JUDICIAL ACTIVISM AND PUBLIC INTEREST LITIGATION IN INDIA, Schemes and Mind Maps of Law

Download JUDICIAL ACTIVISM AND PUBLIC INTEREST LITIGATION IN INDIA and more Schemes and Mind Maps Law in PDF only on Docsity! 2013 GJLS Vol.1, No.1 Galgotias Journal of Legal Studies ISSN. 2321-1997 JUDICIAL ACTIVISM AND PUBLIC INTEREST LITIGATION IN INDIA Pritam Kumar Ghosh! 1) INTRODUCTION Public Interest Litigation: The term "Public Interest" means the larger interests of the public, general welfare and interest of the masses ((Oxford English Dictionary 2nd Edn.) Vol.X11) and the word “Litigation” means "a legal action including all proceedings therein, initiated in a court of law with the purpose of enforcing a right or seeking a remedy." Thus, the expression “Public Interest Litigation’ means "any litigation conducted for the benefit of public or for removal of some public grievance." In simple words, public interest litigation means. any public spirited citizen can move/approach the court for the public cause (or public interest or public welfare) by filing a petition in the Supreme Court under Art.32 of the Constitution or in the High Court under Art.226 of the Constitution or before the Court of Magistrate under Sec. 133 of the Code of Criminal Procedure, 1973. The seeds of the concept of public interest litigation were initially sown in India by Krishna Iyer J., in 1976 in Mumbai Kamgar Sabha vs. Abdul Thai (AIR 1976 SC 1455) and was initiated in Akhil Bharatiya Shoshit Karmachari Sangh (Railway) v. Union of India (AIR 1981 SC 298), wherein an unregistered association of workers was permitted to institute a writ petition under Art.32 of the Constitution for the redressal of common grievances. Krishna lyer J., enunciated the reasons for liberalization of the rule of Locus Standi in Fertilizer Corporation Kamgar Union v. Union of India (AIR 1981 SC 344) and the idea of ‘Public Interest Litigation’ blossomed in S.P. Gupta and others vs. Union of India, (AIR 1982 SC 149). Judicial Activism: The expression ‘Judicial Activism' signifies the anxiety of courts to find out appropriate remedy to the aggrieved by formulating a new rule to settle the conflicting questions in the event of lawlessness or uncertain laws. The Judicial Activism in India can he witnessed with ' The author is currently working as a legal research editor with LexisNexis Butterworths Wadhwa and is also pursuing his PhD in Law from Faculty of Law, University of Delhi. 77 2013 GJLS Vol.1, No.1 Galgotias Journal of Legal Studies ISSN. 2321-1997 reference to the review power of the Supreme Court under Article 32 and I (belt Courts under Article 226 of the Constitution particularly in Public Interest Litigation. Earlier, in England there were two kinds of courts namely. Equity Courts (Court of Chancery) and Common Law Courts. Equity Courts used to decide cases applying the principles of equity i.e. Justice, Equity and good conscience. Whereas the common law courts used to decide cases basing on common law i.e. the principles' rules evolved by the Judge; during judicial pronouncements. Hence the common law is also known as the VJudge-made-law:’ The courts of Equity and Chancery played significant role in formulating the new rules of tort. The common law originated in England and was spread in British Colonies including India. In India, almost all laws have originated from the English Common law. In the absence of existing rules for relief in certain cases and predictive procedure, the courts of equity or chancery took the initiative to draw up new rules. ‘The formulation of those new rules by the then courts to settle the conflicting positions that had arisen in certain cases was denoted as ‘Judicial Activism’. The equity court and common law courts were merged with the passing of the Judicature .Act, 1875. Judicial Activism in India: The doctrine of separation of powers was propounded by the French Jurist Montesquieu. It has been adopted in India as well since the executive powers are vested in the President, Legislative powers in the Parliament and State Legislative Assemblies and the judicial powers in the Supreme Court and subordinate courts. However, the adoption of this principle in India is partial and not total. This is because even though Legislature and the Judiciary are independent yet Judiciary is entrusted with implementation of the laws made by the legislature. On the other hand, in case of absence of laws on a particular issue, judiciary issues guidelines and directions for the Legislature to follow. The executive also encroaches upon judicial power, while appointing the judges of Supreme Court and High Courts. Similarly the Judiciary, by its review power examines the law passed by legislature and the legislature on the other hand intervenes in respect of impeachment of the President of India, who is a part of the Union Executive. 