Allies or Subversives? Adjudication and Democracy

2018 ◽  
pp. 79-114
Author(s):  
Sandra Fredman
Keyword(s):  
Human Rights ◽  
Public Interest ◽  
Decision Makers ◽  
Democratic Accountability ◽  
Public Interest Litigation

This chapter addresses the argument that human rights should be not be the responsibility of courts, but of the legislature. Instead of regarding courts and the legislature as mutually exclusive, however, it asks whether we can create a role for justiciable human rights which reinforces democracy. Section II considers democratic objections to justiciable human rights, and canvasses potential responses. Section III examines three ways to reconcile the role of courts with democracy: representation-reinforcing, dialogic, and deliberative theories. It concludes that courts should enhance the democratic accountability of decision-makers by insisting on a deliberative justification for the interpretation or limitation of rights. Section IV turns to objections based on lack of judicial competence to address complex, polycentric issues raised by human rights. Using the example of India’s public interest litigation, it examines ways in which the court structure might be adapted to address these concerns. Section V considers remedies and implementation.

Part VI Rights—Structure and Scope, Ch.37 Public Interest Litigation

2016 ◽  
Author(s):  
Divan Shyam
Keyword(s):  
Human Rights ◽  
Public Interest ◽  
Constitutional Law ◽  
Public Interest Litigation ◽  
The Public ◽  
Locus Standi ◽  
Legal Standing ◽  
The Supreme Court ◽  
Legal Character

This chapter examines public interest litigation (PIL) and its place in Indian constitutional law. The chapter begins with an overview of PIL as an instrument for dealing with public grievances such as flagrant human rights violations by the State, or for vindicating the public policies embodied in statutes or constitutional provisions. It then discusses the evolution of PIL in India and four distinct factors that contributed to its growth. It also explores how courts efficiently deploy judicial resources and decide genuine disputes of a legal character by recognising only those persons with locus standi, or legal standing. Finally, it describes a range of procedural innovations that distinguish PIL from conventional litigation and explains how the growth of PIL affected traditional notions of justiciability. It shows how the phenomenon of PIL has shaped both the nature of rights-based claims within Indian constitutional law as well as the role of the Supreme Court within Indian democracy.

Pandemic and PILs: A Study on the Approach of the High Courts in India

2021 ◽  
Vol 54 (1) ◽  
pp. 55-77
Author(s):  
Uday Shankar ◽  
Sourya Bandyopadhyay
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Public Interest ◽  
Regional Level ◽  
Public Interest Litigation ◽  
High Court ◽  
Human Rights Protection ◽  
Rights Protection ◽  
High Courts ◽  
The Supreme Court

Studies in Public interest Litigation (PIL) in India are predominantly about the Supreme Court's approach in meeting the ends of justice through indigenously evolved jurisdiction. The High Courts as important constitutional bodies are more often than not remain out of detailed discussion. As the High Courts enjoy concurrent jurisdiction with the Supreme Court with regard to PILs, this paper aims to study the pattern of invocation of the jurisdiction at the regional level. It surveys the variety of pleas and consequent action under PIL jurisdiction (or inaction, as the case may be) of different High Courts in India relating to covid crisis and consequential matters. To that end, it undertakes a survey of High Court orders or judgments from April to July, 2020. It seeks to lay bare the extent of demands that are made before the Courts through PIL. What kinds of action were expected from the High Courts during the pandemic? How did different Courts respond to such pleas? Were the directions and level of response homogenous or varied? The paper pursues these questions, and describes the pandemic though the lens of PIL in Indian High Courts. It goes on to argue that the High Courts in India need to take greater cognizance of their orders inter-se especially in PIL matters, as human rights protection through PIL cannot have contradictory voices.

scholarly journals The Role of Public Interest Litigation in the Achievement of Sustainable Waste Management in Ethiopia

2018 ◽  
Vol 10 (12) ◽  
pp. 4735 ◽  
Author(s):  
Merhatbeb Gebregiorgs
Keyword(s):  
Waste Management ◽  
Public Interest ◽  
Command And Control ◽  
Civil Procedure ◽  
Environmental Tax ◽  
Sustainable Waste Management ◽  
Public Interest Litigation ◽  
Procedure Code ◽  
And Control

