The Tribune , March 11, 2007
The common man is finally having his say, thanks to Public Interest Litigation. Be it to ensure good governance, seek redressal of human rights violations or poor availability of goods and services, PIL has become a handy tool for citizens. Maneesh Chhibber looks at this face of judicial activism
Every year, thousands of Public Interest Litigation (PIL) petitions are filed in various courts across the country. A majority of these relate to the environment, civic issues and corruption. The impact of PILs on the quality of life of the citizens of the country and related issues has been huge.
A former Chief Justice of India, Mr Justice B.N. Kirpal, once famously said, “Ordinary people have a feeling that PIL is the pill for all that is wrong with our country.” He was not far off the mark.
Consider this: when the Kapurthala municipal authorities did not remove illegal structures on a congested road in one of the localities, residents of the locality filed a PIL in the Punjab and Haryana High Court. Within days, even before the high court could pass any order, the encroachments had been removed.
When relatives of an SSP, with active connivance of the local municipal and law enforcing agencies, tried to construct a shopping complex in an area earmarked a housing zone in Patiala, irate residents moved the high court and got the construction stalled.
Whenever instances of violation of human rights, especially by the so-called khap panchayats, have taken place in Haryana, socially conscious lawyers have moved the high court to ensure protection of the rights of socially and financially weaker sections.
At the national level, Delhi is a much cleaner city, almost free of industrial and vehicular pollution, due to the efforts of just one man: Supreme Court lawyer M.C. Mehta.
It was after his efforts, including numerous PILs, that the government was forced to shift over 90,000 polluting industrial units out of the Capital. One of the architectural marvels of the world, the Taj Mahal, has almost been spared the effects of pollution and acid rains caused by Mathura Refinery, iron foundries, glass and other chemical industries due to another PIL by Mr Mehta.
PIL has now come to become an integral part of India’s judicial system. So much so that speaking at Panjab University a few days ago, Senior Supreme Court lawyer and Constitutional expert Soli Sorabjee observed that PIL and judicial activism are two sides of the same coin. He went on to add that PIL had come to stay and become a handy tool for millions of common citizens reeling under poor governance.
Notes Punjab and Haryana High Court lawyer Raman Walia, “The PIL, whenever put to use without ulterior motives, has delivered results. Whenever ordinary people can’t get a slack government to mitigate their problems, they take recourse to filing PILs. The success of the PIL is inversely proportional to the poor quality of governance in the country.”
The Supreme Court has on more than one occasion held that the PIL is meant for enforcement of fundamental and other legal rights of the people who are poor, weak, ignorant of the legal redressal system or otherwise in a disadvantageous position, due to their social or economic background.
However, the apex court has also said that such litigation should be initiated only for the redressal of a public injury, enforcement of a public duty or for vindicating interest of public nature. “It is necessary that the petition is not filed for personal gain or private motive or for other extraneous consideration and is filed bona fide in public interest.”
Talking about the PILs being filed in the country these days, Punjab and Haryana High Court lawyer Anupam Gupta, who has remained amicus curiae (friend of the court) in various matters of public importance, says, “For a proper PIL and an enlightened exercise of the PIL jurisdiction, a Brandeis brief is a must. Named after Justice Louis Brandeis, such a brief would be an extensively researched and documented brief in contrast to the very sketchy petitions filed in India, generally based on newspaper reports.”
According to the Supreme Court, matters of public interest include bonded labour, neglected children, exploitation of casual labourers and non-payment of wages to them (except in individual cases), harassment or torture of persons belonging to Scheduled Castes, Scheduled Tribes and Economically Backward Classes, either by co-villagers or by the police, environmental pollution, disturbance of ecological balance, drugs, food adulteration, maintenance of heritage and culture, antiques, forests and wildlife, problems of riot victims, etc.
The apex court has also ruled that ordinary letters received by post can be treated as writ petitions if so directed by the Judge nominated for this purpose.
The Supreme Court, through its successive judgments, has also relaxed the strict rule of locus standi applicable to private litigation.
However, it is not just the ordinary citizens who are using the PIL to good effect. Renowned journalist and human rights activist Kuldip Nayar has filed a PIL in the Supreme Court challenging the Rajya Sabha elections in West Bengal, Gujarat and Goa on the plea that the same be held only after his earlier PIL, this one challenging the amendments to the Representation of People Act (RPA) doing away with the mandatory domicile condition for contestants to the Upper House, is decided.
In another case, a former Congress MP has sought an independent inquiry into the alleged spending of Rs 250 crore by successive governments to probe the Rs 64-crore Bofors pay-off case, which fell flat in the court due to lack of evidence.
Says Punjab and Haryana High Court lawyer and human rights activist Ranjan Lakhanpal, “The PIL is a wonderful tool to ensure that the people at the helm don’t act irregularly or illegally. Those opposed to the PIL culture must understand that nobody wants to approach the court unless there are strong reasons. If those with the decision-making power do what is expected of them without favour or neglect of certain sections of society, the number of PILs will go down automatically.”
However, not all are elated over the growing culture of the PIL. Prime Minister Manmohan Singh is one of them.
Last year, speaking at the Chief Ministers and Chief Justices conference, Mr Manmohan Singh had said that there was a growing perception that the “PIL had become a tool in the hands of the judiciary for harassment”.
