Strategic Litigation for Public Policy Change: A New Advocacy Tool

This article is written by Gauri Jaiswal, B.A.LL.B (hons), 5th year, C.M.P. Degree College (University of Allahabad) during her Internship at LeDroit India.

Keywords

Strategic Litigation,  PIL, public policy, advocacy tool,

Abstract 

Strategic litigation is the legal process which is used to bring about great political and societal change by means to litigation. Mostly the questions of public interest are involved in strategic litigation like the constitutional validity of a provision or statute or it is used to fill the legislative gap till the time there is no legislation in effect to govern a particular aspect of the issue. Although strategic litigation is an effective tool in influencing pubic policy yet it is driven by courts only and which is considered as the judicial overreach by the critics. Strategic litigation to be meaningful has to be done with due diligence like there should be proper application of mind and legal acumen in deciding which issue will be taken to the court via strategic litigation. Also it has played a crucial role by way of precedents in shaping the public policy of the democracies all over the world and is often used by human rights activist, environmentalists, policy experts, etc.  

Synopsis 

1. Introduction
2. Why strategic litigation matters for public policy
3. How strategic litigation works as an advocacy tool
4. Criticism of Strategic Litigation 
5. Cases of Strategic Litigation 
6. Conclusion

Introduction 

Strategic Litigation also known as impact litigation is a type of litigation wherein legal mechanism is used to bring change in the legal, economic or social system at large. In regular litigation only the parties concerned are affected but in strategic litigation like Public Interest Litigation the society as whole derives benefits from the decision of the judiciary as an outcome of strategic litigation. Strategic litigation is often used by human rights activists, environmentalist, policy leaders, etc. to address public issues before the court of law where the legislation is silent or there is legislative gap. Nowadays, strategic litigation is being used as a tool for public policy change, it is acting majorly in policy reforms that affect the public at large. In India strategic Litigation is in the form of public interest litigation also known as PIL, here any person or private entity can approach the court for any public issue. Justice PN Bhagwati promoted PILs to great extent and it is said that most PILs were filed during his tenure. 

Why strategic litigation matters for public policy

• Courts as policy influencers: Although policy making and policy reform alomg with its enforcement is primarily the work of the legislature and executive yet courts often influence policy by interpreting constitutional provisions expansively, striking down unconstitutional provisions and statutes, etc, and by directing the government to frame new legislations or implementing the existing legislation. Courts also for the time there is no legislation to deal with a particular issue give guidelines to deals with the same. These guidelines are not in the nature of legislation but are the judge made laws. 
• Bridging legislative gap: Strategic litigation can fill in the vacuum wherever there exists legislative inaction or gap in the system. For instance Vishaka guidelines governed sexual harassment of woman at workplace for near about 16 years till the time Sexual Harassment of Woman at workplace(Prevention, prohibition and redressal) Act, 2013 was enacted and enforced. 
• Driving Accountability: Through Public Interest Litigation in India and Judicial Review elsewhere, strategic litigation can force governments to implement legislation or policies effectively.

How strategic litigation works as an advocacy tool

1. Selecting the Right case: The first and most significant step in strategic litigation is the cautious selection of the case which has to be taken up. Unlike regular litigation the choice of the case is not made solely on the merits of the dispute but also on the parameter that what impact it will have on law and policy on a broader scale. A good strategic case is the one that raises some constitutional or legal question which has potential to lay a precedent and benefit the marginalised people as well as society at large and resonates with public sentiments. It must also have strong legal grounds, documentary evidence and factual clarity to withstand the rigorous judicial scrutiny. Selecting such a case particularly involves thorough discussion between advocate or lawyer, activists, subject matter experts etc. to assess the legal feasibility, public interest value, political and social impact of the favourable ruling that will be the outcome of the strategic litigation.
2. Building evidence and legal arguments: after the case has been identified the rigorous process of evidence gathering and legal strategy development begins. This stage in strategic litigation often goes beyond the general standard of prepartion in regular litigation. It requires exhaustive research into constitutional provisions, statutes and judicial precedents of both the domestic country and the comparative analysis with other countries. Testimony from experts are sought to strengthen the factual matrix, for example in environmental cases, the scientific reports or technical assessments may be crucial. The use of amicus curiae briefs from credible institutions can help the court appreciate wider policy impllications. Moreover, comparative jurisprudence from other jurisdictions is often incorporaed to demonstarate the feasibility and desirability of a particular legal or policy position. The argumests are framed in such a way not only to win the particular case but to bring a systemic change. 
3. Coalition building: Strategic litigation is rarely a product of solitary effort rather it is most effective when supported by a coalition of people committed for a common cause. Lawyers often work closely with non-governmental organisations, advocacy networks, academic institutions and media houses so as to ensure that the case is contextualized within a broader movement or reform. NGOs can valuably contribute to the field research and community engagement, advocacy groups can mobilise grassroots support, academicians can provide policy oriented insights and media can amplify and present the narrative to the larger public. Such coalition helps maintain pressure on policymakers, sustain public interest in the case and facilitate the implementation of judicial directives after the verdict. 
4. Parallel Advocacy: In strategic litigation the courtroom is only one battleground and parallel advocacy is essential to amplify the legal action and embed it within public discourse. Public awareness campaigns can mobilise commmunity participation and enhance teh legitimacy of the legal challenge. Media coverage whether through investigative journalism or broadcast debates ensures that the issue remains visible and politically and socially relevant. Legislative lobbying is another critical component as court judgements often require legislations and amendments to existing laws for effective enforcement. By running these advocacy efforts alongside litigation, people afffected can ensure that the momentum geenrated by the case does not dissipate once the judgement is delivered.  
5. Strategic Timing: The timing of initiating the legal action can be decision making and can influence the success and its impact thereafter. A case must be taken u when there is upsurge of the issue in the public domain that is the public at large is considering it and it is affecting the live of the people living in the particular country. For example the case of NAVTEJ SINGH JOHAR was filed when there was the debate ongoing on the right of the LGBTQ+ community. Similarly when there is a legislative gap which is affecting the live of the citizens drastically and adversely then it is the best time to take up the case as it’ll be simpler to show the relevancy and public interest involved in the litigation and the judgement that will come will benefit the people. 

