Public Interest Litigations have now become an unpalatable word for the judiciary and the executive with Union Law Minister Ravi Shankar Prasad saying that PILs should not be used as a substitute for governance. This remark, if dissected, proves controversial because it is true that a few busybodies do file what is euphemistically termed as publicity interest litigation. But, to demean the role of PILs in justice, dispensation for the poor and needy has to be deprecated.
PILs have achieved a place of great importance in our legal system with the very first PIL being filed in the year 1976 in what is known as Mumbai Kamghar Sabha versus Abdulbhai Faizullabhai and others. Justice Krishna Iyer was the first judge to innovate the concept of the PIL and subsequently, Justice Bhagwati further expanded the PIL jurisprudence and developed it to a great extent.
But today, those who file PILs are looked at with suspicion by the courts and the executive to such an extent that Chief Justice of India Dipak Misra has said that the entire concept has to be re-examined. The word ‘public interest’ refers to doing away with the rules of standing when the matters refer to large number of people, and not necessarily to an aggrieved individual. This is called the locus standi rule. The pioneers of PILs who espoused the cause of access to justice emphasised doing away with these rules.
But today, the strongest resistance to PILs has come from within the higher judiciary. Except for a handful of judges, the majority did not adhere to the concept of using judicial activism to lay down the law which Prasad has now stated amounts to judicial overreach. Post 1980s, landmark judgments in favour of the poor have been rare. Various political and pragmatic perspectives coupled with class bias of the judiciary itself has denuded this tool of social action of its moving spirit of social justice.
Both, the executive and the judiciary, have perceived that the PIL has become a facade to fulfil private interests, settle political scores or gain easy publicity. The judiciary is the last resort of the underprivileged and the marginalized who do not have access to courts and the justice dispensation system which is costly and time-consuming. And so, it is a tragedy for India’s poor that the jurisprudence of the PIL has undergone a radical change.
While reacting to the barbs of the law minister, CJI Dipak Misra, stated: “the judiciary plays the role of a constitutional catalyst by remaining within its constitutional domain and sovereignty.” What he did not say was that the judiciary has a monopoly in justice dispensation and when it is forced to abdicate this role under the garb of overstepping the boundaries laid down by the Constitution, then justice is denied to the poor and marginalized so that rampant injustice will result.
The policies framed by the executive are a result of its political ideology which may benefit industrial houses. These industrial houses fund political parties during elections. The boundary laid down by the judiciary that it will not interfere in matters of state policy has to be seen in this light so that when PILs are dismissed or hefty costs imposed on those whom the judiciary perceives as filing frivolous PILs, justice is subverted by injustice.
In Goa, an activist who is a junior engineer in the Goa government, has had the dubious distinction of his name being raised in the legislative assembly for filing PILs against the State when he himself is an employee of the state. The MLA who raised the question pointed out that this junior engineer had filed 459 leave applications and filed 195 court cases during the last five years which prompted the chief minister to remark that all this was being investigated.
Another activist, who is seen as a rival of this junior engineer, even went to the extent of circulating WhatsApp messages that the junior engineer had wept openly in the Bombay high court at Goa when he was flayed by a high court judge from Mumbai. Bu in this brouhaha, people have lost sight of the fact that this junior engineer has done yeoman service by challenging innumerable laws which protect the rich and influential such as the regularization of unauthorized constructions law which was passed by the Goa legislative assembly some time back.
Similarly, in the Bombay high court, hefty costs have been imposed on some activists who have filed so-called frivolous PILs. If indeed this was the case, there is no doubt that these costs are justified so that precious judicial time is not frittered. But in some cases, the PILs appear prima facie to be genuine.
In February, the apex court fined a Rashtriya Janata Dal MLA Ravindra Singh Rs 10 lakh for wasting “precious judicial time” through frivolous litigation. This has sent a strong message to wannabe activists not to waste “precious judicial time” through frivolous litigation.
But just 30 minutes before rejecting the plea for leniency of the Bihar legislator — he had questioned the veracity of an article published in a magazine in 1994 — a bench of former CJI J S Khehar and Justices N V Ramana and D Y Chandrachud imposed a cost of Rs 1 lakh on a retired 66-year-old teacher from Maharashtra who had moved the Apex Court to challenge a reservation-related notification of the state government. By all accounts, the 66-year-old teacher seemed to be genuinely concerned about the consequences of the notification.
While the former CJI Khehar wanted to send a message to “weed out frivolous litigation”, there is no doubt that the new year will see a drastic drop in the number of PILs filed in the 24 high courts and the Supreme Court.
The writer is a journalist-cum-lawyer of the Bombay high court with a PhD in media law from the University of Mumbai.