ASG Pinky Anand
ASG Pinky Anand
Litigation Columns

Misguided PILs in the time of COVID-19: ASG Pinky Anand writes

The article highlights how the system of PILs has been rendered meaningless.

Pinky Anand

What was a tool in aid of disadvantaged has started boomeranging. Public Interest Litigation (PIL), an already contentious legal instrument in the recent past, has been made more so during the COVID-19 pandemic, thanks to the misguided petitions landing before the Supreme Court.

It has become incumbent on the citizenry and even more so, the Bar, to rise to the occasion and exercise self-restraint. Courts also have to guide people not to misutilize precious instruments developed painstakingly in aid of access to justice. Let it not become a roadblock to access to justice itself!

No human system is perfect. A system is only as good as the people who run it. This is equally true of the PIL system, which is being rendered meaningless by elements seeking every other interest but public interest.

The institution of PIL was established to ameliorate the misery of the poor and to allow greater access to justice, to give voice to the invisible and to strengthen the justice delivery system. However, like the proverbial Bhasmasur, the PIL system has become an existential threat to the very institution that created it.

Prof. Upendra Baxi, in 1985, wrote thus:

“The Supreme Court of India is at long last becoming, after thirty two years of the Republic, the Supreme Court for Indians. For too long, the apex constitutional court had become “an arena of legal quibbling for men with long purses."' Now, increasingly, the Court is being identified by justices as well as people as the "last resort for the oppressed and the bewildered." The transition from a traditional captive agency with a low social visibility into a liberated agency with a high socio-political visibility is a remarkable development in the career of the Indian appellate judiciary.”

Armed with the formidable weapon of PIL, the teeming millions are now aware that the courts have the inherent power of intervention, which can be invoked to ameliorate miseries arising from repression, governmental lawlessness, and administrative deviance.

The credit for introducing PIL goes to a few activist judges, notably Justice VR Krishna lyer and Justice PN Bhagwati. They not only broadened the rules of locus standi, but also relaxed the formalities of judicial process.

Justice VR Krishna lyer and Justice PN Bhagwati
Justice VR Krishna lyer and Justice PN Bhagwati

Justice Bhagwati defined the scope of PIL in SP Gupta v. Union of India thus:

“...where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of personal is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the court for relief, any member of the public can maintain an application for appropriate direction, order or writ in the High Court under Article 226 and in case of breach of any fundamental right of such person or determinate class of persons, in this court under Article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons.”

In the same breath, the Apex Court pointed out the possibility of misuse of this process in the following words:

“But we have to hasten to make it clear that the individual who moves the Court for judicial redress in cases of this kind have to be performing acting bona fide with a view to vindicating the cause of justice and if he is acting for personal gain or private profit or out of political motivation or other oblique consideration, the court must not allow itself to be activised at the example of such person and ought to reject his application at the threshold....”

This apprehension of the Supreme Court has come true and individuals with unscrupulous intentions and motives have now in their hands a very convenient tool to browbeat and exploit the system for personal gains. PILs have now become a source of instant fame, and a tool for political arm-twisting.

The following are recently dismissed PILs having absurd pleas:

  • PIL filed to lower the marriageable age of men from 21 to 18 years which was dismissed with costs of Rs. 25,000/-

  • PIL for directions to be issued to the Union for the construction of a Great Wall of India along the entire border.

  • Directions for conducting and monitoring caesarian operations.

Most PILs, instead of espousing the cause of the needy, seek from courts directions that would amount to pre-empting policy decisions and interfering with the functioning of the administration.

Despite the courts having consistently rejected PILs and petitions that amount to interference in policy matters, and having clarified on more than one occasion that they are not to supervise the manner in which administration is carried out, time and again, we have PILs praying for directions which are beyond the domain of the courts.

One recent example is where a petition was filed praying for exemption of face masks from GST.

Clearly, the misuse and abuse of PILs has become a malady in itself and in times of COVID-19, this is an even bigger challenge. A recent spate of PILs filed in the midst of the COVID-19 pandemic is a textbook example of the abuse of PIL process.

The global mood is bleak. In times of disaster, there needs to be an even greater check on PILs. The nation is grappling with criticalities against odds of calamity and the challenges are gigantic. We can’t afford to burden an overburdened system. The government and civil society are moving heaven and earth to find answers, address the concerns of millions of people, and evolve policies to counter a hitherto unknown enemy. We need all hands to save the ship; we cannot afford misguided PILs.

Society is paralysed. And we are seeing PILs for directions from the Supreme Court for free COVID-19 testing, nationalization of health sector, and such others.

One of the cores of PIL jurisprudence is that courts will not interfere in policy matters, resource issues, or financial matters. In this light, let us remember the castigation of busybodies, wayfarers and interlopers by the Supreme Court in Janata Dal v. HS Chowdhary, in which Justice SR Pandian held,

"While this Court has laid down a chain of notable decisions with all emphasis at their command about the importance and significance of this newly developed doctrine of PIL, it has also hastened to sound a red alert and a note of severe warning that courts should not allow its process to be abused by a mere busybody or a meddlesome interloper or wayfarer or officious intervener without any interest or concern except for personal gain or private profit or other oblique consideration."

Most of these PILs are aimed at seeking publicity, at the cost of interfering with the severely restricted functioning of the courts, which are only taking up matters of extreme urgency.

The Bar is an essential organ of the justice delivery system and in times such as these, it is obligatory that the Bar does its bit by advising potential litigants about the merits of their PILs.

We are therefore under an obligation, both as citizens and as part of our professional core, to dissuade the filing of such frivolous and vexatious PILs which are unduly burdening the already strained courts.

This author is an Additional Solicitor General of India. Inputs from Advocate Sumit Teterwal.

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