78 2013 GJLS Vol.1, No.1 Galgotias Journal of Legal Studies ISSN. 2321-1997 secure to all its citizens justice (social, economic and political), liberty (of thought, expression, belief, faith and worship) and equality (of status and of opportunity). These aims were not merely aspirational because the founding fathers wanted to achieve a social revolution through the Constitution.? The main tools employed to achieve such social change were the provisions on fundamental rights (FRs) and the directive principles of state policy (DPs), which Austin described as the ‘‘conscience of the Constitution’’.'° In order to ensure that FRs did not remain empty declarations, the founding fathers made various provisions in the Constitution to establish an independent judiciary. As we will see below, provisions related to FRs, DPs and independent judiciary together provided a firm constitutional foundation to the evolution of PIL in India. Part III of the Constitution lays down various FRs and also specifies grounds for limiting these rights. ‘‘As a right without a remedy does not have much substance’’,'' the remedy to approach the Supreme Court directly for the enforcement of any of the Pt III rights has also been made a FR.” The holder of the FRs cannot waive them.'? Nor can the FRs be curtailed by an amendment of the Constitution if such curtailment is against the basic structure of the Constitution. Some of the FRs are available only to citizens!’ while others are by the 42nd amendment in 1976, there were no doubts that the Constitution was both socialist and secular from the very beginning ® These values are expressly declared in the Preamble and form the essence of the Indian Constitution, the Indian Legal System and the Indian Polity. ° Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford: Clarendon Press, 1966), p.27. ‘‘The social revolution meant, ‘to get (India) out of the medievalism based on birth, religion, custom, and community and reconstruct her social structure on modern foundations of law, individual merit, and social education’.’’ (Austin, Cornerstone of a Nation, p.26, quoting K. Santhanam, a member of the Constituent Assembly.) ° Granville Austin, Indian Constitution: Cornerstone of a Nation, p.50 "MP. Jain, “The Supreme Court and Fundamental Rights” in S.K. Verma and Kusum (eds), Fifty Years of the Supreme Court of India—Its Grasp and Reach (New Delhi: Oxford University Press, 2000), pp.1, 76. °° Art. 32 of the Indian Constitution. '3 Basheshar Nath v CIT AIR 1959 SC 149; Nar Singh Pal v Union of India AIR 2000 SC 1401. '4 See, for example, Constitution art.15(2) (right of non-discrimination on grounds only of religion, race, caste, sex, place of birth or any one of them to access and use of public places, etc.); art.15(4) (special provision for advancement of socially and educationally backward s of citizens or the scheduled castes and the scheduled tribes); art.16 (equality of opportunity in matters of public employment); art.19 (rights regarding six freedoms); art.29 (protection of interests of minorities). 81 2013 GJLS Vol.1, No.1 Galgotias Journal of Legal Studies ISSN. 2321-1997 available to citizens as well as non-citizens,'> including juristic persons. Notably, some of the FRs are expressly conferred on groups of people or community.'° Not all FRs are guaranteed specifically against the state and some of them are expressly guaranteed against non-state bodies.'” Even the ‘“‘state’’ is liberally defined in art.12 of the Constitution to include, ‘‘the Government and Parliament of India and the Government and the legislature of each of the states and all local or other authorities within the territory of India or under the control of the Government of India’. The expression ‘‘other authorities’ has been expansively interpreted, and any agency or instrumentality of the state will fall within its ambit.'