Empirical analysis of PILs in India: A result worth pondering ...

In a recent published Policy Research Working Paper entitled 'Public Interest Litigation in India: Overreaching or Underachieving?' prepared under the aegis of World Bank an attempt has been made to examine from an empirical perspective the role played by Public Interest Litigation in India. The paper makes some interesting conclusions. 

It is heartening to note that "The analysis of PIL “cases” shows that they do not appear to consume a significant share of the resources of the Supreme Court; they constitute less than 1% of the overall case load". To this regard the paper cites "the number of PIL “cases” instituted per year, whether brought to the court for admission (“admission matters” in the Court’s terms) or argued on the merits (“regular matters”), from 1997-2007" to state that "figure shows that there has been a slight upward trend in PIL matters over the last ten years. It also shows that there are some 260 “cases” instituted per year, on average. This compares to about 60,000 “cases” per year overall, based on data publicly available in the Supreme Court’s “Court News” publication. So, on average, some 0.4% of “cases” before the Court involve PILs. This suggests that PIL does not drain significant Court resources from the administration of day to day justice, contrary to the claims of some critics; but it also suggests that the outsize reputation of the Supreme Court’s PIL work belies its modest scale."

However what is bound to raise eye-brows is finding that "the average annual win-rate for claimants from advantaged classes was below the win rate of claimants who were not from advantaged classes until the late 1980s. Now claimants from advantaged classes have higher win rates than claimants not from advantaged classes. For example, advantaged class claimants had a 73% probability of winning a Fundamental Rights claim for cases in which an order or decision was rendered from years 2000-2008, whereas the win rate for claimants not from advantaged classes for the same years was 47%. For the 1990s, rates were 68% and 47%, respectively. But in the years prior to 1990, claimants not from advantaged classes enjoyed higher success rates than those from advantaged classes."

The paper further states as follow "To examine policy area inequality, which is related to the content of judicial rulings on the cases that reach them, we examined win-loss rates, both in general and for subsets of claims from advantaged classes, disadvantaged classes, members of SC/ST/OBC, and the middle and upper castes. Figures 5 and 6 show that claimants in cases involving women’s and children’s rights were more likely to win than claimants in cases involving SC/ST/OBC matters. Overall, the win rate for claimants in Fundamental Rights cases involving women and children’s rights was 84%, compared to 51% for cases involving SC/ST/OBC, and 72% for the explicit PIL cases. In addition, the trend line for the win rate of claimants in SC/ST/OBC cases was sloped downward. That suggests that judges may now be less favorably disposed to SC/ST/OBC claims than they were in the past."

Though it makes a disclaimer to this conclusion, the paper prima facie finds that the Supreme Court in its PIL decisions has become less-protective of the disadvantaged class as it was earlier. The following paragraphs puts it in clear terms;

These findings are consistent with the claim that judicial receptivity in the Supreme Court to Fundamental Rights claims made on behalf of poor and excluded individuals has declined in recent years. There are other explanations, however. The decline in the win rates for marginalized individuals could be attributed to the fact that cases brought on their behalf are weaker, on the merits, than they used to be, perhaps as a result of changes in statutes, decisions to litigate more challenging cases, or weaker legal representation. Each of these possibilities warrants careful scrutiny. Still, the data demonstrate not only a decline in the win rate for marginalized individuals but a simultaneous increase in the win rate for advantaged individuals. Though not impossible, it is unlikely that that the quality of legal representation has simultaneously increased for the advantaged and decreased for the marginalized, and sufficiently to explain the significant reversal in win rates. Similarly, it is conceivable but not likely that advantaged clients started to select a less challenging set of cases at the same time that marginalized claimants did the reverse. The data here constitute a prima facie validation of the concern that judicial attitudes are less favorably inclined to the claims of the poor than they used to be, either as the exclusive result of new judicial interpretations or, more likely, in conjunction with changes in the political and legislative climate.

The full text of the paper is available at this SSRN link.


Meanwhile we have another paper uploaded on SSRN which throws light on the 'Public Interest Litigation' process in China. In their paper titled 'The Development of Public Interest Litigation in China' Hualing Fu and Richard Cullen discussing individual cases undertake to make a detailed account of the  gradual onset of the trend of such litigations in China and note that "the defining characteristic of PIL in China is the use of litigation by lawyers and other rights advocates as a strategy to protect a general interest that is larger than that of the individual case interest ... (where the) ulterior motive behind such cases on the part of the lawyers who aim at policy changes through the legal process". The paper makes an interesting reading on the trends that the judicial process in China has seen during the course of last 20 years which has witnessed process being "institutionalized, professionalized and established in China".