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At the time of
independence , court procedure was drawn from the Anglo-Saxon system of
jurisprudence. The bulk of citizens were unaware of their legal rights and much
less in a position to assert them. And as a result, there was hardly any link
between the rights guaranteed by the Constitution of Indian Union and the laws
made by the legislature on the one hand and the vast majority of illiterate
citizens on the other. However, this scenario gradually changed when the post
emergency Supreme Court tackled the problem of access to justice by people
through radical changes and alterations made in the requirements of locus standi
and of party aggrieved. Prior to 1980s, only the aggrieved party could
personally knock the doors of justice and seek remedy for his grievance and any
other person who was not personally affected could not knock the doors of
justice as a proxy for the victim or the aggrieved party. Public Interest
Litigation as it has developed
in in recent years marks a significant departure from traditional judicial
proceedings. The court is now seen as an institution not only reaching out to
provide relief to citizens but even venturing into formulation policy which the
state must follow.
The splendid efforts of Justice P N Bhagwati and
Justice V R Krishna Iyer were
instrumental of this juristic revolution of eighties to convert the apex court
of India into a Supreme Court for all Indians.
Public Interest
Litigation (PIL) has been an invaluable innovative judicial remedy. It has
translated the rhetoric of fundamental rights into living reality for at least
some segments of our exploited and downtrodden humanity. Under trial prisoners
languishing in jails for inordinately long periods, inmates of asylums and
care-homes living in sub-human conditions, children working in hazardous
occupations and similar disadvantaged sections.
But the development of
Public Interest Litigation (PIL) in the country has very recently uncovered its
own pitfalls and drawbacks.
1.The genuine causes and cases of public interest have in fact receded to
the background and irresponsible PIL activists all over the country have started
to play a major but not a constructive role in the arena of litigation. In a
recent case the court while dismissing an ostensible PIL against the sale of a
plot of land through public auction, held that the matter had not been raised in
public interest at all, but to ventilate a private grievance. Of late, many of
the PIL activists in the
country have found the PIL as a handy tool of harassment since frivolous cases
could be filed without investment of heavy court fees as required in private
civil litigation and deals could then be negotiated with the victims of stay
orders obtained in the so-called PILs. Just as a weapon meant for defense can be
used equally effectively for offence, the lowering of the locus standi
requirement has permitted privately motivated interests to pose as public
interests. The abuse of PIL has
become more rampant than its use and genuine causes either receded to the
background or began to be viewed with the suspicion generated by spurious causes
mooted by privately motivated interests in the disguise of the so-called public
interests. Every matter of public interest cannot be the basis of a PIL, e.g.
increase in the price of onions or in railway fares or the dilapidated condition
of railway stations or the Red Fort or trains not running on time. Over the
years, PIL has
degenerated into Private Interest Litigation, Political Interest Litigation, and
above all, Publicity Interest Litigation. Weakness for publicity affects judges,
lawyers and litigants alike.
2.The framers of
Indian constitution did not incorporate a strict doctrine of separation of
powers but envisaged a system of checks and balances. Policy making and
implementation of policy are conventionally regarding as the exclusive domain of
the executive and the legislature. The power of judicial review cannot be used
by the court to usurp or abdicate the powers of other organs. PIL in practice,
however, tends to narrow the divide between the roles of the various organs of
government and has invited controversy principally for this reason. The court
has sometime even obliterated the distinction between law and policy. The
approach of the court in policy matters is to ask whether the implementation or
non-implementation of the policy result in a violation of fundamental rights. In M.N Mehta v union of India, the court
explained how despite the enactment of Environment (protection) Act, 1986, there
had been a considerable decline in the quality of environment. Any further delay
in the performance of duty by the central government cannot, therefore, be
permitted. The court, however, required the central government to indicate what
steps it had taken thus
far and also place before it the national policy for the protection of
environment. The law and policy divide was obliterated in
Vishaka v State of Rajasthan which was a PIL concerning sexual harassment
of women at work place. A significant feature of this decision was the courts
readiness to step in where the legislature had not. The court declared that till
the legislature enacted a law consistent with the convention on the Elimination
of All Forms of Discrimination Against Women which India was a signatory, the
guidelines set out by the court would be enforceable. However, in the Delhi
Science Forum v Union of India where the government of India telecommunication
policy was challenged by a PIL the court refused to interfere with the matter on
the ground that it concerned a question of policy. PILs that have sought
prohibition on sale of liquor or recognition of a particular language as the
national language or the introduction of a uniform civil code have been rejected
on the basis that these were matters of policy. The court may refuse to
entertain a PIL if it finds that the issues raised are not within the judicial
ambit or capacity. Thus, a petition seeking directions to the central government
to preserve and protect the Gyanvapi Masjid and the Vsihwanath temple at
Varanasi as well as the Krishna temple and Idgah at Mathura was rejected.
