None can escape the anguish and sinking feeling that sets in on witnessing the dehumanizing and painful sufferings of the lakhs of migrants (including toddlers and children) on account of the lockdown in the wake of the Covid 19 pandemic – a haunting spectacle that drew parallels with the horrors of the Partition. The media is abound with heart breaking reports and articles graphically describing the hunger, disease and death amongst this vulnerable section of society which continues to tearfully beg for any lifeline to save them, or at least their loved ones dying before their helpless eyes.
We, in India, have rushed to the Supreme Court in the past when faced with state apathy and administrative paralysis, more often than not by filing a Public Interest Litigation (PIL). The Court has, in the past, come to the rescue with humane and caring directions, which incidentally, added to the legitimacy and credibility of the Court. However, much has been written about the approach of the Supreme Court to the initial PILs which had unsuccessfully sought its intervention for giving relief to the migrants.
This article examines the jurisprudence of PIL, and the need to revisit the purpose for it exists.
The traditional judicial function is to decide disputes. India inherited the adversarial common law system complete with checks and balances to ensure that it is an aggrieved person who initiates the litigation in the prescribed manner and proves his or her case with legally admissible evidence. Crucially, this adversarial system also places limitations on the judge so that the exercise of judicial power is objective and based on what is properly on record. These limitations require the judge to be bound by the pleadings, issues raised and evidence led. The judge is to strictly adhere to procedural law in order to ensure a level playing field for both disputing parties, and to decline relief if it requires the judge to legislate or impinge on policy issues. The common law jurisprudence underscores that the judicial role is essentially one of adjudication, while it is for the legislature to legislate and the executive to make policy.
Right from its inception, the Supreme Court, like any other common law court, swung in its approach to adjudication between positivism and natural law tradition. For the uninitiated, positivism implies that even human rights are conferred by law enacted by an authority and hence can be taken away. The natural law school believes that human rights are inherent and inalienable in every human being and hence cannot be taken away by any authority or law. Starting on a positivist note in 1950 (Gopalan), the Court subscribed to the natural law school of thought by 1967 (Golak Nath) only to return to positivism by 1976 (ADM Jabalpur) and then again adopt the natural law approach by 1978 (Maneka Gandhi) – all within the adversarial system involving cases having the traditional lis or dispute.
The Supreme Court was however confronted in January 1979 with a different kind of case – one that lacked a lis or dispute. The Indian Express had published two poignant articles by K.F. Rustamji detailing the pitiable plight of undertrial prisoners in Patna and Muzzafarpur jails, many of whom were in jail for periods longer than they would have served had they been tried, convicted and given maximum sentence. Some of the prisoners did not even know why they were there; others were actually victims of a crime but their presence was required during trial. A lawyer couple practicing in the Supreme Court was so shocked by the horror of the situation as to move the Supreme Court for habeas corpus, something which, as Upendra Baxi notes, neither the Express nor Rustamji expected to happen (The Supreme Court under Trial: Undertrials and the Supreme Court, 1980).
This first ever PIL, popularly known as the Undertrial Prisoners' case (Hussainara Khatoon, 1979) was filed on 11 January 1979 and was premised on a novel interpretation of Article 32 of the Constitution to the effect that the language of this Article did not preclude a person from moving the Supreme Court, without even a power of attorney or vakalatnama, on behalf of such disempowered prisoners to call upon the Court to discharge its own constitutional obligation under Article 32 to protect their guaranteed fundamental rights. The Supreme Court entertained this PIL, leading eventually to the release of an estimated 40,000 undertrial prisoners on personal or no bond.
Hussainara Khatoon was followed by perhaps the most horrifying PIL known as the Bhagalpur Blindings' case (Khatri, 1981, Anil Yadav, 1982) filed by the same lawyer couple in the Supreme Court on the basis of a letter from a lawyer in Bhagalpur, R.K. Misra. This letter, received on 28 September 1980, stated that many suspected criminals had been blinded by the police through acid put into their eyes. It was found that at least 33 persons had been blinded by the police in custody using needles and acid and that the burnt eyes were then bandaged with acid soaked cotton and left to rot. The Court, through interim orders, quashed the trial of the blinded prisoners, directed the State to fund their medical treatment and rehabilitation, granted each prisoner a life pension and directed speedy prosecution of the guilty policemen and jail officers involved. A few years later, the Court even awarded monetary compensation under Article 32 to an individual for the violation of his fundamental rights in another matter, namely Rudul Sah (1983) which was an offshoot of Hussainara Khatoon. Rudul Sah was arrested in 1953 on the charge of murdering his wife and was acquitted by the Sessions Court in 1968, to be released on further orders. These orders did not come. By the time Rudul Sah was released in 1982, he had spent 29 years in prison for a crime he had never committed, of which 14 years were after his acquittal!
It will be seen that there was nothing for the Supreme Court to adjudicate in any of these cases or several other PILs that came to be filed by other members of the public to protect the fundamental rights of people who on account of poverty or other disability lacked access to the courts. The State simply cannot incarcerate people for decades awaiting trial or post acquittal just as it cannot blind people in custody. PIL, as conceived, was a remedial jurisprudence. It was a non-adversarial, collaborative and investigative strategy, formulated to protect the fundamental rights of the marginalised and destitute.
