scholarly journals Public Interest Litigation: Economic Implications (A Critical Appraisal of Reko DIQ Case)

2020 ◽  
Vol 1 (4) ◽  
pp. 63-71
Author(s):  
Dr. Barkat Ali ◽  
Dr. Hafiz Aziz-ur-Rehman
Keyword(s):  
Public Interest ◽  
Judicial Review ◽  
Fundamental Rights ◽  
Economic Policies ◽  
Islamic Republic ◽  
Public Interest Litigation ◽  
Economic Implications ◽  
Judicial Intervention ◽  
The Supreme Court ◽  
The Government

Public Interest Litigation (PIL), a discretionary constitutional jurisdiction is, indeed, a constitutional mandate for preserving socio-economic and legal justice in the Islamic Republic of Pakistan (Pakistan). Such PIL objectives are focused  through the protection of fundamental rights of public importance under provisions of Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973(Constitution, 1973). Though the Supreme Court of Pakistan (SC) has been vigilant while exercising judicial review powers as modus operendi for PIL, sometimes it is engaged, however, in the disguise of protection of fundamental rights, in the domain of other branches of the government. Even, such involvement has been extended to the matters of economic policies, which as a general principle of judicial review jurisprudence should be retrenched from judicial review jurisdiction. This trend has not only distorted the PIL objectives, it has influenced the socio-economic development which eventually affects the fundamental rights. Economic policies being of technical nature needs to be decided and supervised by the bodies concerned instead of the judicial intervention which is not appropriate. Judicial overlook of this fact may cause serious economic implications as it has occurred in the Reko Diq matter as decided in the case of Maulana v. Government (2013). The appraisal of exercising of PIL jurisdiction in this case demonstrates that 'judicial capital' is of no use, in the economic matters, and expanding its political capital in such matters eventually influences public interest. So, it is concluded that the matter relating to economic policies should be considered non-justiciable, and be denied from taking judicial cognizance.

scholarly journals Public Interest Litigation: A Conceptual Framework

2010 ◽  
pp. 85-89
Author(s):  
Manas Ranjan Samantaray ◽  
Mritunjay Sharma
Keyword(s):  
Supreme Court ◽  
Public Interest ◽  
Good Governance ◽  
Fundamental Rights ◽  
Access To Justice ◽  
Special Role ◽  
Public Interest Litigation ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
The Government

Public interest litigation (PIL) has a vital role in the civil justice system in that it could achieve those objectives which could hardly be achieved through conventional private litigation.PIL, for instance, offers a ladder to justice to disadvantaged sections of society, provides an avenue to enforce diffused or collective rights, and enables civil society to not only spread awareness about human rights but also allows them to participate in government decision making. PIL could also contribute to good governance by keeping the government accountable. This article will show, with reference to the Indian experience, that PIL could achieve these important objectives. However, the Indian PIL experience also shows us that it is critical to ensure that PIL does not become a facade to fulfil private interests, settle political scores or gain easy publicity. Judiciary in a democracy should also not use PIL as a device to run the country on a day-today basis or enter the legitimate domain of the executive and legislature. The challenge for states, therefore, is to strike a balance in allowing legitimate PIL cases and discouraging frivolous ones. One way to achieve this balance could be to build in economic (dis)incentives in PIL and also confine it primarily to those cases where access to justice is undermined by some kind of disability. Judiciary, being the sentinel of constitutional statutory rights of citizens has a special role to play in the constitutional scheme. It can review legislation and administrative actions or decisions on the anvil of constitutional law. For the enforcement of fundamental rights one has to move the Supreme Court or the High Court’s directly by invoking Writ Jurisdiction of these courts. But the high cost and complicated procedure involved in litigation, however, makes equal access to jurisdiction in mere slogan in respect of millions of destitute and underprivileged masses stricken by poverty, illiteracy and ignorance. The Supreme Court of India pioneered the Public Interest Litigation (PIL) thereby throwing upon the portals of courts to the common man. Till 1960s and seventies, the concept of litigation in India was still in its rudimentary form and was seen as a private pursuit for the vindication of private vested interests. Litigation in those days consisted mainly of some action initiated and continued by certain individuals, usually, addressing their own grievances/problems. Thus, the initiation and continuance of litigation was the prerogative of the injured person or the aggrieved party. However, these entire scenario changed during Eighties with the Supreme Court of India led the concept of public interest litigation (PIL). The Supreme Court of India gave all individuals in the country and the newly formed consumer groups or social action groups, an easier access to the law and introduced in their work a broad public interest perspective.

