PIL Under Scrutiny: RSTV – The Big Picture

Rajya Sabha TV programs like ‘The Big Picture’, ‘In Depth’ and ‘India’s World’ are informative programs that are important for UPSC preparation. In this article, you can read about the ‘The Big Picture’ episode on the PIL Under Scrutiny for the IAS exam.

 

  • Court held in A.D.M. Jabalpur v. Shivakant Shukla, a severely criticized case, that certain fundamental rights, including the right to liberty, did not survive the executive’s proclamation of emergency.

 

A Look at a few Important Cases:

  1. DC Wadhwa vs State of Bihar AIR (1986), Supreme Court held that a petitioner, a professor of political science, who had done substantial research and deeply interested in ensuring proper implementation of the constitutional provisions, challenged the practice followed by the state of Bihar in re-promulgating a number of ordinances without getting the approval of the legislature.
    The court held that the petitioner as a member of public has ‘sufficient interest’ to maintain a petition under Article 32.
  2. MC Mehta vs Union of India (1988): 
  • The Petitioner filed a writ petition in the Supreme Court for the prevention of nuisance caused by the pollution of the River Ganga by tanneries and soap factories on the banks of the river, at Kanpur.
    The Supreme Court of India emphasized that the petitioner was not a riparian owner. He was a person interested in protecting the lives of the people who made use of the water flowing in the river Ganga and as such his right to maintain the petition could not be disputed.
  • It was believed that the nuisance caused by the pollution of the river Ganga was a public nuisance, which was widespread in range and indiscriminate in its effect and it would not be reasonable to expect any particular person to take proceedings to stop it as distinct from the community at large. The petition was therefore entertained as a Public Interest Litigation.
  1.  Shreya Singhal vs Union of India – The Landmark Sec. 66A Case:  
  • This particular case revolves around the fundamental right of freedom of speech and expression under Article 19(1)(a) of the Constitution of India, which challenged the constitutional validity of section 66A and led to the struck down of section 66A of the Information Technology Act 2000 Section 66A is the punishment for sending offensive messages through communication services, etc.
  • The Supreme Court of India, quashed Section 66A, thereby giving a fresh lease of life to free speech in India.

 

What is Amicus Curiae?

 

Amicus Curiae means “friend of the court”. It is used to assist in formulating a viewpoint and to make inquiries and reports in the PIL’s.

 

Analysis by the Experts:

What is a Public Interest Litigation and what is its history?

 

  1. K. Malhotra, Former Secretary, Law Ministry, Government of India, weighed in with his points here.

 

  • The Public Interest Litigation (PIL) is infact a part of judicial activism. This is because it was started by the Supreme Court, way back in 1980’s and the main architect of Public Interest Litigation in the Indian Judicial System was Justice P.N. Bhagwati  and Justice Krishna Aiyer. The first important case relating to PIL which was handled by the Supreme Court was when for the construction of ASIAD village, the labourers were brought from UP, Biihar and other states and the contractors were exploiting them; they were not paying them their wages and the amenities was very bad. At that time, a PIL was filed. The Supreme Court later laid down the code that we are opening this particular door, for the people who cannot approach the Court and who are poor.
  • The main idea of a PIL was that if someone’s human rights or fundamental rights are being violated, a simple letter can be written to the Supreme Court or to the High Court and if the High Court or the Supreme Court feels that some rights of the individual is being violated, the Court can intervene and it would be registered as a Writ Petition.
  • If anyone feels that their fundamental right(s) have been violated, then they can go directly to the Supreme Court under Article 32 of the Indian Constitution.  If it is a violation of any other right, then the remedy can be under Article 226 of the Constitution.
  • PIL does away with the requirement of ‘locus standi’. When you approach a Court, generally, one say to say that he/she is aggrieved by the order of the Court, but in PIL’s this concept of locus standi is done away with. Further, any public-spirited man can approach the Court and say that Fundamental Rights or rights of an individual or a group of people are being violated, and keeping this in view, if the Court feels that rights are being violated, then the Court can intervene and give a direction to the state authority to see that law is followed and that the rights are not violated.
  • Unfortunately, later on, the Supreme Court and the High Court started intervening even in policy matters as well. There were instances in individual matters as well that they had intervened.
  • In the S.P. Gupta Case, the Supreme Court itself had laid down certain norms as to in what cases, the PIL can be invoked. If today we are breathing clean air in Delhi, the credit would largely go to the Supreme Court by intervening through the route of Public Interest Litigation (PIL) and saying that in public transport, only CNG will be used, and that diesel vehicles will not be allowed to ply in Delhi.
  • The concept of PIL’s started in the United States of America. Some other democratic countries have also adopted it.
  • Thus, wherever intervention is required by the virtue of judicial activism, the Supreme Court entertains public interest litigation (PIL’s), and in PIL’s, the procedural aspects, i.e. the normal procedural aspects need not be followed. Moreover, if fundamental rights of individuals are being violated, or the rights of a group are being violated, then the Courts can intervene and give a directive to the executive to comply with the provision of law.

