Challenge and confrontation before the Supreme Court

1Ihe decisions of the Supreme Court through which the tribunal’s jurisdiction in public interest litigation ( or pil) testify to extraordinary exercises of judicial authority. These decisions are essentially based on the extension granted by the Constitutional Court – the Supreme Court – to fundamental rights, on the one hand, and on procedural innovations intended to facilitate the possibilities of access of disadvantaged groups to the legal system, on the other. go. The Court has delivered judgments that reflect its desire to increase recourse to justice in order to allow the public (“the public”) to exercise their freedoms to express and make their needs heard and to participate in social choices. and political decisions that directly concern it. By focusing on constitutional rights, the Court attempted to regenerate the idea of ​​social and economic justice enshrined in the Constitution. Decisions onpil also try to strengthen government accountability in enforcing constitutional guarantees and social welfare legislation, and to tackle lawlessness and corruption. The Court’s flexible interpretation of its powers under Article 32.2 of the Constitution has allowed it to significantly shift the dividing line between the judiciary and the administration. The Court has often taken a position of positive intervention in the field of administration by defining “appropriate” remedies and ensuring their implementation.

2This judicial phenomenon raises interesting theoretical questions?

 I would like to study more closely. To do this, I will first look at how, by distancing itself from the locus standi – whose traditional role it has broadened – and by accepting the merits of an “epistolary jurisdiction” (where letters addressed to the Court have been used to bring an action), the Court has redefined the idea of ​​“the public. This, in the eyes of the jurisdiction of the Court in the cases of pil , is not to be confused with the definition of the “citizen” according to the Constitution or – in the abstract sense – of the “people” who invested the Constitution of the ‘ultimate authority. The Court sets the parametersclarifying who, as a “member of the public”, can turn to it in order to demand reparation: it therefore establishes a privileged constitutional/judicial form through which political movements can interact with the legal system. Its decisions determine what is meant by “the public”, what procedures the latter can use to assert their claims for compensation, what rights and what constitutional standards the opposing parties can invoke to support their claims. ; they also establish adequate compensation.

3Public interest litigation has allowed the Supreme Court to reinforce and validate its authority both as the “guardian” of the public interest and as a constitutionally empowered institution to enforce rights. The decisions relating to these trials are based on the provisions of the constitutional text, which embodies the supreme authority and of which the Court is the main interpreter, its reasoning taking precedence over that of the other organs of the State.

4Secondly, I will examine how pil decisions have led to a jurisprudence of rights and to the virtual recasting of certain articles of the Constitution. I will also be interested in the Court’s interpretation of Part IV of the Constitution, which “deals with the socio-economic rights of the people and emphasizes social justice as a central feature of the new constitutional order” (Bhagwati 1985 ). Such decisions make it possible to observe the capacity of the law to establish ideas of justice and to see in it an expression of the power of the state.

5Thirdly, I will study how the Court has legitimized the examination and questioning of the authority of other public bodies, posing as the guarantor of the public interest and the principal agent of the respect of civil rights. in accordance with the Constitution and laws. Certain decisions of the Court refer to questions of arbitrariness in the action of the State; violation of principles of good governance or government corruption;
6Thus, through the pils , the Court has developed intersecting legal frameworks (under positive and procedural law), which determine and reconfigure the idea of ​​the “public. Furthermore, by extending its jurisprudence on rights, it has renewed the constitutional conception of justice in the context of various societal issues, whether it be the abolition of forced labor, the right for the homeless and slum dwellers to earn a living, or the maintenance and improvement of public health.

8These new exchanges between two distinct spheres – that where judicial decisions are taken and that of socio-political movements – have generated adjustments and adaptations and given rise to new legal provisions (for example, corrective measures adopted by the Court to endorse directives and interim orders, or to set up bodies such as commissions appointed by the Court to propose measures and ensure that the State complies with them). They have also created systemic tensions and conflicts.

9The fourth part will examine how the Court’s?

attempts at reform for better governance and greater accountability of the State have been criticized and denounced as constituting a politicization of constitutional law, with the Court overstepping its institutional competences. , usurping legislative and executive functions and imposing the choices of an unelected jurisdiction on the political and legal system.

10In conclusion,?

I will address some broader issues raised by the pils with respect to public participation, representative government, and democratic rule under the Constitution. The answers to these questions, however, remain complex.