Criticism of Strategic Litigation 

1. Judicial Overreach: Critics often argue that strategic litigation promotes the practise where judges take decisions which are in the form of laws (also known as judge made laws) instead of the legislature i.e. elected lawmakers which leads to judicial overreach. They also argue that it violates the principle of separation of power where the organs of democracy are suppose to work separately in their specific domain. 
2. Limited Public Participation: Unlike legislative processes which is done by elected members or the representative of the people, the litigation process takes place in courtrooms and is controlled by the lawyers and the judges thereby it is argued that there is minimal or no participation of the public. Ordinary people are not involved in the process which according to the critics make the process les democratic although it is in the public interest. 
3. High costs and time consuming: court cases especially those involving complex question of law can be time taking and thereby expensive and may take years to resolve. This makes strategic litigation a process which a well funded organisation or well to do individual can pursue.  
4. Uncertain outcomes: There is no guarantee of winning a case even with strong arguments. An unfavourable decision setting a negative precedent can make it very difficult to fight similar issues in the future as the court relies upon the precedents. 
5. Risk of Tokenism: Sometimes the high profile case may seem to be very effective in appearance without touching the grassroots level. In such cases govt. may comply partially with the directions or may delay implementation.
6. Over reliance on courts : If advocacy groups focus only on wining the case then the aftereffects of the case will not be as enriching as it should be. Courts can only adjudicate the matter deliver verdict, give guidelines etc. but the real cause has to be the political change at grassroots, public education about the issue, change in mindset, etc. 

Cases of Strategic Litigation 

1. Brown v. Board of Education (1954, United States)  

This case challenged racial segregation in public schools in the United States. Thurgood Marshall and the NAACP Legal Defense Fund argued that the “separate but equal” doctrine violated the Equal Protection Clause of the 14th Amendment. The U.S. Supreme Court ruled unanimously that segregated schools were inherently unequal, ending the legal foundation for segregation. This decision changed American education and became a key moment in the Civil Rights Movement, demonstrating how legal actions can lead to significant social and political change.

2. Vishaka v. State of Rajasthan (1997, India)  

This case came about after the brutal gang rape of Bhanwari Devi, a social worker in Rajasthan. Since there was no law on sexual harassment at work, women’s groups filed a Public Interest Litigation (PIL). The Supreme Court of India established the “Vishaka Guidelines,” which defined sexual harassment and set preventive measures until Parliament passed specific legislation. This case showed how strategic litigation can address gaps in law and protect women’s rights in workplaces throughout India.

3. Mabo v. Queensland (No 2) (1992, Australia)  

Eddie Mabo and other Meriam people from the Torres Strait Islands challenged the Australian legal doctrine of “terra nullius,” which means land belonging to no one. The High Court of Australia recognized native title rights for the first time and overturned centuries of colonial land law. This judgment confirmed Indigenous Australians’ existing rights to their lands and set the stage for legislative changes like the Native Title Act 1993. It became a key part of Australia’s reconciliation process and an example of how litigation can help fix historical wrongs.

4. Olga Tellis v. Bombay Municipal Corporation (1985, India)  

This case, known as the “Right to Livelihood,” was filed to protect pavement and slum dwellers facing eviction in Mumbai. The Supreme Court of India ruled that the right to livelihood is a vital part of the right to life under Article 21 of the Constitution. While the court allowed some evictions under certain conditions, it firmly established that basic economic rights are essential human rights. This case remains a leading example of using strategic litigation to broaden constitutional protections for vulnerable groups.

5. Obergefell v. Hodges (2015, United States)  

James Obergefell and other petitioners challenged state bans on same-sex marriage, arguing that these bans violated the Due Process and Equal Protection Clauses of the 14th Amendment. The U.S. Supreme Court ruled in a 5-4 decision that same-sex couples have a constitutional right to marry. This landmark judgment legalized same-sex marriage across the country and marked a historic victory for LGBTQ+ rights. It showed how strategic litigation can strengthen social movements and secure legal recognition for marginalized communities.

Conclusion 

While strategic litigation is a robust mechanism and advocacy tool it also has some minimal and acute drawbacks. Strategic litigation has framed the public policy of many countries in an eminent way where there was a legislative gap. Furthermore it has also acted as a tool for public policy change whenever and wherever it was required. Strategic litigation gives the opportunity to the judiciary to review the existing laws and peruse the questions of law and give the decision in the best interest of the society. Although it has been argued that it often leads to judicial overreach yet it cannot be denied that it has played a crucial role in shaping public policy in the democracies.