Who is eligible and Who can file a PIL?

Virag Gupta, Advocate, Supreme Court weighed in with his arguments here.

If  we see the history of PIL’s, the original case, was of the year 1979, in the Hussainara Khatoon Vs State of Bihar case. Currently, we have three restrictions to PIL’s. These are:

 

  • They should not be politically motivated.
  • One should not have alternate ways of obtaining justice.
  • Thirdly, there should not be some hidden agenda of some other type of adversarial litigation

 

In this matter, Justice Gogoi said that even if there are certain violations, even if there is a violation of Article 14, only the aggrieved person can come forward in case there has been a violation of that kind. The Government has also observed that under the guise of PIL’s, the Courts should not run the country.

A few things are very clear about PIL’s.

  1. They should protect human rights.
  2. They should protect those actions of the community or the society which are required even if they are not related to the individual rights. But, under the guise of this, the Courts should not run the country. The scope of Article 32 or Article 226 should not be expanded to meet this end.

Is there a Standard Operating Procedure as to how a Court accepts a PIL?

Kanu Agarwal, Advocate, Supreme Court weighed in with his arguments to this question.

He responded by saying that there are none that come to his mind.  Further, that the PIL jurisprudence in India can be divided into 4 phases.

  1. In the first phase, it used to be limited to issues concerning bonded labour, issues concerning child labour, etc. wherein people did not have access to justice. This was the phase from the 70’s to the 80’s.
  2. In the 90’s, this started becoming slightly more sophisticated.
  3. In the 2000’s, something new came up. This was marked by the beginning of “specialized NGO’s.” These NGO’s generally, have very little work on the ground, but have expertise in filing such PIL’s. These NGO’s are generally called by common names.
  4. Currently, we have entered the 4th phase which can be called as the PIL mess. The PIL’s had initially started as an extraordinary remedy where the cardinal principle of law, that of locus standi was given a go by. Nowadays, PIL’s have become a tool of massive abuse.

An extraordinary remedy has today become a convenient remedy, wherein idiosyncrasies’ of the judiciary, of the bench, of the lawyers, and their ideologies impact judgements, impact orders, and even after orders, sometimes, matters are not disposed of. Some Courts in the country today are functioning like mini-ministries, notices are issued to all states, Chief Secretaries are called to explain what is happening. The Courts have themselves laid down many guidelines, they have laid down certain rules, for example, in which cases one should maintain PIL’s. But there has to be a certain level of consistency when it comes to the High Courts and the Supreme Court.

 

Are PIL’s being misused at the end of the day?  

  1. K. Malhotra, Former Secretary, Law Ministry, Government of India, weighed in with his points here.

There are instances where PIL’s are being misused. But, the fact remains that the concept of PIL’s has been there in the Indian judiciary for the last four decades. Further, during the last 4 decades, the Government has not thought it proper to make a law regulating the filing of PIL’s.

