By: Nick Robinson
PIL proceedings should be transparent, and should let citizens intervene
In the run up to his retirement last week, Chief Justice of India P. Sathasivam attended to a number of pending cases before him, including a PIL in which his bench ordered the creation of a central committee on road safety to better implement India’s traffic laws. This PIL is like many others that the Supreme Court has issued directions on over the years — a case of national importance that impacts numerous parties across the country. You might think the court should or should not be involved in such “activist” cases, or that in this particular case the court had the right or wrong approach, but before the media reported the court’s orders you likely did not even know that this case existed. In most PILs, the public largely finds out about the case only after the court has given its directions, even though orders in these cases will frequently directly impact many people’s lives.
NGOs, community groups, academics, concerned citizens, and even the media are often blindsided by PILs on issues that they work on which they did not even know were being considered by the court. Even if they are aware that a PIL exists, they frequently do not know what the parties in the PIL are asking the court for or in what direction arguments are progressing.
Contrast this to Parliament, where bills are announced far in advance, there is often an opportunity to comment on them in committee, and one can read the draft bills and parliamentary debates online. In comparison, the PIL is a black box. Unless you are a court insider, you cannot keep track of what PILs are pending and unless you are a party to a case, you cannot even obtain a copy of the filings in the matter. You might know that there is a PIL that the court is hearing on how best to conserve the river valley you call home or which might impact your disabled relative, but you have to rely on scattered media reports or word of mouth to know how the PIL is developing. Even if a potentially interested party wanted to listen in person to arguments in a PIL, they could not necessarily sit in the courtroom because they are not officially a party to the case. Besides, given frequent adjournments and scheduling changes, all but the most committed members of the public are effectively barred from listening to arguments in open court.
It does not have to be this way. A simple first step that could be taken to make the process much more transparent is to have all PIL petitions be accessible to the public (along with the government’s response and all other filings in the case). These could be uploaded on the Supreme Court’s website or, even if they were only available to be photocopied, a concerned public minded organisation could place them online. In the United States, filings to the US Supreme Court are uploaded on the web by the American Bar Association. If there were concerns that some petitions may contain sensitive information — for example, if part of a submission includes interviews with a historically vulnerable community — then only the prayers for relief in the petition would need to be uploaded.
Some activists who use PILs might prefer the current lack of transparency so that they can fly under the radar until they can get the major order from the court they hope for without drawing the scrutiny of potential opponents. However, activists on the other side of an issue can use the same tactic. Plus, activists often have a difficult time ensuring that their lawyer accurately represents their position. More transparency would allow them to better monitor their lawyer’s behaviour. It would also allow all interested parties to be given notice that there is a PIL that may affect them and allow them an opportunity to intervene if they so choose, enriching the adjudicatory process and the court’s final orders.
The arguments made in written briefs are traditionally less developed in the Indian legal context, and this can be particularly true of PILs, where petitioners are often heavily under-resourced. As a result, oral argument takes on even greater importance in these cases. Yet, while oral argument is recorded at the trial court level, no transcript is recorded or released when hearing the PIL, although the outcomes of these cases may impact millions of people. Making such transcripts available to the public would allow potentially interested parties to better understand the type of evidence and arguments the court weighs when it comes to decisions that may affect their lives as well.
Once the court has made public the filings and transcripts of arguments in a PIL, it should move on to doing the same for the other types of matters before it. For example, the public also clearly has an interest in having access to the filings and transcripts of larger constitution benches of the Supreme Court, which sit relatively rarely these days and frequently decide on major questions of constitutional law, such as the constitutionality of laws or policies concerning reservations or the death penalty.
While transparency is not always good (for example, too much transparency can paralyse some decision-making processes) the current system of hearing cases at the Supreme Court, particularly for PILs, is far too opaque and susceptible to capture by lawyers and cloistered interests. The Supreme Court is often at the forefront of bringing more accountability to Indian democracy. It should take the lead in its own courtrooms to increase transparency through at least a few small steps to open up the PIL to the public, and then follow suit in its work more broadly.
The writer is a fellow at Harvard Law School’s programme on the legal profession and a visiting fellow at the Centre for Policy Research, New Delhi