Human rights law, development and social action litigation in India

Asia Pacific Journal on Human Rights and the Law

Volumn 3, Issue 2, 2002, Pages 136-210

  Vandenhole, Wouter ^a  

^a UNIVERSITY OF LEUVEN   (Belgium)

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[No Author keywords available]

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EID: 34247457679     PISSN: 13881906     EISSN: 15718158     Source Type: Journal    
DOI: 10.1163/157181502772034863     Document Type: Article

References (333)

1. See (last consulted 16 April 2002).
2. UNDP, Human Development Report 2000: Human Rights and Human Development, New York, Oxford University Press, 2000, 21-23.
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;
5. N. TATE and T. VALLINDER, "Judicialization and the Future of Politics and Policy" in N. TATE and T. VALLINDER (ed.), The Global Expansion of Judicial Power, o.c., 515-528.
6. Compare with R. COOMARASWAMY, "Toward an Engaged Judiciary" in N. TIRUCHELVAM and R. COOMARASWAMY (ed.), The Role of the Judiciary in Plural Societies, New York, St. Martin's Press, 1987, 1.
7. K. DE FEYTER, World Development Law. Sharing Responsibility for Development, Antwerp, Intersentia, 2001, 283.
8. UNDP, World Development Law. Sharing Responsibility for Development, o.c., 1. See also 19.
9. This development concept draws heavily on Sen's Development as Freedom, see A. SEN, Development as Freedom, New York, Knopf, 2000, 366 p.
10. UNDP, Development as Freedom, o.c., 2.
11. 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;
12. 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;
13. J. DONNELLY, "Human Rights, Democracy, and Development", Human Rights Quarterly 1999,608-632.
14. UNDP, Human Rights Quarterly, o.c., 19.
15. See inter alia R. MARTIN, "Re-thinking 'law and Development'", Journal of Modern African Studies 1985, 133-137;
16. B. TAMANAHA, "The Lessons of Law-and-Development Studies", The American Journal of International Law 1995, 470-486;
17. 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.
18. 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.
19. 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.
20. J. CASSELS, "Judicial Activism and Public Interest Litigation in India: Attempting the Impossible?", The American Journal of Comparative Law 1989, 510-511.
21. 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.
22. S.C. (I) 29 November 1982 (Sudip Mazumdar / State of Madhya Pradesh), PIL-SCALE, pp. 141-142, § 1.
23. S.C. (I) 30 December 1981 (S.P. Gupta / Union of India), All India Reporter 1982 (hereafter AIR), SC p. 188, § 17.
24. S.C. (I) 16 December 1983 (Bandhua Mukti Morcha / Union of India and others), AIR 1984, SC p. 813, § 11;
25. S.C. (I) 27 August 1992 (Krishna Swami / Union of India), PIL-SCALE, pp. 348-349, §§ 22-25.
26. See also I.P. MASSEY, Administrative Law, Lucknow, Eastern Book Company, 1985, 288.
27. 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.
28. S.C. India 30 December 1981 (S.P. Gupta / Union of India), AIR 1982, SC p. 190-191, § 18.
29. 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. SeeS.C. (I) 30 December 1981 (S.P. Gupta/Union of India), AIR 1982, SC p. 191-192, § 19.
30. See e.g. S.C. (I) 18 September 1982 (People's Union for Democratic Rights / Union of India), PIL-SCALE, p. 27, § 2;
31. S.C. (I) 16 December 1983 (Bandhua Mukti Morcha / Union of India), PIL-SCALE, p. 1769, § 11;
32. S.C. (I) 28 August 1992 (The Janata Dal / H.S. Chowdhury), PIL-SCALE, pp. 326-341, §§ 44-106.
33. S.C. (I) 11 February 1987 (Shri Sachidanand Pandey / The State of West Bengal), PIL-SCALE, p. 1858, § 60;
34. S.C. (I) 14 November 1988 (Ramsharan Autyanuprasi / Union of India), PIL-SCALE, p. 114, § 15;
35. S.C. (I) 25 August 1999 (Malik Brothers / Narendra Dadhich), PIL-SCALE V, p. 199, § 2.
36. 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.
37. S.C. (I) 30 December 1981 (S.P. Gupta / Union of India), AIR 1982, SC p. 189, § 17;
38. 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.
39. S.C. (I) 16 December 1983 (Bandhua Mukti Morcha / Union of India and others), AIR 1984, SC p. 814, § 12.
40. 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."
