“All the rights secured to the citizen under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous judiciary”.-Andrew Jackson
The Chief Justice of India N.V. Ramana while inaugurating the Gujarat high court’s live streaming service on July 17, 2021, said, “People are confident that they will get relief and justice from the judiciary…. they know that when things go wrong, the judiciary will stand by them. This is the faith of the people in the judiciary that made to introduce Public Interest Litigation (PIL) in India. PIL refers to litigation undertaken to secure access to justice for socially and economically disadvantaged citizens. Justice P.N Bhagwati can be designated as the innovator of this new remedy, who had to engage himself with most of the PIL work in his court.
PIL has achieved a place of great importance in our legal system. Public interest litigation case in India was first filed in the year 1976, Mumbai Kamgar Sabha v. M/s. Abdulbhai Faizullabhai and others [1976 (3) SCC 832]. The seed of PIL was sown by Justice Krishna Iyer through this landmark judgement. Soon thereafter, with the efforts of Justice P.N. Bhagwati, the concept of PIL has evolved and developed to a great extent and PIL cases in India have brought social change. In addition to the above, judges are pleased to take suo moto action in matters of larger public interest.
In Fertilizer Corporation Kamgar Union vs. Union of India (AIR1981 SC344), Justice Krishna Iyer prepared a real case for a broad-based application of the principle of locus standi necessary to challenge administrative actions. Justice Krishna Iyer observed: If the tone of public life in the country were sufficiently honest and fair-minded, formal norms to control administration may not be needed. But when “corruption permeates the entire fabric of the government”, legality is the first casualty, for then the State power “is exercised on grounds unrelated to its nominal purposes”.
Some of the prominent cases include:-
Vishaka v. State of Rajasthan; Hussainara Khatoon v. State of Bihar; Bandhua Mukti Morcha v. Union of India and Others; Sunil Batra-II v. Delhi Administration; Sheela Barse v. State of Maharashtra; M. C. Mehta v. Union of India; Bachpan Bachao Andolan v. Union of India ; Khatri v. State of Bihar, etc.
During the dreaded Covid-19 situation, when the governmental machinery proved to be ineffective, it was the judiciary that played a leading role in helping the hapless citizens and combating the pandemic with an iron fist. Reacting to the shortage of oxygen to patients in hospitals, Delhi high court came down heavily on Tushar Mehta, who appeared for the Union government in the matter on the complaint of Max hospital. The bench comprising Justices Vipin Sanghi and Rekha Pillai said, “We cannot see people dying for the lack of Oxygen. The citizen can only fall back on the State and it is your duty to provide. Beg, borrow or steal but you must provide”.
“What were you doing for the past 14 months, though we had one full year?”, Madras high court questioned Centre’s preparedness on Covid-19, on April 29, 21.
A bench comprising Justices Sidhartha Varma and Ajit Kumar of Allahabad high court on May 4, 2021, hearing a suo moto petition, expressing concern about deaths of many people recently due to an Oxygen supply crunch said, ”We are at pain in observing that death of Covid patients just for non-supply of Oxygen to the hospitals is a criminal act and not less than a genocide by those who have been entrusted the task to ensure continuous procurement and supply chain of liquid medical Oxygen.”
The bench of the Supreme Court consisting of Justices D.Y. Chandrachud and M.R. Shah on May 6, 2021, dismissed a plea by the Election Commission of India to restrain media from reporting the observations of the judges that the poll body was singularly responsible for a second wave in the country and that its officials should probably be tried on murder charges for allowing political parties to hold massive rallies without following Covid-19 norms. The court said that “a courtroom is a public space” and the real-time reporting of court proceedings was an extension of the freedom of speech and expression of the press.
In clear disapproval of the way the Centre handled the Covid-19 situation, especially the oxygen shortage crisis in hospitals across the country, the bench of Supreme Court headed by Justice D.Y. Chnadrachud, on May 8, 2021, formed a 12-member National Task Force to streamline Oxygen allocation to different states, review and suggest measures to ensure availability of essential drugs and medicines, and adopt remedial measures to ensure the preparedness of the future emergencies.
