The tough stance adopted by a Supreme Court bench, headed by Chief Justice T.S. Thakur, while hearing a public interest litigation (PIL) challenging the allocation of 4G spectrum to Reliance Jio in January, is highly welcome. The PIL had been filed by the Centre for Public Interest Litigation (CPIL), an NGO closely associated with lawyer Prashant Bhushan. Quizzing the manner in which the CPIL took up PILs, the court reportedly voiced its concerns on the NGO becoming a “proxy litigant” and “a front for settling corporate rivalry or personal vendetta”. Bhushan sought to address these concerns by asserting the CPIL had among its founder-members legal luminaries like Fali S. Nariman, and that it had in place a scrutiny mechanism to verify the veracity of each complaint and the public interest involved. However, Nariman denied any role in vetting PILs filed by the CPIL.
These events have once again brought into focus the debate on the proper role of the PIL in the legal system. The first PIL, Hussainara Khatoon vs State of Bihar, was filed in 1979 on the basis of reports highlighting the pitiable conditions of prisoners awaiting trial for long periods. This case led to the immediate release of about 40,000 prisoners and was the first action by public-spirited individuals entertained by the SC to protect the fundamental rights of unrelated disadvantaged and vulnerable sections. Since then, the jurisprudence of the PIL has been developed through the collective efforts of concerned citizens and a responsive judiciary. Today, it constitutes a formidable tool to protect the rights of those lacking access to justice.
Over the years, the scope of the PIL has been expanded to include matters that might well affect the public at large (“diffuse or collective rights”) but don’t necessarily relate to the realisation of human rights of the poor, disabled and marginalised. Such collective rights could ordinarily have been litigated as class action or representative action under the Indian civil procedure code. In fact, PIL is often confused with class action, overlooking the fact that the PIL is founded on constitutional provisions enabling the judiciary to depart from its traditional role of adjudication, along with the concomitant checks and balances. To illustrate, in a PIL, in contrast to a class-action suit, the court may be flexible in its application of procedural law and go beyond the legal issues raised to assume new roles such as that of an ombudsman, a legislator and a monitor. This is because PIL is essentially meant as a remedial jurisprudence for those who can’t approach the court on account of poverty or some other disability.
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Had the scope of the PIL been confined to serve its original purpose, most of the difficulties faced by the court in checking its misuse wouldn’t have arisen. The SC wouldn’t have been concerned with issues, for instance, of whether the CPIL was a perpetual litigant, whether the PILs had been scrutinised, etc. Rather, all that the court would have seen was whether the subject matter of the PIL at hand was one that fit the purpose for which the PIL had been conceived.
Of late, the SC and high courts appear to be mindful of the distinction between PIL for the poor and disabled and PIL relating to diffuse or collective rights, and are more cautious when entertaining the latter. This is certainly a positive trend that will promote judicial restraint, particularly given that, in PIL cases, the court is not subject to the traditional safeguards on judicial role. Reiterating the judiciary’s commitment to reform, Justice T.S. Thakur (as he then was), while delivering the Kapila Hingorani Memorial Lecture 2015, stated that the attention being given by the judiciary to PILs was not reflective of it being too ambitious or of its desire to take over governance but of the necessity of the situation. Similarly, Justice J.S. Khehar, who delivered the 2016 lecture, asserted that the correct standard for taking up any PIL was whether all the stakeholders agreed to the same, thereby emphasising the non-adversarial and collaborative nature of the PIL.
It is, indeed, time that the PIL was reclaimed for its original constituents by limiting it to matters concerning the protection of fundamental rights of the disadvantaged and underprivileged. This would help restore the legitimacy and efficacy not only of the PIL as a means of providing access to justice to the poorest of the poor, but also of the judiciary as an institution.