, it should be taken into account that no magic formula exists for development, and that there are no easy “take away” solutions to the challenge of development. Development is a long and difficult process with little or no short cuts. SAL may however have helped to make at least some progress.

Thirdly, some of the limitations of SAL are in fact limitations to every legal strategy. We will turn to this again (see further no. 97).

Finally, the indirect impact of SAL should not be overlooked. At least three elements of indirect impact can be identified. SAL has had first of all an important educational role:131 it has increased awareness of specific problems of particular groups,132 and it has drawn the attention to particular situations.133 In the second place, it has functioned as a catalyst for social change:134 SAL judgements have served as a

contemplated by the Statute.”), p. 98, § 9 (“Laws, however beneficial they may be are difficult to be implemented unless the requisite social consciousness has grown.”) and p. 99, § 10 (“It is difficult for the Court to entertain repeated complaints of this type and devote attention by way of monitoring the administration of the Act, as has been done in this case. We are surprised that about three years were necessary to persuade the State of Andhra Pradesh … and the States of Karnataka, Orissa and Tamil Nadu … to perform their statutory obligations. Here again Karnataka has not yet done its part.”).S.C. (I) 13 August 1991 (Bandhua Mukti Morcha / Union of India), PIL-SCALE, p. 282, § 29 (“The State of Haryana … has not taken our intervention in the proper spirit and has failed to exercise appropriate control though eight years back this Court had in clear terms laid down the guidelines and had called upon the public authority to take charge of the situation and provide adequate safeguards.”) and p. 283, § 32 (“Court’s jugdment to regulate such matters has inherent limitation. These are not schemes which could be conveniently monitored by a court - far less can the apex court keep track of the matter.”). See also interview with S. AGNIVESH, President Bonded Labourers Liberation Front, 16/06/1999, Delhi; M. JAIN, Bonded Labour. Justice through Judiciary, New Delhi, Manak, 1997, 136; P. SINGH, “Public Interest Litigation” in A. JACOB and T. PAUL (ed.), Annual Survey of Indian Law, New Delhi, The Indian Law Institute, 1991, 36-38.129 M. JAIN, o.c., 141-145.130 P. SINGH, “Public Interest Litigation”, l.c. 1991, 38-39.131 S. SHARMA, “Public Interest Litigation: A Revolution in Judicial Process” in K.L. BHATIA (ed.), o.c., 212.132 S. AHUJA, o.c., 335.133 Ibid., 9.134 S.P. SATHE, “Preface” in S. AHUJA, o.c., xliv; see also P. SINGH, “Judicial Socialism and Promises of Liberation: Myth and Truth”, Journal of the Indian Law Institute 1986, 178-179.

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starting point for further (legal) action; the judgements on minimum wages for example have been used before the lower courts.135 Moreover, SAL has (re-) introduced the idea of accountability,136 which might eventually lead to a more human rights friendly attitude of the executive. In the third place, is has been argued that SAL has an important ideological function, in that it “calls for ideological reorientation of adjudication towards a jurisprudence of emancipation and legitimation of struggle for liberation by the oppressed groups in the Indian society” and that it “create[s] a new kind of political space.”137

46. In conclusion, the limited impact of SAL judgements does not jeopardize its development potential; it only demonstrates that the relevance of SAL and SAL-like doctrines and phenomena will inevitably be limited. Therefore, attention needs to be paid to the context within which SAL is used, and to other strategies that can be used to improve the living conditions of the most vulnerable groups. This will be done in the next part, after having elaborated a conceptual framework for a procedural approach of the contribution of human rights law to development.

III. Integrated Human Rights Social Action Litigation

47. In the previous section, SAL was introduced. Here an attempt is made to develop a conceptual framework for the human rights law contribution to development on the operational level. This framework relies heavily on SAL. As a rule, it differs only from SAL on these issues that have proved to be problematic in SAL.

This conceptual framework can be termed “Integrated Human Rights Social Action Litigation”: it is Social Action Litigation, exclusively based on human rights norms, and explicitly integrated in broader struggles for development. It is directed in particular to the most vulnerable groups in society.

48.The main orientations of Integrated Human Rights Social Action Litigation are the following:1. Regarding the developmental relevance of human rights law, attention is paid

predominantly to the national rather than to the international level.As explained earlier, this orientation does in no way imply that there is no need to conceptualise the human rights law contribution to development at the international level, particularly in the light of globalisation. It is only submitted here that given the basic concern with the relevance on the ground of human rights law for the poor, focus is here in the first place on the national level.

2. Option is made for a procedural rather than a substantive law approach: rather than a conceptualisation of the right to development as a collective human right, it is tried to develop a procedural framework for human rights enforcement.Elsewhere, the argument has been developed that both as a matter of principle and pragmatism, little is to be expected from the right to development thought of

135 S. AHUJA, o.c., 269.136 U. BAXI, Towards a Sociology of Indian Law, New Delhi, Satvahan, 1986, 132 en U. BAXI, “Judicial Discourse: Dialectics of the Face and the Mask”, Journal of the Indian Law Institute 1993, 12.137 U. BAXI, Towards a Sociology of Indian Law, 132-133.

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as a collective human right.138 Moreover, it is striking to see how the only attempt to make the right to development justiciable took the form of a class action. This seems to imply that for the enforcement of the right to development thought of as a collective human right, a collective human rights procedure would be necessary.139

3. A central role is attributed to social action groups and judges, rather than to the legislature and executive.This is not to say that the legislature and executive do not have to play a crucial role in fostering development. However, taking into account:1° that development legislation has proved not to be sufficient in itself to bring about development;2° that society is less engineerable than assumed initially in law and development thinking;3° that even with relatively deficient legislation (social and economic rights are not recognised as enforceable fundamental rights, but as non-enforceable Directive Principles of State Policy in the Indian Constitution), progress can be made with the active co-operation of both social action groups and the judiciary, as can be seen in SAL;4° that there is a worldwide trend towards more attention for means of protection of human rights and towards the expansion of judiciary law or judicialisation;140

5° that the perspective here is an operational one, namely that of the relevance of human rights law on the ground, for the poor;it seems preferable to focus on social action groups and the judiciary.

4. It is submitted that a purely legal approach is bound to be deficient; what is needed is the integration in a broader strategy of social and political action.

49. Integrated Human Rights Social Action Litigation as it will be defined below, is not a final, static or absolute model. Nor is it argued or implied that it is the only possible or best conceptualisation of the human rights contribution to development. It is only intended to facilitate further case-studies and empirical research on the issue, by offering an operational conceptual framework to be tested – or falsified if necessary.

A. Characteristics of Human Rights Social Action Litigation50.Human Rights Social Action Litigation (HRSAL) is characterised by collective and deformalised access to justice, the use of inquiry commissions, the possibility of innovative remedies, and the ongoing monitoring of the execution and implementation of judgements. Each of these characteristics will be examined and justified below.

138 See our “The Human Right to Development as a Paradox”, to be published.139 See E. ANKUMAH, The African Commission on Human and People’s Rights. Practice and Procedure, Den Haag, Martinus Nijhoff, 1996, 166-167.140 O. DE SCHUTTER, Fonction de juger et droits fondamentaux. Transformation du contrôle juridictionnel dans les ordres juridiques américain et européens, Brussels, Bruylant, 1999, 1102; M. CAPPELLETTI, The Judicial Process in Comparative Perspective, Oxford, Clarendon, 1989, 3 and 25-28; N. TATE, “Why the Expansion of Judicial Power?”, l.c., 27-37; N. TATE and T. VALLINDER, “Judicialization and the Future of Politics and Policy” in N. TATE and T. VALLINDER (ed.), o.c., 515-528. Compare with R. COOMARASWAMY, “Toward an Engaged Judiciary” in N. TIRUCHELVAM and R. COOMARASWAMY (ed.), o.c., 1.

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1. Collective and Deformalised Access to Justice51.The main characteristic of SAL is its collective and deformalised access to justice, due to the liberalisation of both the rules of standing and the formal requirements concerning the submission of a complaint.

52.HRSAL is characterised by the possibility of submitting group complaints and collective complaints on behalf of groups, and by a deformalised procedure to approach the court.

The starting point taken is that the most vulnerable groups in society are lacking the knowledge, capacity and self-assertion to have their human rights enforced in an individual way. Moreover, many of the human rights violations are suffered in common, thus hitting the vulnerable as a group. For the latter reason, it is important to have a collective complaint procedure; for the former reason, it is crucial to allow for representation.

a. Collective Access to Justice53. It is proposed to allow for both group and collective complaints.

Group complaints are complaints submitted by a group as such. A group is understood as an identity not reducible to its members.

Collective complaints are complaints submitted by one or more representatives of a group without the explicit consent from all members of the group, which result in a binding judgement for the group members. Three subcategories can be distinguished on the basis of the type of representation: a class action is initiated by a member of the group, an organization action is submitted by an organisation, and a third party action is an action introduced by an individual third party.141

Both group and collective complaints have in common that the enforcement of human rights is pursued for the benefit of a group or a collectivity. The collective nature appears from the beneficiaries, and in the case of a group action and an organization action also to a certain extent from those who submit the complaint.

54.The main problem in all of the actions is that of representation. What safeguards are to be built in to ensure that the representative(s) act for the benefit of the vulnerable group concerned?

In SAL, (too) little attention has been paid to this issue. Here, in HRSAL it is suggested to impose certain conditions and qualifications on the representative organisation or third party individual. These conditions should be applied in a more vigorous way in these cases where the representativeness is less obvious.

Preference is given to organization actions, as this type of actions allows for more involvement and participation of the vulnerable people concerned in both the organization itself and the litigation. Grass roots organizations offer most safeguards for involvement of the people concerned in the organization. This may

141 See P. LINDBLOM, “Individual Litigation and Mass Justice: A Swedish Perspective and Proposal on Group Actions in Civil Procedure”, The American Journal of Comparative Law 1997, 820-821.

