India is facing unprecedented hardship due to the COVID pandemic. More so, the lower and middle class of this country are grappling to survive in a system unable to provide employment and economic growth. In a study conducted by Pew Research Center, 75 million people were found to have fallen into the pit of poverty due to the last year’s pandemic-induced economic recession in the country. According to the last year’s Oxfam report, the pandemic has not just accelerated the economic inequality in the country but also education and gender inequality. Most of the poor were working in the informal sector of the economy which was the worst hit as it made up 75% of 122 million jobs lost.
No Indian can forget the sight of thousands of migrant workers returning to their homes on foot after they lost their jobs due to the pandemic. Unfortunately, the Supreme Court was slow to take cognizance of the matter leading to the death and suffering of the migrant workers. Since the announcement of the lockdown, several PILs were filed in the Supreme Court to remedy the plight of walking migrants but to no avail. The highest judiciary of the land almost abdicated its duty towards the people of India in the times when the people needed them most. However, the Supreme Court has handled the COVID second wave crisis very well in ‘In re: distribution of essential supplies and services during COVID-19‘ and fulfilled its duty of protecting the vulnerable sections of the society in times of crisis.
The term “Public Interest Litigation” has not been defined in any Indian statute. The Indian concept of ‘Public Interest Litigation’ has been borrowed from the US jurisprudence. In the United States, the concept originated in the 1960s to help those poor and marginalized people who had no means to reach the courts to seek justice. The scope was not limited to representing the cause of the poor but also expanded to bringing social changes in the society for example gender equality. The same was the situation in India when it initiated with the concept in the 1970s.
It was the time when the Indira Gandhi-led government was already turning Indian governance into a socialist one, the judges in the highest court were too, inspired by the same idea. The idea of social justice reigned supreme in the heads of JJ. V.R. Krishna Iyer and P.N. Bhagwati, the two pioneers who opened the doors of the Apex Court free for raising the issues of utmost public interest. The aim was to change the perception of the people who can now see the law as not just a tool of oppression, of victory and loss but as a tool of socio-economic revolution.
It was in the case of Fertilizer Corporation Kamgar Union v. Union of India, that Justice Krishna Iyer first introduced PIL as part of the process to participate in justice and ‘standing’ in civil litigation of that pattern must have liberal reception at the judicial door-steps. The judiciary attained a new height of judicial activism and developed a new tool to protect the fundamental rights of the people. The first example of filing a PIL in India was that of Hussainara Khatoon v. State of Bihar, over the inhuman conditions faced by the prisoners in Bihar. The restriction of locus standi was relaxed for PILs which could be filed by anyone with genuine concern, representing the class of people whose fundamental rights are being violated.
In the case of Bandhua Mukti Morcha v. Union of India, Justice Bhagwati that the judiciary needs to break out of the shackles of formal procedures if it wants to make justice available to the wider section of the society. Since then, the Court has reiterated time and again that the procedures are not the mistress but the handmaid of justice. The courts have the power to mould these procedures in a way to make justice accessible to all. This PIL movement brought some revolutionary judgments in India in effect to change the damaged system. Stretching from the environmental concerns to women’s rights and sexual harassment, it covered many problems of the society which were ignored by the legislature and executive.
LACK OF PROCEDURE: A BOON OR BANE?
As already pointed out, public interest litigation is nothing like the adversarial mode of litigation. Instead, it is a tool for social change. The lack of formality in filing and conducting the proceedings of a PIL gives the judiciary enough independence to look after the rights of the poor and marginalized. On the other hand, this can be also been as extreme power in the hands of a judge which is susceptible to misuse. The whole case from beginning to end depends on the whim of the bench. This brings us to the very fundamental question of the right of the judiciary in encroaching over the rights of the legislature and the executive. The PIL can be an arbitrary tool that can be used however the judge wants, once it enters its courts.
The relaxation of the restriction of locus standi has also opened the doors for frivolous and vexatious PILs with personal vendettas. The Court has pointed out time and again that “busybody or meddlesome interlopers” can in the guise of a social worker or a benefactor, try to misuse this process. The object can also be to fulfill their personal vendetta or to gain publicity. A recent PIL filed by Juhi Chawla against 5G tech seems to be the fitting example of a PIL filed for publicity. The same was dismissed by the Delhi High Court with imposing a heavy fine on the petitioner.
