|Activist judiciary: a pro bono fiduciary vis-a-vis operation public interest litigation.|
The Supreme Court building in New Delhi
THE praxis of public interest litigation (PIL) has in its democratic dimension a people-oriented philosophy. To disown its legitimacy will amount to jurisprudential barbarity. It is just and fair to jettison pretended PIL processes but unjust to forbid the jurisdictional innovation on the pretext of abuse when really aggrieved persons with a pro bono “standing” in the generous sweep of locus standi parameters come to the High Court or the Supreme Court. Remedial directives against constitutional violations and arbitrary action by the executive, or rulings that go beyond constitutional limitations, or an alleged breach of fancied privileges by the legislature cannot be dismissed in limine. No plea of Montesquieuan autonomy can choke judicial review: that will amount to constitutional apostasy.
Nor, of course, can the “robed brethren” on the Bench invade the constitutional space preserved for the other two branches of the Republic.
It may be wise to look back at two cases that perhaps illumine the propositions of PIL jurisprudence and the healthy jurisdictional limitations in such matters. In Fertilizer Corporation (1981 1 SCC 568), sitting on a Bench of the Supreme Court I made the following observations:
“In the Municipal Council, Ratlam, a Bench of this Court observed: [SCC pp. 168 & 174: SCC (Cri) pp. 934-35 & 945, paras 1 & 24]: ‘It is procedural rules, as this appeal proves, ‘which infuse life into substantive rights, which activate them to make them effective’… The truth is that a few profound issues of processual jurisprudence of great strategic significance to our legal system face us and we must zero in on them as they involve problems of access to justice for the people beyond the blinkered rules of “standing” of British-Indian vintage. If the centre of gravity of justice is to shift, as the preamble to the Constitution mandates, from the traditional individualism of locus standi to the community orientation of public interest litigation, these issues must be considered. In that sense, the case before us between the Ratlam Municipality and the citizens of a ward, is a pathfinder in the field of people’s involvement in the justicing process, sans which as Professor Sikes points… the system may ‘crumble under the burden of its own insensitivity’…’
“Our judicial system has been aptly described as follows: ‘Admirable though it may be, [it] is at once slow and costly. It is a finished product of great beauty, but entails an immense sacrifice of time, money and talent. This ‘beautiful’ system is frequently a luxury; it tends to give a high quality of justice only when, for one reason or another, parties can surmount the substantial barriers which it erects to most people and to many types of claims’.”
My observations in the case continued thus: “If a citizen is no more than a wayfarer or officious intervener without any interest or concern beyond what belongs to any one of the 660 million people of this country, the door of the court will not be ajar for him. But, if he belongs to an organisation which has special interest in the subject matter, if he has some concern deeper than that of a busybody, he cannot be told off at the gates, although whether the issue raised by him is justiciable may still remain to be considered. I, therefore, take the view that the present petition would clearly have been permissible under Article 226.”
Further I observed: “The democratisation of judicial remedies which is the thrust of our separate opinion, induces us to conclude with a quote: ‘It was the boast of Augustus that he found Rome of brick and left it of marble. But how much nobler will be sovereign’s boast when he shall have it to say that he found law dear and left it cheap; found it a sealed book and left it a living letter; found it the patrimony of the rich and left it the inheritance of the poor; found it the two-edged sword of craft and oppression and left it the staff of honesty and the shield of innocence’.”
In a recent case, the Supreme Court of India observed thus:
“Public interest litigation which has now come to occupy an important field in the administration of law should not be ‘publicity interest litigation’ or ‘private interest litigation’ or ‘politics interest litigation’ or the latest trend ‘paise income litigation’. The High Court has found that the case at hand belongs to the last category. If not properly regulated and abuse averted, it becomes also a tool in unscrupulous hands to release vendetta and wreak vengeance, as well. There must be real and genuine public interest involved in the litigation and not merely an adventure of knight errand borne out of wishful thinking. It cannot also be invoked by a person or a body of persons to further his or their personal causes or satisfy his or their personal grudge and enmity. Courts of justice should not be allowed to be polluted by unscrupulous litigants by resorting to the extraordinary jurisdiction. A person acting bona fide and having sufficient interest in the proceeding of public interest litigation will alone have a locus standi and can approach the court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration. A writ petitioner who comes to the court for relief in public interest must come not only with clean hands like any other writ petitioner but also with a clean heart, clean mind and clean objective.
“For the last few years, inflow of public interest litigation has increased manifold. Considerable judicial time is spent in dealing with such cases. A person acting bona fide alone can approach the court in public interest. Such a remedy is not open to an unscrupulous person who acts, in fact, for someone else. The liberal rule of locus standi exercised in favour of bona fide public interest litigants has immensely helped the cause of justice. Such litigants have been instrumental in drawing attention of this Court and High Courts in matters of utmost importance and in securing orders and directions for many underprivileged such as pavement-dwellers, bonded labour, prisoners’ conditions, children, sexual harassment of girls and women, cases of communal riots, innocent killings, torture, long custody in prison without trial or in the matters of environment, illegal stone quarries, illegal mining, pollution of air and water, clean fuel, hazardous and polluting industries or preservation of forest as in T.N. Godavarman Thirumulpad v. Union of India. While this Court has laid down a chain of notable decisions with all emphasis at their command about the importance and significance of this newly developed doctrine of PIL, it has also hastened to sound a red alert and a note of severe warning that courts should not allow their process to be abused by a mere busybody or a meddlesome interloper or wayfarer or officious intervener without any interest or concern except for personal gain or private profit or other oblique consideration.” (see Janata Dal v. H.S. Chowdhary.)
In short, while public interest litigation cannot run riot with aberrant objectives and oblique motivations, the just access of public spirited people to the court as a salvationary functionary with rare power but as a sentinel on the qui vive ever on its guard cannot be extinguished out of obdurate obscurantism. Neither can such access be allowed to suffocate on grounds that may have been sound in the feudal days but obsolete under current conditions of mafia menace, socio-economic pollution and authoritarian ukases.
In such cases, the court does not invade or usurp but judiciously reviews constitutional violations to defend the fundamentals of good government and human rights. It will be peevish and obnoxious to criticise the performance by the judiciary of its constitutional obligation. Reactionary precedents must be overruled. John Whicher F. wrote in “Originality, Cartography and Copyright” (38 NYU Law Rev. 280, 299 (1963): “It is fair to insist that judicial responsibility includes the task of exposing bad precedents. Judges are, or should be, their brothers’ keepers.”
The Supreme Court of India has been democratised into the Supreme Court for Indians. Those who disagree with this thesis, whether they are on the Bench or off the Bench, breach their oath and are out of tune with the ethos of the Constitution. As the Bible posits: “Ye are the salt of the earth; but if the salt have lost his savour, wherewith shall it be salted?”
Justice (retired) V.R. Krishna Iyer is a former Judge of the Supreme Court.