The families of Covid-19 victims got relief on June 30, 2021, when Supreme Court rejected the government’s arguments against providing ex-gratia and directed the National Disaster Management Authority to frame guidelines for offering financial help to the families who lost their lives to Covid-19.
Losing its patience with the government, the Supreme Court intervened to rescue the citizens trapped in the quagmire of governmental inaction and sloth. Justice D.Y. Chandrachud raising the suo moto issue firmly asked the government to “Please wake up, smell the coffee and see what is happening across the country.”The three-judge bench was enquiring into the supply of essential medicines, vaccines, and medical Oxygen for pandemic patients. The bench describing the government’s policy for vaccine distribution as “arbitrary and irrational” asked the central government to review afresh its policy covering vaccine purchase and its disproportionate distribution in rural and urban areas, etc.
The Supreme Court has also come forward for the protection of journalists from being charged under the colonial ‘sedition law’. The court restrained the Andhra Pradesh Police from taking coercive action against Member of Parliament K. Raghav Rama Krishna Raju, who had been charged with sedition and two television channels who had televised his speech. The apex court also struck down the sedition charge against Journalist Vinod Dua, quoting the words of an earlier judgement of the court, which said, “Mere strong words used to express disapprobation of the measures of the government with a view to their improvement or alteration by lawful means is not sedition.”
As many as three benches in the Supreme Court have recently underscored the need to review Section 124-A (sedition) in the Indian Penal Code, making it pertinent to examine its relevance today. CJI Ramana first questioned the rationale of law, pointing out that it was framed in colonial times and was used to silence Mahatma Gandhi and Bal Ganga Dhar Tilak and asked, “Is it necessary after 75 years of independence?”
The Supreme Court was faced with a situation on July 8, 2021, when the top court ordered prison authorities of the Central Jail in Agra to release 13 convicts. These convicts had spent 14 to 22 years in jail despite Juvenile Justice Boards giving clear findings that they were not adults when the crimes were committed. It still took four days for the jail authorities to execute the release of the convicts.
Sensing the Kanwar yatra, a potential Covid-19 super-spreader, Uttarkhand’s chief minister Pushkar Singh Dhami, scrapped this year’s Kanwar yatra saying, “For us, peoples’ lives and saving them is of primary concern …. We are sure that God will not be pleased if because of our laxity, lives are lost.” However, on the contrary, Uttar Pradesh chief minister Yogi Adityanath was adamant to hold Kanwar yatra, saying that it was a matter of faith, although his government has recently faced a spate of criticism over the initial poor handling of the second wave of Covid-19.
Yogi ultimately was forced to cancel this year’s Kanwar yatra after Supreme Court’s ultimatum saying ‘call off Kanwar yatra or we will’. The bench consisting of Justices Rohinton F Nariman and B.R. Gavai on July 14, 2021, said that it is a “little disturbed” by the Uttar Pradesh government’s decision to allow the Kanwar yatra despite widespread fears of a third wave of Covid-19. The court on July 16, 2021, ordered, “The Uttar Pradesh government can not go ahead with the Kanwar yatra-100%”.
Although, there are lot many safeguards for the people through PILs and suo moto actions of the courts, but there is also a flip side of such actions, which includes judicial overreach crossing the boundaries of separation of powers. Say for example, in 2016, Justice Swatantra Kumar of National Green Tribunal, not considering the provisions of the Motor Vehicle Act, acting upon a PIL filed by one Vardhaman Kaushik passed an impugned Order to ban all 15-year-old private vehicles and 10-year-old commercial vehicles, which was not based on any established study, imagining that these are the real factors behind pollution. Whereas, the real causal factors of pollution are: Population Explosion, Unchecked Urbanisation, Congestion of Unruly Traffic, Encroachment, Corruption, Urban Industrialisation and Unsatiated Materialism, etc. Additional Solicitor General Pinki Anand argued that it’s the maintenance that matters and not the age of the vehicle. As such, the ban has witnessed not the least reduction in pollution level as the real causal factors have not been addressed.