41. See U. BAXI, "Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India" in N. TIRUCHELVAM and R. COOMARASWAMY (ed.), PIL-SCALE, o.c, 39.
42. Ibid, and P.N. BHAGWATI, "Judicial Activism and Public Interest Litigation", Columbia Journal of Transnational Law 1985, 571.
43. S.C. (I)20 December 1986 (M.C. Mehta/Union of India), PIL-SCALE, p. 1519, § 5.
44. 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, 1, New Delhi, LIPS, s.d., A-74 - A-76.
45. S.C. (I) 16 December 1983 (Bandhua Mukti Morcha / Union of India), PIL-SCALE, 1783, § 13.
46. 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", PIL-SCALE, I.c., 574
47. and J. CASSELS, "Judicial Activism and Public Interest Litigation in India: Attempting the Impossible?", PIL-SCALE, I.c., 500).
48. 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).
49. 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.
50. 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;
51. S.C. (I) 4 October 1989 (Delhi Judicial Service Association Tis Hazari Court), PIL-SCALE, p. 176, § 2: a judge of the High Court;
52. S.C. (I) 8 February 1994 (Shri Tirath Ram Saini / State of Punjab), PIL-SCALE, p. 370, § 10: a district judge.
53. See for example S.C. (I) 5 March 1982 (Hira Lai / Zila Parishad, Kanpur), PIL-SCALE, p. 10, § 1: a lawyer and a journalist;
54. S.C. (I) 15 February 1983 (Sheela Barse / State of Maharashtra), PIL-SCALE, p. 48, § 1: the director of the "College of Social Work";
55. 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;
56. 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;
57. 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;
58. S.C. (I) 19 November 1991 (Rajangam, Secretary District Beedi Workers' Union / State of Tamil Nadu), PIL-SCALE, p. 1310, § 2: a social organisation;
59. S.C. (I) 10 December 1996 (M.C. Mehta / State of Tamil Nadu), PIL-SCALE, pp. 1646-1647, § 4: three advocates.
60. S.C. (I) 16 December 1983 (Bandhua Mukti Morcha / Union of India), PIL-SCALE, p. 1784, § 14.
61. S.C. (I)5 August 1986 (Sheela Barse / Union of India), PIL-SCALE, p. 1511, § 8.
62. S.C. (I) 5 March 1982 (Hira Lai / Zila Parishad, Kanpur), PIL-SCALE, p. 12, § 2;
63. 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 cooperative 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.), PIL-SCALE, o.c, 27.
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 cooperation 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;
70. see also S.C. (I) 20 December 1986 (M.C. Mehta / Union of India), PIL-SCALE, p. 1518, § 3.
71. 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.
72. S.C. (I) 29 August 1988 (Sheela Barse / Union of India), PIL-SCALE, p. 123, § 6.
73. M. GOMEZ, In the Public Interest, Legal Aid Centre, University of Colombo, 1993, 79.
74. J. CASSELS, "Judicial Activism and Public Interest Litigation in India: Attempting the Impossible?", In the Public Interest, I.c., 506.
75. U. BAXI, "Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India", In the Public Interest, I.c., 42;
76. see also C.D. CUNNINGHAM, "Public Interest Litigation in Indian Supreme Court: A Study in the Light of American Experience", In the Public Interest, I.c., A-80.
77. 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.
78. S.C. (I) 11 May 1982 (Miss Veena Sethi / State of Bihar), PIL-SCALE, p. 15, § .
79. S.C. (I) 2 May 1985 (Mukesh Advani / State of Madhya Pradesh), PIL-SCALE, p. 74, § 21.
80. S.C. (I) 13 August 1986 (Sheela Barse / Union of India), PIL-SCALE, p. 1512, § 2.
81. S.C. (I) 27 September 1988, Rakesh Chandra Narayan/State of Bihar, AIR 1989, PIL-SCALE, pp. 108-109, §§ 33-34
82. and S.C. (I) 12 November 1991 (People's Union for Civil Liberties, Delhi State / Union of India), PIL-SCALE, p. 1404, § 6.
83. S.C. (I) 26 September 1989 (Balram / State of M.P.), PIL-SCALE, p. 176, § 5.
84. S.C. (I) 11 January 1996 (Ranjeet Kumar / Secretary (Home), State of Punjab), PIL-SCALE, p. 519, § 1.
85. S.C. (I) 21 February 1997 (Bandhua Mukti Morcha / Union of India), PIL-SCALE, p. 1662, § 13.
86. 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).
