ARE WE OVER-EXPECTING FROM PILS? A CONTRARIAN VIEW

Pallavi Sharma

In the late seventies, with the nation having gone through political doldrums and suspension of democratic rights during emergency, Public Interest Litigation emerged as a demand, by the people of India on their judiciary for protection of their fundamental rights. The Supreme Court, by allowing concession to the requirement of locus of the petitioner, opened doors of the judiciary to those sections of the society who, because of extreme poverty, illiteracy and ignorance, found the judicial system elitist and unapproachable.

In 2010, the Supreme Court observed that, upon closer scrutiny, three distinct phases appeared to emerge in the trajectory of PILs since the conception of the idea1. Phase I pertained to cases where directions and orders were passed primarily to protect fundamental rights under Article 21 of the marginalized groups and sections of the society who could not approach the Supreme Court or the High Courts2. Phase II dealt with the cases relating to the protection and preservation of the environment, ecology, forests, marine life, wildlife, mountains, rivers and historical monuments3. Phase III saw the emergence of a trend of directions issued by the Courts in maintaining the probity, transparency and integrity in governance4.

However, PILs today are often met with scepticism. Radical critics claim that what once was a pursuit of social reform through judicial intervention is now a shot at fifteen minutes of fame, a clever money-making and pressure tactic or a vent to personal or political vendetta. Frivolous and gimmicky PILs under the guise of `public interest' are criticized for wasting judicial time and increasingly burdening an already over-exerted judiciary5. Those less radical in criticism raise objection to the `appropriateness' of representation6 and argue that there may be a perceptible social, cultural and geographic dissociation between the PIL petitioners and those whose interest they claim to represent. Petitioners, in such cases, may not really have sight of the concerns and interests of the class they claim to represent or those who will be affected the most by such litigation7.

These potential pitfalls take one back to Justice Katju's vociferous criticism of the changing form and shape of the PIL as he dismissed one of the Common Cause Petitions on road safety in 20088 opining that the prayers sought warranted encroachment into the domain of the legislature. He condemned PILs having largely become `publicity interest litigation', `private interest litigation', `politics interest litigation' or `paise income litigation'. He felt that PILs had grown to become an "uncontrollable Frankestein"; a nuisance which was threatening to choke the dockets of the superior courts, obstructing the hearing of the genuine and routine cases. It seems that we have reached a point where it is crucial to take a step back and ask ourselves the crucial question- Will knocking on the court's door with PILs actually lead to a transformative change in the way we function as a society? In this article, I intend to examine this question in 2 parts: Part I discusses in brief the genesis of PILs and touches upon some landmark cases with demonstrable social impact. It also throws light on some recent cases that push the limits of `public interest' and may border on overburdening the judiciary. Part II explores the question of whether the courts are best placed to address all the systemic problems in society that are raised in various PILs. In the course of this essay I intend to briefly touch upon the idea of judicial activism vis a vis the separation of power prescribed by the Constitution. As the paper progresses toward it's conclusion, I attempt to address whether PIL as an instrument of social reform has run its course and what are the limits to our responsibility as civil society.

PILs-Then and Now

Indian judiciary, departing from the requirements of strict procedure of locus standi, acquired a proactive protectionist role in the late 70s by opening doors of Public Interest Litigations. Presided over by Justice P.N.Bhagwati and Justice Krishna Iyer, the first PIL was carried over the Supreme Court's threshold by advocate Pushpa Kapila Hingorani9, bringing to the hon'ble Court's notice the deplorable state of undertrial prisoners languishing in the jails of Bihar. In the landmark ruling - what came to be known as the Hussainara Khatoon case - the bench announced the release of over 40,000 undertrial prisoners in jails10, and commenced the PIL revolution.

The following decade saw evolution of `epistolary jurisdiction' when the Court started treating letters and postcards as writ petitions. Sunil Batra v. Delhi Administration11, an early example of such litigation, was spruned by a letter written by a prisoner about another inmate who was brutally assaulted by the Head Warden. As such, the judiciary slowly became more approachable to the `common man'.

