Bitter PIL to swallow

NOW:

Justice Markandeya Katju in his judgment in Common Cause vs Union of India and Ors. (2008) said: “PIL which was initially created as a useful judicial tool to help the poor and the weaker sections of the society who could not afford to come to the courts, has in course of time, largely developed into an uncontrollable Frankenstein and a nuisance which is threatening to choke the dockets of superior courts obstructing the hearing of the genuine and regular cases which have been waiting to be taken up for years together.”

These are not just two varying opinions by apex court judges but portray the changing face of PILs, the most useful judicial tool, which, as Justice Katju further said, has now assumed the role of “judicial crutches” used by people with vested interests.

In 2005, Justice Arijit Pasayat said, “PIL is a weapon which is to be used with great care and circumspection.” Or else, it would end up becoming politics interest litigation or “paisa income litigation.”

Evolution of PILs: In the landmark Kesavanad Bharati vs State of Kerala (1973) case, the Supreme Court put brakes on the powers of the legislature to destroy the “basic features” of the Constitution. This was followed by the Supreme Court formulating the “doctrine of basic structure” in 1973—and the seeds of PIL were laid.

It was Justice Krishna Iyer who used the expression “PIL” and “epistolary jurisdiction” in the Fertilizer Corporation Kamgar Union vs UOI (1982) case. In between, the Supreme Court interpreted the expression “procedure established by law”, which led to the testing of any law on the touchstone of Articles 14, 19 and 21 collectively and thus brought the justness and fairness in the State’s dealing with the general public.

While the role of PIL in bringing and maintaining the concept of social justice and equality cannot be discarded or doubted, as former Attorney General Soli Sorbajee said, “While doing so, the judiciary has to tread a cautious path ensuring that while redressing a public grievance, it is not stepping on the domain earmarked for other organs of the State—the executive and the legislature.”

What began as a social-justice tool now runs the fear of being grossly exploited or abused. PILs now require a complete rethink and restructuring as overuse and abuse of PIL can only make it stale and ineffective.

“Since it is an extraordinary remedy available at a cheaper cost to all citizens of the country, it ought not to be used by all litigants as a substitute for ordinary ones or as a means to file frivolous complaints,” summed up advocate Sanjay Parikh, who’s the face behind some effective PILs that resulted in some policy change.

Like Parikh, other legal eagles like Colin Gonsalves, Prashant Bhushan, Aparna Bhat, Kamini Jaiswal, Indira Jaising are names enough to illustrate the positive side of public interest litigations as varied petitions filed in public interest by many of these advocates have shown the way in social justice areas.

Path-breaking PILs

• Smoking held to be violation of Right to Life of non-smokers in Ramakrishnan and others vs State of Kerala case of 1999.

• Uncontrolled pollution of water sources and air by industrial wastes was deemed as a threat to Right to Life in Enviro-Legal Action vs Union of India case (1996).

• When large parts of the country battled droughts in 2001while government godowns overflowed with grain, Right to Food and Right to Work for the drought-affected people was demanded and ultimately determined in the PUCL vs UOI case.

• In the Hussainara Khatoon vs State of Bihar case, acting on a PIL based on a news report highlighting the plight of undertrials languishing in Bihar jails, about 40,000 such prisoners were released. Right to Speedy Trial was recognised as a fundamental right under Article 21 of the Constitution.

• In Bandhua Mukti Morcha vs Union of India (1986) case, the apex court considered the plight of bonded labourers working in stone quarries in Haryana. This led to the identification, release and rehabilitation of bonded labourers.

• In the MC Mehta vs State of Tamil Nadu (1991) case that complained about thousands of children working in factories in Sivakasi, the state was directed to enforce various welfare legislations, including the Factories Act.

• In Visakha vs State of Rajasthan (1997) case, sexual harassment of women was constituted as a violation of gender equality and Right to Equality under Constitution.