87. 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).
88. 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).
89. 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;
90. 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;
91. S.C. (I) 10 May 1999 (In re: News Item "Power Crisis Paralyses AIIMS7 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.
92. 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;
93. see also J. CASSELS, "Judicial Activism and Public Interest Litigation in India: Attempting the Impossible?", PIL-SCALE, I.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.
94. See also S.C. (I) 10 May 1999 (In re: News Item "Power Crisis Paralyses AIIMS'V 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.
95. Compare with S.C. (I) 14 May 1991 (Gaurav Jain / Union of India), PIL-SCALE, p. 253, § 4: ail States and Union Territories;
96. S.C. (I) 17 August 1993 (Sheela Barse / Union of India), PIL-SCALE V, 287, § 15: all States;
97. S.C. (I) 13 May 1994 (Public Union for Civil Liberties / State of Tamil Nadu), PIL-SCALE, p. 1357, § 1: all State governments;
98. S.C.(I) 18 December 1996 (D.K. Basu / State of West Bengal), PIL-SCALE IV, p. 303, § 4: all State governments;
99. 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.
100. 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 [...]."
101. C.D. CUNNINGHAM, "Public Interest Litigation in Indian Supreme Court: A Study in the Light of American Experience", PIL-SCALE, I.c., 80.
102. In the Bandhua Mukti Morcha case the Court gave instructions - 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.
103. S.C. (I) 15 February 1983 (Sheela Barse / State of Maharashtra), PIL-SCALE, pp. 49-52, §§ 3-5 and in particular p. 52, § 5.
104. 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.
105. S.C. (I) 20 November 1991 (Lakshmi Kant Pandey/Union of India), PIL-SCALE, p. 1268, §4.
106. S.C. (I) 13 August 1986 (Sheela Barse / Union of India), PIL-SCALE, p. 1513, § 3.
107. S.C. (I) 19 October 1994 (Delhi Domestic Working Women's Forum / National Commission for Women), PIL-SCALE, pp. 411-412, § 16.
108. S.C.(I) 1 8 December 1996 (People's Union for Civil Liberties (PUCL) / Union of India), PIL-SCALE, pp. 1378-1380, §§ 34-35.
109. S.C.(I) 18 December 1996 (D.K. Basu / State of West Bengal), PIL-SCALE IV, pp. 313-314, § 36.
110. 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";
111. 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."
112. S.C. (I) 29 August 1988 (Sheela Barse / Union of India), PIL-SCALE, p. 123, § 6.
113. See also S.C. (I) 13 August 1991 (Bandhua Mukti Morcha / Union of India), PIL-SCALE, p. 273, § 5: "[...] the Court did not treat the writ petition as disposed of by its judgment and the application survived for further monitoring"
114. 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";
115. S.C. (I) 20 October 1986 (Rakesh Chand Narain / State of Bihar), PIL-SCALE, p. 1614, § 2: Chief Judicial Magistrate;
116. 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;
117. 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;
118. 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;
119. 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;
120. S.C. (I) 10 December 1996 (M.C. Mehta / State of Tamil Nadu), PIL-SCALE, p. 1646, § 3;
121. 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.
122. See e.g. S.C. (I) 30 April 1991 (Rural Litigation and Entitlement Kendra, Dehradun / State of U.P.), PIL-SCALE, 258.
123. 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.
124. 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;
125. S.C. (I) 13 February 1986 (L. K. Pandey / Union of India), PIL-SCALE, 1251
126. and S.C. (I) 3 December 1986 (L. K. Pandey / Union of India), PIL-SCALE, 1251).
127. 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;
128. S.C. (I) 19 January 1990 (Laxmi Kant Pandey / Union of India), PIL-SCALE, 1261;
129. S.C. (I) 9 February 1990 (Laxmi Kant Pandey / Union of India), PIL-SCALE, 1637;
130. S.C. (I) 12 April 1990 (Laxmi Kant Pandey / Union of India), PIL-SCALE, 1638
131. and S.C. (I) 20 April 1990 (Laxmi Kant Pandey / Union of India), PIL-SCALE, 1639).
132. 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 [...].";
133. 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 [...]".