* The DPs find a place in Pt IV of the Constitution. Although the DPs are not justiciable,’” they are, ‘nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws’’.2? After initial deviation,?' the Supreme Court accepted that FRs are not superior to DPs on account of the latter being non-justiciable: rather FRs and DPs are complementary and the former are a means to achieve the goals indicated in the latter.” The issue was put beyond any 'S See, for example, Constitution art.14 (right to equality); art.15 (1) (right of non-discrimination on grounds only of religion, race, caste, sex, place of birth or any one of them); art.20 (protection in respect of conviction of offences); art.21 (protection of life and personal liberty); art.22 (protection against arrest and detention); art.25 (freedom of conscience and right to profess, practice and propagate religion). 6 See, e.g. Constitution arts 26, 29 and 30. "7 Austin cites three provisions, ic. Constitution arts 15(2), 17 and 23 which have been “‘designed to protect the individual against the action of other private citizen’’: Austin, Cornerstone of a Nation, p.51. However, it is reasonable to suggest that the protection of even arts 24 and 29(1) could be invoked against private individuals. See also Vijayashri Sripati, “Toward Fifty Years of Constitutionalism and Fundamental Rights in India: Looking Back to See Ahead (1950-2000)"’ (1998) 14 American University International Law Review, 413, 447-48. 18 See Ajay Hasia v Khalid Mujib AIR 1981 SC 487; Pradeep Kumar v Indian Institute of Chemical Biology (2002) 5 S.C.C. 111. In the application of the instrumentality test to a corporation, it is immaterial whether the corporation is created by or under a statute. Som Prakash Rekhi v Union of India AIR 1981SC 212. '° The Fundamental Rights are judicially enforceable whereas the Directive Principles are unenforceable in the courts. For the relevance of this difference, see Mahendra P. Singh, ‘“The Statics and the Dynamics of the Fundamental Rights and the Directive Principles—A Human Rights Perspective’’ (2003) 5 SCJ I. * Constitution art.37 2! State of Madras v Champakam Dorairajan AIR 1951 SC 226. 82 2013 GJLS Vol.1, No.1 Galgotias Journal of Legal Studies ISSN. 2321-1997 controversy in Minerva Mills Ltd v Union of India where the Court held that the, ‘“‘harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution’. Since then the judiciary has employed DPs to derive the contents of various FRs.”4 The founding fathers envisaged ‘‘the judiciary as a bastion of rights and justice’”’.?> An independent judiciary armed with the power of judicial review was the constitutional device chosen to achieve this objective. The power to enforce the FRs was conferred on both the Supreme Court and the High Courts”® —the courts that have entertained all the PIL cases. The judiciary can test not only the validity of laws and executive actions but also of constitutional amendments. It has the final say on the interpretation of the Constitution and its orders, supported with the power to punish for contempt, can reach everyone throughout the territory of the country. Since its inception, the Supreme Court has delivered judgments of far-reaching importance involving not only adjudication of disputes but also determination of public policies and establishment of rule of se so 27 law and constitutionalism. 2 CB Boarding & Lodging v State of Mysore AIR 1970 SC 2042; Kesavananda Bharti v State of Kerala AIR 1973 SC 1461; Minerva Mills Ltd v Union of India AIR 1980 SC 1789; Unni Krishnan v State of AP (1993) 1 S.C.C. 645. See also Rajiv Dhavan, *‘Republic of India: The Constitution as the Situs of Struggle: India’s Constitution Forty Years On” in Lawrence W. Beer (ed.), Constitutional Systems in Late Twentieth Century Asia (Seattle: University of Washington Press, 1992), pp.373, 382-383, 405 and 413-416. °3 Minerva Mills Ltd v Union of India AIR 1980 SC 1789, 1806. *4 Jain M_P., ““The Supreme Court and Fundamental Rights” in Verma and Kusum (eds), Fifty Years of the Supreme Court of India, pp.65-76. Austin, Cornerstone of a Nation, p.175. © Constitution of India 1950 arts 32 and 226 27 See, for an analysis of some of the landmark judgments delivered by the Apex Court during these years, Gobind Das, ‘‘The Supreme Court: An Overview’’ in B.N. Kirpal et al. (eds), Supreme but not Infallible: Essays in Honour of the Supreme Court of India (New Delhi: OUP, 2000), pp.1647. 83 2013 GJLS Vol.1, No.1 Galgotias Journal of Legal Studies ISSN. 2321-1997 PIL cases there were no immediate or quick solutions, the Court developed ‘‘creeping’’ jurisdiction thereby issuing appropriate interim orders and directions.** The judiciary also emphasized that PIL is not an adversarial but a collaborative and cooperative project in which all concerned parties should work together to realize the human rights of disadvantaged sections of society.” 