PILs that followed contributed significantly in altering the social justice landscape of the nation. In Olga Tellis v. Bombay Municipal Corporation12, the Apex Court expanded the ambit of Right to Life under Article 21 to include the Right to Livelihood. Further, the concerned civic authority was directed to relocate pavement dwellers in Bombay to accommodations within a reasonable distance of their pavement sites. In the case of D.K.Basu v. Union of India13, the Apex Court prescribed guidelines to be followed by police officers when making arrests, upholding the right to dignity of the arrestee, which continues to be relevant to this day. Similarly, the directions given in Parmanand Katara v. Union of India14 diluted the procedural formalities under criminal law that were to be complied with by hospitals and medical professionals when dealing with medical emergencies, especially in cases of nearly fatal road accidents. A progressive set of directions by the Supreme Court in Vishakha v State of Rajasthan15where the Court, acknowledging legislative vacuum, laid down guidelines for protection of women from sexual harassment at workplace is another example of judicial activism. The landmark judgment in Nilabati Behra v. State of Orissa16 recognized compensation as a public law remedy for the violation of a fundamental right and compensated the mother of a victim for his custodial death by imputing strict liability on the authorities concerned. In 2009, the Apex Court in University of Kerala v. Council, Principals' Colleges, Kerala and Ors.17 passed detailed and progressive directions to protect students from ragging in educational institutions. As recently as February 2015, it was a PIL that lead to the Supreme Court striking down Section 66A of the Information and Technology Act (that had been notoriously used to curb political dissent on the internet) as vague and unconstitutional in the interest of freedom of speech and expression18.

PILs should also be credited for the development of environmental jurisprudence in the country. Pro-environment decisions in the Taj Trapezium19and Delhi Vehicular Pollution20cases, among others, led to natural gas getting precedence over coal and petroleum in an effort to mitigate environmental damage from emission. Similarly, the landmark decision of the Apex Court in T. N Godavarman Thirumulpad v Union of India21, in the interest of the conservation of forests in the country, proscribed felling of trees and operation of wood-based industries without approval of the concerned authorities.

PILs have also brought to the fore systemic problems of corruption and accountability in governance. In Vineet Narain v. Union of India22, the Supreme Court, cognizant of the rampant corruption and misdoings in the investigation of hawala cases, delineated the structure of the investigating agencies of the country and passed directions in interest of their independence and impartiality. Recently, in the 2G Spectrum 23and Coal Block Allocation24cases,the Apex Court, acknowledging the glaring irregularities and the arbitrary manner of allocation of natural resources by the government, cancelled the licenses and allocations as illegal and ordered auctioning of the resources in a fair and transparent manner.

However, in contrast to the transformative nature of the PILs as discussed above, lately the Courts have also been vexed with a steep rise in the number of frivolous PILs. In fact, the last six months have witnessed a spate of litigation (supposedly in public interest) seeking ban on various movies25, looking for the antecedents of Subhash Chandra Bose26, moving the Court for directions to local authorities, police and temples to not perform `love marriages' of consenting adults without the permission of their parents27 or praying for disclosure of whereabouts of Rahul Gandhi in national interest28! While one has no locus to sit in adjudication over the merits of these cases and the motives of the petitioners, these PILs exhibit a clear departure from the core issues of fundamental rights, protection of common interests of the public in ecology and environment and the issues of accountability and transparency in public administration.

To go to courts or not?

In the very beginning, I touched upon some problems that have eroded the credibility of a once sacrosanct institution of PILs. They included ulterior motives of the petitioners, a concern for whether a claim is genuinely `public' in nature and a lack of appropriate representation of the group that would be affected the most by the orders. While these largely surround the PIL petitioners, there are other concerns such as disregard of the constitutional tenet of separation of power and practical difficulties in implementation of directions that emnate from the judicial treatment of such cases.

