Article on 'PUBLIC INTREST LITIGATION IN CHECK' by Shantanu Vyas

- Shantanu Vyas 

- B.A.LL. B

- 1st year 2nd Semester 

- Bennett University 

PUBLIC INTREST LITIGATION IN CHECK 

The term "public interest litigation" was adopted from American Jurisprudence, where it was defined as providing legal aid to previously unrepresented groups such as the poor, racial minorities, unorganised consumers, individuals interested in environmental concerns, and so on. The active participation of the judicial system in this notion protects the public interest. When it comes to judicial functioning in India, there has traditionally been a two-party system, or bipolar system, in which each event involves two parties: aggrieved or victim and accused. The administration of justice was founded on a neutral perspective, in which the judge placed both parties involved in the incident in a neutral or original stance. A circumstance in which the judge is unaware of both parties' positions; they might be wealthy, impoverished, privileged, or disadvantaged, and so on. Under the “veil of ignorance”, the judge administers justice in a fair and impartial manner. A substantial element of the bipolar system is locus standi, which means "why we hear you." should be demonstrated in a court of law. 

The period of 1970's is considered to be the darkest phase of Constitution because the core essence of Constitution was violated and India's democracy was ailing. During those gloomy days, the judiciary was active, and they developed the idea of Public Interest Litigation, in which a concerned citizen in the greater public interest without locus standi seeks justice with the assistance of judicial activism. It's not that public interest litigation didn't exist before to 1970; it did, but its practical usage was quite constrained. But during this controversial period judge actively participated in the delivery of justice and the judicial active mechanism proliferated, it was mainly because of two great judges namely, Justice V.R Krishna Iyer and Justice P.N. Bhagwati who turned this notion into a revolution in the 1970s. 

 EVOLUTION OF P.I.L

Justice Krishnaswamy Iyer sowed the roots of public interest litigation in India in the case of Mumbai Kamagar Sabha v. Abdulbhai Faizullabhai and other. The Supreme Court, in its 1976 judgement, relaxed the norm of traditional locus standi for the common man to have access to justice and made such conscientious efforts so that the common people could have judicial access which would improve judicial machinery. Justice P. N. Bhagwati took this court's ruling a step further under the case of Hussainara Khatoon vs. State of Bihar. In this case Kapila Hingorani a prominent Indian lawyer known as the "Mother of Public Interest Litigation" went to Bihar and met Hussainara Khatoon, who were illegally detained against the procedure established by law under Article 21 of the Indian Constitution. Kapila Hingorani filed a P.I.L against this illegal detention and due this case P.I.L revolution flourished across the country. In his famous case of Bandhua Mukti Morcha v. Union of India, the Supreme Court also stated that a concerned citizen or member of the public may contact the Supreme Court by just sending a letter, which would improve accessibility. There was no explicit definition of public interest litigation in any legislation or act. It has been the principle of justice, equity and good conscience that was into consideration by the judges to take into account the general public's intentions. Although, the public interest litigation (P.I.L) norms are in accordance with the positive rights enshrined under directive principle of state policy established in Article 39A of the Indian Constitution which was integrated by the 42nd constitutional amendment. The need of Public Interest Litigation can be clearly depicted by Art. 39 A which says – to provide equal opportunity for justice and free legal aid. In a nation like India, the poor are unable to settle their concerns, not because the courts are closed to them, but because of their ignorance of legal nuances, illiteracy of law, fear of high cost associated with litigation process and most importantly, poverty. They are unable to afford to take their case to court, and as a result, they continue to endure injustice. With these considerations in mind, India embraced the idea of Public Interest Litigation, in which the stringent locus standi norms are loosened and any concerned person can file a P.I.L in bona fide manner for the larger public interest. The notion of public interest litigation is the genesis of judicial activism. It doesn't follow the strict barriers associated with the doctrine of separation of power rather it promotes the dilution of power and supports the doctrine of separation of function. But as it said every coin has two sides, this litigation norm gives the judiciary enormous power to interfere between the functioning of States and there is no defined limit for the maintenance of the balance of power. So, with great power comes great responsibility and sometimes these responsibilities are misused.