134. S.C. (I) 5 September 1995 (Sheela Barse / Union of India), PIL-SCALE, p. 467, § 7.
135. S.C. (I) 11 November 1997 (Dr. Upendra Baxi / State of uttar Pradesh), PIL-SCALE, p. 1395, § 3;
136. S.C. (I) 11 November 1997 (Rakesh Chandra Narayan / State of Bihar), PIL-SCALE, p. 1674, § 1;
137. S.C. (I) 11 November 1997 (Public Union for Civil Liberties / State of Tamil Nadu), PIL-SCALE, p. 1394, § 1.
138. 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";
139. 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."
140. 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."
141. 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";
142. 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."
143. As cited in S. AHUJA, People, Law and Justice. Casebook on Public Interest Litigation, New Delhi, Orient Longman, 1997, II, 860-861.
144. 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.
145. See B. RUBIN, "India" in J. DONNELLY and R. HOWARD (ed.), International Handbook of Human Rights, New York, Greenwood, 1987, 157, endnote 11.
146. S.C. (I) 18 September 1982 (People's Union for Democratic Rights / Union of India), PIL-SCALE, p. 37, § 11.
147. 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."
148. S.C. (I) 18 September 1982 (People's Union for Democratic Rights / Union of India), PIL-SCALE, p. 43, § 14.
149. See S.C. (I) 11 May 1982 (People's Union for Democratic Rights / Union of India), P1L-SCALE, p. 25, § 1.
150. S.C. (I) 18 September 1982 (People's Union for Democratic Rights / Union of India), PIL-SCALE, pp. 46-47, § 16.
151. S.C. (I) 16 December 1983 (Bandhua Mukti Morcha / Union of India), PIL-SCALE, p. 1778, § 10.
152. 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.
153. S.C. (I) 16 December 1983 (Bandhua Mukti Morcha / Union of India), PIL-SCALE, pp. 1798-1801, § 25-28.
154. S.C. (I) 18 September 1982 (People's Union for Democratic Rights / Union of India), P1L-SCALE, p. 32, § 6.
155. S.C. (I) 2 March 1983 (Labourers Working on Salai Hydro-Project / State of Jammu and Kashmir), PIL-SCALE, p. 59, § 6.
156. S.C. (I) 31 October 1990 (M.C. Mehta/ State of Tamil Nadu), PIL-SCALE, pp. 208-209, § 5
157. S.C. (I) 19 November 1991 (Rajangam, Secretary District Beedi Workers' Union / State of Tamil Nadu), PIL-SCALE, p. 1311, § 4.
158. See S.C. (I) 2 March 1983 (Labourers Working on Salai Hydro-Project / State of Jammu and Kashmir), PIL-SCALE, p. 59, § 6;
159. S.C. (I) 31 October 1990 (M.C. Mehta / State of Tamil Nadu), PIL-SCALE, pp. 209-210, §§ 9-10;
160. S.C. (I) 19 November 1991 (Rajangam, Secretary District Beedi Workers' Union / State of Tamil Nadu), PIL-SCALE, p. 1311, § 4;
161. S.C. (I) 10 December 1996 (M.C. Mehta / State of Tamil Nadu), PIL-SCALE, pp. 1654-1656, §§ 28-32;
162. S.C. (I)21 February 1997 (Bandhua Mukti Morcha / Union of India), PIL-SCALE, p. 1662, §§ 12-13.
163. S.C. (I) 10 July 1985 (Olga Tellis / Bombay Municipal Corporation), PIL-SCALE, p. 1493, § 32.
164. See C.D. CUNNINGHAM, "Public Interest Litigation in Indian Supreme Court: A Study in the Light of American Experience", PIL-SCALE, I.c., A-81.
165. 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 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.").
166. 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.").
167. See also interview with S. AGNIVESH, President Bonded Labourers Liberation Front, 16/06/1999, Delhi;
168. M. JAIN, Bonded Labour. Justice through Judiciary, New Delhi, Manak, 1997, 136;
169. 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.
170. M. JAIN, Annual Survey of Indian Law, o.c., 141-145.
171. P. SINGH, "Public Interest Litigation", Annual Survey of Indian Law, I.c. 1991, 38-39.
172. S. SHARMA, "Public Interest Litigation: A Revolution in Judicial Process" in K.L. BHATIA (ed.), Annual Survey of Indian Law, o.c., 212.