Separation of power

Article 142 of the Constitution empowers the Apex Court to pass orders in the interest of `complete justice'. The Court has exercised its inherent power to address the legislative vacuum by way of judicial directions in landmark cases like Vishakha and Vineet Narain. Some critics caution that the Courts, while adjudicating on cases of public interest, tend to exceed their constitutional limits and are pushing `judicial activism' into `judicial excessivism'29. Justice Katju in the Common Cause-road accident case shared this scepticism about the legislative and executive functions exercised by the judiciary. He opined:

"The justification given for judicial activism is that the executive and legislature have failed in performing their functions. Even if this allegation is true, does it justify the judiciary in taking over the functions of the legislature or executive? In our opinion it does not, firstly because that would be in violation of the high constitutional principle of separation of powers between the three organs of the State, and secondly because the judiciary has neither the expertise nor the resources for this. If the legislature or 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 fulfill their expectations, or by other lawful means e.g. peaceful demonstrations and agitations, but the remedy is surely not by the judiciary in taking over the functions of the other organs."

However, one may respectfully differ from the reasoning of the learned Judge and argue that while the democratic process of adult franchise may be employed to address the root cause of discontentment with the regime, judicial intervention may be necessitated to provide a timely or interim relief. Further, offering directives where there are none is not judicial encroachment of legislative function, but rather a stop-gap measure to address the issue until it is taken stock by the legislature. Justice Ranjan Gogoi, in the recent decision of Common Cause v Union of India on large-scale advertisements by political figures at heavy cost to public exchequer30, has endorsed this idea and noted in context of Directive Principles that:

"…In a situation where the field is open and uncovered by any government policy, to guide and control everyday governmental action, surely, in the exercise of jurisdiction under Article 142 of the Constitution, parameters can be laid down by this Court consistent with the objects enumerated by any of the provisions of Part IV. Such an exercise would be naturally time bound i.e. till the Legislature or the Executive, as the case may be, steps in to fulfill its constitutional role and authority by framing an appropriate policy"

Any attempt to demarcate in black and white the playing fields of the legislature and the executive or to prescribe what amounts to legitimate intervention by the court seems to be an exercise in vain31. Practically, in any democratic setup, functional overlap is bound to happen among the pillars of governance and a watertight demarcation of functions is unsustainable. However, this overlap is to be ideally minimised and the functions should interact in a system of mutual checks and balance. It is therefore the responsibility of the court to work within constitutional boundaries and refrain from becoming Paternalistic from Protectionist and engage into what we loosely call `judicial policy making through directives' only in cases of judicial vacuum where circumstances necessitate an immediate judicial intervention.

Implementation

A more realistic criticism surrounding judicial treatment of PILs stems from the real constraints of time, manpower and resources of courts. If the judiciary, through a spate of creative measures such as continuing mandamus, monitoring committees, amicus curiae etc., steps into the shoes of the executive, it might face the same issues related to efficient implementation, transparency and accountability that plagued the executive organs and brought about judicial intervention in the first place.

One has to be mindful of the fact that the judicial setup in the country is ill-equipped to bear the additional burden of other pillars of democracy. With limited infrastructure and a huge case backlog, the courts are incapable of sustainably monitoring compliance with each and every direction passed. More often than not, the alacrity of the judiciary in delivering path-breaking judgments in public interest may not matched by the foot soldiers in the executive, who ultimately shoulder the burden of implementing the given directions. Without adequate support from the executive, well-meaning and well-reasoned directions fail to precipitate any real change in society. For instance, in the case for seeking systemic police reforms filed by Mr. Prakash Singh in association with Common Cause and others, the Apex Court issued extensive directives and constituted a court-monitored committee under former Justice K.T. Thomas in 2008 to monitor their implementation. However, despite continuous monitoring by the Court, not much has been achieved as far as the implementation of the directions is concerned, given the lack of support from States32. A similar fate was met by the detailed directions from the Apex Court in Lakshmi v Union of India33that restricted the open sale of acid to prevent heinous acid attacks. The directions were reduced to merely a subject of academic debate owing to the lack of effective and strict implementation by the authorities concerned. Ironically, another PIL was filed before the Delhi High Court in December 2014 seeking intervention and implementation of the said Supreme Court directions even as these attacks continued unabated34. The High Court, however, dismissed it on the grounds that the Apex Court was apprised of the matter. A failure to follow-through such progressive directions tends to attack the credibility of the judiciary as an institution of reform35.