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help to avoid a paternalistic overtone, which SAL was sometimes blamed for. 142 The right balance will have to be struck between involvement and expertise.

As criterion for representativeness, social or collective due process has been suggested. Social or collective due process requires that the representing organization or third party individual is sufficiently representative.143 The concrete application of this criterion should be left to the judge on a case-to-case base. In the case of organizations, elements of social or collective due process could be: the level of participation of those on whose behalf action is taken; the degree of internal democracy; and the degree of long-lasting commitment of the group for the people represented.

Moreover, the organisation should have the necessary expertise both on the social issue and on (human rights) litigation.

55.Contrary to SAL in India, which is only possible before the Supreme Court and the High Courts, it is suggested here to allow for HRSAL at every level of the judiciary. HRSAL before the lower judiciary, if properly trained and if independent enough from the executive and economic and social powers, may benefit from its relative closeness to and familiarity with the case. Moreover, the threshold for submitting a complaint in one’s own area or region may be lower, provided again that the minimal safeguards of professionalism and independence are satisfied.

56.The case for collective complaints has been made earlier by academics.144

Moreover, in the UN and regional protection mechanisms for human rights, collective complaints have been introduced, predominantly in the field of economic and social rights.

At the UN level, collective representative standing has been a feature of the ILO 145

and UNESCO146 procedures from the beginning.

142 See also J. COTTRELL, “Third Generation Rights and Social Action Litigation”, l.c., 103.143 M. CAPPELLETTI, “Vindicating the Public Interest through the Courts: A Comparativist’s Contribution”, in M. CAPPELLETTI and B. GARTH (ed.), Access to Justice. III. Emerging Issues and Perspectives, Sijthoff, Alphen aan den Rijn, 1979, 559-561.144 M. CAPPELLETTI, o.c., 26; P. VAN DIJK, Judicial Review of Govermental Action and the Requirement of an Interest to Sue. A Comparative Study on the Requirement of an Interest to Sue in National and International Law, Alphen a/d Rijn, Sijthoff & Noordhoff, 1980, 236-237.145 See in particular the Article 24 Representation Procedure, the Article 26 Complaints Procedure and the Freedom of Association Procedures. See also K. ARAMBULO, Strengthening the Supervision of the International Covenant on Economic, Social and Cultural Rights: Theoretical and Procedural Aspects, Antwerp, Intersentia, 1999, 194-195; N. PROUVEZ, “La Charte sociale européenne: un instrument pour la protection des droits de l’homme au 21e siècle?”, Commission internationale de juristes – La Revue 1998, afl. 58-59, 32-47.146 The UNESCO’s complaints procedure was established in 1978 by the Executive Board (see UNESCO Doc.104 EX/Decision 3.3). Communications regarding cases of individual and specific human rights violations within the UNESCO mandate can be brought to the Committee on Conventions and Recommendations (a permanent subsidiary body of the Executive Board) either by a person or group of persons who can reasonably be presumed to be victims of an alleged violation or by a person, group of persons or a non-governmental organisation who have reliable knowledge of the violations. See for a more detailed account of the procedure F. COOMANS, “UNESCO and Human Rights” in R. HANSKI and M. SUKSI (ed.), An Introduction to the International Protection of Human Rights. A Textbook, Åbo, Åbo Akademi University, 1999, 225-229.

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The Committee on Economic, Social and Cultural Rights has suggested in its General Comments that the possibility of class actions should be considered,147 and has allowed for representative standing in its draft optional protocol providing for a complaints procedure.148

In the Inter-American system, petitions can be lodged with the Commission inter alia by “any nongovernmental entity legally recognized in one or more member states of the Organization.”149

Within the Council of Europe, collective complaints can be submitted concerning violations of the European Social Charter under the Additional Protocol to the European Social Charter Providing for a System of Collective Complaints.150 Three types of organisations can submit complaints: international organisations of employers and trade unions which participate in the work of the Governmental Committee in pursuance of Article 27 para. 2 of the Charter151; other international non-governmental organisations with consultative status with the Council of Europe and appearing on a special list which was drawn up for this purpose by the Governmental Committee; and national organisations of employers and trade unions from the Contracting Party concerned. In addition, each state may, in a declaration to the Secretary General, authorise national non-governmental organisations to lodge complaints against it. Article 3 of the Protocol specifies that "The international non-governmental organisations and the national non-governmental organisations [...] may submit complaints [...] only in respect of those matters regarding which they have been recognised as having particular competence".

The representation issue too has been dealt with at the UN and regional levels. At the UN level for example, the Optional Protocol to CEDAW requires consent in principle of the one(s) on whose behalf a complaint is lodged. In exceptional 147 CESCR General Comment 4 on the right to adequate housing, 13 December 1991, no. 17.148 Proposed Article 1: "A State Party to the Covenant that becomes a Party to the present Protocol recognizes the competence of the Committee to receive and examine communications from any individuals or groups subject to its jurisdiction in accordance with the provisions of this Protocol." (see Annex to Status of the International Covenants on Human Rights. Draft optional protocol to the International Covenant on Economic, Social and Cultural Rights. Note by the Secretary-General, E/CN/1997/105, 18 December 1996, no. 23).149 See Art. 44 American Convention on Human Rights: “Any person or group of persons, or any nongovernmental entity legally recognized in one or more member states of the Organization may lodge petitions with the Commission […]”; Art. 26 Regulations of the Inter-American Commission on Human Rights: “Any person or group of persons or nongovernmental entity legally recognized in one or more member states of the Organization, may submit petitions to the Commission, in accordance with these Regulations, on one’s own behalf or on behalf of third persons […]”; see also C. CERNA, “The Inter-American Commission on Human Rights: its Organization and Examination of Petitions and Communications” in D. HARRIS and S. LIVINGSTONE (ed.), The Inter-American System of Human Rights, Oxford, Clarendon Press, 1998, 78.150 Opened for signature on 9 November 1995 and entered into force on 1 July 1998.151 Art. 27 para. 2 European Social Charter: “The sub-committee shall be composed of one representative of each of the Contracting Parties. It shall invite no more than two international organisations of employers and no more than two international trade union organisations as it may designate to be represented as observers in a consultative capacity at its meetings. Moreover, it may consult no more than two representatives of international non-governmental organisations having consultative status with the Council of Europe, in respect of questions with which the organisations are particularly qualified to deal, such as social welfare, and the economic and social protection of the family.”

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circumstances, representation is possible without consent of the victim(s) if the absent of consent can be justified.152

b. Deformalised Access57. In SAL, a formal writ petition is not required: a letter, fax or even a postcard have been accepted.

58.HRSAL equally allows for deformalised access: a complaint can be lodged with a simple letter.

59.Deformalised access characterises most international procedures, both at the UN and regional level. Requirements set forth regarding the petition – often in the rules of procedure – do not refer as much to formal as to substantive qualities.153

2. Inquiry Commissions60.Under SAL before the Indian Supreme Court, the creation of inquiry commissions has logically and almost inevitably ensued from the broadening of the rules of standing and the deformalisation of access.

61.The possibility of inquiry commissions is proposed here for HRSAL as well.

Several reasons justify this procedural innovation concerning the collection of evidence in case of a human rights violation. In the first place, the claimant often lacks both the means and skills to collect evidence himself. Secondly, most often it is to be expected that the claimant will find himself confronted with a reluctant or hostile organ of state as a defendant. Therefore, it seems more appropriate to have an independent commission of inquiry, appointed by the court, to collect evidence. Thirdly, complaints on wide-spread human rights violations tend to cover difficult and wide-ranging problems, so that profound insight is required not only in the facts of the case, but also in causes and determining factors.

The composition of the commission of inquiry should be informed by two considerations: first, the commission should be familiar with the social issue at stake; secondly, it should equally be experienced in human rights issues. Therefore, a mixed composition of lawyers and non-lawyers, professional researchers or social workers and non-governmental actors is to be preferred. Both for the reliability of the commission’s findings and for the sake of the principle of fair trial, the impartiality and objectivity of the members of the commission should be beyond doubt.

A commission of inquiry serves three functions. First of all, it collects evidence on the facts of a given case, and it reports on the broader context and the causes of

152 Article 2 OP-CEDAW: “ […] Where a communication is submitted on behalf of individuals or groups of individuals, this shall be with their consent unless the author can justify acting on their behalf without such consent.”153 See for example Article 28 Rules of Procedure of the Inter-American Commission on Human Rights; Rule 104 Rules of Procedure of the African Commission on Human and Peoples’ Rights; Rule 47 Rules of Court of the European Court of Human Rights; Rule 99 Rules of Procedure of the Committee against Torture; Rule 84 Rules of Procedure of the Committee on the Elimination of Racial Discrimination; Rule 58 Rules of Procedure of the Committee on the Elimination of Discrimination against Women; Rule 80 Rules of Procedure of the Human Rights Committee.

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the social issue at stake. Secondly, if requested by the court, it can also formulate recommendations on remedies. The commission will often have a deeper knowledge of the issue under consideration, and seems therefore to be the proper forum to make realistic recommendations for remedy. A third function may consists of following up the orders and judgements of the court, so as to supervise compliance and implementation of the directions given.

Both the fact-finding report of the commission and its recommendations for remedial action are to be submitted to the parties for comment. It is further open to the judge to decide which evidentiary value he attaches to the report, and whether or not he accepts the remedial action recommended.

