1. With the Supreme Court and High Courts entertaining PILs and sometimes instituting suo motu PILs and coming to the rescue of the common man against every form of injustice and corruption, the new jurisprudence evolved by the Supreme Court in the early 1980s became extremely popular. The scenario today is that Chief Ministers, nay, even the Prime Minister could be at the mercy of the PIL petitioners/the Court in the face of allegations of corruption which even CMs are not immune from. Still worse, in moments of crisis as in the recent past where people in Delhi were in panic owing to shortage of oxygen, even the Prime Minister, Hon’ble Shri Modi, was at the mercy of the Supreme Court for he could have ill afforded adverse criticisms at the hands of the Court. The Government of my home state of Kerala which faces serious allegations of corruption is in an unenviable position, it being criticized by the court day in and day out, for many an administrative failure. Many of my fellow lawyers in hushed voices lament that the judges hold the Government at ransom for fleeting publicity. Even the lawyers and a section of the general public, the great supporters of the “PIL jurisprudence” are weary, for every day they hear PIL petitioners being imposed with costs, reprimanded and ridiculed, at times, for taking up causes which many consider to be upright.
2. In my practice spanning over almost four decades, innumerable people, including lawyers, have approached me for filing PILs. The question I ask them invariably is, What is your right? In what manner has your right been infringed? If one’s right is infringed, even in a situation where the rights of many others similarly situated are infringed, one can institute a petition in one’s own name, as a person aggrieved. Even in situations where a citizen is not directly affected, nay, does not suffer any specific personal injury, for example, inaction on the part of the police to register an FIR where a crime has been committed and investigate the same, any citizen can set the criminal law in motion by demanding investigation and in appropriate cases, by filing a petition under Article 226.
3. But in situations where a citizen has not suffered any specific injury, exclusively to himself, and where the injury which he complains of is out of a legislative or executive policy, then it cannot be said that he is a ‘person aggrieved’. He has therefore, no right to go to a Court. To anyone who doubts the correctness of this proposition, all that I have to remind is that there can be no legislative or executive action which will in no way affect rights, nay, even fundamental rights. During the pandemic severe restrictions were imposed on our various rights, which undoubtedly fall within the ambit of fundamental rights. With the Supreme Court holding that the right to sleep in a public maidan during a protest (Ram Dev’s case) is also an essential ingredient under Article 21, I cannot imagine of a right which does not, today, fall under the ambit of the fundamental rights. Fundamental rights can be taken away, not necessarily by a constitutional amendment or a statute, but even by an administrative order, without any statutory force. There is nothing illegal about it, provided, there exists sufficient reasons to do so.
4. Most of the PILs filed today are filed in challenge of legislative and executive policies which are not justiciable at all. The Courts have been mindlessly entertaining such PILs complaining about violation of the fundamental rights on account of infrastructure projects, mining, and the like. Even the NJAC, a mechanism for appointment of judges of the superior courts by a transparent means, was challenged, curiously enough even without there being a complaint of the violation of the fundamental rights. One would find it incredulous that even the National Tax Tribunal contemplated by the Central Government, was struck down without there being a whisper about the violation of fundamental rights. A few vested interests got it struck down using the Madras Bar Association as a pawn.
5. Before the PIL era, the law was certain as to who could go to a court. Any person whose rights are infringed. In other words, a person aggrieved. If what was infringed was an individual’s fundamental rights, Article 226, nay, even Article 32, as a matter of right, was available. After the much hailed, but laughable theory of the “basic structure”, one could go to the Supreme Court, as was done in the case of the NJAC and numerous others, asserting that no fundamental right is infringed but violation of the basic structure.
6. With the concept of PIL and basic structure, even the Constitution of India has lost its sanctity. What is important today is not the letter of the constitution, but the incredulous interpretation thereof by the Supreme Court as in the Judges-2 case and the NJAC case. A 5-judge bench in the NJAC case said that what binds them is the opinion of the 9-judges in the Judges-2 case and not the will of the people reflected through the constitutional amendment.
7. With the Supreme Court becoming so powerful and Articles 141 and 142 being interpreted in such a ludicrous manner and where the Court acts even suo motu and pass orders which are nothing but legislations, everyone wants to approach the Supreme Court by way of PIL and bring everything under the sun for the court’s decision. The top lawyers of the Supreme Court and the elite represented by them, face no scare because the Court will entertain them. But for the lesser mortals, it is a nightmare, it is an extremely risky gamble. The court may reject their petition outright, impose costs and admonish them ruthlessly.