The Supreme Court has warned the PIL filers in S.P. Anand v. H.D. Deve Gowda, not to rush to the court without undertaking research on the matter in hand, even if the person might be highly qualified to raise the issue. The Court made it clear that “no one has a right to the waiver of the locus standi rule and the Court should permit it only when it is satisfied that the carriage of proceedings is in the competent hands of a person who is genuinely concerned in the public interest and is not moved by other extraneous considerations”.
The person who seeks justice must come with clean hands and when he/she seeks justice for another class of people, they must also come with a clean heart, clean mind, and clean objective. Today, the public interest litigation has become an attractive name with every other person moving a PIL in the hope of gaining some publicity or pecuniary benefit out of it. In Dr. Duryodhan Sahu and Ors. v. Jitendra Kumar Mishra and Ors., the Supreme Court stated that whenever such frivolous pleas are taken to explain possession, the Court should do well not only to dismiss the petitions but also to impose exemplary costs. It would be desirable for the Courts to filter out the frivolous petitions and dismiss them with costs as aforestated so that the message goes in the right direction that petitions filed with oblique motive do not have the approval of the Court. Thus, a PIL must be bonafide in order to be admitted in a court of law.
THE JUDICIAL DUTY
As answered by the new Law Minister in Rajya Sabha, there are currently around 2,880 PILs with the allegations of fundamental rights, pending in the Supreme Court. Similar is the case with the High Court where Punjab and Haryana High Court has more than 1300 PILs pending before it. It is indeed true that many of these PILs might be frivolous ones that waste the time and dignity of the Court. Last year, one petitioner had filed a PIL in the Supreme Court for banning soft drinks like Coca-Cola and Thumbs up ending up in heavy costs being imposed on the petitioner. In Chhetriya Pradushan Mukti Sangharsh Samiti v. State of U.P., the Supreme Court had observed that though Article 32 is considered heart and soul of the Constitution, it is a sacred duty of the Court “to ensure that this weapon under Article 32 should not be misused or permitted to be misused creating a bottleneck in the superior court preventing other genuine violation of fundamental rights being considered by the court.”
The Supreme Court in its more than four decades of journey hearing and deciding PILs has given many revolutionary judgments in the field of environment, bonded labourers, women’s rights, children education, and health rights, and eradication of corruption. Its judgment in the Taj Trapezium case, the Supreme Court came to the rescue of the national treasure, making sure that the pollution doesn’t affect the beauty of the Taj. It expounded the Precautionary principle of pollution where the government would need to take precautionary measures to safeguard the lives of people and national heritage without waiting for scientific reports. Similar was the Ganga Pollution case, where interestingly the Supreme Court used the PIL filed by M.C. Mehta to enforce the Directive Principle enshrined in Article 48-A of the Constitution of India. The Supreme Court can yet again come to the rescue of the environment when the executive has abdicated its duty to protect the environment. The time is ripe for the judiciary to enforce Article 48-A again.
The Supreme Court also laid down the sexual harassment at workplace guidelines in Vishakha and Ors v. State of Rajasthan in 1997 much ahead of any other court or legislature in the world. Unfortunately, in conducting the recent judicial inquiry into the allegations of sexual abuse against erstwhile CJI Ranjan Gogoi, the Supreme Court judges didn’t follow the same guidelines that the Court had built two decades ago. It is high time that the Supreme Court must live up to its earlier standards and use the tool of PIL for ensuring social justice for all.
Public Interest Litigation, in most of the instances, has proved to be a ladder through which the judges might come down from their ivory towers and hear the plight of those facing the hardships on the ground. In modern times, the dissemination of information and news is a matter of seconds and the courts might take suo motu cognizance of a matter without any PIL. This does not mean that the process of PIL has become obsolete, it still has relevance since the judiciary might not know everything about everyone all the time. It has proved effective in drawing the attention of the higher judiciary to matters of utmost public importance.
The point to be noted is that the courts don’t follow any specific procedure in PILs. It doesn’t stick to the rules and orders of the Civil Procedure Code or the Criminal Procedure Code or the Evidence Act in admitting, hearing, or deciding a PIL. When it comes to PIL, it has no rule book. This might be a hindrance in giving effective justice to the people. Though it helps to accelerate the speed of the process, as it seems by the number of pending PILs in the Supreme Court, it is not making much of a difference in modern times. The trend of filing PIL grows with the passage of time and it might ruin the judicial process if not halted down.
Author(s) Name: Harsh Mishra (Kanpur University)