Judiciary must act

Increase in PILs

By Dr S. Saraswathi
(Former Director, ICSSR, New Delhi)

Replying to the debate on the Arbitration and Conciliation (Amendment) Act, 2021 passed by the Lok Sabha, Union Law Minister Ravi Shankar Prasad urged the judiciary to exercise its discretion in accepting public interest litigation (PIL). He said that there was a rush to file PILs on almost every issue these days and appealed to the judiciary to accept only “genuine” issues. Obviously, the courts are to decide what is a genuine issue.
Hardly a day before, the Supreme Court agreed to hear a PIL seeking to decriminalise begging which is an offence in many States under the Prevention of Begging Act. Already, the Delhi High Court had annulled the law that criminalised begging in 2008 and had stated that the government was bound to provide a decent life to its citizens and imprisoning beggars begging for bare survival amounted to adding insult to injury. Indeed, a proper use of PIL in public interest and a sympathetic response from the court on a genuine issue. And so, PILs have a bright and a dark side depending on its use.
Rapid growth in the number of PILs filed and heard in courts is a noteworthy development in the Indian judicial history. It is just 45 years old system born in the judiciary and not any legislative body. It quickly earned reputation as a friend of the poor and the weak to get justice, but has recently come under severe criticism for rampant use for anything and everything. The judiciary, once fascinated to deal with PILs as a new area of jurisprudence, different from normal civil and criminal disputes, and requiring abilities to handle with human and social welfare ideals in mind is now almost forced to look into the use and misuse of this legal instrument. Already, the judiciary is heavily burdened with the problem of clearing enormous number of pending cases and under-trial prisoners. It cannot be expected to be happy with reckless use of PILs like street-level protests for anything, though some very eminent judges were behind the creation of PIL for good reasons.
More than a decade ago, in 2008, Prime Minister Manmohan Singh expressed concern over growing tendency to misuse PIL with reference to a dispute between two private parties over business interests.
There are both big achievements and some drawbacks arising from PILs. Among achievements in terms of public good, social welfare, and removal of serious social problems and disabilities, mention must be made of Vishaka versus State of Rajasthan relating to sexual harassment at workplace which led to the famous Vishaka judgement. This litigation established gender equality as a fundamental right, respect and safety of women at workplace as the verdict firmly places right to life and right to live a dignified life for women as core principles in gender relations. This case helped to identify and define sexual harassment in detail.
However, the credit for one of the earliest and significant cases under PIL was about extremely bad prison conditions in Bihar jails which resulted in the release of 40,000 inmates. A PIL against tanneries in Kanpur for polluting the River Ganga with untreated sewage water was considered very important for its environmental concerns resulting in a number of orders to many industries in the area against pollution in the late 1980s. Environmental interests often clash with industrial and commercial interests and need the help of voluntary organisations, activists, and common citizens to protect genuine public interests against encroachment by financially powerful groups.
Another case considered to be among the topmost in important PILs really catered to the care of helpless accident victims by giving a ruling in a PIL that doctors have a professional obligation to extend their services to protect life. Duty to act in times of crisis to save a life is put as top priority for doctors and also to policemen and other citizens.
Such examples are many which prove that India has an advanced system of jurisprudence by giving up the principle of locus standi which is followed in many western countries including the USA that only persons with personal stake in the concerned issue can file a petition.
The greatest benefit from PILs is in enhancing the accountability of the Executive to the people. Former Prime Minister Vajpayee vehemently opposed the move by United Front government in 1997 to do away with PILs or restrict its scope. He described it as an innovation necessary to make the Executive perform its duties and the Legislature discharge its responsibilities.
The term Public Interest Litigation is taken from American jurisprudence where it was used to provide legal representation to previously unrepresented groups like the poor, racial minorities, unorganised consumers, activists in environmental issues, etc. In the modern sense, its use expanded during Civil Rights Movement and Vietnam War in 1960s.
PIL refers to litigation undertaken to protect and secure public interest. It was introduced by Justice Bhagwati in 1976 to counter “state repression, governmental lawlessness, administrative deviance, and exploitation of disadvantaged groups and denial of their rights and entitlements to them”. It brought in new judicial procedures such as obtaining views of experts and investigating facts by a court appointed committee.
Matters entertained under PIL include bonded labour, neglected children, non-payment of wages, atrocities on women, pollution, food adulteration, maintenance of heritage and culture, harassment in jails, and such issues that affect groups of people who cannot seek justice by themselves and issues of interest to the entire nation or population. Courts can also take cognizance of issues suo moto.
PIL’s role in improving the lives of disadvantaged groups is experienced in many countries of Latin America, Asia, Africa, Middle East, and Eastern Europe. It can provoke legislative and executive action in public interest and encourage civil society to spread awareness about human rights, and participate in decision-making. It can contribute to good governance provided the issues raised are “genuine”.
Frivolous complaints clothed as PIL haunted the judiciary from very early days despite imposition of fine on the petitioner. Rapid decline of the system due to excessive use for partisan ends is what is worrying the judiciary today. Politically motivated PILs and artificially created issues based on fake news and false propaganda cannot be ruled out.
Himachal Pradesh high court in December last was constrained to observe that the “attractive brand name of PIL can’t be used for suspicious products of mischief”. It stated that “the time has come to weed out the petitions”, which though titled as PIL were “in essence something else.” It expressed shock over the number of PILs filed in the “garb of public interest”.
Apart from these, concerns relating to separation of powers and judicial capacity to cope with growing number of cases, misuse of the instrument to divert attention from real issues by political and other forces have complicated proper assessment of the system and its efficacy.
The judiciary, which sponsored PIL, must guard against its misuse. It should exercise utmost care in allowing PILs so as to safeguard this instrument for public welfare. It must act and act now. — INFA