Thus, it has been left to the Court itself and it is not that the Court has not laid down the rules or regulations as to how the PIL should be used. There have been instances where the Supreme Court and the High Courts have imposed a heavy penalty where the process of PIL has been misused by the petitioner. But the fact remains that if you look at the larger interest of the society, if fundamental rights are to be enforced, it is the duty of the judiciary also to enforce fundamental rights of the individuals. And, if the individual himself cannot approach the Court, then there is nothing wrong if an NGO is filing a PIL with a good intention, and with the principles laid down by the Supreme Court, then there is nothing wrong in it. It is for the Courts to ensure that violations are penalized. Thus, the Pros outweigh the Cons as far as PIL’s are concerned.

 

Are PIL’s used by Corporates to delay and to put a hold or a stop to policy decisions?

Virag Gupta, Advocate, Supreme Court weighed in with his arguments here.

PIL jurisprudence is there in all the High Courts of India and in the Supreme Court. PIL rules are there and in those rules, details are given as to which type of PIL should be filed, who can file the PIL, etc.
He personally feels that Parliament cannot pass a law regarding PIL’s because its genesis is from the Supreme Court as per their own jurisdiction, and the Court has expanded the scope of Article 21.

Regarding filing of PIL’s, certain points are noteworthy:  

  • If a matter is already pending before a court, then the court shouldn’t entertain a PIL on that issue.
  • However, we are seeing daily that in the Delhi High Court if one matter is filed, then the same issue is being entertained by another High Court. Further, on the same issue, people are going to the Supreme Court.
  • Next, before filing the PIL, the person must give representation to the concerned authority because matters that are not urgent are being raised. Thus, one must file a representation so that the Government can respond and only after that one can file the PIL.
  • Next, there must be locus for a person filing the PIL.
  • Then, there are many issues which are defined in the law. For example, if a person wants to file an FIR, and if the FIR is not registered, people are directly going to the High Court or the Supreme Court. If someone has filed a complaint, to question the complaint, people are going to the High Court and the Supreme Court. It is important to note that there are procedures laid down in the IPC and in the CrPC.
  • He personally feels that Courts are more responsible for such type of PIL mess, wherein, many times, Courts have become the local police station where anybody can anytime come and mention the matter, get it listed. It is a matter of surprise that some Courts are open even during midnight. Thus, what are the regulations? The matters of a genuine nature are listed for many years together, which is creating a huge pendency of cases.
  • It is important to note that Right to early justice,  Right to speedy justice is a fundamental right as per Article 21. Thus, as per the Keshavananda Bharati Case (1973), there is a clear-cut division of work among the Judiciary and the Parliament. Thus, the Courts should see their own way of working- whether all the vacancies in the lower courts are filled or not.
  • It is important to ensure speedy justice in the lower courts as there are 3 crore cases which are now pending before the judiciary. In these 3 crore cases, more than 25 crore people of the country are affected. This is because, in each case, there are two parties atleast, and in each party if there are 4 persons in a family, it makes up to a figure of 25 crores.
  • These 25 crore people have the fundamental right to speedy justice.

 

Should only the poor be eligible to file PIL’s?

Kanu Agarwal, Advocate, Supreme Court weighed in with his arguments to this question.

The answer to the issue is very simple. The answer is judicial restraint. Further judicious exercise of discretion is required. The problem is not PIL. The problem is not the jurisprudence. The problem is not that the court should not intervene in an extraordinary situation. The problem is not that the Government has not framed regulations.

What happens to judicial activism?

