The Supreme Court of India deals with a variety of matters ranging from the death penalty to promotion in services. Public Interest Litigation (PIL) constitutes a small proportion of the cases. But for about three decades, the judiciary didn't recognise the inability of economically marginalised people to approach the Supreme Court and high courts for the violation of the fundamental rights to life, liberty and equality. As the principle of locus standi was strictly followed, only those whose fundamental rights were violated were entitled to approach the courts for redressal. The relaxation of this principle and permitting third party actors to approach the courts on behalf of the poor and exploited in the public interest constitute the beginnings of PIL. In The Shifting Scales of Justice, editors Mayur Suresh and Siddharth Narrain seek to examine the operation of the Supreme Court as India charted a neoliberal path, a period the authors identify as the 'Judicial Nineties'. However, the book engages almost exclusively with PIL.
The introduction, along with most of the contributions in the book, are premised on the generally accepted framework of the post-Emergency period – late 1970s and 1980s – as the glorious era of PIL,with the Supreme Court working towards the amelioration of the conditions of the poor, downtrodden and exploited. In contrast, the Judicial Nineties is flamboyantly described by Aditya Nigam as when "the judiciary, in particular has thrown its full weight behind the corporate-capitalism-driven agenda of spatio-temporal transformation of India." With the publication of this book it is perhaps the right time to reflect on whether this post-Emergency phase of the Court has acquired a romanticised hue for activists and scholars, a tendency noted by Professor Upendra Baxi: "the judiciary [of the post-Emergency period] has become the prime instrumentality of re-democratising the processes of governance and practice of politics."
This perspective of the judicial shift in neoliberal India leaves out a critical examination of the PILs prior to that era, and represents a serious lacuna in assessing and examining the judicial trends of the 1990s. The first PIL entertained by the Supreme Court was on behalf of prisoners languishing in jails as 'undertrials' for periods longer than the maximum term for which they could have been sentenced if convicted. In the 1979 Bihar Undertrials Case, the Supreme Court directed the release of such prisoners, noting that speedy trial was an essential element of the right to life and liberty guaranteed under Article 21 of the Constitution. An assessment of the judicial trends in PILs in the 1990s would have been enriching, considering the fact that more than three decades down the line, undertrials constitute close to two-thirds of the prisoners in Indian jails, disproportionately affecting the poor who languish for long periods with courts insisting on monetary sureties for release on bail.
It is instructive to consider the limitations of Court decisions in human-rights cases in the 'glorious' post-Emergency period. For example, in the lead up to the 1982 Asian Games in Delhi, large-scale construction of roads, flyovers and sports stadiums undertaken by the government saw in the abuse of labour rights of those working on the various projects. A letter was sent by the People's Union for Democratic Rights (PUDR) to a judge of the Supreme Court, alleging violation of laws like the Minimum Wages Act during this construction. The Court treated the letter as a writ petition and held that non-payment of minimum wages amounted to 'forced labour', which was a violation of fundamental rights. However, the impact of the much-acclaimed judgment on the ground, in terms of the number of workers who actually benefited from it, was left unexplored by the Court. There is also the instance of the famous Bombay Pavement Dwellers case, with the Supreme Court ruling in favour of the right to shelter. Yet, throughout the body of the judgment, it holds in an operative sense that pavement dwellers could be evicted under the Bombay Municipality Act.