Implementation is also mired by the fact that most PILs (atleast post Phase I) emanate from claims of economic and social rights. Judicial intervention is useful in cases of violations of civil and political rights, for action can be ordered against an identified violator- individual or State. However, economic and social rights require financially heavy, positive action and not always from an identifiable duty owner. To elucidate, if fundamental rights of prisoners are violated, prison administration can be made culpable and be ordered to address the violation. However, it is difficult to impute liability on any one particular agency or individual for rampant malnutrition in children in the country. Therefore, a court directive order the Government of India to eradicate malnutrition pan India in half a decade is first difficult to implement given budget and policy considerations involved, second difficult to monitor in terms of implementation and third, difficult to hold the government in contempt if malnutrition prevails even after a decade for they may claim that the best they could do was make nutritious food available and it was beyond their reach to compel each and every child to consume it in the required quantities.

This said, one cannot discount the fact that having laws and directions which are not being implemented as they should be is better than not having any at all for they can always be used as a stepping stone to other initiatives for bringing about a social reform.

Conclusion

PILs make judiciary approachable and are the backbone of citizen activism in the country. However, favourable court directions alone are insufficient to precipitate real change in most situations. Those who consider their cause worth being taken to courts should prima facie identify the duty holder, determine what they would be seeking from court and assess carefully how a favourable direction would be implemented to precipitate real social reform. They should do their due-diligence to find if the courts have been seized of the issue in the past and whether directions oriented at addressing it have already been passed. If such is the case and the problem still persist, approaching the courts with another PIL for similar direction may not serve any tangible purpose. Instead, advocacy initiatives can be mounted and public opinion can be mobilized through media to exert pressure on the respondents to implement those orders.

Conscientious citizens and the civil society should also understand that the responsibility of petitioners does not end at procuring favourable directions from the courts. Given the very real limitations of courts to ensure and monitor implementation, this responsibility increases manifold as most court directions and judgments are ignored by administrative and other authorities. The system acknowledges and forgets about the judgment unless constantly scrutinized. Public interest petitioners must shift focus from seeking sanctions and reprimands from the judiciary to holding the legislature and executive democratically accountable, to avoid embarrassment to the court as well as citizen activism. Instead of approaching the judiciary for seeking implementation of directions already passed, Court's intervention can be used to rekindle a rights debate on the issue36 and pressure could be mounted on the executive by stakeholder participation to ensure compliance or give reasons for non-compliance or inordinate delays in implementation. Media could be effectively employed to highlight such issues and periodic informal citizen adalats may be convened to assess and audit the compliance of various progressive directions from the courts.

Therefore, while courts should be judicious of not transgressing constitutional prescriptions, the civil society should start making strict demands on the legislature and executive to step up and bear their responsibilities and minimize knocking the doors of the courts for slap on their wrists for shirking obligations!

I started the article by projecting a question: Whether PIL as the primary tool for social reform has run its course. I venture to answer this as a qualified `yes'. While PILs should not be written off as avenues to seek social change, I believe it is time that the civil society shifts its focus and makes strong demands on the executive and the legislature. PILs evolved in the 70s in response to the social cry for fundamental rights in the regime of an unresponsive executive, too caught up in dealing with political crises. The courts created epistolary jurisdiction to make judiciary approachable to common man. In the following decades of aggressive development and economic expansions, PILs assumed the role of sentinels for environment and sustainable development. In the third and continuing phase, they echoed an informed, democratic society's demand for accountability and transparency, parallel to the evolution and growth of the Right to Information. As opposed to the last four decades, the primary problem is not that of lack of prescriptions on issues of public significance, but their implementation. Courts have time and again attempted to take measures to restrict the flow of Public Interest Litigation37.