However, the previous Chief Justice of India, Mr Justice Y.K. Sabharwal, in his address at the same conference, had expressed the opposite view. While conceding that the PIL should not become publicity interest litigation, the CJI had said, “PILs have done a great service in the protection of human rights, protection of environment, forest wealth, illegal mining, etc. The PIL should be handled with great care and caution keeping in view the parameters laid down by the Supreme Court in various cases.”
Experts say that till the time the Indian bureaucracy and ministers, including those in the states, act strictly in accordance with the Constitution, carry out development in an equitable manner and take adequate care of various environment, human rights and civic issues, PILs will continue to be filed and action ordered.
In Public Interest
The concept of public interest litigation (PIL) is by now well established in the Indian judicial system. Indian politics these days revolves around political interest or vote-bank interest, with the result that the courts have to discharge their role as protectors of the Constitution or that of public intere
st. The only difficulty is regarding the scope of the PILs. Despite a number of judgements on the issue by the courts, the scope of the PIL is eluding an exact definition. I have never gone by the “copy-book definition” of the PIL. I am of the opinion that if my heart sheds tears on a particular issue, it is surely a subject matter of a PIL, be it the problem of prostitution, female foeticide, begging, scavenging, corruption or delayed decisions by the judiciary.
The PILs have played a very effective role in reducing pollution in New Delhi and elsewhere. They have been instrumental in detecting big scandals. The PIL gets a bad name when under its garb, people try to settle scores and target their rivals or opponents, or file cases for the sake of publicity though alternative forums for redressal of the grievance are available.
I have not so far come across a single instance where a court frowns upon the PILs, although the courts sometimes deal with the PILs with circumspection on account of their misuse by vested interests. The judicial system is already over-burdened and is on the verge of a collapse. I believe that the PILs are not meant to get personal rewards; they should be aimed at serving suffering humanity. That is the reason why I include a residuary prayer clause in all my PILs to the effect that “any other relief to which the petitioner my be found entitled, except the costs of the writ petition, may kindly be granted, in the interest of justice.”
I filed 67 PILs with the National Human Rights Commission (NHRC) and 14 with the National Commission for Women on health of female child, scavenging, female foeticide, rape laws, prostitution, community toilets for the poor, transplantation of human organs etc. The NHRC declined to go through all these cases, except one (relating to problem of aneamia in girl students, where a letter was sent by the NHRC to the government to look into the suggestion, and the matter ended there).
The NCW did not acknowledge any of my petitions. So, I had to look up to the high court, which has always shown a serious interest in such issues.
Taj Mahal case: When it was pointed out in a PIL that the Taj Mahal, one of the wonders of the world, was facing a serious threat from pollution caused by Mathura Refinery, iron foundries, glass and other chemical industries, the Supreme Court banned use of coal and coke and directed the units in the vicinity of the Taj to switch over to Compressed Natural Gas (CNG).
In another matter, the Supreme Court intervened to stop an ill-conceived plan to construct a commercial complex near the Taj, which would have destroyed the beauty of the monument.
Ganga Pollution Case: The Apex Court ordered steps to check pollution of the Ganga. Apart from hundreds of industries, more than 250 towns and cities were asked to put sewage treatment plants. Also, over 600 tanneries operating in highly congested residential area of Kolkata were relocated.
Relocation Of Polluting Units in Delhi: A large number of hazardous industries had become a serious health hazard and posed danger to the life and health to a large population living in Delhi. Despite their ban, these industries continued to operate in Delhi in violation of the Master Plan and Environmental laws. Following a PIL, the SC ordered the closure of major polluting and hazardous industries.
Vehicular Pollution Case: The Supreme Court, in 1992, set up a committee under a retired SC Judge to recommend measures for the nationwide control of vehicular pollution. It ordered providing lead-free petrol in the country and use of natural gas and other fuels to control pollution.
Child Labour Case: Taking up the issue of exploitation of child labour in Sivakasi (Tamil Nadu) match and fireworks factories, lakhs of children working in hazardous industries across the country were identified and ordered to the properly rehabilitated.
Environmental Awareness and Education Case: The SC made it mandatory for cinema halls across the country to exhibit two slides free of cost on environment during each show. TV channels also asked to provide free airtime for programmes on environment. Environment made a compulsory subject up to Class XII and the University Grants Commission ordered to introduce this subject in higher classes.
Sports Quota DSP selection case: Kin of powerful people in Punjab selected as DSPs in Punjab Police removed after it was established that their selection was illegal and arbitrary.
Forest Hill Resort case: An exclusive resort and golf club in Punjab ordered to be demolished after it was established that its owners had thrown all forest and other laws to the winds to construct the same.
Chandigarh Law Institute case: When two sons of a sitting Punjab and Haryana High Court and some other influential persons were allotted land worth over Rs 150 crore at a throwaway price for setting up a law institute by the Chandigarh Administration, a PIL got the decision overturned. The allotment was cancelled.
Construction in and around Shimla: Haphazard construction in and around Shimla and other important towns of Himachal Pradesh, which was damaging the ecology, were banned by the Himachal Pradesh High Court following a PIL.