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Why the Solicitor General Is Wrong to Call for PILs to Be Scrapped

Tushar Mehta’s remarks calling public interest litigations “self-employment generating petitions” sound like a complete and summary rejection of the concept and reek of contempt.

 

One of the Indian government’s senior-most legal officers, solicitor general Tushar Mehta said in the Supreme Court on April 3, 2020, that “’professional PIL shops’ must be locked down.” This has created some concern in the country whether PILs (public interest litigations) are indeed “detrimental to the entire country”.

The solicitor general did not limit his comments to the “professional PIL shops” but also went on to comment on the petitioners and reportedly said, “none of the petitioners have even bothered to serve the poor and needy or the persons suffering from the virus and, therefore, can never be treated as ‘public spirited citizens’.” He also expressed concern that the precious time of government officers was being wasted in “preparing replies to frivolous PILs”.

The same stance was repeated before the Supreme Court on April 15 when the solicitor general said, “These are self-employment generating petitions. This court should not entertain such petitions. I have serious reservations regarding the kind of petitions that are landing before the court during these times.”

The origin of PILs

It may be worthwhile to recount briefly how the concept of PILs came to Indian jurisprudence. It started in 1979 with a lawyer by the name Pushpa Kapila Hingorani who filed a habeas corpus petition on behalf of undertrial prisoners in Bihar in the Supreme Court. The case came before a bench headed by Justice P.N. Bhagwati, and came to be known as the Hussainara Khatoon case, 1979, and resulted in the release of all the undertrials in Bihar, and subsequently about 40,000 undertrials all over the country. Kapila Hingorani came to be known as the ‘Mother of Public Interest Litigation’ in India.

However, it was in the S.P. Gupta vs President of India And Ors. Case, in a judgment written by Justice P.N. Bhagwati, and pronounced on December 30, 1981, that the concept of PILs was discussed in detail for the first time. The section of the discussion about PILs covered 11 pages and 12 paragraphs of the 488-pages judgment, and concluded with:

“We would, therefore, hold that any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision. This is absolutely essential for maintaining the rule of law, furthering the cause of justice and accelerating the pace of realisation of the constitutional objective” (Para 22).

The judgment did not overlook frivolous PILs, and quoted a professor of law as saying, “The idle and whimsical plaintiff, a dilettante who litigates for a lark, is a spectre which haunts the legal literature, not the court room”.

Misuse of PILs

Starting with considerable goodwill generated by judgments by Justice P.N. Bhagwati and the redoubtable Justice V.R. Krishna Iyer, in 1979-81, it did not take too long for unscrupulous elements to discover, and start exploiting, the potential of PILs. It was during the period 1981-88 that expressions such as private interest litigation, personal interest litigation came into circulation.

As this phenomenon of misuse of PILs continued to increase, the Supreme Court decided to frame a compilation of guidelines to be followed for entertaining letters/petitions received in the court as Public Interest Litigation, in December 1988. This was subsequently expanded twice, in August 1993 and in August 2003.

The issue of possible misuse of PILs has been discussed in some detail in two Supreme Court judgments: one in 2010 – State of Uttaranchal vs Balwant Singh Chaufal and Others – Civil Appeals Nos. 1134-35 of 2002 decided on January 18, 2010; and the other in 2018 – Tehseen Poonawalla vs Union of India and Anr, Writ Petition (Civil) No. 19 of 2018, and Other Petitions decided on April 19, 2018.

The 2018 Tehseen Poonawalla judgment, written by Justice D.Y. Chandrachud, has a separate section on PIL consisting of four paragraphs. It is significant that the 2018 judgment quotes two paragraphs from the Balwant Singh Chaufal (2010) judgment. This is what that paragraph says:

“161. Unfortunately, of late, it has been noticed that such an important jurisdiction which has been carefully carved out, created and nurtured with great care and caution by the courts, is being blatantly abused by filing some petitions with oblique motives. We think time has come when genuine and bona fide public interest litigation must be encouraged whereas frivolous public interest litigation should be discouraged.” (emphasis added)

“162. In our considered opinion, we have to protect and preserve this important jurisdiction in the larger interest of the people of this country but we must take effective steps to prevent and cure its abuse on the basis of monetary and non- monetary directions by the courts.”(emphasis added)

There is a distinct difference in the tenor between the statements made the solicitor general and in the judgement. While the above paragraph acknowledges that “genuine and bona fide public interest litigation must be encouraged”, the solicitor general’s reference to “professional PIL shop’’ which are “detrimental in the entire country” sounds like a complete and summary rejection of the concept of public interest litigation. Some of his remarks are very close to being contemptuous of the concept, particularly when he refers to them as “self-employment generating petitions”, and makes an unqualified recommendation to the court “This court should not entertain such petitions.” Even the expression “PIL Shops” is derogatory and reeks of contempt.

The stance of the solicitor general appears to be consistent with what his senior, the attorney general, told the Supreme Court in April 2019, during the hearing of another PIL related to electoral bonds. When asked that with the opacity of electoral bonds, voters will not know where political parties get their money from, the attorney general said, “Voters have a right to know what? Voters don’t need to know where the money of political parties comes from”.

Such persistent stands by the highest legal officers of the government give the impression that a concerted effort by the government, through the legal officers, to restrict access to judicial remedies for the common folk is underway. This is in direct contrast to the logic underlying the concept of public interest litigation outlined in the S.P. Gupta case in 1981:

“This question is of immense importance in a country like India where access to justice being restricted by social and economic constraints, it is necessary to democratise judicial remedies, remove technical barriers against easy accessibility to Justice and promote public interest litigation so that the large masses of people belonging to the deprived and exploited sections of humanity may be able to realise and enjoy the socio-economic rights granted to them and these rights may become meaningful for them instead of remaining mere empty hopes.”(emphasis added)

There could be another, more ominous, perspective on this and that has to do with the possible impact of crises on democracy. Steven Livitsky and Daniel Ziblatt in their book, How Democracies Die (2018) say:

“For demagogues hemmed in by constitutional constraints, a crisis represents an opportunity to begin to dismantle the inconvenient and sometimes threatening checks and balances that come with democratic politics.”

One hopes that the top legal officers of the government will realise that throwing the baby out with the bathwater is not a good idea, and even if they persist in trying to do so, the higher judiciary will be sagacious enough to prevent them from doing so.

The article was originally published on The Wire.

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Prof. Jagdeep Chhokar
Prof. Jagdeep S. Chhokar (Founder and Trustee, ADR) has a Ph.D. from Louisiana State University, USA and is a former Director In-charge of Indian Institute of Management, Ahmedabad. He had earlier worked with the Indian Railways as a mechanical engineer and manager for over a decade, and as international marketing manager with a public sector organization for four years. He has also taught at Universities in Australia, France, Japan and the US.
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