Opinion Indira Jaising writes: In Article 370 case, CJI has initiated an important reform in Public Interest Litigations

Over the years, the kind of issues being brought to court in PILs has changed. In the context of issues of contract labour working on the construction of the ASIAD complex, bonded labour, and people paid less than minimum wage changes, the jurisprudence of the public interest litigation was a clear departure from the colonial norms of adversarial litigation. Justice P N Bhagwati articulated the justification as being suited to Indian conditions inasmuch as the adversarial system required “self-identification of injury, and self-selection of remedy”. He argued that given India’s widespread illiteracy and lack of awareness of legal rights, it is just and necessary to permit civil society through its organisations or otherwise to bring petitions on behalf of a constituency of people who are unable to bring cases on their own to the court, or in relation to issues which impact citizens as a whole. We have also seen the development of a jurisprudence that confers legal personality on the environment, rivers and also on animals.

Since then, public interest litigation evolved to represent our interest in the environment, and this seemed logical, for the air we breathe affects us all. Over time, a green bench came to be constituted, which dealt exclusively with the issues of the environment. Many cases too were brought by M C Mehta, a distinguished environmentalist and lawyer who devoted his entire life to the pursuit of sustainable development in his own name.

More recently, organisations have been bringing cases dealing with issues of corruption in public life, and much of today’s PIL revolves around these issues. There have also been cases brought to court by individuals, including the present writer, relating to the administration of justice such as the designation and distinction between senior advocates and junior lawyers, livestreaming of cases, and the provision of the creche in the Supreme Court. A lawyer would have the locus to bring a public interest litigation in relation to the administration of justice.

What prompted the CJI to rename the group of petitions In re: Article 370 of the Constitution was something in the nature of a race to be first past the post in the public interest litigations. The result is that the case comes to be reported in the name of the individual who brings the case to court. The concern of the CJI is genuine since it is the public who is before the court and not the individual who files the petition. More importantly, it is the issue which is before the court and not the petitioner.

Indeed, public interest litigation and the procedure require detailed reform. To begin with, the Court ought to issue a public notice in newspapers inviting concerned citizens to present their point of view once notice is issued on a PIL. The outcome of these critical cases affects us all, including those who are not present before the Court and are not heard. Issuance of a notice will enable concerned citizens, organisations, or experts on the subject to present their points of view before the court so that the judgment reflects a truly participatory process and one that will be acceptable to the community at large. No doubt, this will require very strict time management by the Court, limits on oral arguments and expertly written briefs to be filed in advance. Hearing time would then be distributed amongst counsel during the course of oral arguments.

In addition, the Court must encourage amicus briefs from organisations that have a track record of having worked on the issues, and domain experts such as those who have consistently worked on issues such as human rights inside and outside the courts, academics and activists who have been tirelessly working on issues of public interest.

The courts have made it clear that public interest litigation is in the nature of non-adversarial litigation. This implies that governments and their counsel have a different approach to PILs, independent of the government that they represent. It is often forgotten that law officers of governments are not government servants but are officers of the court (as are all lawyers) and are supposed to advise the government to not become their mouthpieces.

One must recognise that the jurisprudence of the Indian courts has shown genius in liberalising the rules of locus standi in public interest. Nevertheless, if we are to get the results that we desire from these petitions, certain discipline has to be shown in the intellectual inputs that go into drafting and filing these petitions. It is unfortunate that nakedly political issues pass in the name of public interest litigation. Given the polarisation of Indian society that one has seen under the present regime, we are likely to see more and more petitions seeking to achieve a political aim through the courtroom. The danger is further compounded by the politicisation of the organisation of bar associations and bar councils which have sometimes issued statements in support of ruling parties, forgetting that their mandate is to be independent of the executive or the judiciary. Judges require neither praise nor condemnation for their views, but academic criticism of their judgements is welcome.

The CJI in renaming the petitions as In re: Article 370 of the Constitution has made a leap forward in maintaining the constitutional sanctity of the PILs and this must become the norm. Finally, it must be said that this is not a plea to limit the scope of PIL but rather to encourage it. If there is no reform of PIL, there is a real danger that judges will shut the doors of PIL. After all, they are the gatekeepers of access to justice. To begin with, petitioners must be treated with respect. Once notice is issued, there should be no draconian discouraging orders such as imposing costs on petitioners. This has had a chilling effect on bona fide petitioners and organisations from raising issues of violations of fundamental rights for us all.

The writer is a senior advocate and former Additional Solicitor General of India