62.The inquiry commission proposed is a mixture of the continental expert inquiry and the fact-finding missions of regional and UN organs. Most of its characteristics (apart from the power to make recommendations on remedies) can be found in the measures the European Court of Human Rights and the Inter-American Court of Human Rights for example can take for obtaining evidence.154

Fact-finding missions are missions of one or several members of the (quasi-)judicial body in the country concerned to collect further evidence on the case under review. These missions can be undertaken e.g. by the European Court of Human Rights and the Inter-American Commission.155

63. In HRSAL, the costs of the inquiry commission are to be born in principle by the state. This seems the only viable way of funding such an inquiry commission, as HRSAL is meant per definition for the socially vulnerable groups in society. In this respect, the proposed arrangement deviates from the one to be found with the regional courts.156

154 See Rule 42 Rules of Court European Court of Human Rights: “Measures for taking evidence. 1. The Chamber may, at the request of a party or a third party, or of its own motion, obtain any evidence which it considers capable of providing clarification of the facts of the case. The Chamber may, inter alia, request the parties to produce documentary evidence and decide to hear as a witness or expert or in any other capacity any person whose evidence or statements seem likely to assist it in the carrying out of its tasks. 2. The Chamber may, at any time during the proceedings, depute on or more of its members or of the other judges of the Court to conduct an inquiry, carry out an investigation on the spot or take evidence in some other matter. It may appoint independent external experts to assist such a delegation. 3. The Chamber may ask any person or institution of its choice to obtain information, express an opinion or make a report on any specific point. […]"Compare with Article 44 Rules of Procedure of the Inter-American Court of Human Rights: “Procedure for taking evidence. The Court may, at any stage of the proceedings: 1. Obtain, on is own motion, any evidence it considers helpful. In particular, it may hear as a witness, expert witness, or in any other capacity, any person whose evidence, statement or opinion it deems to be relevant. 2. Request the parties to provide any evidence within their reach or any explanation or statement that, in its opinion, may be useful. 3. Request any entity, office, organ or authority of its choice to obtain information, express an opinion, or deliver a report or pronouncement on any given point. The documents may not be published without the authorization of the Court. 4. Commission one or more of its members to conduct measures in order to gather evidence.”155 Rule 42.2 Rules of Court European Court of Human Rights; art. 40 Rules of Procedure of the Inter-American Commission on Human Rights.156 The cost of evidence with the Inter-American Court is to be covered by the party requesting the production of an item of evidence (Article 45 Rules of Procedure of the Inter-American Court of Human Rights). The arrangement under the European Convention is more balanced: “Where a report has been drawn up or some other measure taken in accordance with the preceding paragraphs at the request of an applicant or respondent Contracting Party, the costs entailed shall

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3. Remedies64. In SAL, remedies can be wide-ranging, and are first and foremost directed to restitutio in integrum. Remedies often exceed the concrete situation and victim.

65.HRSAL too is to be characterised by effective reparation if and when possible rather than by compensation, in cases where a violation is found. Moreover, interim measures should be easily available.

66.The easy availability of interim measures is the more crucial in HRSAL, compared to regional and UN complaint mechanisms, because at the national level the requirement of exhaustion of remedies does not play. Complaints will therefore very often relate to human rights violations that are actually taking place, or to ongoing human rights violations. As a consequence, the judge needs to have the possibility to intervene immediately in the human rights violation by means of interim measures, in order to prevent further infringement on human rights or to limit the effects of human rights violations.

A criterion for taking interim measures could be found in the gravity of the case and the necessity to avoid irreparable harm.

67. Interim measures are available in some regional systems for the protection of human rights, and can also be taken by these UN bodies which a complaint can be lodged with.

The European Court of Human Rights can at the request of a party, any other person concerned or of its own motion indicate which interim measures should be adopted in the interests of the parties or of the proper conduct of the proceedings.157

In a revolutionary judgment, a chamber of the Court has recently argued that indications regarding interim measures are binding.158

The Inter-American Commission on Human Rights can on its own initiative or at the request of a party request from a state in serious and urgent cases to adopt precautionary measures to prevent irreparable harm.159 The Inter-American Court of Human Rights can at the request of a party or on its own motion, order such provisional measures as it deems pertinent “at any stage of the proceedings

be borne by that Party unless the Chamber decides otherwise. In other cases the Chamber shall decide whether such costs are to be borne by the Council of Europe or awarded against the applicant or third party at whose request the report was drawn up or the other measure was taken. […]” (Rule 42.5 Rules of Procedure of the European Court of Human Rights).157 Rule 39 Rules of Procedure of the European Court of Human Rights.158 In its case-law, the (old) European Court had itself recognised in Cruz Varas and others / Sweden, 20 March 1991 (Publications of the European Court of Human Rights, Series A, no. 201, § 102) that “[…] the Court considers that the power to order binding interim measures cannot be inferred from either Article 25 § 1 (art. 25-1) in fine, or from other sources. It lies within the appreciation of the Contracting Parties to decide whether it is expedient to remedy this situation by adopting a new provision notwithstanding the wide practice of good faith compliance.” A chamber of 7 judges of the new Court, in operation since the entry into force of the 11th Protocol on 1 November 1998, has recently taken a quite different position on this issue. It has considered the non-observance of interim measures a violation of the right to individual petition (see Mamatkulov et Abdurasulovic / Turkey, 6 February 2003, in particular §§ 88-111).159 Art. 25 Rules of Procedure of the Inter-American Commission of Human Rights.

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involving cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons”.160

The Human Rights Committee161, the CAT Committee162 and the CEDAW Committee163 can request interim measures to avoid possible irreparable harm. In the draft OP to the ICESCR too, the possibility of requesting interim measures has been included.164

68.Remedies should not be focused or limited to compensation. The first concern should be with reparation in natura. Remedies should be corrective rather than compensatory. In this regard, the Inter-American system probably sets a better example then the European Court of Human Rights.

In the majority of cases, the European Court of Human Rights tends to grant just satisfaction immediately in its main judgement. Only exceptionally, and more so in recent cases, it has sometimes postponed its decision on just satisfaction under Article 41165 of the European Convention, and sometimes indicated to the state that restitutio in integrum was to be preferred.166 Its indications on reparation however are in no way binding.167

In the Inter-American system, if a violation has been established, the Commission draws up a report with the proposals and recommendations it deems pertinent. The state must report on the measures it has taken to comply with the recommendations within a given time period.

As far as the Inter-American Court is concerned, Article 63(1) of the American Convention reads as follows:

“1. If the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party.”

The judgement on the merits of the Inter-American Court can contain inter alia the decision on reparation and costs.168 If no specific ruling on reparations has been

160 Art. 25 Rules of Procedure of the Inter-American Court of Human Rights.161 Rule 86 Rules of Procedure Human Rights Committee.162 Rule 108.9 Rules of Procedure of the Committee against Torture.163 Article 5 Optional Protocol to the Convention on the Elimination of Discrimination against Women; Rule 63 Rules of Procedure of the Committee on the Elimination of Discrimination against Women.164 Art. 5 Draft OP-ICESCR. Unfortunately, the threshold has been unnecessarily raised here by requesting that “a preliminary study gives rise to the reasonable apprehension that the allegations, if substantiated, could lead to irreparable harm […]”.165 Art. 41 reads: “If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”166 See European Court H.R., 31 October 1995, Papamichalopoulos (art. 50), Publications of the European Court of Human Rights, Series A, no. 330-B, p. 59, § 34. This position has been confirmed in a series of later judgements.167 See European Court H.R., 13 June 1979, Marckx, Publications of the European Court of Human Rights, Series A, no. 31, p. 25, § 58.168 Art. 55 § 1 Rules of Procedure of the Inter-American Court of Human Rights.

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made in the judgement on the merits, the Court has to set the time for the judgement on reparation.169

69.Reparation for human rights violations against vulnerable groups will often require action programs for the whole group concerned. The violations are more often than not caused by existing structures of power and economic relations. Therefore, a structural remedial approach is necessary.170 In order to allow for realistic action schemes and programs, it has been suggested that the inquiry commission could point out possible means of reparation (see higher no. 61). Being composed of experts, the commission is most probably in a very good position to assess the feasibility of the reparation envisaged.

4. Monitoring70.SAL has also been innovative in that the Supreme Court has followed up on the execution of its decisions. One way of doing that was through consecutive orders for interim measures. Another one was to (have) follow(ed) up on its judgement on the merits. The main objective of SAL is to provide for an implementation and enforcement mechanism for human rights. The relevance of such a mechanism is of course commensurate with the extent to which the decisions of the implementation mechanism itself are complied with. Monitoring of the execution of the decisions is thus crucial.

71.For HRSAL too it is proposed to include the possibility of monitoring and follow-up.

The question arises who should bear responsibility for monitoring the execution of the decisions.

Within the Council of Europe, supervision is left predominantly to the Committee of Ministers. Only recently, supervision has become more than a formal “taking note” of the execution measures taken by the state, mainly under pressure of the Parliamentary Assembly.171

In the Inter-American system, both the Commission and the Court can follow-up ontheir remedial orders.172 The Court has delivered occasionally judgements on compliance with its judgements.173

169 Art. 56 § 1 Rules of Procedure of the Inter-American Court of Human Rights.170 Compare to no. 13 of the “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law”, in which the possibility is provided for to offer collective reparation for groups (E/CN.4/2000/62, 18 January 2000).171 See E. LAMBERT, “La pratique récente de réparation des violations de la Convention européenne de sauvegarde des droits de l’homme et des libertés fondamentales : plaidoyer pour la préservation d’un acquis remarquable”, Revue trimestrielle des droits de l’homme 2000, 215-218.172 Art. 46 Rules of Procedure of the Inter-American Commission of Human Rights; Art. 56 § 2 Rules of Procedure of the Inter-American Court of Human Rights: “If the Court is informed that the parties to the case have reached an agreement in regard to the execution of the judgment on the merits, it shall verify the fairness of the agreement and rule accordingly.”173 See for example No. 59, Castillo Petruzzi et al., 17 November 1999, Series C: Decisions and Judgments; No. 60, Loayza Tamayo, 17 November 1999.