scholarly journals THE NEO-JURISPRUDENCE OF PIL IN SUPERIOR COURTS OF PAKISTAN: A COMPARATIVE ANALYSIS OF PRE AND POST LAWYERS’ MOVEMENT WORKING OF SUPERIOR COURTS

2021 ◽  
Vol 60 (1) ◽  
pp. 33-44
Author(s):  
Hatim Aziz Solangi
Keyword(s):  
Comparative Analysis ◽  
Public Interest ◽  
Judicial Review ◽  
State Legislature ◽  
Fundamental Rights ◽  
Public Interest Litigation ◽  
Legislative Action ◽  
Proactive Approach ◽  
The People ◽  
Before And After

The dynamics of the superior judiciary in Pakistan have undergone a drastic transformation in its approach and working in post 2007 emergency followed by a landmark movement of civil and legal fraternity for restoration of constitutional supremacy. The neo-jurisprudence is being applauded and criticized at the same time.  The excessive use of Suo-motto and public interest litigation at one hand and frequent judicial review of executive and legislative action on other have been the main source of contention between judiciary and other two pillars of state, legislature and executive. The Superior Court is being recognized as the ultimate savior of fundamental rights and guardian of the constitution as well as rights of the people. At the other extreme, the criticism like activist judiciary; disrespect for popular will and making rather interpreting law are most commonly attributed to Superior Judiciary. The study is qualitative in nature and presents a comparative analysis of trends in Superior Court before and after Lawyers’ movement. The study also aims in justifying the proactive approach especially in providing social justice on failure of state organs to respond to the exigency of time.

Fundamental Rights in the Indian Constitution: Could it include ‘Right to Sanitation’?

2016 ◽  
Vol 5 (6) ◽  
pp. 291-296
Author(s):  
Anil Kumar Mohapatra
Keyword(s):  
Fundamental Rights ◽  
Safe Drinking Water ◽  
Right To Life ◽  
Personal Liberty ◽  
Sanitation Facility ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
The World ◽  
The Government ◽  
The Right

Long before India gained independence, M.K. Gandhi remarked that the availability of Sanitation facility is more important than gaining Independence for an Indian. Of late, it is now increasingly felt and realized in India that facilities like toilet, safe drinking water, accompanied by good hygienic conditions are fundamental necessities of a person. These are prerequisites of social and economic justice and genuine development. The Supreme Court of India in one judgement held that Right to life and personal liberty, should include right to privacy and human dignity etc. Despite that it has been an admitted shame that India still has the largest number of people defecating in open in the world. There are reported incidences of rape and murder of women in many places in India as women rely on open field for attending to the call of nature in morning and evening. The attempts like Community toi-let system, pay-and-use toilet system and schemes like ‘Mo Swabhiman -Mo Paikhana’ have been found to be less effective. In this connection the ‘Clean India Mission’ campaign launched by the Government of India in 2014 has been regarded as a right approach in that direction. Government of the day is actively considering the demand to convert the Right to Sanitation from a developmental right to a fundamental right. It would make the state more accountable and responsible. Against this background, the paper argues that spending huge money on that would yield good dividend in future for the country.

