COURTING CONTROVERSY THE SUPREME COURT AND PILS

Prashant Bhushan*

Two recent judgements of the Supreme Court on Judicial Activism and PILs have expectedly generated a spirited controversy within the Supreme Court and outside about the scope and limits of the court's jurisdiction in PILs and about Judicial Activism in general. While this debate is required, the orders which have led to this controversy were passed in cases which did not raise any of these issues, and have created a great deal of confusion in the Media as well as in the courts. That is why a 3 judge bench of the Supreme Court has decided to review the issues and lay down some guidelines for PILs and judicial activism.

The term Public Interest Litigation was coined in the late seventies when the Supreme Court began to entertain petitions on issues of general public interest or in the interest of weaker sections of society, filed even by persons who were themselves not part of the affected class of citizens. Simultaneously, the courts also proceeded to give a liberal and expansive interpretation of the fundamental rights, particularly Article 21 which guarantees the right to life and liberty. It was held by the court that Article 21 not only included the right to physical existence, but to live a dignified life and therefore included the right to food, water, shelter, access to education, health care, a clean environment etc. Acting on this basis, the courts gave various directions to the authorities to improve the conditions of inmates of jails and asylums, for payment of minimum wages to workers, stopping child labour, bonded labour, for stopping mindless deforestation or for cleaning up rivers or preventing air pollution, for taking steps for ensuring road safety, for ensuring that citizens get access to information about the criminal antecedents and assets of election candidates, for instituting police reforms etc.

Article 226 and 32 of the Constitution gave the Higher Judiciary the power of judicial review over all executive action and inaction. The principle evolved by the courts was that every power was coupled with a duty and therefore, where the authorities had a right to act, they also had a duty to act to protect the fundamental rights of citizens. Thus, if people of an area were being denied access to drinking water because of government inaction, the court could direct them to act to apply their mind to it, and if there was a practicable way of providing it, they could direct the authorities to do so. It was of course understood that matters of policy would be left to the executive and that where an issue was a matter of expert opinion, the court could not push its own views over that of the experts of the executive. Thus, if due to non application of the mind of the executive, the fundamental rights of citizens were being violated, the court could direct the authorities of apply their minds to the problem. If the problem required the application of mind of an expert body, the court could direct the government to constitute an expert body to examine the problem. If expert bodies of the government had examined the matter and come to a conclusion about solutions, and if the government had no plausible explanation for not implementing the solutions, they could direct the government to implement them. Thus in the police reforms case, the court acted after it found that the corruption of the police system was leading to the gross violation of the right to life of citizens. As many as 4 expert committees of the government had examined the problems during the last 25 years and all agreed on certain solutions. Yet these were not being implemented due to lack of political will and a desire to keep the police as a pliable instrument available to those in power. It was in these circumstances that the court issued various directions to the authorities to implement the reforms suggested by the governments' own expert committees.

It is true that there have been excesses of judicial activism. The directions issued by the court to implement the scheme of interlinking of rivers are a case in point. Though the government's expert committees, which had examined the scheme earlier, had rejected it as unfeasible, the court, without even allowing the State governments to respond to the petition, directed the central government to take up the scheme, costing more than Rs. 6 lac crore and complete it within 10 years! This is not the only case of judicial excess. There have also been some other such cases

But that is no justification for Justice Markanday Katju's sweeping remarks in two of his recent judgements. In a case of employees of a golf club (not a PIL), he goes on to gratuitously say how recent orders of the courts regarding nursery admissions, unauthorized schools, supply of drinking water to schools, free beds in hospitals on government land, road safety etc. were beyond the powers of the judiciary and pertained exclusively to the executive or legislative domain. He goes on to say, "If the legislature or the executive are not functioning properly, it is for the people to correct the defects by exercising their franchise properly in the next elections and voting for candidates who will fulfil their expectations". According to this precept, if the court is confronted with a situtation that the police watch people being raped and murdered in broad daylight without acting, the court should express helplessness and ask the petitioner to vote to change the government in the next election.

Justice Katju proceeds in the same vein in his latest order while dismissing the petition of Common Cause which sought directions on road safety like separate lanes for non motorized traffic, speed governors for commercial vehicles etc. These directions were sought on the basis of expert reports of the Central Road Research Institute and the IIT Delhi which had pointed out that more than 80,000 lives and Rs. 32,000 Crores were being lost annually due to avoidable road accidents. When he questioned the maintainability of this petition, he was informed that this precise issue had been settled by a larger bench of the court in MC Mehta's case in the following terms: "It is obvious that it is primarily for the executive to devise suitable measures and provide the machinery for rigid enforcement of those measures to curb this menace. However, the inaction in this behalf of the executive in spite of the fact that this writ petition is pending since 1985 and the menace continues to grow in perpetuation to this hazard to public safety, it has become necessary for this court to also issue certain directions". Yet the judge ignores this larger bench judgement binding on him by saying that this has been overruled by a larger 7 judge bench judgement (P Ramachandra Rao). Amazingly, this 7 judge bench judgement not only does not say anything whatsoever about MC Mehta's judgement on road safety or the principles laid down about the entertainablity of such petitions, it expressly says that "The larger question of the powers of this court to pass orders and issue directions in public interest or in social action litigations, specially by reference to Article 32, 141 142 and 144 of the Constitution is not the subject matter of the reference before us and this judgment should not be read as an interpretation of those articles of the Constitution and laying down, defining or limiting the scope of the powers exercisable by this Court". Yet he cites this judgement to say that it overrules and specific and binding judgment on road safety.

Despite the fact that specific directions like separate lanes for non motorized traffic (recommended by the government's expert institute) were being sought, Justice Katju says, "The concern of the petitioner is that many people die in road accidents. But many people also die due to murders. Should the court issue a general directive that murders should not be committed in the country?" ! He ends his judgement with a flourish: "Unfortunately, the truth is that many PILs are being entertained by many courts as a routine and the result is that the dockets of most of the superior courts are flooded with PILs, most of which are frivoulous or for which the judiciary has no remedy. As stated in Thaware's case, public interest litigation has nowadays largely become `publicity interest litigation', `private interest litigation', `politics interest litigation', or the latest trend, `paisa interest litigation'. Much of the PIL is really blackmail".

On what basis does the judge make such sweeping statements, which are clearly not true. He should surely be aware, having been the Chief Justice of the Delhi High Court, that PILs are heard by only 1 or 2 of the more than 20 benches of the High Court and that too only on 1 day in a week. Yet he says that Court's dockets are flooded by PILs. And what percentage of PILs have been found to be filed in private or political interest or for blackmail? Not even a miniscule percentage. It is true that many half-baked or misconceived PILs are filed. But they can be and usually are dismissed by the courts at the first hearing. Is it proper for a judge of the Supreme Court to use his office to defame an important tool crafted by the courts in public interest, and against the settled law? Unfortunately, such pronouncements have created a great deal of confusion about PILs in the High Courts. Hopefully, some of it will be cleared when a larger bench frames some guidelines for PILs and defines the boundaries of judicial activism.