Author
Dr Raeesa Vakil
Organisation/Institution
National University of Singapore, Faculty of Law
Country
SINGAPORE
Panel
Constitutional and Admin Law
Title
“Of Necessity: Procedure in Public Interest Litigation”
Abstract
In 1977, the Supreme Court of India ruled that “of necessity, the pattern [of procedure] the Court adopts will vary with the circumstances” in public interest litigation suits (Bandhua Mukti Morcha v Union, AIR 1984 AIR SC 802). This flexible, judge-driven form of litigation was soon adopted in other South Asian states, including Pakistan and Bangladesh. Judges in such courts have justified the relaxation of procedure in such suits on the grounds of justice, equity, and fairness, holding that “Legal and procedural technicalities should yield to the paramount considerations of justice and humanity.” (Union Carbide, AIR 1992 SC 248). Academic and public commentary on these judicial innovations has, so far, been largely celebratory, commending courts on improving access to justice, and removing procedural barriers in order to expedite remedies. In this paper, I take a critical approach to the ends-based reasoning adopted by South Asian courts, and their dismissal of procedural guarantees in litigation as mere ‘technicalities’. I argue, drawing from recent examples of court judgments, that a judicial reluctance to adopt consistent procedural frameworks can, per contra, reduce access to justice, and increase unpredictability and inconsistency. Relying on some recent scholarship (Bhuwania, 2017; Bhatia, 2024) that casts doubts on the efficacy of public interest litigation, as well as an emerging judicial disinterest in such suits, I argue that judges should return to established constitutional and administrative law principles to apply consistent and fair procedure in such matters. In conclusion, I acknowledge the challenges inherent in such an argument, focusing specifically on how ends-based procedures work to expand judicial power by increasing judicial discretion, and suggest routes to surmount this challenge.
Biography
Raeesa Vakil is a postdoctoral fellow at the Centre for Asian Legal Studies, National University of Singapore. She studied law at the National Law School of India, and completed a masters' and doctoral degree from Yale Law School. Her doctoral research examined judicial review over administrative tribunals in India. Her current research at the Centre for Asian Legal Studies focuses on public interest litigation in South Asia, taking a critical approach to the field, with a focus on procedural aspects. Her work has been previously published in the International Journal of Constitutional Law, the Oxford Handbook of the Indian Constitution, and Studies in Indian Politics. She has also contributed chapters to several volumes, including Regulation in India: Design, Capacity, Performance (Hart, 2019) and Constitutionally Conforming Interpretation – Comparative Perspectives (Hart, 2023). Her research falls within the field of constitutional and administrative law, with particular focus on the subjects of judicial review, federalism, and procedural justice.