While courts should insist on a stricter implementation of such measures to ensure that behind the veil of public interest lurks no private malice, vested interest and/or publicity seeking38, civil society should use PILs sparingly and with circumspection. While litigation itself has limited potential, it could be effectively used as the backdrop for aggressive advocacy39 and shaping public opinion to bring about systemic changes in the society, instead of being considered the pill for every ill40. Instead, democracy should be reinforced in the form of organised pressure on the executive for implementation of the existing laws and legislature for passing new ones, where there is need, in order to achieve transformative social change.

1State of Uttaranchal v.Balwant Singh Chaufal ,Civil Appeal Nos.1134-1135 OF 2002, Judgment delivered on January 18, 2010.

2Ibid.

3Ibid.

4Ibid.

5 As per a report published in 2012, PILs despite constituting just about 1-2% of court 's total workload, were often demanding of time and could span over years; SC Pendency Project: Corp, tax & PIL cases pend longest, December 14,2012, available at http://www.legallyindia.com/201212143323/Bar-Bench-Litigation/the-pendency-project-more-near-delhi-cases-end-in -supreme-court-a-more-for-stats-geeks (Last visited on March 12, 2015).

6 See Madhav Khosla, Bitter PIL, Indian Express, November 18, 2008, available at http://archive.indianexpress.com/news/bitter-pil/386940/ (Last visited on June 2,2015).

7 See generally Marc Galanter, Jayanth K. Krishnan, Bread for the Poor: Access to Justice and the Rights of the Needy in India, Hastings Law Journal 55 (2003): 789, as cited in Public Interest Lawyering Hub, available at http://clpr.org.in/public-interest-lawyering-hub/n (Last visited on March 16, 2015).

8 Common Cause v. UoI and ors ., Writ Petition (civil) 580 of 2003, Judgment dated April 11, 2008. 9 Starting the PIL revolution, January 26,2010, available at http://archive.indianexpress.com/news/starting-the-pil-revolution /571616/0 (Last visited on March 16,2015).

10Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar, (1980) 1 SCC 98.

11Sunil Batra v. Delhi Administration, 1980 SCR (2) 557.

12 (1985) 3 SCC 545.

13AIR 1997 SC 610.

14 1989 SCR (3) 997.

15(1997) 6 SCC 241.

161993 SCR (2) 581.

17CA No. 887/2009, Judgement dated May 8, 2009.

18Shreya Singhal v.Union of India, WP(Cri) 167 of 2012, Judgment dated March 24, 2015.

19M.C. Mehta v. Union of India , WP 13381/1984, Judgment dated December 30, 1996.

20M.C. Mehta v. Union of India , Writ Petition (Civil) No.13029/1985, available at

http://envis.mse.ac.in/problems%20pdf/VEHICULAR%20POLLUTION%20IN%20DELHI.pdf&embedded=true (Last visited on March 28, 2015).

21 AIR 2000 SC 1636.

22 1996 SCC (2) 199.

23Centre for Public Interest Litigation v. Union of India, W.P. (C) 423 of 2010, Judgment dated February 2, 2012.

24Common Cause v. Union of India, WP(C) 463 of 2012, Judgment dated August 24, 2014.

25Delhi dismisses PIL against PK; says religious intolerance has to be nipped in the bud, January 18,2015, available at http://articles.economictimes.indiatimes.com/2015-01-18/news/58200631_1_s-endlaw-chief-justice-g-rohini-film (Last visited on March 17, 2015); Delhi High Court dismisses PIL seeking a ban on the release of `Finding Fanny', available at http://ibnlive.in.com/news/delhi-high-court-dismisses-pil-seeking-a-ban-on-the-release-of-finding-fanny/497825-8-66.html

(Last visited on March16, 2015).