This research assessed the role of public interest litigation in the achievement of sustainable waste management in the Addis Ababa Administration (AAA) of Ethiopia. It employed a single country case-oriented comparative research design, and data triangulation was used to establish the validity of the findings. The research first shows Ethiopia’s commitment to sustainable waste management, implementing environmental tax and the command-and-control instruments of the polluter-pays principle and public interest litigation within the context of environmental justice. Secondly, it shows that public interest litigation is one of the innovative techniques in the struggle against waste mismanagement across all legal systems. Thirdly, it demonstrates the potential role of public interest litigation in Ethiopia in encouraging the federal and regional environmental protection and management organs to implement environmental tax and command-and-control instruments. Fourthly, it uncovers that public interest litigation is not fully compatible with the Civil Procedure Code of Ethiopia. Fifthly, it shows the failure of the judiciary system of Ethiopia to accommodate environmental courts and tribunals that flexibly and innovatively adopt public interest litigation. Sixthly, it reveals that, in Ethiopia, the scope of public interest standing is highly restrictive for Civil Society Organizations (CSO). Finally, it implies that the legal viability and administrative feasibility of environmental public interest litigation in Ethiopia is in its infancy, and its crystallization is partly contingent on the cautious review of the Civil Procedure Code and CSO laws and on greening the judiciary system.

Opening up Appointments

2018 ◽  
pp. 96-108
Author(s):  
Madhavi Divan
Keyword(s):  
Civil Society ◽  
Public Interest ◽  
Public Interest Litigation ◽  
Deep Dive ◽  
Judicial Appointments ◽  
High Courts ◽  
The Supreme Court ◽  
Lay Members ◽  
Opening Up

This essay takes a deep dive into the role of the civil society in the judicial appointments process. It begins with the observation that the superior courts in India, during the last few decades, have assumed an activist role. Public interest litigation on issues which have the potential to impact various sections of society are being entertained by the Supreme Court and the High Courts. This essay argues that India should not stay far behind from including members of the civil society, or ‘lay’ members in the judicial appointments process. It is also argued that the inclusion of lay people in the appointments process would positively impact the cause of diversity in appointments. In this context, this essay espouses the cause of civil society members in the judicial appointments process, and shields their inclusion in the National Judicial Appointments Commission from the allegation of violating the independence of the judiciary.

HUMAN RIGHTS, INEQUALITY AND PUBLIC INTEREST LITIGATION: A CASE STUDY ON SANITATION FROM BRAZIL

2017 ◽  
Vol 4 (5-6) ◽  
pp. 149-171
Author(s):  
Ana Paula Barcellos ◽  
Ricardo Moura ◽  
Marcia Castro
Keyword(s):  
Human Rights ◽  
Public Interest ◽  
Public Interest Litigation

Strategische Prozessführung

2019 ◽  
Vol 39 (1) ◽  
pp. 5-32 ◽  
Author(s):  
Lisa Hahn
Keyword(s):  
Human Rights ◽  
Public Interest ◽  
Public Interest Litigation

Zusammenfassung Gerichtsverfahren werden nicht nur zur Lösung individueller Rechtskonflikte, sondern auch für politische Zwecke genutzt. In der rechtspolitischen Diskussion in Deutschland wird ein solches Vorgehen neuerdings mit dem Begriff „strategische Prozessführung“ bezeichnet. Allerdings ist weitgehend ungeklärt, was genau ein Verfahren „strategisch“ macht. Dieser Frage geht der Beitrag nach. Es wird argumentiert, dass sich aus den bislang in Deutschland entwickelten Begriffsverständnissen und der heterogenen Rechtspraxis, die als „strategische Prozessführung“ beschrieben wird, nicht ohne Weiteres analytisch tragfähige Kriterien ergeben. Ein wissenschaftliches Konzept strategischer Prozessführung sollte vielmehr dem Umstand Rechnung tragen, dass Gerichtsverfahren nicht nur progressive Instrumente sind, sondern auch zur Perpetuierung gesellschaftlicher Machtverhältnisse eingesetzt werden. Eine Spurensuche nach zusätzlichen Begriffsmerkmalen führt in die internationale und US-amerikanische Rechtspraxis und -forschung, die als Ursprünge des Phänomens der strategischen Prozessführung gelten. In Konzepten wie public interest litigation (PIL) und strategic (human rights) litigation sind Verfahren dann strategisch, wenn sie dem Gemeinwohl oder dem Menschenrechtsschutz dienen. Doch bleiben auch diese Konzepte zu unbestimmt. Die Einbettung exemplarischer Fälle in rechtssoziologische Forschung hingegen führt zu weiteren Merkmalen jenseits normativer Ziele: die Beteiligung organisierter Akteure sowie der Einsatz von Prozessführung als Methode des kontinuierlichen Monitorings. Darin liegt ein Perspektivwechsel von den Zielen zur Form. Der Beitrag schlägt daher vor, strategische Prozessführung als Modus der Mobilisierung von Recht durch Klagekollektive zu verstehen.