173. S. AHUJA, Annual Survey of Indian Law, o.c., 335.
174. S.P. SATHE, "Preface" in S. AHUJA, Annual Survey of Indian Law, o.c., xliv;
175. see also P. SINGH, "Judicial Socialism and Promises of Liberation: Myth and Truth", Journal of the Indian Law Institute 1986, 178-179.
176. S. AHUJA, Journal of the Indian Law Institute, o.c., 269.
177. U. BAXI, Towards a Sociology of Indian Law, New Delhi, Satvahan, 1986, 132
178. en BAXI, "Judicial Discourse: Dialectics of the Face and the Mask", Journal of the Indian Law Institute 1993, 12.
179. U. BAXI, Towards a Sociology of Indian Law, 132-133.
180. See our "The Human Right to Development as a Paradox", to be published.
181. See E. ANKUMAH, The African Commission on Human and People's Rights. Practice and Procedure, Den Haag, Martinus Nijhoff, 1996, 166-167.
182. O. DE SCHUTTER, Fonction de juger et droits fondamentaux. Transformation du contrôle juridictionnel dans les ordres juridiques américain et européens, Brussels, Bruylant, 1999, 1102;
183. M. CAPPELLETTI, The Judicial Process in Comparative Perspective, Oxford, Clarendon, 1989, 3 and 25-28;
184. N. TATE, "Why the Expansion of Judicial Power?", The Judicial Process in Comparative Perspective, I.c., 27-37;
185. N. TATE and T. VALLINDER, "Judicialization and the Future of Politics and Policy" in N. TATE and T. VALLINDER (ed.), The Judicial Process in Comparative Perspective, o.c, 515-528.
186. Compare with R. COOMARASWAMY, "Toward an Engaged Judiciary" in N. TIRUCHELVAM and R. COOMARASWAMY (ed.), The Judicial Process in Comparative Perspective, o.c, 1.
187. 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.
188. See also J. COTTRELL, "Third Generation Rights and Social Action Litigation", The American Journal of Comparative Law, I.c., 103.
189. 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.
190. M. CAPPELLETTI, Access to Justice. III. Emerging Issues and Perspectives, o.c., 26;
191. P. VAN DIJK, Judicial Review of Covermental 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.
192. 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;
193. e siècle?", Commission internationale de juristes - La Revue 1998, afl. 58-59, 32-47.
194. 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 nongovernmental 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, Âbo, Âbo Akademi University, 1999, 225-229.
195. CESCR General Comment 4 on the right to adequate housing, 13 December 1991, no. 17.
196. 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).
197. 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.
198. Rule 42.2 Rules of Court European Court of Human Rights; art. 40 Rules of Procedure of the Inter-American Commission on Human Rights.
199. Rule 39 Rules of Procedure of the European Court of Human Rights.
200. In its case-law, the (old) European Court had itself recognised in Cruz Varas and others v. 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."
201. 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 and Abdurasulovic v. Turkey, 6 February 2003, in particular §§ 88-111).
202. Art. 25 Rules of Procedure of the Inter-American Commission of Human Rights.
203. Art. 25 Rules of Procedure of the Inter-American Court of Human Rights.
204. Rule 86 Rules of Procedure Human Rights Committee.
205. Rule 108.9 Rules of Procedure of the Committee against Torture.
206. See European Court H.R.. 31 October 1995. Papamiehalopouios (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.
207. See European Court H.R., 13 June 1979, Marckx, Publications of the European Court of Human Rights. Series A, no. 31. p. 25. J 58.
208. Art. 55 § 1 Rules of Procedure of the Inter-American Court of Human Rights.
209. Art. 56 § 1 Rules of Procedure of the Inter-American Court of Human Rights.
210. 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).
211. 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.
212. 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."
213. See for example No. 59, Castillo Petruzzi et al., 17 November 1999, Series C: Decisions and Judgments; No. 60, Loayza Tamayo, 17 November 1999.
214. R. DHAVAN, "Ambedkar's Prophecy: Poverty of Human Rights in India", Journal of the Indian Law Institute 1994, 27.
215. U. BAXI, "On How Not to Judge the Judges: Notes Towards Evaluation of Judicial Role", Journal of the Indian Law Institute 1983, 233.
216. U. BAXI, "Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India", Journal of the Indian Law Institute, I.c., 33-34;
217. P.N. BHAGWATI, "Judicial Activism and Public Interest Litigation", Journal of the Indian Law Institute, I.c., 569.
218. S.K. AGRAWALA, Public Interest Litigation in India. A Critique, Bombay, Tripathi, 1985,7-8.
219. COUNCIL FOR PUBLIC INTEREST LAW, Balancing the Scales of Justice: Financing Public Interest Law in America, Washington D.C., 1976, 6-7
220. as cited in S.K. AGRAWALA, Balancing the Scales of Justice: Financing Public Interest Law in America, o.c., 2;
221. 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.
