EVALUATING THE NEED FOR PIL

Kapila Hingorani*

There has recently been a series of varying observations by different judges of the Supreme Court on the scope of judicial activism, the latest one questioning the benefit of p ublic i nterest l itigation (PIL), a name originally given to remedial cases that were filed by concerned members of the Bar to protect human rights of such disadvantaged section of society that lacked access to the courts. It is rather surprising, and indeed dismaying, that there could be doubt in the Apex Court about the benefit of PIL which is an imperative necessity if the Supreme Court is to fulfil its role contemplated by the Constitution to which its judges take oath when they are sworn in.

The Supreme Court, in its Full Bench decision in Romesh Thapar's case (1950) and its Constitution Bench decision in Kochunni's case (1959) and several other cases, has consistently maintained that it is a constitutional obligation of the Supreme Court to enforce the fundamental rights guaranteed in Part III of the Constitution, and that it is not open to the Apex Court to refuse to intervene in a matter where the violation of a fundamental right is brought to its notice, even if there exists an alternative remedy. PIL allows any member of the public to bring the violation of a fundamental right to the notice of the Court on behalf of persons under a disability to move the Court.

On the question of desirability of PIL, let me start by examining a few of the PIL actions brought before the Court by my husband and me.

Hussainara Khatoon's case (1979), the first PIL in India , had shocking revelation of the state of prisons in Patna and Muzaffarpur in Bihar which the then member of the National Police Commission, Shri K.F. Rustamji, visited on one of his tours. There were undertrial prisoners who were in jail for periods longer than if they had been charged, tried, convicted of the offences and given maximum punishment; women were in prisons not because they had committed any crime but because they were needed to give evidence in cases in which there was a charge against them. Children, leprosy patients, mental patients were there for years and had no one to bail them out.

Can it be said that the Supreme Court should not have intervened in such a severe violation of liberty guaranteed to every person under Article 21 of the Constitution? Was not the release of estimated 40,000 prisoners in different jails in the country by the Supreme Court necessitated by the complete breakdown of the criminal justice system in Bihar .

In Dev Raj Khatri's case and Anil Yadav's case (1981), commonly known as Bhagalpur Blinding case in which 33 persons in police custody were blinded by the police using needles and acid, should the Supreme Court have been a helpless spectator ? Acharya Kriplani, who was 94 at that time, had then said “If you can shed tears, you must…I have become mad ever since I learnt of the incidents. I cannot imagine such a thing happening in the land of Gandhi and Nehru.” The Supreme Court itself, in its judgments seething with anger and anguish, declared that the case would “shock the conscience of mankind”, and described the police action as “a crime against the very essence of humanity”.

Again, when it was brought to the notice of the Apex Court that a person called Rudul Sah (1983) was in jail for 14 years after his acquittal merely because the concerned authority had failed to issue release orders, was the Supreme Court not justified in construing its powers to grant monetary compensation to Rudul Sah for the flagrant violation of his human rights by the State? As a matter of fact, this was the first ever case where the Apex Court granted monetary compensation to the victim.

Constitutional law in this country developed as a result of the landmark judgments delivered by the Apex Court in these and many other PIL cases. PIL not only brought in substantive due process in India, its impact in human terms stands unparalleled in the world. Millions of people have benefited from the court action, often with justice being delivered at their doorstep, be they be bonded labour, mentally ill patients, leprosy afflicted persons, battered women and so on so forth. In 1982, a petition which was filed on the basis of a UNDP report stating that due to lack of iodine in diet, about 60 million people are suffering from goitre and another 300 million are potential victims, resulted in the Apex Court fluorosis caused by their being forced to drink red-coloured pungent contaminated water in the absence of potable water.

One does appreciate the concern of some judges of the Supreme Court that the judiciary should not encroach upon the areas meant for the legislature and executive. Such encroachment could arise in other kind of cases where the Court intervenes at the instance of any member of the public to protect diffuse rights like environment protection, corruption, crimination of politics or simply to enforce rule of law. The categorisation of such cases as PIL matters, which could well have been litigated under the adversarial common law system along with its checks and balances on the judge, stems from an erroneous interpretation by the Supreme Court of the purpose of PIL in S.P. Gupta case (1981). In these categories of cases, the dividing line of legitimate judicial intervention and judicial overreach is, indeed, a fine one. Parliament and the executive are justifiably agitated whenever the judiciary crosses that line. In fact, the sharp edge of PIL has been blunted due to such actions, not filed to protect the fundamental rights of the disadvantaged section of society lacking access to Court, but for the benefit of general public as a whole.

It is, perhaps, time to confine the remedial jurisprudence of PIL to only those matters filed by any member of the public bona fide to protect the fundamental rights of the disadvantaged sections of society which lack access to the courts. It is equally important to lay down clear norms of PIL. These norms can be crystallised with reference to, and in opposition with, common law litigation (say, representative action under Order 1, Rule 8 Code of Civil Procedure). PIL is distinct from representative action inasmuch as:

• it requires the court to transcend the traditional function of adjudication to provide remedies for social wrongs affecting the fundamental rights of the disadvantaged sections of society.

• it lacks a lis or dispute.

• it can be maintained only if the petitioner has no personal stake in the matter but is a member of the public acting pro bono on behalf of those lacking access to the court to protect their fundamental rights.

• it enables the judge to play an active role and even develop issues not directly raised in the original action.

• it requires the court to evolve new means to realise the end of protecting fundamental rights, which could include impinging on policy issues or “legislating” in the absence of a law but only to the extent necessary for the protection of fundamental rights.

• it enables the court to take action on basis of newspaper reports or letters or to act suo moto.

• it releases the petitioner from the burden of proving facts – it is the court which, through the mechanism of commissions, investigates into the accuracy of the facts pleaded.

• it entails flexibility of procedural law and non-application of doctrines like res judicata or laches.

• it can be filed only in the Supreme Court or the High Court under Articles 32 and 226 of the Constitution respectively inasmuch as the constitutional provisions do not prohibit these Courts from assuming such role.

If these distinctive features of PIL, which are by no means exhaustive, are kept in mind by the judges and lawyers, there would be no occasion for any one to criticize the Supreme Court or the High Courts for judicial overreach.

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* The writer is an Advocate, Supreme Court of India .