Article on PIL 05.02.2014

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A new jurisprudence called Public Interest Litigation (PIL), as Justice Chandra Shekhara Dharmadhikari, one of the well respected Judges of the Bombay High Court, has said, is an offspring of the exasperation of the Supreme Court of the great ignominy it suffered as the superior judicial institution of the democratic India by upholding in the Fundamental Rights Case (ADM Jabalpur v. Sivakant Shukla, AIR 1976 SC 1207) that in the garb of Emergency the executive can even take away or remove from the statute book the very fundamental right to life. ADM Jabalpur, a Five-Judge Constitution Bench of the Supreme Court, barring the brave Justice H.R. Khanna, towed the governmental line and held that during Emergency right to life can be suspended. The Supreme Court, I must say with utmost respect, in an overkill to refurbish its image, for even during the British era and till the Emergency, judiciary was by and large respected for its impartiality, objectiveness, high intellectual and moral abilities, expounded a new jurisdiction called PIL. We, fortunately, at that time had statesmen jurists like Justice Krishna Iyer who are not apolitical Judges, but knew the pulse of the people and the deficiencies of the judicial system otherwise impeccable when it is to meet the requirements of the poorest of the poor strata of the society, who expanded the jurisdiction of Articles 32 and 226 of the Constitution, relaxing the concept of locus standi, right to sue, in other words.

PIL in the 1980s at its inception only meant dilution of the concept of locus standi where a bonded labourer or a blinded prisoner or a slum dweller, who cannot access the superior Courts out of poverty, ignorance, deprivation etc., could be represented by a person acting pro bono publico. In other words, it meant opening up of the doors of the superior Courts under Articles 32 and 226 to such disabled and poor people. It did not mean the Supreme Court or the High Courts substituting themselves for the executive and the legislature or enacting laws, framing or enforcing policies, and that too with the Bench and the lawyer representing the PIL Petitioner and the Government lawyer on the opposite, and none else. PIL was not intended to be a representative suit as provided in Order 1 Rule 8(2) of the Civil Procedure Code. If it is a representative suit, then all parties affected are to be arraigned as Defendants. A representative suit, a concept long in existence right from the 12th Century, always has an essential component of the common law and is distinct from a PIL where a Court intervenes at the behest of a slum dweller or a bonded labourer or a blinded prisoner. In the latter, a person acting pro bona publico is only representing the under-privileged, helpless and the illiterate who cannot represent himself. In simple words the concept of locus standi is relaxed, namely, if Mrs. X is an illiterate, emaciated slum dweller, she could be represented by, say, a social activists, a lawyer, a journalist acting on her behest purely on humanitarian grounds, pro bono publico.

The British Parliament, after enacting the Government of India Act of 1858 for the better governance of India left to the Governor General in Council to enact the Code of Civil Procedure, 1859, the predecessor of the Civil Procedure Code, 1908. The Code of 1859 and Order 1 Rule 8(2) of the CPC of 1908 mandate that where a suit is instituted in a representative capacity, as is the case of what is called PIL today, notice of its institution should be given to all persons interested either by personal service or, where it is not possible, by public advertisement. Rules of the various High Courts and the Supreme Court governing PIL are required to be emergently amended so as to incorporate the principle contained in Order 1 Rule 8 CPC, namely, that no matter of public interest could be decided without notice to the public at large.

A humanitarian and benevolent jurisdiction, which PIL is, established at the hands of legendary Justices Bhagwati, Chandrachud, Krishna Iyer et al, in due course of time, came to be a system where the Court could act as a substitute of the executive and the legislature and act as if it is the executive and the legislature. Since the executive and the legislature remained in their sorriest of state, embroiling in corruption and inefficiency, stepping of the higher judiciary into the domains of the executive and the legislature and wearing the robes of the executive, legislature and judiciary, all in one, was widely welcomed because the judiciary in all the three roles in one acting as a night errant and punishing and tormenting the executive and the legislature was welcomed by all. For instance, the 2G and Coal scams. The new jurisprudence, nay, a misnomer of a jurisprudence, of Court monitored probe meant exponential corruption to be exposed and even powerful political leaders, Union Ministers, and MPs being convicted and sent to jail. Ours being a country at the top of the ladder in terms of pollution of air, water and environment and the executive having completely failed to prevent destruction and exploitation of forests and often a party to that, the trespass into the domain of the executive and the legislature by the Supreme Court in T.N. Godavarman Thirumalpad v. Union of India & Ors., (2002) 10 SCC 606, constitution of a Central Empowered Committee, etc., are welcomed by the public at large. The Supreme Court, called as a messiah, even received international recognition, though not without its reservation. What the Central Empowered Committee meant and what are its shoddy deals I do not intend to elaborate, to keep this article brief.

There, however, exists another side of the coin, a horrible one, one which made Justice Krishna Iyer to call the order dated 7th May, 1997 in Writ Petition (PIL) No.305 of 1995 passed by a Division Bench of the Bombay High Court in a PIL by Bombay Environmental Action Group (BEAG) as judicial terrorism. Four lakhs of poor slum dwellers in the precincts of Sanjay Gandhi National Park were, to quote Krishna Iyer’s words, “the whole families, helpless, homeless, jobless, piteously jammed into huts and pits are flung furiously out of little tenements and petty roofs by the might of the armed State with Judicial Generals ‘ drest in a little brief authority.” The BEAG, Janhit Manch and certain other self-appointed procurators of public interest, received ready welcome at the hands of Judges appointed since 1994 in a system where Judges appoint themselves and sons, nay, kith and kin of Judges of the Supreme Court and High Courts, sitting and retired, could be appointed to the august office of Judges of higher Courts at a young age of even 40, not seen or experienced the pain, agony and hunger of the poor slum dwellers of Mumbai living in dirt and filth, and directed that post 1st January, 1995 slums should not be regularized, water and electricity connections to their shanties be disconnected and a Committee was set up with the Chief Secretary, DGP et al as members to report compliance. Hundreds, if not thousands, of slums were demolished and even today such ordeal continues.

What prompted me to write these few lines is the recent judgment at the hands of three saintly Judges of the Supreme Court, Hon’ble S/Shri Justices R.M. Lodha, Madan B. Lokur and Kurian Joseph, setting aside the judgment of the Bombay High Court in a PIL by BEAG, which is nothing but “ravenous wolf in sheep’s clothing”, which order was secured without notice to a single person out of the five lakhs affected families living purportedly in flats and tenements constructed on “forest land”. The Bench headed by the then Chief Justice of the Bombay High Court Shri Swatanter Kumar, who currently heads the Green Tribunal and now known for certain controversies totally unrelated to the Green Tribunal, did not consider that a PIL can only be for the benefit of the slum dwellers, the bonded labourers, the blinded prisoner and the like, who, out of their poverty, illiteracy and helplessness, cannot on their own approach the superior Courts and not a means to hold homes of five lakhs of families as illegal, they being on purported forest land, without notice and without hearing them; so too the poor slum dwellers. A time has come to put an end to the abuse in the name of PIL and seek abolition of the said jurisdiction. If BEAG or Janhit Manch, nay, even Shanti Bhushan and his Centre for Public Interest Litigation was to conduct a proceeding which is representative in nature, they should follow the principle of audi alteram partem, which requires notice to the public at large.