222. See also R. BAUM, Public Interest Law: Where Law Meets Social Action, London, Oceana Publications, 1987, 1.
223. J. HANDLER, "Public Interest Law Firms in the United States", Public Interest Law: Where Law Meets Social Action, I.c., 423.
224. S. AGRAWALA, Public Interest Law: Where Law Meets Social Action, o.c., 2.
225. See also D. TRUBEK, "Public Advocacy: Administrative Government and the Representation of Diffuse Interests" in M. CAPPELLETTI and B. GARTH (ed.), Public Interest Law: Where Law Meets Social Action, o.c., 449-450.
226. M. CAPPELLETTI, "Vindicating the Public Interest through the Courts: A Comparativist's Contribution" in M. CAPPELLETTI en B. GARTH (ed.), Public Interest Law: Where Law Meets Social Action, o.c., 542.
227. 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.
228. See J. HANDLER, "Public Interest Law Firms in the United States", Access to Justice and the Welfare State, I.c., 421-442.
229. C.D. CUNNINGHAM, "Public Interest Litigation in Indian Supreme Court: A Study in the Light of American Experience", Access to Justice and the Welfare State, I.c., A-67 - A-68;
230. M. CAPPELLETTI, "Vindicating the Public Interest through the Courts: A Comparativist's Contribution", Access to Justice and the Welfare State, I.c., 533-534;
231. J. WEINSTEIN, "Some Reflections on United States Group Actions", The American Journal of Comparative Law 1997, 834-837.
232. R. DHAVAN, "Whose Law? Whose Interest?" in J. COOPER en R. DHAVAN (ed.), The American Journal of Comparative Law, o.c., 33-35;
233. M. CAPPELLETTI, "Vindicating the Public Interest through the Courts: A Comparativist's Contribution", The American Journal of Comparative Law, I.c., 548-551.
234. See U. BAXI, "Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India", The American Journal of Comparative Law, I.c., 33-34;
235. P.N. BHAGWATI, "Judicial Activism and Public Interest Litigation", The American Journal of Comparative Law, I.c., 569.
236. and N. TIRUCHELVAM, "Introduction" in N. TIRUCHELVAM and R. COOMARASWAMY (ed.), The American Journal of Comparative Law, o.c., xii.
237. R. DHAVAN, "Law as Struggle: Public Interest Law in India", Journal of the Indian Law Institute 1994, 302.
238. R. DHAVAN, "Ambedkar's Prophecy: Poverty of Human Rights in India", Journal of the Indian Law Institute, I.c., 25-26.
239. For a critical account of legal aid programs in India, see R. DHAVAN, "Law as Struggle: Public Interest Law in India", Journal of the Indian Law Institute, I.c., 324-330.
240. 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. |g| R. DHAVAN, "Whose Law? Whose Interest?", Journal of the Indian Law Institute, I.c., 25.
241. See also P.N. BHAGWATI, "Effective Uses of Law by Social Action Group", Aligarh Law Journal 1983, 37-39.
242. M. GALANTER, Aligarh Law Journal, o.c., 291.
243. See for example K. MAHAJAN, "Law and Development" in U. BAXI (ed.), Law and Poverty. Critical Essays, Bombay Tripathi, 1988, 426-437
244. and O.C. REDDY, "Socialism, Constitution and Legal Aid Movement in India", All India Reporter 1986 - Journal Section, 3.
245. 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
246. 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.
247. See M. CAPPELLETTI, "Governmental and Private Advocates for the Public Interest in Civil Litigation: A Comparative Study", The American Journal of Comparative Law, I.c., 824;
248. C. HARLOW, "Public Interest Litigation in Engeland: The State of the Art" in J. COOPER en R. DHAVAN (ed.), The American Journal of Comparative Law, o.c., 130-131;
249. 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, l.c, 436-437.
250. 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.
251. 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", Harvard Human Rights Journal, I.c., 69).
252. See also X., "National Human Rights Institutions: An Overview of the Asia Pacific Region", International Journal on Minority and Group Rights 2000, 258
253. and the "Paris Principles" in Annex I, 265.
