Law in the Public's Interest?
Abstract
Although the short history of public interest litigation in India has been replete with questions about efficacy and scope, thoughtful critiques of public interest litigation have remained rare. Existing critical engagements have either bemoaned a perceived neoliberal shift in judicial reasoning (the “progressive” critique) or argued that the expansive law review and policymaking often involved with public interest cases constitutes a violation of the separation of powers (the “establishment” critique). This paper attempts to approach public interest litigation anew by asking, on the one hand, whether public interest litigation can indeed be depended upon to decrease barriers to justice for the disadvantaged. I argue that the successes or failures of particular public interest cases in advancing a progressive politics are immaterial, insofar as the only reliable outcome of the practice is to significantly increase judicial authority and discretion. On the other hand, this paper proposes that while the Indian state’s espousal of state-driven social reform distinguishes it from its American counterpart, and therefore perhaps also from the separation of powers as it exists in the United States, the Indian Constitution does not prefer the substantive to the procedural goods of democracy. The essay finishes by examining the methodological peculiarities of public interest litigation and by linking the popularity in India of circumventing both state and conventional court practices via such litigation to processes of judicialization at large.