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It’s Not All Frivolity by Anuradha Raman


Mangalore air crash highlights two petitions highlighting safety violations in the Mangalore tabletop airport, dismissed by the Karnataka High Court in ’92 and by the Supreme Court in ’02

Apex court dismisses petition against mining in Niyamgiri hills in 2008; now a global focus point

The same year, the apex court dismisses PIL against the building of the Commonwealth Games village on the Yamuna riverbed.

Why has the UPA government, which loses no opportunity to strike aam aadmi-friendly poses, suddenly changed course? The new National Litigation Policy, on the pretext of giving government-appointed law officers directives on how to be responsible and sensitive, has blunted the only legal tool available to the common man to fight the wrong and unfair acts of the government—the Public Interest Litigation (PIL).

This is not the first time that such a policy has been framed. The United Front government had made a similar attempt nearly 14 years ago to regulate PILs by actually proposing to put those filing “frivolous PILs” behind bars along with a hefty fine. Mercifully, the public outcry then had led to the proposed legislation being shelved.

Regulation is rearing its none-too-pretty head again, though the stated vision/mission of the new policy does not betray this openly. In fact, if the letter and spirit of the policy are followed in toto, the Indian judiciary would become a haven for justice and not the quagmire of pending cases it is at present. The policy, it is stated, “is based on the recognition that government and its various agencies are the predominant litigants in courts and tribunals in the country. Its aim is to transform government into an efficient and responsible litigant.” It apparently seeks to make the government more responsive to the fundamental rights of the common man.

However, applied in the context of PILs, the government’s motives become suspect. For instance, the policy states, “PILs challenging public contracts must be seriously defended. If interim orders are passed stopping such projects, then appropriate conditions must be insisted upon for the petitioners to pay compensation if the PIL is ultimately rejected.” Says senior advocate Prashant Bhushan, who has had the misfortune of seeing some of his well-intentioned PILs being dismissed: “A mindset is being sought to be created that PILs are motivated, which might lead to judges dismissing such litigations merely on the basis of locus.” This is exactly what led to the Delhi High Court’s decision to evacuate beggars from Delhi’s streets on the argument that they do not have the right to squat.

In fact, many say that the anti-PIL position was set rolling in the very first utterances in office of the present chief justice of India, S.H. Kapadia, who said huge costs will be imposed for filing frivolous PILs. While there is no denying the nuisance value attached to the more casual and trivial PILs, they cannot be held to be the norm for the purpose of policy. The case for PILs per se cannot be overstated: they are often the last resort in issues relating to the livelihood of the dispossessed.

According to former Delhi High Court chief justice A.P. Shah (see interview), PILs enabled the courts to come closer to the marginalised sections of society, and in the words of a legal expert, made “the Supreme Court of India a Supreme Court for the people of India”. The present policy might end up tarring all PILs generically as motivated and mala fide, a dangerous and skewed perception.

In fact, PILs on the right to education have actually led to an act being passed by Parliament making provision for physically and mentally challenged children in schools. And in the Bishakha rape case, a PIL led to landmark judgements on sexual harassment at the workplace. Such cases demonstrate the scope and utility of PILs. The new policy, many say, only succeeds in putting obstacles.

For instance, the proviso—“if interim orders are passed stopping public projects, then the petitioners must pay compensation if the PIL is ultimately rejected”—sets a dangerous precedent, says environment lawyer Ritwik Datta. The truth is, he says, very few interim orders are passed in the context of public contracts. And rejection is very often a question of subjective opinion.

In fact, the history of environmental litigation is strewn with examples of several thermal and mining projects where work proceeds apace and the judgement comes only years later, often too late. Datta is fighting a case in Andhra Pradesh where a wetland has been destroyed to make way for two thermal plants and where work began even before the clearance was given. “Can we get the wetland back?” asks Datta. Petitions can be rejected at different levels, he goes on to say. “At what stage should the petitioner be asked to pay up?”

All this is a far cry from the 1980s when judges of the Supreme Court interfered on behalf of the dispossessed and took up their cause, acting on behalf of a plea submitted by a third party/the press/or a lawyer petitioning on their behalf. Today, you actually have a decision by the courts directing that beggars be removed from Delhi streets to ‘beautify’ the city for the Commonwealth Games!