Pandemic and PILs: A Study on the Approach of the High Courts in India

2021 ◽  
Vol 54 (1) ◽  
pp. 55-77
Author(s):  
Uday Shankar ◽  
Sourya Bandyopadhyay
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Public Interest ◽  
Regional Level ◽  
Public Interest Litigation ◽  
High Court ◽  
Human Rights Protection ◽  
Rights Protection ◽  
High Courts ◽  
The Supreme Court

Studies in Public interest Litigation (PIL) in India are predominantly about the Supreme Court's approach in meeting the ends of justice through indigenously evolved jurisdiction. The High Courts as important constitutional bodies are more often than not remain out of detailed discussion. As the High Courts enjoy concurrent jurisdiction with the Supreme Court with regard to PILs, this paper aims to study the pattern of invocation of the jurisdiction at the regional level. It surveys the variety of pleas and consequent action under PIL jurisdiction (or inaction, as the case may be) of different High Courts in India relating to covid crisis and consequential matters. To that end, it undertakes a survey of High Court orders or judgments from April to July, 2020. It seeks to lay bare the extent of demands that are made before the Courts through PIL. What kinds of action were expected from the High Courts during the pandemic? How did different Courts respond to such pleas? Were the directions and level of response homogenous or varied? The paper pursues these questions, and describes the pandemic though the lens of PIL in Indian High Courts. It goes on to argue that the High Courts in India need to take greater cognizance of their orders inter-se especially in PIL matters, as human rights protection through PIL cannot have contradictory voices.

Enforcing Rights against the State in India

2019 ◽  
pp. 211-279
Author(s):  
Florian Matthey-Prakash
Keyword(s):  
Supreme Court ◽  
Public Interest ◽  
Empirical Studies ◽  
The State ◽  
Access To Justice ◽  
District Courts ◽  
Public Interest Litigation ◽  
High Courts ◽  
The Supreme Court

Chapter 4 deals with the issue of lack of access to justice and attempts to find reasons for the inaccessibility of the higher judiciary. While it appears to be clear to observers that the Supreme Court and high courts are not accessible enough, surprisingly, there are actually no empirical studies that examine why this is the case. Some factors can, however, be deduced from a study dealing with the inaccessibility of district courts, that is, the lower judiciary.The fourth chapter also shows that the institution of Public Interest Litigation, for various reasons, cannot compensate for lack of access to justice, and that the state is not properly implementing (or not at all exploring) many other possible alternative mechanisms.

Japan

2021 ◽  
pp. 115-132
Author(s):  
Steven Gow Calabresi
Keyword(s):  
World War Ii ◽  
Supreme Court ◽  
Judicial Review ◽  
Separation Of Powers ◽  
The Political ◽  
Bill Of Rights ◽  
Checks And Balances ◽  
Rubber Stamp ◽  
The Supreme Court ◽  
The Government

This chapter looks at the Japanese experience with judicial review. The Supreme Court of Japan does not enforce those parts of the Japanese Constitution, like Article 9, which prohibits war making; Article 21, which protects freedom of speech; or Article 89, which forbids taxpayer money from being used to hire Shinto priests. The Supreme Court of Japan thus refuses to enforce important articles in the Constitution of Japan. It does rubber stamp and thus legitimize actions taken by the political branches of the government. Why has judicial review of the constitutionality of legislation failed to take root in Japan? Japan does not need either a federal or a separation of powers umpire, since Japan is, firstly, a unitary nation-state with no need for a federalism umpire; and, secondly, a parliamentary democracy with a weak upper house of the legislature. Moreover, Japan has never atoned for the wrongs it committed during World War II nor has it truly admitted to even having done the horrible things that Japan did. A nation cannot get rights from wrongs judicial review and a Bill of Rights unless it admits it has done something wrong. Finally, the Japanese Constitution contains an inadequate system of checks and balances. As a result, the Supreme Court of Japan may not have the political space within which it can assert power.