scholarly journals Rights education and children’s collective self-advocacy through public interest litigation

2018 ◽  
Vol 1 (1) ◽  
pp. 65-83 ◽  
Author(s):  
Sonja Grover
Keyword(s):  
Human Rights ◽  
Public Interest ◽  
The United States ◽  
Class Action ◽  
Human Rights Education ◽  
Educational Tool ◽  
Self Advocacy ◽  
Public Interest Litigation ◽  
Legal Standing ◽  
Raising Awareness

If human rights education of schoolchildren addresses advocacy at all, it is mostly or exclusively in terms of civic participation, which perhaps includes civil protest. This approach implicitly discourages young people from considering engaging with the courts as an additional or alternative vehicle in seeking a remedy for violations of their fundamental human rights. Human rights education is incomplete when it fails to address the child’s right to legal standing in the effort to seek justice; for instance, as part of a child collective that is significantly adversely and directly impacted by particular government actions. Exemplars of children acquiring legal standing and pursuing their rights through the courts can serve as a useful educational tool in raising awareness of the potential for child public interest advocacy through the courts. One such exemplar, the youth-led class action environmental protection case Juliana et al. v the United States et al., is discussed.  

scholarly journals HUMAN RIGHTS, INEQUALITY AND PUBLIC INTEREST LITIGATION: A CASE STUDY ON SANITATION FROM BRAZIL

2018 ◽  
Vol 4 (5-6) ◽  
pp. 149-171
Author(s):  
Ana Paula Barcellos ◽  
Marcia Castro ◽  
Ricardo Moura
Keyword(s):  
Human Rights ◽  
Public Interest ◽  
Public Law ◽  
Regional Inequality ◽  
Public Interest Litigation ◽  
The Public ◽  
Sanitation Services ◽  
Disaggregated Data ◽  
Public Law Litigation

Disaggregated data on the relative success of the UN millennium goals made clear that the progress achieved in many countries, Brazil included, was not equitable, positioning the question “How to address inequalities?” as the next pressing challenge in human rights. Public law litigation could be regarded as a tool to reduce inequality, particularly in Brazil, given a unique institution of its legal system, the Public Prosecutors Office. This paper uses public interest litigation discussing access to sanitation services to test this hypothesis. In 2013, only 58.2% of the households had access to sanitation, with significant regional inequality in coverage. Boolean analysis was applied to assess court orders (2003-2013) and results showed a disconnect between litigation and demand for sanitation, indicating that areas that were better off in various social and economic indicators were the ones receiving attention. The paper suggests reflections on how public interest litigation could target those most in need.

scholarly journals China's Evolution from Socialist Legality: The Expansion in the Role of Judges and the Redress of Grievances

2021 ◽  
Vol 15 (1) ◽  
pp. 52
Author(s):  
Zia Akhtar
Keyword(s):  
Rule Of Law ◽  
Public Interest ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Public Interest Litigation ◽  
Administrative Reforms ◽  
Independent Judiciary ◽  
Judicial Administration ◽  
New Framework

The Chinese state implemented a conscious transfer to a market economy after 1977 when the Four Modernisations were inaugurated and the new Constitution promulgated in 1982 raised the possibility for the separation of powers. The new framework introduced judicial review into the structure of the legal system that was to provide redress of grievances from mal administration. The transition to a new leadership in 2011 allowed the National Peoples Congress to enact administrative reforms, and further amendments to the Chinese Constitution in 2018 have promulgated the Judges Law. The judicial reforms promote the values of an independent judiciary and there is an effective machinery of justice which promotes judicial review. This paper argues that the centralisation of power by the Communist Party does not preclude the functioning of judicial administration that conforms to rule of law and an emerging trend of public interest litigation and participatory justice.

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