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In a national context, it does not seem very wise to confer supervision to the executive branch, organs of which are often responsible for human rights violations. On the other hand, it may prove very difficult for a judge – as appears from the experience of the Indian Supreme Court in SAL – to supervise the execution of its judgements. Therefore, it is suggested to attribute monitoring to specialised (human rights) agencies like the ombudsman or the human rights commission. It could also be envisaged to confer to NGO’s and social action groups, in co-operation with the judiciary, the ombudsman or the human rights commission, an institutionalised role in supervision.

B. Delineation From Other Doctrines and Institutions72.The question arises if and to what extent the above outlined Integrated HRSAL is innovative and likely to contribute to development.

73. In the text above, it has been argued that leads for HRSAL can be found in procedures before regional human rights courts and UN committees. Here, it is argued that HRSAL and its main source of inspiration, SAL, do represent an innovatory set of innovations in human rights advocacy. For that purpose, a short comparison is made with Public Interest Litigation, the Ombudsman and the National Human Rights Commission.

1. Public Interest Litigation74. It has been argued that SAL “has cut the umbilical cord between the Indian legal system and its mentor systems in the ‘white’ common law world”174 and that it “entails reconceptualization of the role of judicial process in at least the Third World societies.”175 The bottom-line is that SAL is a distinctly Indian phenomenon.176

Others have argued however that SAL – or PIL as it is often called – basically is a reproduction of American Public Interest Litigation (PIL).177 Therefore, PIL in the US is succinctly compared with.

75.PIL in the US has been defined as follows by the Council of Public Interest Law:

“Public interest law is the name that has recently been given to efforts to provide legal representation to previously unrepresented groups and interests. Such efforts have been undertaken in recognition that the ordinary market place for legal services fails to provide such services to significant segments of the population and to significant interests. Such groups and interests include the poor, environmentalists, consumers, racial and ethnic minorities, and others.”178

174 R. DHAVAN, “Ambedkar’s Prophecy: Poverty of Human Rights in India”, Journal of the Indian Law Institute 1994, 27.175 U. BAXI, “On How Not to Judge the Judges: Notes Towards Evaluation of Judicial Role”, Journal of the Indian Law Institute 1983, 233.176 U. BAXI, “Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India”, l.c., 33-34; P.N. BHAGWATI, “Judicial Activism and Public Interest Litigation”, l.c., 569.177 S.K. AGRAWALA, Public Interest Litigation in India. A Critique, Bombay, Tripathi, 1985, 7-8.178 COUNCIL FOR PUBLIC INTEREST LAW, Balancing the Scales of Justice: Financing Public Interest Law in America, Washington D.C., 1976, 6-7, as cited in S.K. AGRAWALA, o.c., 2; J. HANDLER, “Public Interest Law Firms in the United States” in M. CAPPELLETTI and B. GARTH (ed.), Access to Justice. III. Emerging Issues and Perspectives, Sijthoff, Alphen aan den Rijn, 1979, 423. See also R. BAUM, Public Interest Law: Where Law Meets Social Action, London, Oceana Publications, 1987, 1.

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Two types of litigation can be distinguished: on the one hand test cases, which are directed at legal reform and which are predominantly used in environmental and consumer cases;179 and on the other hand cases purporting to provide legal services to the poor and neglected groups. This second type of cases is less policy-oriented than test cases, and more of immediate relevance to the groups concerned. So although PIL is best known for its consumer and environmental cases, it has also covered litigation for the poor and for minorities.180

The main rationale for PIL is to ensure that citizens do participate in the formulation of a policy that will affect them.181

Two types of actions can be found: class action or representative action, and public interest action. In a class action or representative action, a self-nominated representative of a group acts in the public interest of that group.182 If the representation is fair and adequate, all group members are bound by the judicial decision.183 A public interest action purports to protect the public interest or part of it. There is no injury to a specific right of the claimant.

PIL has been dominated by public interest law firms, which depend for their funds on foundations, the public at large and the government.184 Is has been in decline in the US since the end of the 1970s, due to a restrictive doctrine of the Supreme Court on standing and lack of funding from private foundations.185 Its impact and proliferation in Europe, both in the UK and the continent, has been limited due to a number of impediments.186

76.SAL has been clearly inspired by PIL. Nonetheless, four differences should be pointed out with regard to:187

a. funding: PIL has been funded by private foundations and the government, SAL has never benefited from external or institutional funding;

b. actors: PIL has been dominated by institutional petitioners, namely public interest law firms, SAL has been guided by and large by the initiatives of committed judges, lawyers, citizens and social activists;

c. themes and goals: PIL primarily purports to increase people’s participation in decision-making and policymaking by representing interests without groups

179 J. HANDLER, “Public Interest Law Firms in the United States”, l.c., 423.180 Ibid., 434-435.181 S. AGRAWALA, o.c., 2. See also D. TRUBEK, “Public Advocacy: Administrative Government and the Representation of Diffuse Interests” in M. CAPPELLETTI and B. GARTH (ed.), o.c., 449-450.182 M. CAPPELLETTI, “Vindicating the Public Interest through the Courts: A Comparativist’s Contribution” in M. CAPPELLETTI en B. GARTH (ed.), o.c., 542.183 H. KÖTZ, “Public Interest Litigation: A Comporative Survey” in M. CAPPELLETTI (ed.), Access to Justice and the Welfare State, Sijthoff, Alphen aan den Rijn, 1981, 96 and 98.184 See J. HANDLER, “Public Interest Law Firms in the United States”, l.c., 421-442.185 C.D. CUNNINGHAM, “Public Interest Litigation in Indian Supreme Court: A Study in the Light of American Experience”, l.c., A-67 - A-68; M. CAPPELLETTI, “Vindicating the Public Interest through the Courts: A Comparativist’s Contribution”, l.c., 533-534; J. WEINSTEIN, “Some Reflections on United States Group Actions”, The American Journal of Comparative Law 1997, 834-837.186 R. DHAVAN, “Whose Law? Whose Interest?” in J. COOPER en R. DHAVAN (ed.), o.c., 33-35; M. CAPPELLETTI, “Vindicating the Public Interest through the Courts: A Comparativist’s Contribution”, l.c., 548-551.187 See U. BAXI, “Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India”, l.c., 33-34; P.N. BHAGWATI, “Judicial Activism and Public Interest Litigation”, l.c., 569.

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(like the environment, consumer issues). SAL sensu stricto is concerned with governmental lawlessness and the exploitation of deprived groups;

d. action means: PIL has been closely linked with public advocacy outside the judicial system, SAL has not been conducted simultaneously with lobbying.

The differences regarding funding, actors and actions means are unquestioned. The difference in themes and goals should not be exaggerated: both cover cases dealing with public interest and vulnerable groups. But whereas PIL is especially known for it representation of interest without groups, SAL has become famous because of its potential for vulnerable groups. Furthermore, the purpose of both has always been different: PIL is directed at legal reforms, SAL at the enforcement and implementation of constitutional human rights law.

Finally, a word is to be said on societal impact. The proponents of SAL have argued that whereas PIL has led to a refinement of societal status quo, SAL has tackled the issues of power and inequality and has purported to change fundamentally law and society.188 Earlier, it has appeared from a sketchy overview of the implementation of the SAL judgments that direct impact in real life has not always been lasting. It is true however that the ideological legitimation and the social aspirations of SAL are more radical than those of PIL.

In conclusion, it is submitted that PIL and SAL are, notwithstanding similarities, basically different, keeping in mind also that “[e]ach social and political appopriation of these new possibilities mobilises civil and political society in distinctly different ways, in response to different kinds of pressures and with diversely different purposes which obtain varying results.”189

2. Legal Aid77.A second phenomenon SAL can be distinguished from is legal aid and the legal aid movement. Here again, both similarities and discontinuities are to be stressed. So although SAL does not coincide with legal aid, it has undeniable roots in it.

First of all, there is a personal tie linking the Indian legal aid movement with SAL: Justice Bhagwati, the ”father” of SAL, was also Chairman of the Committee for the Implementation of Legal Aid Schemes.

Secondly, SAL is partly to be understood as a consequence of the failure of individual legal aid.190 Legal aid programs basically finance with government funds the legal costs of individuals.191 They focus on atomistic relations between individual lawyers and their clients on a case-to-case base. In no way there is the commitment to support or to consolidate the progress made in an individual case for the vulnerable groups possibly concerned in a more general way. Legal aid programs 188 Ibid. and N. TIRUCHELVAM, “Introduction” in N. TIRUCHELVAM and R. COOMARASWAMY (ed.), o.c., xii.189 R. DHAVAN, “Law as Struggle: Public Interest Law in India”, Journal of the Indian Law Institute 1994, 302.190 R. DHAVAN, “Ambedkar’s Prophecy: Poverty of Human Rights in India”, l.c., 25-26. For a critical account of legal aid programs in India, see R. DHAVAN, “Law as Struggle: Public Interest Law in India”, l.c., 324-330. Dhavan opines that the legal aid programs originally were a piece of state largesse, which were subsequently used as a means of co-optation. They have never been intented as an instrument of social change.191 R. DHAVAN, “Whose Law? Whose Interest?”, l.c., 25.