In another social setback, on September 28, 2018, the Supreme Court bench headed by CJI Dipak Misra, struck down Section 497 of IPC- the law against adultery as unconstitutional, in a PIL filed by an Italy based Indian businessman, Joseph Shine. Demanding gender neutrality, the petitioner had argued that why should only a man (adulterer) and not a woman involved in an adulterous relationship be prosecuted? His contention was that when sexual intercourse takes place with the consent of both man and woman, there is no justification for excluding one party from criminal liability.
Reacting to SC’s impugned judgement, legal luminaries, activists and Army authorities cried hoarse citing, the destruction of the sacred Indian family system. Families are the essential building blocks of civilisation. Adultery, on the contrary, is objectionable on legal, social, moral and religious grounds. The impugned judgement lacks clairvoyance. Its far-reaching consequences are destructive, disastrous, which will result in a frequent number of paternity disputes, inheritance rights, divorces and murders of spouses. “If everybody has sex with everybody else, there is no saying who is the daddy?”
Earlier, the constitutional validity of Section 497 of IPC, had also been challenged in Bombay High Court in 2011, by one Deepak Mirwani, who was facing prosecution for committing adultery with a married woman. Mirwani contended that the right to have physical relations with a consenting party emanates from the ‘Right to Life’.
However, Mirwani’s contentions miserably failed to convince the court. The Division Bench of Justice B.H. Marlapalle and Justice U.D. Salvi came down heavily on the petitioner and said, “If your challenge is accepted, there will be no civil society left.” The bench observed, “In fact, there is a need to amend the proviso in order to bring women also under its purview.”
Major General Nilendra Kumar (Retd.) said, “Any law, changes or policy offer scope for misuse or exploitation. Howsoever designed imaginatively or with care, human ingenuity or an innovative effort would look for ways it can be circumvented, bent or twisted to one’s benefit.
PIL as a concept was devised to promote class action grievances where those at the receiving end felt disadvantaged, neglected or marginalised. During the last few decades, the judiciary has accommodated public-spirited activists and counsels to ameliorate the conditions of those who could not have knocked at the doors of the higher judiciary. Examples can be cited of bonded labour, street children, sex workers, students, pensioners, artists in the circus or those concerned at the state of air to breathe, drinking water, and the like. These are irrefutable instances where but for the positive and constructive role of the judges, sufferers would have probably continued to be tormented endlessly.”
General Kumar further said, “The judges with their long experience and judicial wisdom are not only expected but duty-bound to detect and disallow any efforts to entertain political agenda or personal interest being projected camouflaged in the guise of public interest. Strict action, say by scathing criticism, censure, and exemplary costs are some of the steps that can be usefully resorted to putting those with ulterior motives under check. Explore the feasibility of concerned counsels being suspended from practice for a given period on account of wasting precious court time. Debar them from filing PILs for a specified time. Let such actions be considered worthy to result in a disqualification for designation or elevation. Take care not to throw the baby out with the bathwater.”
Senior Advocate Mahalakshmi Pavani, President, Supreme Court Women Lawyers Association said,
“Justices V.R.Krishna Iyer, P.N. Bhagwati, O. Chinappa Reddy and D.A. Desai laid the foundations of Judicial Activism through a process known as Public Interest Litigation (PIL) in the mid-seventies which has emerged as a powerful mechanism of social change in India. The concept originated and developed in the USA in 1947. PIL is litigation that is intended not for the benefit of one individual but for the benefit of a class or group of persons who are victims of exploitation, oppression, who are denied their constitutional rights but cannot come to court because of their ignorance, poverty and destitution.”
The learned lawyer further said, “I would also like to add that the PIL has deviated to Publicity Interest Litigation, by which petitioners more often than not file frivolous petitions before the Supreme Court or high courts just to stay in the headlines and gain some form of attention. We must remember that the concept of PIL was introduced for a noble purpose. However, sadly we just see a flurry of petitions being filed claiming such utterly absurd and frivolous reliefs, which defeats the very meaning of a PIL.”
Mahalakshmi added, “The introduction of PIL in India was facilitated by the relaxation of procedural rules of ‘locus standi’. In Guruvayur Devaswom Managing Committee v. C.K. Rajan,(2003) 7 SCC 546, the Supreme Court laid down inter- alia the following principles with regard to PIL:
The Court in the exercise of powers under Articles 32 and 226 of the Constitution can entertain a petition filed by any interested person in the welfare of the people who are in a disadvantaged position and thus not in a position to knock the doors of the Court.
