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Joint Symposium on “Towering Judges”: Justice P.N. Bhagwati: A Towering Judge with a Divisive Legacy

[Editor’s Note: This is part of the joint I-CONnect/IACL-AIDC Blog symposium on “towering judges,” which emerged from a conference held earlier this year at The Chinese University of Hong Kong, organized by Professors Rehan Abeyratne (CUHK) and Iddo Porat (CLB). The author in this post formed part of a panel on “Towering Judges in Transformative Constitutions.” The introduction to the joint symposium can be found here.]

Rehan Abeyratne, The Chinese University of Hong Kong

Justice P.N. Bhagwati, who served on the Supreme Court of India from 1973-86 (including as Chief Justice from 1985-86) is widely regarded as the most influential jurist in post-independence India. He was the main architect of public interest litigation (PIL) in the 1980s. Moreover, his engagement with the press and civil society, along with his post-judicial career as a global advocate for human rights, made him a well-known figure beyond legal circles and kept him in the limelight long after his retirement from the Court.   For these reasons, Justice Bhagwati is a towering judge. However, as Iddo Porat and I discussed in our introductory post, the fact that a judge is “taller” than their peers, does not mean that their legacy is necessarily positive. This post critically examines Justice Bhagwati’s legacy, looking at his jurisprudential, institutional, and post-retirement contributions to the Indian judiciary and beyond.

Justice Bhagwati’s fame stems primarily from his contributions to fundamental rights jurisprudence, particularly the advent and entrenchment of public interest litigation (PIL). Along with Justice Krishna Iyer, Justice Bhagwati vastly expanded the scope of fundamental rights jurisdiction, relaxing standing rules to permit public-spirited citizens and NGOs to bring cases on behalf of disadvantaged and marginalized groups.[1] He also made significant substantive contributions to Indian constitutional law, including broadening the scope of the right to life in Article 21 of the Constitution to encompass procedural due process and socioeconomic rights, and expanding liability for private actors engaged in hazardous activities.[2] On the remedial front, Justice Bhagwati developed the doctrine of “continuing mandamus”, in which courts keep cases open for several years and issue interim orders that iteratively monitor the government’s progress. He also advanced the cause of criminal justice reform and access to legal aid. Among other posts, he served as Chairman of the National Committee for the Implementation of Legal Aid Schemes during his justiceship.

Justice Bhagwati’s institutional legacy is more problematic. While his judgments liberalized procedure and broadened the scope of fundamental rights protection, they also effectively converted the Supreme Court into a policymaking body. Justice Bhagwati’s aversion to formalism and regular procedural and evidentiary rules imbued the Supreme Court and High Courts of India with tremendous powers to able to initiate, mold, and expand litigation as they see fit. These courts have not always wielded such power prudently. Indeed, as Anuj Bhuwania has shown, the Delhi High Court employed PIL as a “slum demolition machine”, razing illegal settlements with neither a plan for resettling the residents nor an opportunity for them to be heard in court.[3] In a cruel irony, these communities’ fundamental right to shelter – derived from Justice Bhagwati’s right to life jurisprudence – was denied in exercising the procedural flexibility he introduced through PIL.

Justice Bhagwati also showed little tact in his dealings with political leaders. His relationship with Prime Minister Indira Gandhi was particularly damaging to his reputation. Bhagwati and the Supreme Court did not take a stand against the Gandhi regime’s abuses of power during the Emergency (1975-77), when, among other things, she suspended habeas corpus, severely restricted civil liberties and the freedom of the press, and passed several constitutional amendments to curb judicial power. In one of the Supreme Court’s darkest moments, a five-judge bench (including Bhagwati) held that that under a presidentially declared emergency, the government may deny political detainees access to court.[4] Following the Emergency, Gandhi held national elections in 1977 and lost to the opposition Janata Party. She returned to power in 1980 and received a glowing letter of support from Justice Bhagwati. This letter was later leaked to the press in what was, at the time, the “most scandalous incident” ever involving a Supreme Court justice.[5]

