Author Name:   Arvind Lakhawat Advocate

Good governance is the sine qua non of any State, particularly a democratic polity that would have three organs of government, namely, executive, legislative and judiciary.

Public Interest Litigation

Abstract
Good governance is the sine qua non of any State, particularly a democratic polity that would have three organs of government, namely, executive, legislative and judiciary. These three organs constitute as it were three pillars of the good and effective governance with the judiciary functioning as the watchdog for maintenance of the Constitutional balance as the powers and responsibilities of the various machineries of state, vis-à-vis one another, and the people.

An individual who does it out of concern for public interest initiates it. But after having initiated it, once the Court admits a matter, it no longer remains the concern only of the person who has initiated it.
For example, Sheela Barse, a journalist, had initiated a PIL on behalf of the children who were languishing in remand homes. The respondents were the State governments who prolonged the litigation by not filing their affidavits in time. Sheela Barse had to rush from her home in Bombay to Delhi to attend the Supreme Court every time a date was fixed for a hearing. Exasperated with the willful delay caused by the State Governments, which was not adequately checked by the Court, when threatened to withdraw the petition. Although her frustration was understandable, the court could not allow her to withdraw the petition. Even if she withdrew from the matter, the Court could continue to examine the contentions made by her in the petition and deliver the orders. Although a person may be accorded standing to bring a public interest matter in Court, such a person cannot withdraw proceedings on the ground that she was disassociating herself from that matter. Justice Venkatachaliah (as he then was) speaking for himself and Ranganath Misra J (as he then was) observed that:
If we acknowledge any such stands of a dominos lit is to a person who brings a public interest litigation, we will render the proceedings in public interest litigation vulnerable to and susceptible of a new dimension which might, in conceivable cases, be used by persons for personal ends resulting in prejudice to the public weal.

Constraints n Public Interest Litigation

Although the courts have been liberal in conceding locus standi to public- spirited citizens to espouse petitions involving public interest, such public interest litigation has got to be constrained by considerations of feasibility as well as propriety. The constraints of feasibility restrain the courts from over admitting matters, which might go beyond its resources to deal with. The consideration of propriety persuades the courts from not undertaking issues, which are better, dealt with by the other co-ordinate organs of the government such as the legislature or the executive.

It’s Area of Operation

While this may be true, as far as popular perception is concerned, the truth, in a deeply vital sense, is that if certain infringement of law, injury to public interest, public loss due to official apathy, inaction or manipulation or dereliction of duty as ordained by the authoritative rules or statutes—which are co relatable to public interest, being offensive to or destructive of it, will all fall within the PIL jurisdiction and judgment given in such cases, in view of their impact and end-result or even visibility in forms of reduction or elimination of the “original sin” are often categorized as pronouncements belonging to the area of the “ judicial activism”. Some of the areas where so- termed judicial activism, emanating from PIL, has been in evidence cover subjects like environment pollution, social ills like dowry death/bride burning, bonding labour, child labour, custodial death police torture (Bhagalpur blinding case) and other forms of atrocities on prisoners/jail inmates, non-payment on the part of Ministers/Prime Ministers for private use of public (Air force) air crafts, public compensations, dereliction or abnegation of essential statutory duties by public Institutions/corporations or official bodies. There have been cases where other individual fundamental rights as enshrined in Part III of the Constitution have formed part of PIL as they had under public repercussions. Such PIL cases may be taken directly to Supreme Court where constitutional infringement is involved private, i.e., individual rights included. They can also be taken up in High Courts.

It’s Rationale
Usually, the courts take cognizance of a case when the person affected makes complaint. This is the question of locus standi, that is, whether a person not involved or affected in any case has any legal justification or ground to take up someone else’s case in the constitution on others behalf. The courts were reluctant to accept or admit such cases. But in the early 80s (or may be a little earlier), the Supreme Court made a relaxation of this principle and started accepting genuine and appropriate cases even through complainant was someone different from the person affected. Of course, the admissions done only after a very strict scrutiny of the points involved, the motive or motivation of the complainant and the purpose, which the case, if decided, would serve. It is only after a full satisfaction of the court that such a case is accepted as a PIL.
There are many reasons, which dictate the rationale for PIL.

In a country like ours, where:
1) Poverty is abysmal.
2) Illiteracy is acute.
3) Society is case ridden.
4) Backwardness is widespread,
5) Fear of the high and might is deep
6) Three M’s (money, muscles and mind) have a sway
7) Communications system is poor,
8) Judicial process is cumbersome and costly, and
9) Justice is denied through delay.

It is idle to except that poor, illiterate, disprivileged, weak and vulnerable sections of society, utterly ignorant of the law and the processes of law would come out openly against the abuses of their personal or group rights (al bit legally bestowed), fighting the very people who are often treated, in remote interiors of the country, as Mai-baap (because they are rich, high caste, powerful and brutal). Fighting the government can never cross the mind of majority of our people as being possible, feasible, desirable or profitable.