AREAS OF CONCERN REGARDING P.I.L

Encroachment of the separation of power – 

The theory of separation of powers may be traced back to Aristotle, who preached for the concept of ‘Separation of Power’. Based on this, John Locke and Montesquieu discovered the components of the state, namely the Executive, Legislation, and Judiciary, and advocated for the separation of power among the aforementioned components of the state. The separation of powers doctrine denotes the establishment of the structural classification of government powers. For maintaining the doctrine of separation of power, it should follow the principle of strict barrier, under which there should be no conflict of interest between the three essential components of states namely, Executive, Judiciary, and Legislation. the doctrine of separation of power has been adopted in most Democratic countries including India. What the doctrine means is that no organ should use the power of the other organs, but strictly applying this doctrine is not an ideal concept, as no organ of the government can work with absolute independence. The three organs of the government should work in coordination with each other for the smooth functioning of government. To maintain the work under the norms of checks and balances, the dilution of power should operate and along with the doctrine of separation of power, separation of function should inoculate. As we've seen, judicial activism is the fruit of the doctrine separation of function. Democracy and constitutional machinery would not work as well without it. With active judicial inspection, it is important to adopt such a liberal approach to assist individuals whose rights and responsibilities are infringed by vicious authorities, large persons, or politicians but excessive usage of judicial activism which includes Public Interest Litigation as well dilutes the notion of separation of power. Excessive use of judicial activism leads to judicial overreach, which has resulted in the judiciary encroaching on two key bodies of state, namely the executive and the legislature. This overreach is caused by the judicial body interfering in a situation involving the other two components of the state (executive and legislation). For example, National Judicial Appointment Commission (NJAC) The government abolished the collegium system with the National Judicial Appointments Commission's 99th Constitutional Amendment in 2014. First and foremost, Justice Bhagwati proposed the formation of a judicial panel for the nomination of judges. In the case of S.P. Gupta v. Union of India, the Law Commission of India also advocated the establishment of a National Judicial Service Commission in 1987. In 2014, the judiciary disregarded the executive's decision and drafted their own statute for the nomination of judges. However, the mechanism that produces laws is in the hands of the legislature, and the involvement of the court exceeds their power. In another instance, in 2017, the Judiciary voted to prohibit the use of firecrackers. This is a task that is under the authority of an executive entity, namely the Ministry of Environment; nevertheless, in this situation, the Judiciary enters the realm of the Executive and makes a judgement that falls under the ambit of judicial overreach. Judicial overreach violates the spirit of power separation which falls under the basic structure of doctrine of Indian Constitution.

Publicity Interest Litigation – 

In Indian law, public interest litigation is started to assist the poor and to carry the torch for social justice. Unfortunately, public interest litigation has devolved into a vehicle for personal interest and political smears on the public, which must be eliminated. PILs are increasingly being used to promote prejudice and communal hate in the name of public interest. Recently, former Uttar Pradesh Shia central waqf board chairman Wasim Rizvi has filed a PIL in the Supreme Court seeking the removal of 26 verses from the Quran that he claims 'teach violence’. The whole Muslim community together condemned this litigation, claiming the P.I.L is nothing but a publicity stunt and an attempt to hurt religious sentiment. The apex court dismissed the P.I.L and said that such dubious Publicity Interest Litigation should be dismissed with a penalty of exemplary nature. The sanctity of the P.I.L system, which is responsible for many of the most progressive judgments given by various courts, has been eroded as a result of such frivolous cases. The Supreme Court made a serious comment regarding the public interest litigation and said that the meaning of the public interest litigation is only and only public interest, it cannot be a publicity interest litigation. The Supreme Court has taken a very serious stand in Publicity Interest Litigation, the Supreme Court has said that no publicity interest litigation can in any way be a PIL, we will completely discourage such petitions. In the case of Ashok Kumar Pandey v. State of West Bengal, the held that the P.I.L should not be “publicity interest litigation”. The ease of access to justice should not be abused. So, before filing any P.I.L the main pre-requisite which talks about public concern should be there, otherwise, it would not be entertained by the court. The filing of spurious P.I. Ls has increased the strain on the judiciary, resulting in the delay of justice for ordinary people. Litigation filed only for the purpose of obtaining attention has substantially damaged faith in the whole process of Public Interest Litigation. Even if a frivolous plea is finally dismissed, the courts must spend a substantial amount of time looking over the whole case, including, on most cases, hearing the petitioner. As a result, those seeking justice for real concern have to wait longer period. 

Middle Path for Justice 

As we all know, the middle route is the golden way, and the Public Interest Litigation Mechanism is a tool that can help us get there. Public Interest Litigation is a tool that should be utilized with great care and caution. We have witnessed several precedent cases in India which are based on PIL and have revolutionized the image of India. The Judiciary needs to be extremely careful so that ugly private malice (Piesa Interest Litigation), vested interest is not seen lurking behind the beautiful veil of public interest.