Understanding The Law Governing PILs In Light Of The Petition Challenging The Presidential Order Concerning J&K

The year 2018 shall go down as a monumental year in the history of the Supreme Court of India. The Court through its judgments granted women the right to enter the Sabarimala temple, struck down the discriminatory provision of adultery, agreed to live stream its proceedings etc. The doors of the Court were knocked by common citizens in the above matter, using the mechanism of a Public Interest Litigation Petition ('PIL'), a tool that allows any citizen of India to approach the Supreme Court/High Court for redressal of public rights.

Recently when the central government amended the Constitution with regards to Jammu and Kashmir, a PIL challenging it was filed before the Supreme Court ('SC'). The Hon'ble Chief Justice pulled up the petitioner for filing a shoddy petition and remarked that he is only entertaining it, since it concerns an important matter. The entertainment of the Petition by the Court despite the errors raises questions on whether the same complied with the law on PIL. I aim to address the same in the present post.

I shall begin the post by first discussing the concept of PILs in India, including their origin and evolution. This shall be followed up by discussing the test of admissibility of PILs in a Court. The post shall be concluded by discussing the maintainability of the petition challenging the presidential order.

[Through this post, I do not wish to comment on the merits of the matter, which is sub-judice i.e. pending before the Court.]

A. Origins of PIL and Evolution:

For a party to institute a case, she/he should have the locus standi or standing (a party's right to make a legal claim or seek enforcement of a duty) to approach the Court. Article 32/226 of the Constitution of India vests in every citizen the standing to approach the SC/High Court ('HC') for violation of her/his fundamental rights.

During the initial years post adoption of the Constitution, the Courts interpreted the above law on standing strictly and allowed a person to bring a case only when her/his right was directly violated. For instance, a plea by the shareholders of a company alleging violation of the right to property of the company was not allowed, since the direct right of the company and not the shareholder was violated [Chiranjit Lal v. Union of India, A.I.R. 1951 S.C. 41]. Similarly, a plea by a group challenging the medium of instruction in a University was not allowed since the petitioners were not students and hence, not directly affected [GC College Silchar v. Gauhati University, A.I.R. 1973 S.C. 761].

The strict interpretation changed to a liberal interpretation post 1970s, due to the judgments rendered by Justice Bhagwati and Justice Krishna Iyer. Justice Bhagwati in S.P. Gupta v. Union of India [A.I.R. 1982 S.C. 149] opined that the strict individual approach to judicial redressal arose in an era where private law dominated the legal scene and public law was not born. However, that ceased to be the case. He laid down the rule that in cases where a person who suffered a legal injury cannot approach the Courts by reason of poverty, helplessness or disability or a socially or economically disadvantaged position, any member of the public can maintain an action on her/his behalf. Such petitions were called Public Interest Litigation Petitions.

Justice Bhagwati in an interview explained his idea behind devising the tool of PILs. He said, 'once I travelled to a village and people came in large numbers out of their sense of admiration for me as I had made a name for myself. I could see many of them were in tattered clothes, sunken bellies, with hardly any clothes or food. I realized that my justice was not reaching them at all. My justice was reaching only the rich, who could come to the Court and engage a lawyer. Justice in the Supreme Court requires engaging a lawyer, which the poor could not afford. I felt that something had to be done to make justice reach the door of the common man.'

The aforesaid liberal approach allowed surrogate standing as a result of which, individuals were allowed to approach the Court on behalf of under trial prisoners, road workers etc.

From 1990 onwards, the Court widened its interpretation on standing and allowed individuals to approach Courts for violation of public rights/to remedy public injury. The requirement of a 'direct injury' was done away with. With the use of PILs the Court oversaw judicial appointments, laid down guidelines to prevent sexual harassment at workplace, took over the investigation in the Jain Hawala case etc.

To prevent frivolous petitions being filed in the garb of pubic rights, the Court laid down detailed guidelines in 2010 ('Guidelines') in the decision of State of Uttaranchal v. Balwant Singh Chauffal, [(2010) 3 S.C.C. 402 at  181].

It mandated that while hearing a PIL, the Court should:

(a) Verify the credentials of the Petitioner;

(b) Be prima facie satisfied regarding the correctness of the contents of the Petition; (c) Be fully satisfied that substantial public interest is involved;

(d) Ensure that the PIL is aimed at redressal of genuine public harm or interest;

(e) Ensure that there is no personal gain, private motive or oblique motive behind filing the PILs.

The above guidelines are the current law on filing of PILs in India.

B. Analysing the petition against the presidential order:

In a previous post, I have argued that the presidential order arguably violates the Constitution and raises an issue of public interest/public harm. Despite so, the PIL filed in the above mentioned matter is in clear violation of the Guidelines.

First, the credentials of the petitioner are dubious, as he has previously been reprimanded for filing frivolous petitions. Second, the contents of the petition are incorrect and questionable as pointed out by the Hon'ble Chief Justice himself i.e. the petition lacks a prayer and is poorly drafted. Therefore, ideally as per the Guidelines the petition is not maintainable.

C. Concluding Remarks:

It should be noted that the Courts have gone back and forth while implementing the Guidelines. For instance, if one peruses landmark decisions namely the ones concerning the Sabarimala Shrine, constitutionality of § 497, legality of MPs/MLAs practising as lawyers etc., the Court did not analyse whether the petitioner had standing in the first place or not. On the contrary, several petitions raising important issues concerning the public at large have been previously dismissed on mere grounds of standing.

In fact, at times the Court has allowed petitions by petitioners with highly questionable credentials. Last year, the Court entertained a petition by a lawyer who was not only barred from entering the premises of the Allahabad Court, for making communal aspersions against a sitting Judge but also held guilty of contempt of court.

Therefore, it's not surprising that the present petition is being heard, despite the shortcomings. I wish to state however, that such a selective application of the Guidelines is worrisome and has severe consequences.

a. Statistically, this approach of the Courts has resulted in parties preferring a PIL over a writ petition with writs occupying 1.8% of the Court's docket, as compared to PILs and Letter Petitions occupying 20.6% as of 2011. It also adds to an overburdened docket of the Court, which as of 2018 has 56,000 pending cases, out of which PILs occupy a major chunk. Therefore, cases concerning private parties are affected.

b. The selective application has spiked filing of frivolous petitions. In the last few years Courts have heard PILs against Mr. Salman Khan, Mr. Sanjay Leela Bhansali, Prime Minister Shri Narendra Modi etc. Such petitions are often politically/personally motivated.

c. Exercising its PIL jurisdiction, the Courts have often treaded to policy matters (i.e. decisions falling within the domain of the executive and parliament) resulting in its decisions not being implemented or followed. Noteworthy examples are the outcome of the judgment in Sabarimala, series of environmental law decisions, the decision concerning the Prevention of Atrocities against SC/ST Act etc.

The Court today has moved away from the vision of Justice Iyer and Bhagwati, behind inventing PILs. The resultant liberal approach although yields returns in the short run, has serious long term consequences. The need of the hour in my opinion is for the Court to implement its Guidelines strictly and not selectively. A frivolous petition not only wastes the time of the Court, but also affects the cases of genuine parties in whose places, the former are taken up.  

( The author is a lawyer based in New Delhi. He graduated from National law University, Jodhpur with a specialization in Constitutional Law)

Views are personal only.