4) THE THREE PHASES OF PIL At the risk of over-simplification and overlap, the PIL discourse in India could be divided, in my view, into three broad phases.*° One will notice that these three phases differ from each other in terms of at least the following four variables: who initiated PIL cases; what was the subject matter/focus of PIL; against whom the relief was sought; and how judiciary responded to PIL cases. The First Phase: In the first phase—which began in the late 1970s and continued through the 1980s—the PIL cases were generally filed by public-spirited persons (lawyers, journalists, social activists or academics). Most of the cases related to the rights of disadvantaged sections of society such as child labourers, bonded labourers, prisoners, mentally challenged, pavement dwellers, and women. The relief was sought against the action or non-action on the part of executive agencies resulting in violations of FRs under the Constitution. During this phase, the judiciary responded by recognizing the rights of these people and giving directions to the government to redress the alleged violations. In short, it is 57 See Ashok H. Desai and S. Muralidhar, ‘Public Interest Litigation: Potential and Problems” in Kirpal et al., Supreme but not Infallible, pp.159, 165-167. The Court also held that the power to appoint Commissioners is not constrained by the Code of Civil Procedure or the Supreme Court Rules. % Baxi, “Taking Suffering Seriously”” (1985) Third World Legal Studies 107, 122 »® See Sathe, Judicial Activism in India, pp.207-208, 235-237. #° Dam divides SAL in three functional phases: creative, lawmaking and super-executive. Shubhankar Dam, “‘Lawmaking Beyond Lawmakers: Understanding the Little Right and the Great Wrong (Analyzing The Legitimacy of the Nature of Judicial Lawmaking in India’s Constitutional Dynamic)’’ (200) 13 Tulane Journal of International and Comparative Law 109, 115-116. This division, however, does not fully explain the complexity of PIL, because it focuses only on one aspect of it. 86 2013 GJLS Vol.1, No.1 Galgotias Journal of Legal Studies ISSN. 2321-1997 arguable that in the first phase, the PIL truly became an instrument of the type of social transformation/revolution that the founding fathers had expected to achieve through the Constitution. The Second Phase: The second phase of the PIL was in the 1990s during which several significant changes in the chemistry of PIL took place. In comparison to the first phase, the filing of PIL cases became more institutionalized in that several specialized NGOs and lawyers started bringing matters of public interest to the courts on a much regular basis. The breadth of issues which were raised in PIL also expanded tremendously—from the protection of environment to corruption-free administration, right to education, sexual harassment at the workplace, relocation of industries, rule of law, good governance, and the general accountability of the Government. It is to be noted that in this phase, the petitioners sought relief not only against the action/non-action of the executive but also against private individuals, in relation to policy matters and regarding something that would clearly fall within the domain of the legislature. The response of the judiciary during the second phase was by and large much bolder and unconventional than the first phase. For instance, the courts did not hesitate to come up with detailed guidelines where there were legislative gaps. The courts enforced FRs against private individuals and granted relief to the petitioner without going into the question of whether the violator of the FR was the state. The courts also took non-compliance with its orders more seriously and in some cases, went to the extent of monitoring government investigative agencies and/or punishing civil servants for contempt for failing to abide by their directions. The second phase was also the period when the misuse of PIL not only began but also reached to a disturbing level, which occasionally compelled the courts to impose fine on plaintiffs for misusing PIL for private purposes. It is thus apparent that in the second phase the PIL discourse broke new grounds and chartered on previously unknown paths in that it moved much beyond the declared objective for which PIL was meant. The courts, for instance, took resort to judicial legislation when needed, did not hesitate to reach centres of government power, tried to extend the protection of FRs against non-state actors, moved to protect the interests of the middle class rather than poor populace, and sought means to control the misuse of PIL for ulterior purposes. 