The only way such a situation can be tackled is if some public-spirited men take up cudgels on their behalf and bring up before law courts cases of law infringement or non-implementation on statutory provisions affecting adversely people or public. The alternative is that the courts suo moto take up some such cases either on the basis of reports, communications or other verifiable evidences. As of now, the courts are well disposed towards this form or course of litigation. They do not or would not reject such a course outright but would take cognizance, even if ultimately they way as well dispose of them or discuss them on good and sufficient grounds.
PIL, thus, represents the arguments of both liberals and conservations upholding the soul and sprit of justice through following on initiatory procedure not traditionally preferred or favoured. The former Chief Justice of India, P.N. Bhagwati, sitting with Justice O.A. Desai in 1982 described the diatribe against PIL as:
The criticism is based on a highly elitist approach and proceeds from a blind obsession with the rites and rituals sanctified by an out-moded Anglo-Saxom jurisprudence.

This aroused the judicial conscience of others. Justice fazal Ali, sitting with Justice S. S. Venkataramiah in the same year referred to the whole gamut of PLIL and the courts’ jurisdiction to a five Judges Bench- sensing the importance and relevance of the new reality.

Infect, one of the questions formulated was:
Can a stranger to a cause- be he a journalist, social worker, advocate or an association of such persons initiate action before the court in matters alleged to be involving public interest or should a petition have some interest in common with others whose rights are infringed by some governmental action or inaction in order to establish the locus stand to make such a complaint?

Now, it is no longer in doubt. Even a post card received from a far away place from an unknown man can e treated ass a petition (so goes the report) if it contains valid points worthy of being taken cognizance by the Court. Time have changed, approaches have changed and so have the Courts’ systems – though they are still bogged down in perhaps avoidable rituals which make for delay, add to cost and dilute justice at times. The gradual erosion in principles and values in public life since Nehru and Shastri era in India have brought into sharp focus the constitutional mandate and Supreme Court of India, arousing public interest in the on-going debate over the intentions behind Constitutional provision. It was being widely felt and publicly perceived that the declining values, lack of access to social justice and judicial system, States’ arbitrariness, corrupt practices, attack on rights, grossly deviant social and economic activities, and murder of moral mores cannot make India an honest, progressive and a prosperous society.

Conclusion
No less a person than the former Chief Justice of India, A.M Ahmadi, had once described the Supreme Court as the world’s powerful court because of its wide-ranging, vast jurisdiction. Apart from its original, appellate, civil criminal and advisory jurisdictions, it has the power to entertain petitions even from ordinary people who otherwise cannot approach it due to financial and a host of other constraints. In the Fertilizer Corporation Manager Union v. Union of India case, the eminent jurist V.R. Krishna Iyer, the initiator of this innovative process of PIL, described law as “ a social auditor and this audit function can be put into action only when someone with real public interest ignites the jurisdiction of the Court”.

In the same vein, the former Chief Justice P.N Bhagwati, picking up the thread from where Iyer left it, propounded in S.P. Gupta’s case, “the court has to innovate new methods and devise new strategies for the purpose of providing access to justice to large masses of people who are denied their basic human rights, the only way in which this can be done is by entertaining writ petitions and even letters from public spirited citizens seeking judicial redress on behalf of those who have suffered a legal wrong or an injury”. At last, the problem of providing justice to millions of helpless and hapless men got recognition PIL fast became one of the most effective and powerful instruments of justice for protecting the weak, the deprived the prosecuted be they women in protective custody, children in juvenile institutions under trial prisoners in jails, unorganized workman, landless labourers, slum and pavement dwellers or people belonging to schedule castes/scheduled tribes. It is the PIL which exposed the brutality of Bhagalpur blinding, merciless exploitation of bonded labour, river (Jamuna) pollution through industrial effluents, environmental degradation, health hazard issues, education capitation rackets and so on.

Not remaining confined to righting the wrongs alone, judicial activism has made its presence felt by entering areas traditionally believed to be in the domains of legislature and executive. For instance, the apex judiciary can ask for the records based on which the president and the Governors may have reached their ‘subjective satisfaction’ with regard to, say, failure of constitutional machinery in a state. This, in effect, means that such decisions can be challenged on various grounds like malafides, extraneous considerations, and unreasonableness. Governance, a clear executive function, is now a good subject of judicial activism.

Similarly, justice Kuldeep Singh’s directive to the union government for in acting a uniform civil code, one of the unenforceable directive principles of State Policy (Part IV of the constitution) is another example of excessive judicial zeal.

Again, certain other constitutional provisions, such as the pleasure of the president contained in articles 310, 311 and 312 of the constitution, as well as section 18 of Army Act, which deal with civil services and armed forces respectively, have been brought under judicial control through the ‘creative interpretation’ of articles 14 and 19 of the constitution. The recent “santusti”case is also a case in point. If only establishes the fact that if the constitution provides for any absolute power, it is judiciary’s own authority of judicial review, to say the least. Though such review attempts cannot be branded as “grossly undemocratic”, critics maintain that the courts, ordained as a judicial body, cannot at the same time be looked to as a “general heaven for reform movements”. It cannot, even so, be gainsaid that the need and desirability of judicial activism have clearly been established on the ground for, more than once,

I. It has brought out skeletons from administration’s cupboard which remained unexposed for years and would have otherwise remained so for years on end;

II. It has shown that those in authority abuse and misuse power without compunction for noxious purposes and hide them from public gaze;

III. All that glitters in the legislative and executive world is not gold. Arbitrariness, greed, corruption, Reports, patronage, the notorious ‘in-law and out-law’ syndrome, ‘private-gain-at public expense’ considerations, malafide motive and many other vilest vices do reign supreme in places and persons who were earlier considered to be ‘paragons of virtue’.

The author can be reached at: prashanti.upadhyaya@legalserviceindia.com

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