Despite such observations the court has not adopted a uniform and consistent
approach in dealing with its emerging role as policy maker. While in some cases,
the court has expressed its reluctance to step into
the legislative field, in others it has laid down detailed guidelines and
explicitly formulated policy.
3.The
flexibility of procedure that is a character of PIL has given rise to another
set of problems. It gives an opportunity to opposite parties to ascertain the
precise allegation and respond specific issues. The PIL relating to depletion of
forest cover is a case in pint. The petition, as originally drafted and
presented, pertained to the arbitrary felling of Khair trees in Jammu and
Kashmir. The PIL has now been enlarged by the court to encompass all forests
throughout India. Individual States, therefore, will not be able to respond to
the original pleading as such, since it may not concern them at all. The
reports given by court appointed commissioners raise problems regarding their
evidentiary value. No court can found its decision on facts unless they are
proved according to law. This implies the right of an adversary to test them by
cross-examination or atleast counter-affidavits. In such instances the affected
parties may have misgivings about the role of the court.
4.In the
political arena too, the debate over the limits of judicial activism ,
particularly in the field of PIL, has been vigorous. The attempt by the
judiciary through PILs to enter the area of policy making and policy
implementation has caused concern in political circles. A private members bill,
entitled Public Interest Litigation (Regulation) Bill, 1996 was tabled in Rajya
Sabha. According to it the PIL was being grossly misused. Moreover, PIL cases
were being given priority over
other cases, which had remained pending in the court for years. It was urged
that if a PIL petition failed or was shown to be mala fide the petitioner should
be put behind bars and pay the damages. Although the bill lapsed, the debate in
parliament revealed some of the criticism and suspicion that PIL had begun to
attract.
5.The
credibility of PIL process is now adversely affected by the criticism that the
judiciary is overstepping the boundaries pf its jurisdiction and that it is
unable to supervise the effective implementation of its orders. It has also been
increasingly felt that PIL is being misused by the people agitating for private
grievance in the grab of public interest and seeking publicity rather than
espousing public cause. The judiciary has itself recognized and articulated
these concerns periodically. A further concern is that as the judiciary enters
into the policy making arena it will have to fashion new remedies and mechanisms
for ensuring effective compliance with its orders. A judicial system can suffer
no greater lack of credibility than a perception that its order can be flouted
with impunity. This court must refrain from passing orders that cannot be
enforced, whatever the fundamental right may be and however good the cause. It
serves no purpose to issue some high profile mandamus or declaration that can
remain only on paper. Although usually the Supreme Court immediately passes
interim orders for relief, rarely is a final verdict given, and in most of the
cases, the follow-up is poor.