87 2013 GJLS Vol.1, No.1 Galgotias Journal of Legal Studies ISSN. 2321-1997 The Third Phase: On the other hand, the third phase—the current phase, which began with the 21st century—is a period in which anyone could file a PIL for almost anything. It seems that there is a further expansion of issues that could be raised as PIL, e.g. calling back the Indian cricket team from the Australia tour and preventing an alleged marriage of an actress with trees for astrological reasons. From the judiciary’s point of view, one could argue that it is time for judicial introspection and for reviewing what courts tried to achieve through PIL. As compared to the second phase, the judiciary has seemingly shown more restraint in issuing directions to the government. Although the judiciary is unlikely to roll back the expansive scope of PIL, it is possible that it might make more measured interventions in the future. One aspect that stands out in the third phase deserves a special mention. In continuation of its approval of the government’s policies of liberalization in Delhi Science Forum, the judiciary has shown a general support to disinvestment and development policies of the Government.*! What is more troublesome for students of the PIL project in India is, however, the fact that this judicial attitude might be at the cost of the sympathetic response that the rights and interests of impoverished and vulnerable sections of society (such as slum dwellers and people displaced by the construction of dams) received in the first phase. The Supreme Court’s observations such as the following also fuel these concerns: ‘Socialism might have been a catchword from our history. It may be present in the Preamble of our Constitution. However, due to the liberalization policy adopted by the Central Government from the early nineties, this view that the Indian society is essentially wedded to socialism is definitely withering away.”’ It seems that the judicial attitude towards PIL in these three phases is a response, at least in part, to how it perceived to be the ‘‘issues in vogue’’. If rights of prisoners, pavement dwellers, child/bonded labourers and women were in focus in the first phase, issues such as environment, AIDS, corruption and good governance were at the forefront in second phase, and development 41 It iggested that in recent years the Supreme Court has been influenced by liberalization and corporate business inte! at the cost of human rights. See Jamie C: . ‘Multinational Corporations and Catastrophic Law’’ (2000) 31 Cumberland Law Review 311, 330; Parmanand Singh, *‘State, Market and Economic Reforms’’ in Parmanand Singh et al. (eds), Legal Dimensions of Market Economy (New Delhi: Universal Book Traders, 1997), pp.23, 30-31; Prashant Bhushan, ‘‘Has the Philosophy of the Supreme Court on Public Interest Litigation Changed in the Era of Liberalisation?’’, judicialreforms.org/files/2%20P hilosophy %200f%20SC%200n%20PIL%20%20P rashant%20Bhushan.pdf October 8, 2008]. *® State of Punjab v Devans Modern Breweries Ltd (2004) 11 SCC 26 88 2013 GJLS Vol.1, No.1 Galgotias Journal of Legal Studies ISSN. 2321-1997 judicial intervention in these cases have made little progress in combating sexual harassment of women and in limiting police atrocities in matters of arrest and detention. The second instance of symbolic justice is provided by the futility of over conversion of DPSPs into FRs and thus making them justiciable. Not much is gained by recognizing rights which cannot be enforced or fulfilled. It is arguable that creating rights which cannot be enforced devalues the very notion of rights as trump. Singh aptly notes that, ‘‘a judge may talk of right to life as including right to food, education, health, shelter and a horde of social rights without exactly determining who has the duty and how such duty to provide positive social benefits could be enforced’’. So, the PIL project might dupe disadvantaged sections of society in believing that justice has been done to them, but without making a real difference to their situation. (5) Disturbing the constitutional balance of power: Although the Indian Constitution does not follow any strict separation of powers, it still embodies the doctrine of checks and balances, which even the judiciary should respect. However, the judiciary on several occasions did not exercise self-restraint and moved on to legislate, settle policy questions, take over governance, or monitor executive agencies. Prof. M. P. Jain cautions against such tendency:** ““PIL is a weapon which must be used with great care and circumspection; the courts need to keep in view that under the guise of redressing a public grievance PIL does not encroach upon the sphere reserved by the Constitution to the executive and the legislature.”’ Moreover, there has been a lack of consistency as well in that in some cases, the Supreme Court did not hesitate to intrude on policy questions but in other cases it hid behind the shield of policy questions. Just to illustrate, the judiciary intervened to tackle sexual harassment as well as custodial torture and to regulate the adoption of children by foreigners, but it did not intervene to introduce a uniform civil code, to combat ragging in educational institutions, to adjust the height of the Narmada dam and to provide a humane face to liberalization-disinvestment polices. No clear or sound theoretical basis for such selective intervention is discernable from judicial decisions. It is also suspect if the judiciary has been (or would be) able to enhance the accountability of the other two wings of the government through PIL. In fact, the reverse might be true: the judicial usurpation of executive and legislative functions might make these institutions more unaccountable, for they know that judiciary is always there to step in should they fail to act. * Prof. Jain M_P., Indian Constitutional Law, Volume 2, 6" edn., LexisNexis Butterworths Wadhwa, Nagpur, 2010 91 2013 GJLS Vol.1, No.1 Galgotias Journal of Legal Studies ISSN. 2321-1997 (6) Overuse-induced non-seriousness: PIL should not be the first step in redressing all kinds of grievances even if they involve public interest. In order to remain effective, PIL should not be allowed to become a routine affair which is not taken seriously by the Bench, the Bar, and most importantly by the masses:? ‘‘The overuse of PIL for every conceivable public interest might dilute the original commitment to use this remedy only for enforcing human rights of the victimized and the disadvantaged groups.’ If civil society and disadvantaged groups lose faith in the efficacy of PIL, that would sound a death knell for it. Based on the above problems, certain solutions need to be devised and implemented by the Judiciary to ensure that the sanctity of Judicial Activism in the country is kept intact and at the same time interests of all classes of stakeholders are addressed in a proper and judicious manner. (6) SUGGESTIONS TO CORRECT AN “OVER-ACTIVIST” JUDICIARY Major steps need to be taken in order to prevent an “over-activist” judiciary from transgressing its limits. Some of these can be explained as follows: Public interest litigation, or PIL as it is conveniently called, has become a major and prominent segment of the jurisdiction of the Supreme Court and 21 High Courts in India. Whilst its necessity and utility in upholding the rule of law is undoubted, its extravagant and unprincipled use at times by courts has brought PIL into controversy (LD Relaxation must be procedural Much of the misapplication of the PIL jurisdiction can be avoided, if it is remembered that PIL is basically the application of the well settled principles of judicial review by courts of actions of government and public authorities, with the modification of courts allowing the petitioner(s) applicant to approach the court on behalf of other persons, who themselves are unable to come to the court because of ignorance of their rights or the difficulty and cost of litigation. In such cases, ® Prof. Sathe S.P., Judicial Activism in India: Transgressing Borders and Enforcing Limits, Oxford University Press, UK, 2003 92 2013 GJLS Vol.1, No.1 Galgotias Journal of Legal Studies ISSN. 2321-1997 the court relaxes the strict rule of locus standi of the applicant and also relaxes procedural formalities. It may even entertain a letter addressed to the court by a complainant. PIL was devised as a means for redressing the basic rights of generally the poor and marginalized sections of the society, who were unable to get judicial help on their own. It must also be borne in mind that public interest litigation is not something unique to India. Other jurisdictions such as South Africa, Canada and USA™ also have public interest litigation, though it is not described as such. It is, therefore, important to note that except for procedural relaxations, the PIL jurisdiction should not exceed the permissible limits and parameters of judicial review by the court over the actions or omissions of