The Bombay High Court’s recent observations on PILs indicate a worrying trend

The Bombay High Court recently made some interesting observations while hearing a Public Interest Litigation petition (PIL) filed by a BJP MLA, challenging the State government’s notification which amends the rules governing the election of the State Assembly’s Speaker.

The amended rules permit only the Chief Minister to advise the Governor on the date of election of the Speaker, as against the Council of Ministers acting collectively. The PIL was opposed by the State government on grounds of maintainability (lack of bona fides), and the Court observed that to prove his bona fides, the petitioner will have to deposit ₹10 lakh in the High Court before it would hear the petition.

The Court had passed a similar order earlier this year, when it directed BJP leader Vishwas Pathak to deposit ₹2 lakh in Court, subject to which it would hear his PIL seeking reimbursement from State Energy Minister Nitin Raut for money spent on the alleged illegal use of chartered flights during the COVID-19 lockdown. These orders have been passed by the Court under the Bombay High Court Public Interest Litigation Rules, 2010, which stipulate that the Court may direct a petitioner to deposit a sum by way of security deposit, which shall be subject to final or interim order of the Court (Rule 7).

This trend of making a PIL contingent on security deposit is worrisome, as (a) it goes against the settled law on PILs and (b) is contrary to the intention behind PILs.

First, the law governing PILs was settled by the Supreme Court in State of Uttaranchal v Balwant Singh Chaufal. Observing that PILs filed for extraneous considerations should be discouraged and only bona fide PILs should be entertained, the Court issued the following directions:

1. The Court must verify the credentials of the petitioner.

2. The Court must be prima facie satisfied regarding the correctness of the contents of the petition.

3. It must be fully satisfied that substantial public interest is involved before entertaining the petition.

4. It must ensure that the PIL is aimed at redressal of genuine public harm or interest.

5. It must ensure that there is no personal gain, private motive or oblique motive behind filing the PILs.

6. It must ensure that petitions filed with ulterior motives should be discouraged by imposing exemplary costs and adopting similar methods.

In fact, in a recent judgment, the Supreme Court reiterated its commitment towards dismissing frivolous petitions. It said that based on the pleadings, if it appears to the Court that the petition is reasonably suspect or lacks bona fides, the Court must decline to hear it. The Court had observed,

“It is usually on the pleadings that the Court should take a prima facie view on the bonafides of the party. If the Court concludes that the litigation was initiated under the shadow of reasonable suspicion, then the Court may decline to entertain the claims on merits. In these cases, Courts have multiple options– such as dismissing the PIL or appointing an amicus curiae, if the cause espoused in the case requires the immediate attention of the Court.”

The Bombay High Court seems to have ignored the settled law while making these observations. The PIL in question has been filed by a sitting MLA from the opposition party and hence, he has prima facie political and personal motives behind the PIL. Alternatively, being a legislator who is personally aggrieved by the change in rules for appointing the Speaker of the Assembly, he has the option of filing a regular writ petition as against a PIL challenging the amended rules. By provisionally agreeing to hear the case, the Court is allowing a litigant to blur the clear difference between a writ petition and PILs.

To elaborate, a writ petition is filed by a person who is personally aggrieved by a government action whereas a PIL can be filed by any member of the public so long as genuine public harm is threatened or substantial public interest is involved. It is settled law that where an individual is personally aggrieved, a writ petition is the appropriate course of action and not a PIL. By provisionally allowing the PIL to be heard, the High Court is violating the settled law. The Court’s approach also goes against the Supreme Court’s efforts to curb the rise in frivolous PILs. In a recent judgment, the Supreme Court has observed,

“21. Public Interest Litigation is not a new concept in this Court. Although the jurisprudence in this regard has matured, many claims filed in the Courts are sometimes immature. Thousands of frivolous petitions are filed, burdening the docket of both this Court and the High Courts.”

By entertaining a suspect PIL, the Court is adding to its already overburdened docket.

Second, the trend of making a PIL contingent on security deposit goes against the intention behind PILs. The intention of Justices PN Bhagwati and Krishna Iyer behind the creation of PIL jurisdiction and relaxing locus standi was to provide representation to those who are incapable of approaching the courts due to handicaps (both social and financial). A PIL allows a third party who is not personally aggrieved to bring to the court’s notice the cause of other parties, who are unable to approach it. By making security deposit a condition for hearing PILs, the court shall defeat the purpose of PILs as only those persons with necessary financial means will be able to make such deposits and hence, have their PILs entertained.

Let me elaborate with an example -

For instance, person A and B both file a petition which arguably lacks bona fide or has personal motives behind it. Person A is financially well-off whereas person B is not. The Court’s deposit rule will give an advantage to person A who can deposit the sum and have his petition heard whereas person B (being financially weak) will have his petition dismissed. Personally, I feel both petitions should not be heard given their lack of bona fides, but in any case, preference to one over the other solely on a monetary ground defeats the object of PILs.

Justices Iyer and Bhagwati’s vision of PILs was very narrow i.e., hearing those who are aggrieved and incapable of approaching the Court. Throughout the years, this vision has broadened, and in fact has broadened a bit too much, in my opinion. Today, the Court is approached with PILs on the most bizarre issues. These include pleas to ban books and movies, burning effigies of Ravana in Dussehra, making yoga compulsory in school etc.

A Bench of the Delhi High Court consisting of Chief Justice DN Patel and Justice Jyoti Singh recently made a remark which aptly summarises this trend. The Bench remarked,

“This is a trend in Delhi that you walk on the road, look left and right and file a PIL. No research and homework is done.”

Swapnil Tripathi is an advocate.

Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the views of Bar & Bench.