Given such remedial purpose of PIL, the checks and balances of the common law system referred to above on the litigant and the judge became somewhat unnecessary.
As far as the petitioner was concerned, the principle of locus standi was relaxed and so was the prescribed manner in moving the court. A letter or telex to the Court was good enough. The Court could even act suo moto. The petitioner was relieved of the burden of proving the allegations or leading evidence. The petitioner was not even dominus litus, and the Court could continue the action should the petitioner withdraw from it. Public policy doctrines like res judicata, estoppel, laches were inapplicable.
Similarly, the judge was also relieved of the common law limitations on the exercise of judicial power. The judge could now play an active role and even go beyond the pleadings, issues and evidence on record. The judge could investigate into the allegations and set up committees to establish facts or to monitor or administer a situation. Should there be a vacuum in a given field of law or policy, the judge could "legislate" or lay down policy de novo where the judge felt it necessary to do so to protect fundamental rights. The judicial role thus transcended adjudication to assume new functions, including those of a social reformer, an administrator, an investigator, a monitor and an ombudsman - all necessitated by the obligation of the Supreme Court, and to the extent of its obligation, to protect fundamental rights in cases lacking the traditional lis.
Such relaxation in a PIL of the limitations imposed by the adversarial system could do no harm since the purpose of this litigative strategy was not to decide any dispute but only to protect the human rights of the millions that lacked access to courts.
So far so good. However, the Supreme Court then went further to include within the jurisprudence of PIL, cases having the traditional lis and involving 'diffuse, collective and meta-individual rights' of the public at large and breach of the public duties owed to them (S.P. Gupta, 1981). Instances of such matters are those relating to, say, environmental pollution, corruption, electoral reforms or simply maintenance of the Rule of Law.
Since 'diffuse, collective and meta-individual rights' are present in virtually every area of governance, the judge now wielded tremendous power. The judge was relieved of the above checks and balances of the adversarial system that are calculated to ensure proper adjudication of the dispute by the judge following judicially manageable objective standards. Given that each individual judge has his or her sets of beliefs, convictions and value systems and even varying affection for PIL, the exercise of judicial power would necessarily result in subjective, and hence arbitrary, exercise of power.
Moreover, such expansion of the scope of PIL also resulted in enabling a litigant to file a PIL, ostensibly in public interest but, in fact, to serve personal or private interests or with an oblique or extraneous motive, or merely for publicity. Such cases increased the docket of the Court and led to wastage of Court time and resources, at the cost of genuine pending cases. Imposition of costs for misuse of PIL did not really prove to be a deterrent to the unscrupulous litigant.
The backlash against the misuse of PIL led to the Supreme Court seeking to streamline PIL. The case often cited is that of Balwant Singh Chaufal (2010), where the Court detailed the origin, development and misuse of PIL jurisprudence.
As regards the origin of PIL, the Court stated that "this court has initiated, encouraged and propelled the public interest litigation" and that "(t)his jurisdiction has been created and carved out by the judicial creativity and craftsmanship". I differ with such view. PIL was not initiated, created or carved out by the Court, still reeling under the loss of credibility for its infamous ADM Jabalpur decision. PIL was conceived, created and initiated by the lawyer couple who drafted, filed and argued Hussainara Khatoon in 1979 – late Nirmal Hingorani and late Kapila Hingorani – as an emotional reaction to the breakdown of the criminal justice system in the State of Bihar. Indeed, the Supreme Court itself acknowledged their role in conceiving PIL in the Full Court References held for them on 13 February 2014 and 10 September 2015 – a role documented in several studies, both national and international. PIL was not even propelled by the Supreme Court – rather, it was propelled by innumerable social activists, lawyers, academicians, journalists, NGOs who, with the lowering of barriers to approach the Court, had stormed the Court with unimaginable issues plaguing Indian society. It is one thing to assert that the Court showed judicial statesmanship in the early stages of PIL by penning excellent and humane landmark judgements, which it undoubtedly did. That is not quite the same thing as claiming that PIL itself was a judicial creation, as the Court has regrettably done.
As regards the development of PIL, the Court in Balwant Singh Chaufal divided PIL into three phases: Phase I dealing with cases to protect the fundamental rights of "the marginalized groups and sections of the society who because of extreme poverty, illiteracy and ignorance cannot approach" the writ courts; Phase II pertaining to "cases relating to protection, preservation of ecology, environment, forests, marine life, wildlife, mountains, rivers, historical monuments etc. etc."; and Phase III relating to "the directions issued by the Courts in maintaining the probity, transparency and integrity in governance."
Now, it is relatively easy to contemplate cases in Phases II and III that do not involve the violation, real or apprehended, of a fundamental right. Needless to say, the involvement of a fundamental right is the sine qua non for the Supreme Court to get the power to entertain any petition under Article 32. Such broad formulation itself is often the cause for a public spirited person filing a misconceived PIL and getting visited with stinging rebuke and penal costs, leaving the well-intentioned person hapless and angry. And then, the cases falling in these two Phases correlate to cases involving 'diffuse, collective and meta-individual rights' where, as noted above, the release of the judge from the limitations of the adversarial system results in subjective exercise of power.