254. 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.
255. 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);
256. 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 LAWASIA 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)
257. and the "Cairo Declaration" of the Third Conference of the Francophone Ministers of Justice (1995)).
258. 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, jurors 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.
259. 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).
260. S.C. (I) 11 May 1982 (People's Union for Democratic Rights / Union of India), PILSCALE, p. 29, § 3
261. S. HARWOOD, Judicial Activism: A Restrained Defense, San Francisco, Austin & Winfield, 1996,2.
262. 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
263. and M. GHOUSE, "The Two Faces of Judicial Activism", in K.L. BHATIA (ed.), Protecting Human Rights: the European Dimension. Studies in Honour of G.J. Wiarda, o.c., 107-108 as far as the US is concerned.
264. T. KOOPMANS, "The roots of judicial activism", Protecting Human Rights: the European Dimension. Studies in Honour of G.J. Wiarda, I.c., 318
265. See e.g. O. DE SCHUTTER, Protecting Human Rights: the European Dimension. Studies in Honour of G.J. Wiarda, o.c., 1102.
266. 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.
267. See e.g. B. TAMANAHA, "The Lessons of Law-and-Development Studies", Human Rights in a Pluralist World: Individuals and Collectivities, I.c., 470-486.
268. M. CAPPELLETTI, ""Who Watches the Watchmen?" A Comparative Study on Judicial Responsibility", The American Journal of Comparative Law 1983, 16-17.
269. See in general T. KOOPMANS, "The roots of judicial activism", The American Journal of Comparative Law, I.c., 317-327.
270. U. BAXI, "On How Not to Judge the Judges: Notes Towards Evaluation of Judicial Role", Journal of the Indian Law Institute 1983, 226-230.
271. M. CAPPELLETTI, Journal of the Indian Law Institute, o.c., 14-19.
272. 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;
273. B. OBINNA OKERE, "Judicial Activism or Passivity in Interpreting the Nigerian Constitution", International and Comparative Law Quarterly 1987, 789-816;
274. N. TIRUCHELVAM and R. COOMARASWAMY (ed.), o.c., 193 p.;
275. P.A. AGABIN, "The Politics of Judicial Review over Executive Action: the Supreme Court and Social Change", Philippine Law Journal 1989, 189-210;
276. 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;
277. 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;
278. U. BAXI, "Judicial Activism: Usurpation or Re-Democratization?" in J. KAPUR (ed.), South African Journal on Human Rights, o.c., A-131-A-144.
279. B. HLATSHWAYO, "Judicial Activism and Development: Warning Signals from Zimbabwe", South African Journal on Human Rights, I.c., 261.
280. 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.), South African Journal on Human Rights, o.c., 157;
281. B.C. KALGOTRA, "Evolution and Jurisprudential Dimensions of Judicial Activism" in K.L. BHATIA (ed.), South African Journal on Human Rights, o.c., 247;
282. K.L. PATHAK, "Inaugural Address" in K.L. BHATIA (ed.), South African Journal on Human Rights, o.c., 31;
283. S. SORABJEE, "Protection and Promotion of Fundamental Rights by Public Interest Litigation in India", International Commission of Jurists - The Review 1993, 37.
284. 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;
285. Y. MEHTA, "Judicial Activism and Social Change: Jurisprudential Dimensions" in K.L. BHATIA (ed.), Violation of Democratic Rights in India, o.c., 222-223.
286. See e.g. M. CAPPELLETTI, Violation of Democratic Rights in India, o.c., 28-30
287. 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.
288. For the US, see e.g. M. PERRY, Violation of Democratic Rights in India, o.c., 93.
289. 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);
290. for India: see e.g. P.N. BHAGWATI, "Human Rights and Démocratisation of Remedies", Indian Bar Review 1983, 596
291. and S. HURRA, Public Interest Litigation. In quest of Justice, Ahmedabad, Mishra & Co., 1993, 256.
292. M. CAPPELLETTI, ""Who Watches the Watchmen?" A Comparative Study on Judicial Responsibility", Public Interest Litigation. In quest of Justice, I.c., 8;
293. 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;
294. 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
295. and Y. GHAI, "The Role of Law in the Transition of Societies: the African Experience", Journal of African Law 1991, 12-16.
296. 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", Journal of African Law, I.c., 53-62.
297. 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.