  1. K. Malhotra, Former Secretary, Law Ministry, Government of India, weighed in with his points here.
  • Judicial activism will always remain there and it has to be there. If we look at the constitutional scheme, each organ is assigned certain duties, and each organ is supposed to function within the parameters that are laid down in the constitution itself.
  • Suppose any organ, for example, the executive or the legislature is not discharging the functions which it is supposed to discharge, what happens? Is there no remedy? The constitution itself empowers the Supreme Court and even the High Courts by the way of writ jurisdiction to enforce the fundamental rights of the individual. Thus, in case such a situation arises, one should see no reason as to why judicial activism should not be there.
  • However, this should stop at judicial activism and should not amount to judicial overreach.
    For example: In 1997, the Supreme Court laid down guidelines in the Vishakha case, pending formal legislation. The Supreme Court of India’s judgement only proposed guidelines to alleviate the problem of sexual harassment in 1997. This was done so in the exercise of Article 142 of the Indian Constitution. To this extent, judicial activism is welcome. But, there have been certain policy matters also, where the matter should have been left to the executive or the legislature, but the courts have intervened. This is the cause of concern.
  • It depends on a case to case basis as to where judicial activism stops and where does overreach begin.

Further guidelines have been laid down by the Supreme Court itself as to the cases in which the Public Interest Litigation (PIL) can be used.

It has been almost 4 decades since PIL’s have come into being. As time has gone by, so has the scope of PIL’s. What are your thoughts?

  1. P. Singh, Former Chairperson, Delhi Judicial Academy responded to this question with his arguments.

The principle of Public Interest Litigation (PIL) was laid down in the judges case in 1980’s, by Justice Bhagwati, this included the cases in which people could approach the Court. It was most of the time used for the benefit of the poor. Further, judicial activism should not be confused with Public Interest Litigation (PIL). Judicial activism can be in private litigation also- which is where a person approaches the court himself for his own interest. Judicial activism can be in the case of Public Interest Litigation also. But, that does not mean that Public Interest Litigation and Judicial Activism are one and the same thing. They are two very different concepts.

It is important to note that it is not within the jurisdiction of the Parliament or the State legislatures to lay down the procedures for the PIL’s. This would fall under the purview of the judges of the Court to lay down the procedure.

Although there are some procedures which has been laid down, but the Courts themselves are in some difficulty as to which cases are to be taken and which cases are not to be taken. The Courts currently decide on a case-to-case basis as to which is a genuine case and which is not a genuine case.

Virag Gupta, Advocate, Supreme Court weighed in with his arguments here.

Both the ‘private interest litigation’ and ‘publicity interest litigation’ must be discouraged. An active or a strong judiciary is very good and should be encouraged. But, the inherent power of Article 32 or the inherent power of Article 142 should not be misused to cause an overreach to the other sections of the Constitution which is not meant for the judiciary.

Example of Section 377 of the Indian Penal Code (IPC): A curative petition was pending in the year 2016, and in spite of this, the Supreme Court of India entertained 5 new writ petitions. This is something which is strange and should not be done when a curative petition is pending.
When a curative petition is pending, fresh petitions on the matter should not be entertained.     

Further, the Supreme Court of India should not work like the regulator of the Government. There may be regulatory failure of many spheres of the Economy, but the Supreme Court itself is a regulator of the judicial system, thus, first, the pending 3 Crore cases should be disposed. After this, other matters should be regulated which is under the domain of Article 32.

 

Mains Level Questions:

  1. In our judicial system, both the ‘Private Interest Litigation’ and ‘Publicity Interest Litigation’ must be discouraged. Justify.
    (250 Words, 12.5 Marks)
  2. Judicial Activism should not be confused with Public Interest Litigation (PIL). Elaborate with examples. (250 Words, 12.5 Marks)
  3. Discuss the evolution of Public Interest Litigation (PIL) in India. What are the bottlenecks faced by the judicial system today concerning PIL’s. Suggest a few remedial measures to overcome these challenges. (250 Words, 12.5 Marks)
  4. Public Interest Litigation (PIL) serves a vital function in Indian democracy. Comment.
    (250 Words, 12.5 Marks)