This is not to say that the kind of issues raised in Phases II and III are unimportant. However, the same issues could be raised, and the same brilliant judgements in relation thereto could be pronounced by the Court, in public interest law mechanisms within the adversarial system, such as representative or class action under Order 1 Rule 8 of the Code of Civil Procedure, 1908, complete with the check and balances on the litigant and the judge. After all, each member of the public would necessarily be affected by, say, environmental pollution or lack of integrity in governance and would form a class. The judge would then have to be a neutral umpire in such class action involving the traditional lis, consider only the pleadings on record and issues arising therefrom, observe procedural technicalities such as issuing notice to all the affected parties and require development of detailed evidence. Moreover, these requirements would also prevent a busybody or an unscrupulous litigant from misusing the judicial process.
Instead, the Supreme Court issued several directions in Balwant Singh Chaufal which required each High Court to formulate rules to inter alia discourage "the PIL filed with oblique motives". The Court mandated, amongst other requirements, that courts "should prima facie verify the credentials of the petitioner before entertaining a P.I.L" and "be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL".
There is nothing in Balwant Singh Chaufal to indicate that these requirements are inapplicable to cases described in Phase I, which pertains to protecting the fundamental rights of the marginalized. If that be the position, this two judge bench decision is not only contrary to much larger bench decisions of the Supreme Court but undermines the PIL jurisprudence itself as far as such unfortunate sections of society are concerned. The very rationale of conceiving PIL was to bring to the notice of the Supreme Court the flagrant violation of the fundamental rights of the marginalized sections of society, who because of extreme poverty, illiteracy and ignorance could not approach the Court. It was thereafter the constitutional obligation of the Court to investigate into the matter to inquire if their fundamental rights are preserved and if not, to take all necessary measures to do so. The focus of the PIL jurisprudence was on the Supreme Court's constitutional obligation to protect fundamental rights, and not on the petitioner being able to make out a case to move the Supreme Court. It was for that reason that the locus and credentials of the person moving the Court were quite irrelevant and so was the satisfaction, prima facie or otherwise, of the Court as to the correctness of the allegations before entertaining the PIL. It was for that reason that a press clipping or telex or letter to the Court sufficed to trigger judicial action or permitted the Court to act suo moto. It surely was not the job or duty of the citizen, upon discovering a flagrant violation of human rights of the poor, disabled or destitute, to go about establishing his or her credentials or leading evidence in Court – and that too at his or her own time and expense. It was for the Court, which was to transcend the judicial function of adjudication to assume the new roles discussed above, to shoulder the burden of establishing the facts through affidavits of the State or fact finding committees set up often at State expense. Notably, the Court had sent its registrar to investigate into the allegations in the Bhagalpur Blindings' case. The above directions in Balwant Singh Chaufal have the chilling effect of persuading even the most public spirited citizen not to file a PIL for the impoverished and disabled millions or to get entangled with the Court. The unfortunate consequence is that the fundamental rights of these impoverished and disabled millions continue to remain illusionary, and justice beyond their reach.
The fallout of the undue expansion of the scope of PIL has been compounded by the kind of directions issued in Balwant Singh Chaufal. The PIL movement, with its inception in 1979, had brought concrete relief to millions of marginalized Indians at their doorsteps. However, with the expansion of the scope of PIL since the 1980s, the PIL movement has got hijacked over the decades by what has been loosely described as "middle class interests" such as cases pertaining to the ban of smoking in public spaces, catching stray cattle and so on so forth. The kind of requirements now imposed by the Supreme Court to entertain a PIL enables the judge to cite "limits of the law" to dismiss any PIL which he or she is not inclined to entertain. Consequently, the use of PIL as an instrument to protect the human rights of the disempowered stands effectively blunted. And nowhere has this been more visible than the approach of the Court to the initial PILs pertaining to the pitiable plight of the migrants.
Such a sorry state of affairs highlights the need to reclaim PIL for the poor, disabled and marginalized. The way forward could be to require the cases which the Court has described as falling in Phases II and III in Balwant Singh Chaufal to be litigated only as class action within the adversarial system, complete with the checks and balances on both the litigant and the judge. This single step would prevent the misuse of PIL for oblique purposes, protect the sanctity of the judicial process, bring about objective exercise of judicial power and thereby enhance its legitimacy, and do away with the kind of requirements mandated by the Court in Balwant Singh Chaufal which are now reflected in the PIL rules framed by various High Courts. Nor would such measure require the judiciary to give away to the legislature or the executive the "political power" that it arrogated to itself by expanding PIL to include cases falling in Phases II and III. More importantly, confining PIL to cases falling in Phase I will enable the Court to more effectively discharge its constitutional obligation to protect the fundamental rights of the marginalized groups and disadvantaged sections of society – for whom the remedial jurisprudence of PIL had been originally conceived.
Views are personal
Dr. Aman Hingorani, Advocate-on-Record & Mediator, Supreme Court of India, Author, Unravelling the Kashmir Knot