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have therefore contributed little to galvanize results for vulnerable people or to the struggle for human rights.192

Thirdly, to a certain extent SAL too has been limited to rather limited constituencies; it has not fully transcended the atomistic feature of litigation: “Although broader in scope than typical legal aid schemes, in crucial ways it replicates the prevailing atomistic style.”193

The basic difference however is that whereas legal aid purports to enable those who cannot afford it to make use of the legal system as it stands, SAL implies a reform of judicial procedure inter alia to improve (collective) access and outcome. This difference in orientation does not exclude complementarity: legal aid could for example be fitted in meaningfully in SAL by financially supporting petitioners or the setting-up of an inquiry commission. On the other hand, legal aid services and offices could channel cases of potential relevance to a larger constituency than the individual petitioner to SAL. Some consider SAL as a reason to reform and open up legal aid programs to a broader legal program for the poor and disadvantaged, which SAL should be a part of.194

3. Ombuds and Human Rights Commission78.Complementarity of SAL is also to be considered with the institutions of the ombudsman and national Human Rights Commissions.

79.An ombudsman is an independent and impartial governmental body that supervises the administration. He is often appointed by parliament and accountable to it. He cannot take binding decisions.195

The differences with the (ordinary) judicial procedure are manifold: an ombudsman can thoroughly examine a complaint behind the scene; he can be approached in a very informal way; the petitioner does not incur any costs; the procedure is not of an adversary nature; the kind of remedies differ from judicial ones; and the ombudsman can follow-up on the implementation and observation of its recommendations.196 Most of these characteristics have been integrated to a certain degree in SAL. In the light of the possibility of binding decisions in a judicial procedure, it cannot be argued that SAL is superfluous to the more known and widespread ombudsman institution. Both can however be complementary in their functioning and usefulness in concrete cases.192 See also P.N. BHAGWATI, “Effective Uses of Law by Social Action Group”, Aligarh Law Journal 1983, 37-39.193 M. GALANTER, o.c., 291.194 See for example K. MAHAJAN, “Law and Development” in U. BAXI (ed.), Law and Poverty. Critical Essays, Bombay Tripathi, 1988, 426-437 and O.C. REDDY, “Socialism, Constitution and Legal Aid Movement in India”, All India Reporter 1986 - Journal Section, 3.195 M. CAPPELLETTI, “Governmental and Private Advocates for the Public Interest in Civil Litigation: A Comparative Study” in M. CAPPELLETTI and J. WEISNER (ed.), Access to Justice. II. Promising Institutions, Sijthoff, Alphen aan den Rijn, 1978, 824 and V. LANGER, “Public Interest in Civil Law, Socialist Law and Common Law Systems: the Role of the Public Prosecutor”, The American Journal of Comparative Law 1988, 286 and 436-438.196 See M. CAPPELLETTI, “Governmental and Private Advocates for the Public Interest in Civil Litigation: A Comparative Study”, l.c., 824; C. HARLOW, “Public Interest Litigation in Engeland: The State of the Art” in J. COOPER en R. DHAVAN (ed.), o.c., 130-131; V. LANGER, “Public Interest in Civil Law, Socialist Law and Common Law Systems: the Role of the Public Prosecutor”, l.c., 436-437.

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80.National Human Rights Commissions are very similar to ombudsman institutions, but are more explicitly mandated and entrusted with the promotion and implementation of human rights.197 They could play a complementary role to SAL as a contact point, as institution to conduct the inquiry and as a follow-up mechanism, but cannot be considered as a full-fledged alternative for SAL and HRSAL.198

81. In sum, interesting other (legal) experiences and institutions do exist. They should be considered as complements rather than as alternatives for SAL.

C. Preconditions82.After outlining the features of Integrated HRSAL and after comparing SAL and HRSAL with other phenomena, some attention has to be paid now to the enabling societal preconditions for HRSAL.199

It is submitted that HRSAL is not a neutral, ready-made model of a flexible human rights litigation procedure, applicable in all circumstances. The potential feasibility and relevance of HRSAL is conditioned by a number of societal prerequisites or presuppositions.

83.Four preconditions have been identified, based on the Indian experience with SAL. First of all, vulnerable groups should be organised, or should have organisational capacity, or as a minimum there should be institutional room for organisations. Secondly, an independent and socially activist judiciary is needed. Thirdly, a constitutional human rights catalogue and social legislation should be in force. Fourthly and finally, the three afore-mentioned preconditions presuppose a frame of reference that can best be qualified as a society governed by the rule of law (“Rechtsstaat”).

An independent and socially activist judiciary is submitted to be the absolute minimum for the effectiveness of HRSAL, and thus for a meaningful operational contribution of human rights law to development on the national level. This position does not imply that the judiciary is singled out as the one crucial player in the struggle for development; what is argued is that human rights litigation for the poor can only be beneficial for them if accompanied by an independent and socially activist judiciary. In many ways, organised groups of the disadvantaged are as or even more important for the direct impact on the ground of human rights social action litigation, but they do not precondition to the same extent the mere possibility of HRSAL as an independent and socially activist judiciary does.

197 See the “Geneva Guidelines” of 1978 and the “Paris Principles” of 1991 (in annex to UN GA Resolution, A/RES/48/134, 20 December 1993). For a good account, see L. REIF, “Building Democratic Institutions: The Role of National Human Rights Institutions in Good Governance and Human Rights Protection”, Harvard Human Rights Journal 2000, 1-69.198 See also Reif who argues that national human rights institutions need an independent and trained judiciary, and that efforts should be made to remove impediments to human rights litigation (L. REIF, “Building Democratic Institutions: The Role of National Human Rights Institutions in Good Governance and Human Rights Protection”, l.c., 69). See also X., “National Human Rights Institutions: An Overview of the Asia Pacific Region”, International Journal on Minority and Group Rights 2000, 258 and the “Paris Principles” in Annex I, 265.199 With enabling preconditions is meant to make clear that only positive requirements are examined. Negative ones, the absence of which is required in order to make HRSAL feasible, like some cultural practices, are not scrutinized here.

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84. It should be stressed from the onset that the four preconditions mentioned are not to be fulfilled perfectly to allow for HRSAL in a successful way. They are not absolute. It is rather a matter of degree: the more they are fulfilled, the more likely the feasibility and relevance of HRSAL becomes. So if none of the preconditions is fulfilled, HRSAL is very unlikely to take place. If all four preconditions are largely fulfilled, HRSAL will be possible and effective. The rule of law may prove to be the critical minimum to HRSAL.

1. Social Action Groups85.One of the main features of HRSAL is the collective access to justice for disadvantaged groups. Collective access implies the possibility for inter alia groups and organisations to submit a complaint about human rights violations (group action; organisation action).

In case of an organization action, a double participative requirement is set regarding the organization: it should count members of the group on whose behalf action is taken, and the group concerned should be able to participate in determining the policy of the organisation and in the activities of the organisation. In other words, the organization should have a long-lasting structural relationship with the groups or communities it works with and for. This relationship is important for a number of reasons: first of all, to safeguard values of internal democracy; secondly, to retain legitimacy; and thirdly for operational reasons, so as to know what is happening with and within the group or community concerned.200 In light of the latter reason, a structural relationship is also of crucial importance in order to allow the organization to follow up on the implementation of judgements.

In one way or another, this condition of representativeness presupposes ideally speaking a certain level of organisational capacity or organisation of disadvantaged groups and communities. The existence of grass roots movements and people’s organizations (as part of civil society) is therefore an important enabling feature for HRSAL. In the absence of them, individual third parties or representatives of the group concerned however may still make it possible to bring complaints about human rights violations on behalf of disadvantaged groups.

Below, the challenges and tasks of social action groups will be further specified when elaborating on the need to integrate HRSAL in broader strategies (see no. 96 and following).

2. An Independent and Socially Activist Judiciary86.HRSAL is in the second place characterised by an independent and socially activist judiciary. The judiciary has thus to play an important role in human rights litigation for the social emancipation of disadvantaged and poor groups and communities. The judiciary is not a neutral factor, in disregard of whose qualities HRSAL is able to contribute to development.

200 R. DHAVAN and M. PARTINGTON, “Co-optation or Independent Strategy? The Role of Social Action Groups” in J. COOPER and R. DHAVAN (ed.), Public Interest Law, Oxford, Blackwell, 1986, 250-251.

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87.The first quality required from the judiciary is independence. This independence concerns inter alia an independence from the legislature and the executive, based on the division of powers in a constitutional setting.

The importance of an independent judiciary in general,201 and for the protection of human rights in particular,202 is unquestioned. However, in many countries of the South the independence of the judiciary is problematic. Therefore, the improvement of the independence of the judiciary is a major challenge for the feasibility of HRSAL, and thus from our perspective for a meaningful operational contribution of human rights law to development.

