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Bitter PIL

Reforming representative litigation is welcome, but it must take place through improved theory, not improvised rhetoric

Last week, the Supreme Court dismissed a public interest litigation petition asking the court to order political parties to file their income-tax returns (Association of Democratic Reforms). This dismissal might seem innocuous, but it’s a radical change in attitude: for the past three decades, courts have used PILs as tools of governance rather than of dispute resolution. The power that India’s judiciary has acquired through PILs has invited much criticism — Lok Sabha Speaker Somnath Chatterjee has referred to judicial activism as both “undemocratic” and “unconstitutional”. Even some judges are introspecting. In Aravali (2007), Supreme Court Justice Katju observed that “courts have apparently, if not clearly, strayed into the executive domain or in matters of policy”. He went on to brand certain decisions of lower courts as “clearly illegal, for judges cannot legislate”. In Common Cause (2008), Justice Katju dealt explicitly with PILs, noting that it “has become something so strange and bizarre that those who had created it probably would be shocked to know what it has become”. There have been passionate reactions to Justice Katju’s statements, and the Supreme Court is currently examining the issue of PIL regulation. Does this recent judicial self-discipline mark the end of PIL activism? Is this the beginning of PIL reform?

The Supreme Court’s attempts at PIL reform is best characterised by two cases. In T.N. Godavarman (2006) and Kushum Lata (2006), the court held that frivolous PIL petitioners, who are against public interest, must pay monetary damages. But what exactly do the terms “frivolous” and “public interest” mean? T.N. Godavarman held that the test for a valid PIL simply required the petitioner to have acted in good faith. In Kushum Lata, however, the test was more stringent: the petitioner must act in good faith and have “sufficient interest” in the case. This is not new: the “sufficient interest” requirement was adopted in the founding PIL cases. But it has been diluted over time, with the court highlighting the right of “every citizen” and any “member of the public acting bona fide” to approach it. That said, the emphasis on monetary penalties to tackle frivolous PIL petitions is a noteworthy development. Yet, the “sufficient interest” requirement, which mandates that the petitioner be genuinely concerned about the case, is problematic, since the court has not yet defined how much of an interest is “sufficient”. Last week’s case, rejected for want of “public interest”, similarly failed to demystify this.

There is another crucial issue that still needs clarity: who can file a PIL? Is appropriate representation simply to be assumed? The “sufficient interest” test has muddled concerns of frivolous petitions and appropriate representation. While the “frivolity” pertains to the subject matter of the petition, “appropriate representation” is the ability of the petitioner to represent the public interest. A petitioner may be appropriately placed to file a petition, but the petition may yet be frivolous. Similarly, a petitioner may bring a genuine case before the court, but could lack appropriate representation. In Common Cause, the court held that it did not have the authority to provide the sought relief; that is, the case was not a valid PIL and thus frivolous. Hence, the “appropriateness” of the petitioner was irrelevant. Kushum Lata, alternatively, was not a frivolous petition. The petitioner’s contention was rejected because she had a private interest in the matter; the court would have, arguably, acted differently had a different petitioner approached it. While the Supreme Court employs the terms “bona fide” and “sufficient interest” with respect to frivolous petitions, they actually relate to appropriate representation and have no relationship with the subject-matter of the suit. For instance, in the Narmada dam case, the apex court initially refused to accept the petitioner as a representative of the tribal people affected by the dam. But this refusal was not because the dam affects the rights of tribals. Drawing this distinction will allow courts to respond to two independent concerns —- frivolous petitions and appropriate representation — in a disaggregated fashion.

PILs do have their share of problems. Reforming representative litigation is to be welcomed, but it must take place through improved theory, not improvised rhetoric. The Supreme Court has failed to differentiate between frivolous petitions and appropriate representation. What we are seeing today is not a calibrated instance of judicial reform, but rhetoric on judicial limitations. Last week’s decision is a continuation of this trend.

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The writer is a researcher at the Commission on Centre-State Relations, Delhi

express@expressindia.com

First published on: 18-11-2008 at 11:25:16 pm
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