Should I go to Galgotias University

One for all - in court

Guest speaker Niteesh Upadhyay from India reported on the so-called "Public Interest Litigation" of his country. This special type of procedure also opens up the country's legal system for those social classes who would otherwise have no access to justice.

Text and cover photo by Bastian Winter

On July 14, 2016, the Refugee Law Clinic Regensburg (RLCR) welcomed a guest speaker from distant India. Niteesh Kumar Upadhyay works as an assistant professor at Galgotias University near New Delhi. His lecture supplemented the RLCR lecture series on "Strategic Litigation" with experiences with the topic abroad. In India there is a special type of procedure for this.

The so-called "Public Interest Litigation" (PIL) is anchored in the constitution of the country and was developed by the Indian Supreme Court at the end of the 1970s. It is intended to safeguard public interests - especially if the injured party cannot afford to conduct litigation themselves or for other reasons do not have access to the legal system.

The special thing about the PIL is that the lawsuit - unlike in the German system of legal standing - can also be brought by third parties on behalf of those affected (= popular lawsuit). As an example, Niteesh cited a judge who, while reading the newspaper in the morning, came across a story that he believed should be investigated by a court. The PIL enables him to do this. To this end, he petitions the competent court on his behalf and explains the facts. The court investigates this and - unlike in the Indian common law system - independently collects evidence.

Sexual harassment and blinded inmates - examples of the PIL

The system of popular litigation is rather unknown to German lawyers. There is only a corresponding regulation in the Bavarian constitution. So in order to explain to those present for which cases the PIL is intended, Niteesh involved the audience. He asked the audience to consider what public interests they would use a PIL for. Transgender toilets in public spaces and equal pay for women and men were examples that were mentioned.

Niteesh took up the issue of toilets again in an example. He explained that in some places 90% of primary education in India is boys because there are no separate toilets for girls in schools and parents therefore do not want their daughters to go to school there. This can be countered by means of a PIL.

As further examples of typical PIL lawsuits, Niteesh cited equality issues, access to medical care, and lawsuits against police practices. With the latter in particular, the courts had to make important fundamental decisions. For example, it was customary to handcuff suspects to even the smallest offenses and not to inform arrested persons of the reason for their arrest. These - and other similar - practices have been banned by the courts on the basis of a PIL.

Niteesh then presented other famous cases of public interest litigation. The case "Vishaka vs. State of Rajasthan" (1997) dealt with sexual harassment of women in the workplace. On the basis of a PIL, the court established rules against harassment in the workplace, which should be legally enforceable until the law. However, the law didn't come into effect until 2013, so the rules of the court have long been the benchmark.

A very shocking case was "Anil Yadav & Others vs. State of Bihar & Others" (1982). The petition exposed a brutal practice in some Indian prisons. Detained suspects had their eyes opened and acid poured into them while they were still in custody, causing them to lose sight. This should serve to prevent further criminal offenses. In separate proceedings (e.g. "Mahesh and Others vs. State Of Rajasthan" (1987)) those responsible were punished with life imprisonment.

Other cases of PIL revolved around violence against women in prisons (as there was no gender segregation until then), environmental pollution by industrial companies and the restriction of freedom of expression on the Internet.

Problems and misuse of the PIL

Niteesh admitted that with all the positive effects of PIL, there are of course problems. The courts have repeatedly had difficulties finding the line between public and purely private interests. It is also difficult to prevent individuals from misusing the PIL to achieve publicity or their political goals. As the previous examples show, a strong political component of the PIL cannot be denied. Niteesh reported two exemplary cases of a wide variety of attempted abuses.

In one case, the wife of the then head of government of the state of Gujarat (now Prime Minister), Narendra Modi, tried to get men to be obliged to marry and not separate from their wives. She feared that the example of a senior civil servant might lead other men to do the same. This case clearly shows that drawing a line between purely personal and public interests can sometimes be difficult, said Niteesh. Since this petition only concerned the privacy of couples and had nothing to do with the public interest, the court rejected the application.

In another case, a professor was accused of having obtained his post through forged documents. The allegations turned out to be completely false, which is why the applicant was charged with a fee of 50,000 rupees (about $ 750). A lot of money in a country where almost half the population is left with less than $ 1 a day to live on.

Another problem is the uniformity of case law. As in all other common law countries, precedents in India are only binding if they have already been decided by a higher authority. If similar cases were pending in different courts of the same instance, different decisions could be made, according to Niteesh. This is particularly problematic in cases that affect a large number of people and not just the applicant. However, this is the case with almost all PIL petitions.

German lawyers with skepticism

After his lecture, Niteesh answered questions from the audience. They showed that German lawyers do not really want to get used to the system of generally permissible popular lawsuits.

One of the attending lawyers pointed out the difference to the German system and asked how the Indian legal system was able to withstand the burden of the popular lawsuits. Niteesh admitted that the PIL was generating a large number of cases for the courts. There are currently around three million cases pending. For processing, courts of young law graduates used, who sort and prepare the cases in advance. Nevertheless, there is still an extreme length of proceedings in India. According to media reports, the average length of court proceedings in 2011 was 15 years, but should be greatly reduced.

Prof. Graser then questioned the entire PIL system. He wanted to know why people couldn't bring their cases to court on their own if, for example, it was otherwise free. The speaker explained this with cultural events. First of all, the literacy rate is so low in some regions that a large proportion of the people living there cannot go to court on their own. In addition, strong authoritarian structures still prevailed in some areas. Many people are so oppressed by their employers that they cannot go to court against them without fear of at least losing their jobs, if not their lives.

Another important question was whether the courts replace administration and government in some areas under the PIL case law. Niteesh said yes. One problem is how laws are made in India. Only a relatively small part of the 800 MPs are lawyers and some are probably even illiterate. Therefore, people trusted the decision of a court rather than that of politicians. The judiciary therefore occupies a very strong position in India.

At the end, Prof. Graser thanked those present for the visit and the interesting insights into the legal system and culture of India.

Posted in Report, RLC Blog, Lecture Series "Strategic Litigation" Tagged SS16, Lecture