Determining factors for the independence of the judiciary are inter alia physical safety; the procedures for selection, appointment and promotion; conditions of service and tenure; and disciplinary proceedings.203

88.Secondly, a socially activist judiciary is required. As it was put rather bluntly in one of the first SAL judgments of the Indian Supreme Court: the judiciary “must shed their character as upholders of the established order and the status quo.”204

Judicial activism stands for judicial lawmaking, which implies that the judge takes policy decisions, is a policy maker. Harwood identifies four phenomena or practices of adjudication in his working definition of judicial activism:

“(1) refusing to take an attitude of judicial deference (i.e., respect) for legislative or executive power or judgment;(2) relaxing requirements for justicibility (e.g. relaxing rquirements for standing to sue);(3) breaking precedent (i.e. failing to follow stare decisis); and(4) loosely or controversially construing constitutions, statutes or precedents (e.g., an interpretation venturing beyond any plain meaning of a statute.”205

It is the opposite of judicial restraint or judicial passivism or judicial deference, which represents a formalistic and positivistic perception of the judicial role. Judicial 201 See e.g. the “Basic Principles on the Independence of the Judiciary”, adopted by the Seventh United Nations Congress on the prevention on crime and the treatment of offenders (Milan 26 August - 6 September 1985) and endorsed by the General Assembly in two resolutions (A/RES/40/32, 29 November 1985 en A/RES/40/146, 13 December 1985); see also the regional declarations on the independence of the judiciary (e.g. the “Beijing Statement of Principles of the Independence of the Judiciary in the Law Asea Region” of the Law Association of Asia and the Pacific (1995) (published in Asia-Pacific Journal on Human Rights and the Law 2000, 158-164) and the “Caïro Declaration” of the Third Conference of the Francophone Ministers of Justice (1995)).202 The UN Human Rights Commission has pointed out the relationship between the weakening of safeguards for the judiciary and the gravity and frequency of human rights violations (see its Resolutions on the independence and impartiality of the judiciary, jurrors and assessors and the independence of lawyers: E/CN.4/RES/2001/39, 23 April 2001, E/CN.4/RES/2000/42, 20 April 2000; E/CN.4/RES/1999/31, 23 April 1999; E/CN.4/RES/1998/35, 17 April 1998; E/CN.4/RES/1997/23, 11 April 1997; E/CN.4/RES/1996/34, 19 April 1996; E/CN.4/RES/1995/36, 3 March 1995; E/CN.4/RES/1994/41, 4 MaRCH 1994). See also the World Conference on Human Rights, Vienna Declaration and Programme of Action, A/CONF.157/23, part I, 13 July 1993, no. 27.203 See the “Basic Principles on the Independence of the Judiciary”, adopted by the Seventh United Nations Congress on the prevention on crime and the treatment of offenders (Milan 26 August - 6 September 1985).204 S.C. (I) 11 May 1982 (People’s Union for Democratic Rights / Union of India), PIL-SCALE, p. 29, § 3205 S. HARWOOD, Judicial Activism: A Restrained Defense, San Francisco, Austin & Winfield, 1996, 2.

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passivism implies limiting the role of judges to mere interpretation, and excluding any judicial value judgement.206 Arguments in favour of judicial restraint refer to the division of powers between the legislative and the judiciary, to the independence of the judiciary, to the lack of expertise of judges in policy issues and to the lack of effective control on and over the power of judges.207

The adjective “social” specifies the purpose or rationale of judicial law making, namely the protection and realisation of socio-economic human rights, as opposed to conservative judicial activism aiming at the protection of the right to property and of economic interests.208

89. In what follows, we would like to justify the plea for social judicial activism in three steps. First of all, the option for litigation and the attribution of a central role to the judiciary will be argued for. Secondly, activism will be defended, and finally, justification will be given for social judicial activism.

90.As to the option to give the judiciary, rather than the political bodies a central role on the state side, the position can be rephrased as an option for litigation strategies rather than for law reform. What arguments support this option?

First of all, there is a worldwide trend of judges taking more center-piece, and the concomitant expansion of judicial power. Judges are more and more relied on to solve social problems and conflicts.209 In literature, mention is made of a judicialisation of society.210 This is the more so in relation to human rights, where attention is shifting from elaboration of new standards to effective means of enforcement and protection.211 This shift in focus causes also a shift in the perception on who are the central actors, towards social action groups and the judiciary.

Secondly, from the experiences and insights gained in law and development thinking it can be learned that the conceptualisation of the contribution of the law to development has proved extremely difficult. A more fruitful way might be to focus on specific law aspects in order to facilitate conceptualisation of the contribution of law to development. Here the option is taken to focus on human rights law from an operational or action perspective.212 Moreover, over-reliance on the political bodies for fostering development, inspired by an instrumentalist perception, has proved detrimental to development. Within law and development thinking, accountability

206 See inter alia ibid., 80-85.207 Ibid., 85-96.208 See T. KOOPMANS, “The roots of judicial activism” in F. MATSCHER and H. PETZOLD (ed.), Protecting Human Rights: the European Dimension. Studies in Honour of G.J. Wiarda, Cologne, Heymanns, 1988, 318-319 and M. GHOUSE, “The Two Faces of Judicial Activism”, in K.L. BHATIA (ed.), o.c., 107-108 as far as the US is concerned.209 T. KOOPMANS, “The roots of judicial activism”, l.c., 318210 See higher footnote Error: Reference source not found.211 See e.g. O. DE SCHUTTER, o.c., 1102.212 Compare with B. DE GAAY FORTMAN, “The Dialectics of Western Law in a Non-Western World” in J. BERTING, P. BAEHR, H. BURGERS, C. FLINTERMAN, B. DE KLERK, R. KROES, C. VAN MINNEN and K. VANDERWAL (ed.), Human Rights in a Pluralist World: Individuals and Collectivities, Westport, Meckler, 1990, 237-250.

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and the rule of law have been taken more seriously as a consequence.213 An important player for holding the political bodies accountable is the judiciary.

91. In the second place, apart from a justification of the focus on the judiciary and litigation, the plea for judicial activism has to be justified, the more so since the requirement of independence and social activism may seem contradictory, or at least a field of tension.214

Judicial activism is to be situated in public law litigation: it is predominantly to be located in the exercise of judicial review – often by constitutional courts – of the acts of the executive.215 The arguments in favour of activism boil down to broadly the three following claims.

First, a strict division between legislation and adjudication is not possible, definitely not in constitutional matters. A judge is bound to take policy decisions, to make choices.216

Secondly, the rise of the welfare state leads in two respects to an activist judiciary. On the one hand, the judge has to give welfare programs en socio-economic rights concrete substance. On the other hand, a strong judiciary is needed to check and control the growth of power of the legislature and executive: the judiciary is to be “the ‘third giant’ to control the mastodon legislator and the leviathan administrator.”217 Both arguments could be taken beyond the welfare state with its post War II and Western European connotations, to be applied also to countries in transition and in the South.218

Thirdly, more pragmatically, the judiciary needs to be activist in cases of “legislative passivity”219: it tries and makes good the failure of the legislature and/or the

213 See e.g. B. TAMANAHA, “The Lessons of Law-and-Development Studies”, l.c., 470-486.214 M. CAPPELLETTI, ““Who Watches the Watchmen?” A Comparative Study on Judicial Responsibility”, The American Journal of Comparative Law 1983, 16-17.215 See in general T. KOOPMANS, “The roots of judicial activism”, l.c., 317-327.216 U. BAXI, “On How Not to Judge the Judges: Notes Towards Evaluation of Judicial Role”, Journal of the Indian Law Institute 1983, 226-230.217 M. CAPPELLETTI, o.c., 14-19.218 The issue of judicial activism is very topical there: see e.g. B. BUGARIC, “Courts as Policy-Makers: Lessons from Transition”, Harvard International Law Journal 2001, 247-288; B. OBINNA OKERE, “Judicial Activism or Passivity in Interpreting the Nigerian Constitution”, International and Comparative Law Quarterly 1987, 789-816; N. TIRUCHELVAM and R. COOMARASWAMY (ed.), o.c., 193 p.; P.A. AGABIN, “The Politics of Judicial Review over Executive Action: the Supreme Court and Social Change”, Philippine Law Journal 1989, 189-210; B. HLATSHWAYO, “Judicial Activism and Development: Warning Signals from Zimbabwe” in Y. VYAS, K. KIBWANA, OKECH-OWITI and S. WANJALA (ed.), Law and Development in the Third World, Nairobi, Faculty of Law, University of Nairobi, 1994, 257-268; D. BASSON, “Judicial Activism in a State of Emergency: An Examination of Recent Decisions of the South African Courts, South African Journal on Human Rights 1987, 28-43; U. BAXI, “Judicial Activism: Usurpation or Re-Democratization?” in J. KAPUR (ed.), o.c., A-131-A-144.219 B. HLATSHWAYO, “Judicial Activism and Development: Warning Signals from Zimbabwe”, l.c., 267.

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executive.220 In a less oppositional presentation, it could be said to be a partnership between the judiciary and the legislature.221

Judicial activism is prominently present in human rights litigation. Here again an a fortiori argument can be used to justify judicial activism in relation to human rights. First of all, judicial activism is inevitable in human rights litigation, as this kind of litigation requires the judiciary to develop and apply the values underlying human rights provisions, which are formulated in very general terms.222 Secondly, with regard to the protection and realisation of fundamental rights, courts have to play a crucial role, which infringes inevitably on the classic separation of powers.223

It has to be noted that there is a trend in reconceptualising the relation between state powers towards a duas politica (instead of trias politica) or an equilibrium of powers (instead of a separation of powers). It is argued that this characterisation is more in tune with reality, where there is an entanglement of the legislature and the executive, so that the legislature hardly exercises any supervision on the executive. This means that the powers are not (anymore) separated, but rather counterbalance each other; or more sharply put: the concentration of power within the executive needs to be matched with a strong and powerful judiciary as a supervisory power. The concentration of power with the executive both in the North and the South224

justifies and necessitates a strong judiciary, especially with regard to human rights protection.

92. In conclusion, it can be argued that the judiciary can be both independent and activist. In order to strike the right balance between the two features, it is important to have both built-in checks and limits to judicial activism on the one hand, and autonomy for the judiciary on the other hand.