When the issues of public importance, enforcement of the fundamental rights of a large number of people vis-à-vis the constitutional duties and functions of the State are raised, the court treats a letter or a telegram as a PIL. In such cases, the court relaxes the procedural laws and also the law relating to pleadings.
Whenever injustice is meted out to a large number of people, the court will not hesitate to step in to invoke Articles 14 and 21 of the Constitution of India as well as the International Conventions on Human Rights which provide for a reasonable and fair trial.
When the Court is prima facie satisfied with violation of any constitutional right of a group of people belonging to the disadvantaged category, it may not allow the State or the Government from raising the question as to the maintainability of the petition.
Although procedural laws apply on PIL cases, the question as to whether the principles of res judicata or principles analogous thereto would apply to depend on the nature of the petition and also facts and circumstances of the case.”
Mahalakshmi further informed, “A Division Bench of the Supreme Court in State of Uttaranchal v. Balwant Singh Chaufal (2010) 3 SCC 402 laid out a set of guidelines with respect to PILs which included encouraging genuine and bonafide PILs and imposing exemplary costs to curb frivolous petitions. Instead of closing down or diluting PILs as a concept, it should be the responsibility of advocates to counsel prospective petitioners of these guidelines. This shall ensure that the PIL is for a genuine cause and not abused for some personal motive or publicity stunt of a petitioner.
When asked whether she thinks that the PIL concept has led to excessive ‘juristic activism’ beyond the doctrine of separation of powers? Mahalakshmi reacted, “I do not agree with the view that the PIL as a concept has led to excessive ‘juristic activism’ beyond the doctrine of separation of powers. We must remember that as a nation, we pride ourselves on our fiercely independent judiciary, which is a hallmark of our constitutional democracy. It is the judiciary that comes to the rescue of an individual against the excesses meted out by the legislative and executive functionaries of the State. There are a number of bonafide PILs in which the Supreme Court has effectively laid down the law with respect to upholding the rights of an individual against interference from the state.
The Hon’ble Supreme Court has always chosen to tread cautiously and has drawn a fine balance to ensure that the judiciary ordinarily does not interfere in matters of policy which is primarily in the domain of the executive unless such policy violates the tenets of the basic structure doctrine of our Constitution. The Executive cries aloud and complains of Judicial overreach only if they find their powers are being trampled, curbed or when they are asked to be transparent or hauled up for accountability, laws are laid down to regulate the eligibility of MPs and MLAs. It is only in these kinds of instances the courts are accused of excessive juristic activism which is really sad. The Court takes a high risk for its failure in political and social matters which are thinly disguised as legal issues, but the respect which it generally commands for its independence and detachment has given its decisions a legitimacy beyond the legality of the question before it. The Court’s power and authority is directly related to the legitimacy it possesses. I can only conclude by saying that the Courts are the guardians and saviour of the Fundamental Rights of its citizens and the Conscience Keeper of its Nation”, concluded Mahalakshmi.
Noted Advocate Yawer Qazalbash said, “In the year 1979 learned Supreme Court judge P.N. Bhagwati ignoring the rule of locus standi, allowed and entertained a petition for protection of constitutional rights of those, who were supposed to be victims but could not come to courts due to various reasons. PIL is a rule of law declared by the Court of records that is why many in the Executive had been criticizing it for a long time and branded it as “Judicial Activism”.
As far as misuse of PIL is concerned, it may be said that many vested interests often found it suitable to achieve their ends. The professional rivals, business tycoons, or even political persons were often found to use or misuse this liberal provision for their benefits. In a recent instance, a former chairman of Waqf Board filed a PIL, praying to delete 26 Ayats (verses) from the Scripture, perhaps for appeasement of his political mentors. The Apex Court not only rejected the PIL but also imposed a heavy fine, holding the PIL to be frivolous.
If the provision is finished altogether through any legislative or other means, it may hamper the constitutional rights of some genuine seekers. Proper guidelines are there to follow, and the general public should depend on the prudence of the higher Judiciary.