government, legislatures or public bodies, or transcend the basic separation of powers underlying the Constitution. Judicial review in a democratic constitution must also not supplant the normal processes of representative self-government, in which the representatives of the people make choices and policies which may not be ideal or correct, but which can be set right by the people themselves. What is not within the bounds of judicial review by courts cannot be within their reach because it comes under the description of public interest litigation before it. PIL jurisdiction is, therefore, not a unique jurisdiction by which courts can transcend their limitations to act as a body to set right actions of the government, which are believed to be wrong or could be improved. Once this basic foundation of PIL is kept in mind, the parameters of intervention in PIL are easily grasped and its misapplication can be seen and avoided. (2) Judicial Activism_not PIL: Another misconception is equating PIL with judicial activism in India. Judicial activism is not PIL. A court can be judicially active or inactive irrespective of PIL. Judicial activism is a word of many shades. No person today subscribes to Bacon's” view that judges must only declare the law and do not make law. Such a view was rightly described as a fairy tale by a distinguished English judge Lord Reid. Judges do and must make law but not in the manner of legislatures. There is much scope for creative judicial activism in the interpretative functions of judges, on the choices inherent * For instance in the USA it is known as Class Action or Social Action Litigation or Social Interest Litigation. *! Sir Francis Bacon is a renowned English Jurist and Philosopher who became famous for his views on the role of judiciary and the judges in a country. 93 2013 GJLS Vol.1, No.1 Galgotias Journal of Legal Studies ISSN. 2321-1997 by courts have effectively displaced government's administration in those areas. Such PIL petitions are filed in the Supreme Court in its original jurisdiction under the Article 32 of the Constitution. Article 32 is for enforcing fundamental rights. It is hard to find any genuine enforcement of any fundamental right in such PIL petitions. The petitions make a formal invocation of Article 14 in its liberal interpretation of non-arbitrariness or of Article 21 in its vast expanse of a right to life. Article 32 seems to have lost its meaning for all practical purposes. At times, matters beyond the judicial sphere and competence of the court have been entertained. In 1993, the Supreme Court even ordered that provision of food of 1200 calorific value should be supplied to hostages in an ongoing military operation in Kashmir. The court has professed to monitor a highly technical engineering scheme of interlinking of rivers in India and of genetic modified foods. In the field of higher education, the court's interventions have created a maze of complex regulations by successive cases, familiar only to lawyers, and baffling to educationists, parents and students. The court's scheme for admissions in private medical colleges in the Unnikrishnan case in 1993, which was in distinguishable from legislation, prevailed for nine years before it suffered an inglorious end, when the court itself struck it down as "unconstitutional" in T.M.A. Pai's case in 2002*°, causing considerable confusion in admissions in professional colleges. Following upon the Aravalli Golf Club case”, a larger Bench of the Supreme Court is shortly to consider the parameters of PIL. This is not new. Way back in 1983, a Bench of the court had made reference to a larger Bench, but nothing came of it. If the fundamental premise of public interest litigation (or more appropriately, social action litigation), coupled with the premise that PIL cannot go beyond the limitations of judicial review and must give due recognition to the separation of powers under the Constitution, is borne in mind, a formulation of the instances where PIL may or may not used, seems unnecessary. It may even be counterproductive, as it is never good to distill judicial power by enumeration. For such matters, Justice Oliver Wendell Holmes once said, "We need to have education in the obvious". the UGC (University Grants Commission) which administers higher education in India adopted and brought into force the 2009 Regulations to curb the Menace of Ragging in Higher Educational Institutions. * (2002) 8 SCC 481 >” Supra n. 54 96 2013 GJLS Vol.1, No.1 Galgotias Journal of Legal Studies ISSN. 2321-1997 97