220 This argument has often been used to legitimise judicial activism by way of SAL in India. See inter alia K.L. BHATIA, “Kaleidoscopic View of Jurisprudential Dimensions of Judicial Activism with Reference to Swadeshi Jurisprudence: Saint or Sinner” in K.L. BHATIA (ed.), o.c., 157; B.C. KALGOTRA, “Evolution and Jurisprudential Dimensions of Judicial Activism” in K.L. BHATIA (ed.), o.c., 247; K.L. PATHAK, “Inaugural Address” in K.L. BHATIA (ed.), o.c., 31; S. SORABJEE, “Protection and Promotion of Fundamental Rights by Public Interest Litigation in India”, International Commission of Jurists - The Review 1993, 37.221 Again for India, see A.R. DESAI, “The Judgement - Extracts” in A.R. DESAI (ed.), Violation of Democratic Rights in India, I, Bombay, Popular Prakashan, 1986, 155-156; Y. MEHTA, “Judicial Activism and Social Change: Jurisprudential Dimensions” in K.L. BHATIA (ed.), o.c., 222-223.222 See e.g. M. CAPPELLETTI, o.c., 28-30 and M. PERRY, The Constitution, The Court and Human Rights: an inquiry into the legitimacy of constitutional policymaking by the judiciary, New Haven, Yale University Press, 1982, 91-108.223 For the US, see e.g. M. PERRY, o.c., 93. Rosswurm argues that Perry asserts the legitimacy of activist judicial policy making in human rights litigation (see R. ROSSWURM, “Book Review of ‘The Constitution, The Courts, and Human Rights: An Inquiry into the Legitimacy of Constitutional Policymaking by the Judiciary”, Human Rights Quarterly 1984, 239-256); for India: see e.g. P.N. BHAGWATI, ”Human Rights and Democratisation of Remedies”, Indian Bar Review 1983, 596 and S. HURRA, Public Interest Litigation. In quest of Justice, Ahmedabad, Mishra & Co., 1993, 256. 224 M. CAPPELLETTI, ““Who Watches the Watchmen?” A Comparative Study on Judicial Responsibility”, l.c., 8; Y. ZHANG, “Commentary - Comparisons on the Functions of the Judicial Review System in East and Southeast Asia” in Y. ZHANG (ed.), Comparative Studies on the Judicial Review System in East and Southeast Asia, Den Haag, Kluwer Law International, 1997, 256; H. OKOTH-OGENDO, “Constitutions without Constitutionalism: Reflections on an African Political Paradox” in I. SHIVJI (ed.), State and Constitutionalism. An African Debate on Democracy, Harare, SAPES, 1991, 3-26 and Y. GHAI, “The Role of Law in the Transition of Societies: the African Experience”, Journal of African Law 1991, 12-16.

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Cappelletti sees two sides to judicial responsibility:225 on the one hand power – which has been referred to here as judicial activism – and on the other hand accountability.226 There are three types of accountability: political, societal and legal.227 Political accountability is due to “political bodies”, and relates to behaviour that is evaluated on the basis of political criteria. Societal or public accountability refers to account to be given to “less precisely determined societal bodies or groups, and, ultimately, to the general public.”228 Legal responsibility concerns liability both of the state and of the judge based on violations of the law.

The limits to judicial activism are twofold, both formal and substantive. Formally speaking, the mode or procedure of judicial lawmaking differs from legislative lawmaking in that it is characterised by connection with parties229 and by the impartiality and independence of the judge.230 From a substantive point of view, judges are bound by values; this means that judicial law making is not an exercise of discretionary and subjective value choices of the judge concerned, but that it is fundamentally a value judgement.231 The judge is accountable either to universal and inalienable or to the constitutional values.232

This brings us to the justification of the particular direction that is taken in judicial activism, namely social judicial activism. Social judicial activism can only be legitimate if social justice is recognised either as a universal value or as a constitutional value.233 Neo-liberal policy makers might question that value. It could however be argued that recognition of economic, social and cultural rights in itself constitutes the acceptance of social justice as a primary value. We will turn to this question again in the conclusion.

3. Human Rights Catalogue and Social Welfare Law93.A third societal precondition for HRSAL is the availability of a human rights catalogue and of social welfare law as a leverage for action, for both social action groups and judges. Although not indispensable, a judicially enforceable human rights catalogue substantially increases the potential social activism of judges.234

225 Cappelletti, who deals with the issue in terms of judicial responsibility, distinguishes between different models of judicial responsibility, ranging from the repressive or dependency model, which is characterised by subservience of the judge, to the corporative-autonomous or separateness model, which is characterised by an absolutization of the independence of the judge. He argues for a responsive or consumer-oriented model, which combines a reasonable degree of responsibility with a fair degree of independence. See M. CAPPELLETTI, ““Who Watches the Watchmen?” A Comparative Study on Judicial Responsibility”, l.c., 53-62.226 Ibid., 5-7.227 Ibid., 17-52.228 Ibid., 25.229 Which implies inter alia an adversarial procedure; moreover, a judgement has to be reasoned, which is yet another safeguard against irresponsible judicial activism. See R. DHAVAN, Judge and Be Judged. India’s Judiciary-– An Institution of Governance, PILSARC Working Paper no. 154, New Delhi, PILSARC, 1997, p. 9, § 18.230 M. CAPPELLETTI, o.c., 30-31.231 S. HARWOOD, o.c., 108-110.232 P.N. BHAGWATI, “Judicial Activism and Public Interest Litigation”, l.c., 576; R. DHAVAN, Judge and Be Judged. India’s Judiciary-– An Institution of Governance, PILSARC Working Paper no. 154, New Delhi, PILSARC, 1997, p. 7, § 14 and p. 9, § 18.233 Which legal status it is attributed in the constitution, namely a fundamental right or a directive principle of state policy, is in our opinion less relevant. See infra, no. 93.234 M. CAPPELLETTI, o.c., 4 and 28-30.

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The Indian example learns however that this precondition is to a certain extent a relative one: the absence of justiciable economic and social rights in the Indian Constitution has not necessitated the Supreme Court to abstain from social activism in the social-economic field. So, where an enforceable bill of rights is undoubtedly a facilitating factor for social activism, it is not a crucial one: symbolic laws or Directive Principles for State Policy may be sufficient starting points for HRSAL.

4. The Rule of Law94.A fourth and final precondition is the rule of law as a constitutional reference framework. The rule of law framework also largely conditions the three previous preconditions.

The rule of law or the “Rechtsstaat” – both terms are used as synonyms here, though some would argue they are not – basically refers to the recognition of the primacy of law over politics. It grasps the basic premise that the political exercise of power is restrained and contained by law, that government is bound by the law. Both formal and substantive elements play a role. Substantially, government is bound by constitutionally entrenched fundamental rights and principles, and by pre-constitutional societal principles. Formally, institutional safeguards like the separation of powers, the supremacy of the legislature and the principle of legality, and judicial review by an independent judiciary are constituent elements of the rule of law.

95.The point made here is not that only in case of full observance of the rule of law HRSAL is feasible. What matters is that the rule of law is the basic principle referred to as organizing principle of the state set-up, so inter alia to legimize political power. As soon as lipservice is paid to the principle of the rule of law, HRSAL can be carved out. The complete absence of the rule of law renders HRSAL however highly problematic: if political power refuses the supremacy of law over politics, HRSAL has little to offer.

D. Integrated Human Rights Social Action Litigation96.Human rights litigation in general has been said not to be a very forceful vehicle for social change and development: “It turns out that, unlike the sceptics, human rights activists can take very little encouragement for their vision of new vistas of rights from a comparative study of how courts have protected people’s most important social and economic needs so far.”235

Moreover, is has been argued that judge law can and should not be considered to be a short cut to social and economic change: ”Conceptually, development through the judicial process cannot be more effective than through legislation for many reasons, one of which is that the legislative process is more thorough and systematic than the judicial process.”236

235 D. BEATTY, “The Last Generation: When Rights Lose Their Meaning” in D. BEATTY (ed.), Human Rights and Judicial Review: a Comparative Perspective, Dordrecht, Martinus Nijhoff, 1994, 325.236 B. HLATSHWAYO, “Judicial Activism and Development: Warning Signals from Zimbabwe” in Y. VYAS, K. KIBWANA, OKECH-OWITI, S. WANJALA (ed.), o.c., 266.

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Finally, it has been submitted that “The more uncomprising reality is that the struggles for human rights and justice lie “beyond law”.237

97. In our view, the above-mentioned arguments do not point out the weaknesses or irrelevance of human rights litigation, but its proper limitations. These limitations are to be taken into account very seriously when considering the developmental potential of HRSAL so as not to overstate or over-evaluate that potential. On the other hand, the arguments indicate but limitations: they do not undermine fundamentally the developmental potential of human rights litigation.

The first argument on the limited number of case-law regarding human rights of the second and third generation does not in any way indicate the impossibility for human rights litigation to contribute meaningfully to development. It only shows that it has not taken place on a massive scale so far, thus rendering any evaluation of its potential and effectiveness premature.

The second argument puts that legislative work by the legislature is more effective than that by the judiciary. Our point is not that judicial legislation is to be preferred over legislation from the legislature. Our concern is with a legal mechanism for the improvement of living conditions of the most vulnerable groups. Litigation may then prove to be more suited to their needs than the legislative procedure, the more so if the problem is not the absence of legislation, but its lack of implementation.

The third argument stresses the limits of a legal approach and of the law. It is submitted that it is crucially important to take these limitations seriously, also in regard of HRSAL. A legal approach never provides the full picture, so it has always to be integrated in a wider strategy, by which components it is to be complemented or reinforced. Therefore, mention is made here of Integrated Human Rights Social Action Litigation. The adjective “Integrated” indicates that human rights litigation can and will never be an autonomous vector of structural societal change; its embedment in a broader strategy is crucial. This need for multi-dimensional strategies has also been stressed from the beginning in relation to SAL.238

98.What role and place is to be attributed to human rights litigation in such a broader, non-legal strategy cannot be determined from a legal perspective, and falls therefore out of the ambit of the present paper. However, in order to render the point made in some way plausible, we would like to indicate very briefly and at random other possible strategies.