26 SC reprimands lawyer for frivolous PIL on Netaji's disappearance, September 1, 2014, available at http://indianexpress.com/article/india/india-others/sc-reprimands-lawyer-for-frivolous-pil-fines-him-rs-50000/ (Last visited on March 16, 2015). 27 PIL against love marriages without parents' consent dismissed, February 7,2015, available at http://articles.economictimes.indiatimes.com/2015-02-07/news/58902876_1_honour-killings-marriages-consent (Last visited on March 17, 2015).

28 PIL in Delhi High Court on whereabouts of Rahul Gandhi, February 28, 2015, available at

http://articles.economictimes.indiatimes.com/2015-02-28/news/59612842_1_congress-vice-president-rahul-gandhi -whereabouts (Last visited on March 17,2015).

29 See generally Ramesh Thakur, Judicial activism, romanticism & overreach, available at http://www.thehindu.com/todays-paper/tp-opinion/judicial-activism-romanticism-overreach/article1213483.ece (Last visited on June 2, 2015); Somnath Chatterjee, Seperation of Powers and Judicial Activism, Speech delivered on 25 April, 2013 at High Court Sesquicentenary Building, Kolkata, available at http://calcuttahighcourt.nic.in/sesqui/lect_3.pdf&embedded=true

(Last visited on March 16, 2015); T. R. Andhyarujina, Disturbing trends in judicial activism, available at

http://www.thehindu.com/opinion/lead/disturbing-trends-in-judicial-activism/article3731471.ece

(Last visited on March 16, 2015); Ajit Sharma, Inherent powers of the Supreme Court under the Constitution, available at

http://www.ebc-india.com/lawyer/articles/2006_pl_6_2.htm#Note12

(Last visited on March 16, 2015).

30 Writ Petition (Civil) No. 13 of 2003; Judgment delivered on May 13, 2015. 31See for instance Dinesh Narayanan, Do We Need Judicial Activism?, available at

http://forbesindia.com/printcontent/28072 (Last visited on March 16, 2015) where the author has attempted an exercise of examining where the court was legitimate and where it pushed into the domain of the executive while adjudicating over Public Interest Litigations.

32 To realise smart policing, systemic changes are necessary: Prakash Singh, Dcember 18,2014, available at http://www.dnaindia.com/analysis/interview-to-realise-smart-policing-systemic-changes-are-necessary-prakash-singh-2044865 (Last visited on March 22, 2015). Of interest here is Justice Katju 's comment in the Common Cause-road safety case where he points, and rightly so, at the limited achievement of the Vineet Narain's case: "We would be very happy to issue such directives if they could really be implementable. However, the truth is that they are not implementable (for various reasons, particularly lack of financial and other resources and expertise in the matter). For instance, the directives issued by this Court regarding road safety in M.C. Mehta 's case hardly seem to have had any effect because everyday we read in the newspapers or see the news on TV about Blueline buses killing or injuring people. In the Hawala case (Vineet Narain vs. Union of India AIR 1998 SC 889) a valiant effort was made by this Court to check corruption, but has it made even a dent on the rampant corruption prevailing in the country? It is well settled that futile writs should not be issued by the Court."

33 Criminal Writ Petition 129 of 2006, Judgment dated February 6, 2013.

34Jilted doctor friend plotted acid attack in west Delhi, December 26, 2014, available at

http://timesofindia.indiatimes.com/city/delhi/Jilted-doctor-friend-plotted-acid-attack-in-west-Delhi/articleshow/45644106.cms

(Last visited on March 16, 2015).

35 Varun gauri, Fundamental Rights And Public Interest Litigation In India: Overreaching Or Underachieving?, Indian Journal of Law & Economics, Vol. 1, 2010, 33.36Ibid

37 Supreme Court PIL Rules, 2010.

38Dr. B. Singh v. Union of India and Ors . AIR 2001 SCR 1560.

39 Siri Gloppen, Public Interest Litigation, social rights and social policy, Arusha Conference, "New Frontiers of Social Policy"

December 12-15, 2005.

40 Soli Sorabjee as quoted in Chatterjee, supra 21.