298. M. CAPPELLETTI, Judge and Be Judged. India's Judiciary- An Institution of Governance, o.c., 30-31.
299. S. HARWOOD, Judge and Be Judged. India's Judiciary- An Institution of Governance, o.c, 108-110.
300. P.N. BHAGWATI, "Judicial Activism and Public Interest Litigation", Judge and Be Judged. India's Judiciary- An Institution of Governance, I.c., 576;
301. 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.
302. M. CAPPELLETTI, Judge and Be Judged. India's Judiciary- An Institution of Governance, o.c, 4 and 28-30.
303. 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.
304. B. HLATSHWAYO, "Judicial Activism and Development: Warning Signals from Zimbabwe" in Y. VYAS, K. KIBWANA, OKECH-OWITI, S. WANJALA (ed.), Human Rights and Judicial Review: a Comparative Perspective, o.c., 266.
305. R. DHAVAN, "Ambedkar's Prophecy: Poverty of Human Rights in India", Human Rights and Judicial Review: a Comparative Perspective, I.c., 27.
306. S.C. (I) 18 September 1982 (People's Union for Democratic Rights / Union of India), PIL-SCALE, p. 28, § 2.
307. R. DHAVAN, "Whose Law? Whose Interest?", PIL-SCALE, I.c., 38;
308. R. DHAVAN and M. PARTINGTON, "Co-optation or Independent Strategy? The Role of Social Action Groups", PIL-SCALE, I.c., 249.
309. P.N. BHAGWATI, "Effective Uses of Law by Social Action Group", PIL-SCALE, I.c., 40-44.
310. C. HARLOW, "Public Interest Litigation in England: The State of the Art", PIL-SCALE, I.c., 132-133.
311. C. HARLOW, "Public Interest Litigation in Engeland: The State of the Art", PIL-SCALE, I.c., 91;
312. R. DHAVAN, "Whose Law? Whose Interest?", PIL-SCALE, I.c., 38;
313. H. KÖTZ, "Public Interest Litigation: A Comporative Survey", PIL-SCALE, I.c., 112-114.
314. R. DHAVAN, "Whose Law? Whose Interest?", PIL-SCALE, I.c., 38.
315. Koopmans makes the same argument with regard to judicial activism, see T. KOOPMANS, "The roots of judicial activism", ", PIL-SCALE, I.c., 327.
316. M. CAPPELLETTI, PIL-SCALE, o.c., 47-53, and in particular 52.
317. J. COTTRELL, "Third Generation Rights and Social Action Litigation", PIL-SCALE, I.c., 125.
318. N. TIRUCHELVAM, "Introduction", PIL-SCALE, I.c., xx-xxi.
319. 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.
320. R. KISANGA, "The Legal Profession, Pluralism and Public Interest Litigation in Tanzania" in N. TIRUCHELVAM and R. COOMARASWAMY (ed.), Human Rights Approaches to Environmental Protection, o.c., 146-155.
321. J. GLAZEWSKI, "The Environment, Human Rights and a New South African Constitution", South African Journal on Human Rights 1991, 183;
322. S. MEER, "Litigating Fundamental Rights - rights litigation and social action litigation in India: a lesson for South Africa", South African Journal on Human Rights, I.c., 358-372.
323. "The Judiciary in Plural Societies. Some Conclusions" in N. TIRUCHELVAM and R. COOMARASWAMY (ed.), South African Journal on Human Rights, 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).
324. I. SHIVJI, The Concept of Human Rights in Africa, London, Codesria, 1989,-88;
325. J. PAUL, "Participatory Approaches to Human Rights in Sub-Saharan Africa" in A. A. AN-NATM and F. DENG (ed.), Human Rights in Africa: Cross-Cultural Perspectives, Washington, Brookings, 1990,237.
326. M. GALANTER, Human Rights in Africa: Cross-Cultural Perspectives, o.c., 279.
327. As for example Shivji has done, see I. SHIVJI, Human Rights in Africa: Cross-Cultural Perspectives, o.c, 126 p.
328. and I. SHIVJI, "The Rule of Law and Ujamaa in the Ideological Formation of Tanzania", Social and Legal Studies 1995, 147-174.
329. 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 [...].";
330. 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";
331. 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.".
332. See D. BEATTY, "The Last Generation: When Rights Lose Their Meaning", I.c., 324, footnote 3.
333. V. GOVENDER, "Economic, Social and Cultural Rights in South Africa: Entitlements, Not Mere Policy Options", I.c., 76-78.