Dhavan and Partington have argued that a legal strategy should be combined with strategic political and social action.239 So elements of a broader strategy could be political action, lobbying, influencing the mass media and the public opinion, building alliances etc. This also means that for social action groups to be successful in human rights social action litigation they cannot be purely legal NGO’s, but have

237 R. DHAVAN, “Ambedkar’s Prophecy: Poverty of Human Rights in India”, l.c., 27.238 S.C. (I) 18 September 1982 (People’s Union for Democratic Rights / Union of India), PIL-SCALE, p. 28, § 2.239 R. DHAVAN, “Whose Law? Whose Interest?”, l.c., 38; R. DHAVAN and M. PARTINGTON, “Co-optation or Independent Strategy? The Role of Social Action Groups”, l.c., 249.

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to engage also e.g. in socio-legal investigations, in education and in self-organization of the groups they work with.240

As to the place a legal strategy should take in a broader strategy, some have suggested to prioritise political action over a legal strategy.241 It is submitted that what kind of other strategies should be taken recourse to, and how these strategies relate to litigation needs further extensive research. The point made here is only that litigation alone cannot lead to structural transformation of society in the interest of the poor.

E. Integrated HRSAL: Is Generalisation for the South Feasible?99.An important question arises here. Given the preconditions for the feasibility of Integrated HRSAL, to what extent can Integrated HRSAL be operationalised in one way or another in countries of the South? In other words, is Integrated HRSAL more than an academic ideal type model of litigation or not? Can it inform and help human rights litigation for the poor in present real-life situations on the ground?

Again no final answers can be given: long-term in-depth research seems to be required. The attempt undertaken here is on the one hand to make plausible that Integrated HRSAL can serve as a model – to be adapted to local circumstances – to conceptualise from an operational perspective the role of human rights law in development when the above-mentioned preconditions are met with to a certain extent, and on the other hand to recognize that human rights litigation meets its limits in situations were the rule of law is a far cry.

100. What the developmental relevance of Integrated HRSAL could be in countries where the preconditions are satisfied, boils down to the question whether SAL, as adapted in the model of Integrated HRSAL, could be transferred from India to other countries.

The issue of transferability is a tricky one. Literature on transferability of public interest litigation in the United States to other countries in both North and South is sceptic about it.242 Reference is being made in particular to its cultural-specific nature.243 In our opinion, whereas it is right to pay attention to the social and historical context of legal phenomena, that context should not be taken absolutely, so as to exclude transferability. Neither should the differences between common law and civil law be invoked as a priori impediments for the transferability of Integrated HRSAL – originating from a common law perspective – to civil law countries.244

It should be noted moreover that Social Action Litigation has been influential in some countries across Asia and Africa, such as Malaysia, the Philippines,245 Sri

240 P.N. BHAGWATI, “Effective Uses of Law by Social Action Group”, l.c., 40-44.241 C. HARLOW, “Public Interest Litigation in England: The State of the Art”, l.c., 132-133.242 C. HARLOW, “Public Interest Litigation in Engeland: The State of the Art”, l.c., 91; R. DHAVAN, “Whose Law? Whose Interest?”, l.c., 38; H. KÖTZ, “Public Interest Litigation: A Comporative Survey”, l.c., 112-114.243 R. DHAVAN, “Whose Law? Whose Interest?”, l.c., 38. Koopmans makes the same argument with regard to judicial activism, see T. KOOPMANS, “The roots of judicial activism”, ”, l.c., 327.244 M. CAPPELLETTI, o.c., 47-53, and in particular 52.245 J. COTTRELL, “Third Generation Rights and Social Action Litigation”, l.c., 125.

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Lanka,246 Pakistan,247 Tanzania248 and possibly South-Africa.249 It has also been recommended that SAL should spread to other countries,250 not only in Asia but also in Africa.251

The above gives some indications of possibilities for transferability of the core of SAL to those countries with a broadly similar rule of law setting as India. Further research is needed to see whether these indications can be turned into solid evidence.

101. A second hypothesis concerns these countries in which the rule of law is absent, which is the case in a large number of countries in the South. As Galanter pointed out in the early 1990s: “In its adherence to legal forms and loyalty to legal procedures, India is quite unusual among Third World countries.”252 Is Integrated HRSAL possible outside a rule of law framework? And does the doctrine of Integrated HRSAL hold potential for a meaningful contribution to development in these circumstances? These are two intrinsically linked questions that arise.

The answer to both questions seems to be inevitably negative if policy makers do not accept the rule of law and do not show the willingness to appear before an independent judge. Under these circumstances, effective human rights litigation at the national level becomes very difficult if not impossible. The relevance of human rights law to development becomes unlikely.

Negative as this conclusion is, it should not lead to despair or inaction on the ground. The limits of human rights litigation at the national level are neither the limits of social action (in which human rights, and even human rights law can still have a role to play, e.g. as legitimating factor for social action), nor of supranational human rights litigation at the regional or UN level.

IV. Conclusions

102. It has been argued that Social Action Litigation in India provides a good starting point to conceptualise the operational aspect of a rights-based approach to development. This submission implies first, that human rights law can contribute 246 N. TIRUCHELVAM, “Introduction”, l.c., xx-xxi.247 M. LAU, “Islam and Judicial Activism: Public Interest Litigation and Environmental Protection In The Islamic Republic of Pakistan” in A. BOYLE and M. ANDERSON (ed.), Human Rights Approaches to Environmental Protection, Oxford, Clarendon, 1996, 285-302.248 R. KISANGA, “The Legal Profession, Pluralism and Public Interest Litigation in Tanzania” in N. TIRUCHELVAM and R. COOMARASWAMY (ed.), o.c., 146-155.249 J. GLAZEWSKI, “The Environment, Human Rights and a New South African Constitution”, South African Journal on Human Rights 1991, 183; S. MEER, “Litigating Fundamental Rights - rights litigation and social action litigation in India: a lesson for South Africa”, l.c., 358-372.250 X., “The Judiciary in Plural Societies. Some Conclusions” in N. TIRUCHELVAM and R. COOMARASWAMY (ed.), o.c., 181 en 186. This text contains the final reports of two international workshops, one held in Suraj Kund (India) in 1983, the other in Eldoret (Kenya) in 1985 on the role of the judiciary in plural societies. Both hold a recommendation for the promotion and encouragement of social action litigation (§ 7 Suraj Kund Report; § 17 Eldoret Report).251 I. SHIVJI, The Concept of Human Rights in Africa, London, Codesria, 1989, 88; J. PAUL, “Participatory Approaches to Human Rights in Sub-Saharan Africa” in A. A. AN-NA’IM and F. DENG (ed.), Human Rights in Africa: Cross-Cultural Perspectives, Washington, Brookings, 1990, 237.252 M. GALANTER, o.c., 279.

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meaningfully to development and poverty alleviation; two, that more attention should be paid to the procedural aspects of human rights law, namely human rights litigation; and three, that for human rights litigation to be potentially relevant for the poor, a number of procedural relaxations is needed. These procedural relaxations have been specified in a model of Integrated Human Rights Social Action Litigation, which is heavily indebted to SAL.

103. Social preconditions for Integrated HRSAL to be feasible and potentially relevant to development, like the presence of social action groups, an independent and socially activist judiciary, the rule of law and a human rights bill, have been expressly pointed out. Central herein is the rule of law. Inevitably, the relevance of human rights law to development is situated in a politically liberal setting. Rather than regretting or fighting this particular ideological context,253 it seems necessary to fully realise these inherent ideological connotations and preconditions of human rights law when examining it potential relevance for the poor in the South.

104. The requirement of a socially activist judiciary equally implies an element of ideology, namely the option for social justice. Some may argue that the time frame has changed so dramatically since the conceptualisation of SAL in the 1980s, namely the option for neo-liberalism instead of for the social welfare state254 as societal goal and ideology, that both the present-day relevance of SAL and of Integrated HRSAL has to be doubted.

In our opinion that is not necessarily the case. To the extent states have included economic, social and cultural rights in their constitutions or ratified international treaties on economic, social and cultural rights, judges can and should defend them. That economic, social and cultural rights are no relic from the past, but still important principles for state policy may also be derived from the fact that new democratic states in Eastern Europe255 and South Africa,256 have chosen to include justiciable economic, social and cultural rights in their new constitutions.

253 As for example Shivji has done, see I. SHIVJI, o.c., 126 p. and I. SHIVJI, “The Rule of Law and Ujamaa in the Ideological Formation of Tanzania”, Social and Legal Studies 1995, 147-174.254 For explicit references to the social welfare state as legitimisation, see e.g. S.C. (I) 18 September 1982 (People’s Union for Democratic Rights / Union of India), PIL-SCALE, p. 28, § 2: “The only solution for making civil and political rights meaningful to these large sections of society would be to remake the material conditions and restructure the social and economic order so that they may be able to realise the economic, social and cultural rights. There is indeed close relationship between civil and political rights on the one hand and economic, social and cultural rights on the other hand …” and pp. 29-30, § 3: “The realisation must come to the courts that social justice is the signature tune of our Constitution and it is their solemn duty under the Constitution to enforce the basic human rights of the poor and vulnerable sections of the community and actively help in the realisation of the constitutional goals. This new change has to come if the judicial system is to become an effective instrument of social justice ….”; S.C. (I) 16 December 1983 (Bandhua Mukti Morcha / Union of India), PIL-SCALE, p. 1777, § 9: “social and economic justice which is the signature tune of our Constitution”; S.C. (I) 27 September 1988 Rakesh Chandra Narayan/State of Bihar), PIL-SCALE, p. 107, § 29: “In a welfare state […] it is the obligation of the State to provide medical attention to every citizen.”.255 See D. BEATTY, “The Last Generation: When Rights Lose Their Meaning”, l.c., 324, footnote 3.256 V. GOVENDER, “Economic, Social and Cultural Rights in South Africa: Entitlements, Not Mere Policy Options”, l.c., 76-78.

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