8. The High Courts follow the suit of the Supreme Court. In some High Courts there are more than two benches of senior judges who exclusively hear PILs. For some, PILs are entertained and orders are passed demolishing the homes and shanties of the poor and middle-class without even a single affected person being on the party array. In Mumbra, in Mumbai, a PIL petitioner sought the demolition of 9 multi storied buildings where more than 4000 people reside without a single one among them being on the party array. Still worse, the Court entertained the petition and asked for a report on the action taken.
9. The answer to the question, who can file a PIL, is simple. Nobody has a right to go to a court unless he has suffered a specific legal injury. The sole exception is a ‘qui tam action’ for a writ of mandamus. ‘Qui tam action’ means suing on behalf of the King as well as for himself. All PIL as in practice today, is in ignorance of basic jurisprudence, absolutely illegal and unconstitutional. Judges have been promoting it because it gave them power and fame without there being any accountability. But the judges fail to realize that the publicity so gained is fleeting and in the long run will destroy the very institution itself.
10. Again, who can file a PIL? The answer is simple. Only the Attorney General and Advocate Generals who represent the sovereign, nay, the Executive which is accountable to the legislature, can file a PIL and none else. In many other jurisdictions, class action petitions are common. The CPC and the Companies Act also provides for the same in the form of a representative suit/action. The current practice of so-called activists, very often extortionists, self-appointed guardians of public interest, motivated and funded by private interests, being allowed to assert that they represent the public at large cuts the very concept of democracy at its roots. The only forum which can decide matters concerning the public at large is the Parliament where, as Thomas Fuller has said, every citizen is symbolically present and the decision taken is with the consent of all. The decision of a court is between the parties and it binds them and cannot bind the public at large. To make the public at large bound by a decision of a court of which they were not parties and had no opportunity to participate is against the very first principles of natural justice and jurisprudence. It is unjust,unethical and undemocratic.
11. The question is, how come our lawyers and judges allowed themselves to be so badly misdirected and hail something as legally and morally outrageous as PIL. The simple reason is the failure to notice the difference between “pro bono litigation” and today’s so-called “public interest litigation”. It all started as pro bono litigation where a public-spirited person, acting pro bono, makes justice accessible to the undertrial, bonded labour, the poor and the meek, who out of their poverty, illiteracy and ignorance, are unable to access the superior courts. Pro bono litigation was for the enforcement of the rights of a person whose fundamental rights were infringed through public law remedies such as mandamus, certiorari, etc, to repeat for the enforcement of a private right. The real Petitioner in such a “pro bono litigation” is the undertrial, the slumdweller, the poor man/woman who was denied justice by the state and it’s instrumentalities. It was not in furtherance of ‘public interest’, but was for the enforcement of a private right of a ‘person aggrieved’ who out of poverty, illiteracy and like reasons was unable to approach the court⁶. Pro bono litigation is legal, constitutional and ethical.
12. What has pained me, as someone who cares a great deal for the adherence to basic jurisprudence are the judgements and rules of the Supreme Court and High Courts which render it mandatory for the so-called “PIL” litigant, very often a person aggrieved and entitled to maintain a petition as a matter of right, to file an affidavit asserting that he no personal interest but a busy body, none of his rights are infringed and that he is in no way a beneficiary of the outcome of the case. What is forgotten is that if one’s right is not infringed, law will provide him no remedies and there is no reason for him to come to a court at all. I really feel pity for us all, to have to plead so horribly against the basic tenets, without which even a legitimate case which on erroneous legal advice, is filed as a PIL, will not be entertained. The function of a Court is to adjudicate the lis/dispute, namely, the assertion of certain rights/obligation by one party and the denial of the same by another, which would require the truth of the disputed fact to be ascertained by allowing the parties to adduce evidence.
13. What is most startling is the fact that people still fail to realize that “PIL” did not bring any new remedies (eg. mandamus, certiorari, etc.) or new forum or any new principle, and on the contrary amounts to a great aberration.
14. I hope that the day is not too far off when the Attorney General, Solicitor General, ASGs, AGs and other law officers, assert that they alone representing the sovereign, the elected executive, have the right to speak for the public in a court of law, and none else, lest the very institution of judiciary and the concept of democracy is at jeopardy.
- September 29, 2023