During his judicial career and after his retirement, Justice Bhagwati made many speeches and regularly gave interviews to the press. This public engagement had several aims. First, it served to defend and explain his judicial innovations. In a 1984 speech at Columbia Law School, Justice Bhagwati cited the context in which his judiciary operated to defend a robust judicial role in protecting the rights of marginalized and disadvantaged groups. He made the case that procedural formalism inherited from Anglo-American jurisprudence did not suit the Indian context.[6] Second, his public engagement served to promote legal aid and public interest lawyering. In a 1982 speech, Justice Bhagwati urged lawyers to take greater social responsibility in their careers. He said the judiciary could not succeed in interpreting the law to bring about social justice “unless it has the assistance of a legal profession which is committed to the dynamic concept of the rule of law…and is keenly aware of the need to mould the law creatively and imaginatively in the service of the weaker section of humanity.”[7]

Third, Justice Bhagwati used his public stature, particularly after his retirement, to promote human rights around the world. He served, inter alia, on the UN Human Rights Committee; as regional advisor for Asia and the Pacific for the UN High Commissioner for Human Rights; and as a member of the International Labor Organization’s Committee of Experts. He also worked with the Commonwealth Secretariat to organize a series of judicial colloquia to discuss how to apply human rights norms in domestic legal systems. At these events, he encouraged courts around the world to abandon legal formalism, adopt creative judicial approaches, and pursue social justice.[8] Michael Kirby, who served on the High Court of Australia from 1996 to 2009, attended the first colloquium, which was held in Bangalore in 1988. He later wrote that it had an “enormous” and “continuing” impact on him.”[9] Indeed, Kirby’s jurisprudence was strongly influenced by Bhagwati’s example to evolve the common law in line with international human rights norms – an approach known as the Bangalore Principles.

Perhaps because of this global influence and the adulation Justice Bhagwati received for his judicial contributions, both from the academy and from society, he did not engage in much critical reflection on his career. His writings display a tendency towards self-promotion, even when ostensibly discussing developments in the law. For instance, in his autobiography, he wrote, “It would not be presumptuous on my part to say that my response to [endemic problems in India] …was almost unique in the history of the development of law and judicial process.”[10]

This unwavering confidence in the rightness of his cause enabled Justice Bhagwati to be such a towering figure. But it may also account for his lack of self-reflection and political tact, which left him blind to the dangers of PIL and vulnerable to charges of partisanship. He left behind a schizophrenic higher judiciary: one that employs soaring rhetoric in defense of fundamental rights, while exercising unchecked – and often pernicious – discretion.

Suggested citation: Rehan Abeyratne, Joint Symposium on “Towering Judges”: Justice P.N. Bhagwati: A Towering Judge with a Divisive Legacy, Int’l J. Const. L. Blog, Mar. 27, 2019, at: http://www.iconnectblog.com/2019/03/joint-symposium-on-towering-judges-justice-pn-bhagwati-a-towering-judge-with-a-divisive-legacy/


[1] See, for example, Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161.

[2] Maneka Gandhi v. Union of India, (1978) 1 SCC 248; Francis Coralie Mullin v. Delhi, (1981) 1 SCC 608; MC Mehta v Union of India, AIR 1987 SC 1086.

[3] Anuj Bhuwania, Courting the People: Public Interest Litigation in Post-Emergency India (CUP 2017) at 80-106.

[4] ADM Jabalpur v. Shiv Kant Shukla, AIR 1976 SC 1207.

[5] Abhinav Chandrachud, Supreme Whispers: Conversations with Judges of the Supreme Court of India 1980-89 (Penguin/Viking 2018) at 25.

[6] P.N. Bhagwati, ‘Judicial Activism and Public Interest Litigation’, 23 Columbia Journal of Transnational Law 561 (1984-85).

[7] P.N. Bhagwati, ‘The Challenge to the Profession by the Judiciary’, 80 Law & Justice 42, 48 (1984).

[8] P.N. Bhagwati, ‘The Role of the Judiciary in the Democratic Process: Balancing Activism and Judicial Restraint’, 18 Commonwealth Law Bulletin 1262 (1992). 

[9] Michael Kirby, ‘PN Bhagwati: An Australian Appreciation’ in Collected Speeches of Justice PN Bhagwati at 6.

[10] P.N. Bhagwati, My Tryst with Justice (Universal Law Publishing 2013) at 71.

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Published on March 27, 2019
Author:          Filed under: Analysis
 

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