To regulate the abuse
of PIL the apex court itself has framed certain guidelines (to govern the
management and disposal of PILs.) The court must be careful to see that the
petitioner who approaches it is acting bona fide and not for personal gain,
private profit or political or other oblique considerations. The court should
not allow its process to be abused by politicians and others to delay legitimate
administrative action or to gain political objectives. At present, the court can
treat a letter as a writ petition and take action upon it. But, it is not every
letter which may be treated as a writ petition by the court. The court would be
justified in treating the letter as a writ petition only in the following cases-
(i) It is only where the letter is addressed by an
aggrieved person or
(ii) a public spirited individual or
(iii) a social action group for enforcement of the constitutional or the
legal rights of a
person in custody or of a class or group of persons who by reason of poverty,
disability or socially or economically disadvantaged position find it difficult
to approach the court for redress. Even though it is very much essential to curb
the misuse and abuse of PIL, any move by the government to regulate the PIL
results in widespread protests from those who are not aware of its abuse and
equate any form of regulation with erosion of their fundamental rights.
In his recent write up,
Mr. Soli Sorabji, the former Attorney General while applauding the
liberalization of the rule of locus standi by the Supreme Court of India
benefiting under-trial prisoners languishing in jail for inordinately long
periods, inmates of asylums and care homes living in sub-human conditions,
children working in hazardous occupation and similar disadvantaged persons, has
lamented that PIL is being abused with increasing frequency and that over the
years. He made the following suggestions:
i. Reject dubious PIL at the threshold, and in appropriate case with
exemplary costs,
ii. In cases where important projects or socio-economic regulations are
challenged after gross delay, such petitions should be thrown out at the very
threshold on the ground of latches. Just because a petition is termed as PIL
does not mean that ordinary principles applicable to litigation will not apply.
Latches is one of them. In the U.K., for enabling an applicant seeking an order
of judicial review the applicant has to satisfy the test of sufficient interest
in the matter to which the application relates. For satisfying this test an
applicant need not have a direct legal or financial interest but a mere
busy body will not have sufficient interest.. It is, however, not necessary that
applicants interest should be different from that of an ordinary member of the
public. An applicant having no personal connection with the dispute, in the
traditional sense of locus standi, may be allowed standing, if in its
discretion, the court considers the case to be of sufficient public importance.
The courts have held in the U.K. that standing should usually be considered
along with the merits of the case and not as a preliminary issue.
The
Ontario Law Reform
Commission Report on the law of Standing, 1989, recommended that any person
should be able to commence a proceeding unless a party satisfies the Court that
there exist factors against proceeding that outweigh the factors in favour of
the proceedings. The factors to be considered by the court would include:
i. whether the issue is trivial;
ii. in case where the applicant does not have a personal, proprietary or
pecuniary interest the number of people affected;
iii. whether another reasonable and effective method exists to raise the
issues that are sought to be litigated;
iv. whether another proceeding has been instituted against the same
opponent in which the same issues arise and the interests of the applicant could
be met by intervening in those proceedings and it is reasonable to expect the
applicant to do so;
v. whether to proceed would be unfair to persons affected.
Public Interest
Litigants fear that implementation of these suggestions will sound the
death-knell of the people friendly concept of PIL. However, it cannot be denied
that PIL activists should be responsible and accountable. It is also notable
here that even the Consumers Protection Act, 1986 has been amended to provide
compensation to opposite parties in cases of frivolous complaints made by
consumers. PIL requires rethinking and restructuring. Overuse and abuse of PIL
will
make it ineffective. PIL has translated the rhetoric of fundamental rights into
living reality for at least some segments of our exploited and downtrodden
humanity. Under trial prisoners languishing in jails for inordinately long
periods, inmates of asylums and care-homes living in sub-human conditions,
children working in hazardous occupations and similar disadvantaged sections.
Hence, any change to improve it further should be encouraged and welcomed.
Problems facing Public Interest Litigation in India
Public Interest Litigation (PIL) A Boon or Bane?
Defamation on the web: Who do you
sue?
Role of PIL in Environmental Protection In India
Treatment And Protection Of Witnesses In India
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The
author can be reached at: nupurjha79@legalserviceindia.com /