Opening up Appointments

2018 ◽  
pp. 96-108
Author(s):  
Madhavi Divan
Keyword(s):  
Civil Society ◽  
Public Interest ◽  
Public Interest Litigation ◽  
Deep Dive ◽  
Judicial Appointments ◽  
High Courts ◽  
The Supreme Court ◽  
Lay Members ◽  
Opening Up

This essay takes a deep dive into the role of the civil society in the judicial appointments process. It begins with the observation that the superior courts in India, during the last few decades, have assumed an activist role. Public interest litigation on issues which have the potential to impact various sections of society are being entertained by the Supreme Court and the High Courts. This essay argues that India should not stay far behind from including members of the civil society, or ‘lay’ members in the judicial appointments process. It is also argued that the inclusion of lay people in the appointments process would positively impact the cause of diversity in appointments. In this context, this essay espouses the cause of civil society members in the judicial appointments process, and shields their inclusion in the National Judicial Appointments Commission from the allegation of violating the independence of the judiciary.

The Janus Face of Agricultural Policies, Kisans and Sethias: Local and Global

Social Change ◽  
2021 ◽  
Vol 51 (4) ◽  
pp. 463-474
Author(s):  
Yoginder K. Alagh
Keyword(s):  
Supreme Court ◽  
Economic Policies ◽  
Agricultural Policies ◽  
Amicus Curiae ◽  
Agricultural Reform ◽  
Indian Agriculture ◽  
The Supreme Court ◽  
The Government ◽  
Farmer Organisations ◽  
Policy Interest

Indian agriculture is at a crossroads. We can plan out the phasing of reforms or force the pace and mess up the process. The Supreme Court had taken a practical stand on the Farm Trade Laws—implement them after consultation and with a well-defined framework spelt out. They had also appointed an expert amicus curiae. But this was not acceptable to the agitating farmer organisations in view of the stated views the experts had. It is possible that experts can re-examine their position as the Court said, but not highly probable. So going back to direct negotiations led to the stand the government has taken of holding the laws in abeyance for a year or a year-and-a-half. This will provide time for discussion of the details of agricultural reform which was needed since the laws were passed in a hurry on a single day. To begin with, it has to be understood that in a continental country one-size-fits-all will not work. The policy bind India is in is therefore a difficult one, even if the arguments are not ideologically anti-trade or those that lack policy interest. If a feasible alternate transitional policy set exists, a sensible approach would be to try to establish a roadmap of economic policies for, say a few major crops, and see if feasible alternatives exist.

How independent is India’s labour law framework from the state’s changing economic policies?

2019 ◽  
Vol 30 (3) ◽  
pp. 422-440 ◽  
Author(s):  
Santanu Sarkar
Keyword(s):  
Social Impact ◽  
Economic Policies ◽  
Indian Government ◽  
Legal Reforms ◽  
Labour Rights ◽  
High Courts ◽  
The Social ◽  
The Supreme Court ◽  
The Government ◽  
Jel Code

Judicial interpretation of statute law in common-law countries means that the judiciary may mediate the social impact of legislation. In the case of the protection of labour rights in India, this article examines the extent to which the judiciary acts independently from the government of the day, and the extent to which court judgements are swayed by prevailing administrative policies. Specifically, to what extent have economic liberalisation and labour market flexibility policies influenced court decisions in cases challenging worker dismissals? Drawing on a review of 270 judgements delivered by the Supreme Court of India and the state High Courts between 1950 and 2010, a relationship is traced between a shifting pattern of Courts’ judgements and policy changes initiated by the Indian government in response to economic conditions. The objective of the study is to understand the effect of a structural shift in the economy on the cases of consented and contested decrees related to dismissal of workers under the relevant laws in India. It is found that the specific statute has not greatly changed through legal reforms, but the judiciary’s interpretations of it have changed over six decades based on dominant socio-political currents, in tune with government economic policies. This raises profound questions about judicial independence in defence of labour rights. JEL Code: K31

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