“Our fundamental understanding of PIL is inadequate”, Anuj Bhuwania, author of Courting the People
Interviews

“Our fundamental understanding of PIL is inadequate”, Anuj Bhuwania, author of Courting the People

Aditya AK

Anuj Bhuwania is an Assistant Professor in the Department of Sociology at South Asian University, New Delhi.

He is also the author of Courting the People: Public Interest Litigation in Post-Emergency India, a book that analyses the evolution of the PIL over the years.

In this interview with Bar & Bench’s Aditya AK, Bhuwania talks about omnibus PILs, why there is a general trend of disenchantment with the PIL, the role lawyers and judges have played in its evolution, and more.

Aditya AK: What inspired you to write on this topic?

Anuj Bhuwania: I studied law in the late 90s and in those days, PIL was considered one of the greatest contributions of the judiciary to Indian jurisprudence. I did an internship with Prashant Bhushan in 1999, when the Narmada Bachao Andolan case was going on. After four weeks of hearing the case, an interim decision was given wherein the stay was revoked for the first time.

From that case onwards, especially with its final judgment in October 2000, there has been a general trend of disenchantment with the PIL. The criticism since then has been along the lines of what Prof Upendra Baxi called a “structural adjustment of judicial activism”, ie, it used to be pro-poor, but it became anti-poor.

When I came back to Delhi for fieldwork, I was helping with a case that I discuss in detail in Chapter 3: the Kalyan Sanstha case. People living in a Basti in North Delhi had gotten a slum eviction notice, which said that as per an order of the High Court, this Basti is to be demolished by this date. However, not a single person living in the Basti had even heard of the case before this notice appeared.

“We have been criticising PIL as being conservative, whereas in reality, it was quite radical.”
“We have been criticising PIL as being conservative, whereas in reality, it was quite radical.”

While helping with this case, I came to realise that our fundamental understanding of what PIL was, was inadequate. We have been criticising it as being conservative, whereas in reality, it was quite radical. The innovations of PIL had made this possible.

During this case, I noticed a fundamental transformation in the way the court worked. A case about one particular settlement was extended to the whole city. The court did not even hear the affected parties. I noticed that the court would convert the issue in one case to a whole other issue which was not even argued in front of it. It would order reliefs far beyond what was prayed for in the petition.

PIL always had the potential to transform into what it had become in the 21st century. When I interviewed one of the court commissioners in the Kalyan Sanstha case, he said the court is just exercising the powers mentioned by Justice Bhagwati in the Bandhua Mukti Morcha case, with regard to not being limited by the law of evidence or civil procedure. It is not like there is a discontinuity from the 80s in terms of processual innovation in PIL.

AK: You’ve mentioned in the book that the role of the petitioner has changed drastically since the Sheela Barse case. How?

AB: Initially, PIL was an invitation for “public spirited persons” to bring matters to the notice of the court. As legal academic and writer Clark Cunningham says, there were two types of locus standi – representative and citizen standing. Representative standing would be something like a class action suit with a non-class member filing it. For example, the Olga Tellis case, where she herself was not a pavement dweller, but she had some special knowledge related to the matter. Citizen standing applies where a citizen can bring any public issue to the court.

In the former, there is still some representative relationship between the issue concerned and the person who is bringing special knowledge to court. In the other one, the person is bringing some issue which may not be related to him or her in any way.

In the SP Gupta case, which provides the manifesto for PIL, this difference between the two kinds of standing was articulated but the distinction between the two became more and more unclear over time. Increasingly, the Court started thinking of PIL petitioners on the same lines as informants who file an FIR but have a very limited role to play in the proceedings that follow. This was taken to its logical culmination in the Sheela Barse case, where the court did not allow the petitioner to withdraw the petition when she was not happy with the way the case was going.

This dilution of the role of the petitioner has been taken further in the Vineet Narain case, or the Jain hawala case, where the Court appointed Mr Anil Divan as Amicus and told everyone affected by the case to go through him for moving the Court. This practice of removing the petitioner and appointing Amicus became more and more common. The petitioner is just seen as a means to bring the case to the attention of the Court, which then takes it in whatever direction it deems fit.

The issue brought before the Court, and what it ends up being might well be something drastically different. For instance, Almitra Patel filed a case on solid waste management, but the Court made it about slum demolition.

In fact, there is an increase in the number of suo motu petitions over the years; the Court doesn’t even need a petitioner.

AK: In Chapter 2, you talk about what you describe as an omnibus PIL, giving the MC Mehta case as an example.

“MC Mehta (pictured) didn’t have anything to do with it for more than a decade.”
“MC Mehta (pictured) didn’t have anything to do with it for more than a decade.”

AB: Many people in Delhi know it as the ‘sealing case’. But actually, the sealing part is the eighth avatar of that case! We can’t really call it MC Mehta v. Union of India, because MC Mehta has had nothing to do with it for more than a decade. I call it the case with nine lives, because it has taken many different forms over the years. The only apt name for it is WP 4677 of 1985 (laughs). It has moved across eight causes of action and has resulted in the de-industrialisation of Delhi.

In this background, legal academicians who think PIL is just another type of petition with a relaxed locus standi, need to rethink. The Court can do anything at any stage of the proceeding.

AK: What kind of power does PIL confer on judges?

AB: It confers enormous power on judges, and it is not true that all judges use it in a negative way. In Page 12 of my book, I mention,

“The fact that there are many PIL judges, who do not necessarily take the liberties that the judges in the cases I discuss do, does not take away the fact that the PIL jurisdiction empowers them to do so.”

What I try to illustrate in the book are the extremes to which PIL allows judges to go. If you give so much discretion to any authority, it can be utilised in good ways as well. To confer such powers on any authority in a democratic polity, especially an unelected authority, should be consider anomalous.

The entire legal fraternity, including judges, lawyers, legal academia, journalists, are all complicit in the fact that we think because PIL has powers to do good, we should not oppose it.

The entire legal fraternity, including judges, lawyers, legal academia, journalists, are all complicit in the fact that we think because PIL has powers to do good, we should not oppose it.

AK: How has the objective behind PIL evolved over the years in the context of the Delhi slum demolitions?

AB: In the case of State of Uttarakhand v. Balwant Chahal, the Supreme Court itself gives a history of the PIL. The focus has shifted from poverty to environment to governance. In the slum demolition cases, almost a million people in Delhi were evicted from their homes. The main concern is that the court’s power to do this has come from PIL. The cases that are going on with regard to slum demolitions are led by the court itself. And this was only possible because of the PIL.

Most judiciaries in the world probably have a middle-class bias, and that is not untrue about India. But only in India does the court have so much power to act on their biases, thanks to PIL. A lot of people say that this slum demolition campaign was actuated by middle class groups or resident welfare associations. But if you see the Yamuna Pushta case, it wasn’t the middle class petitioners, but the court that made it what it was about. I try to show in the Chapter on slum demolitions that there is a methodical way by which the Court goes about doing it. To quote from page 90 of the book,

“The Court made its own accusations, came up with its own facts, and ordered its own remedy, without feeling the need to hear anybody else.”

AK: What role do judges play in ensuring that the powers are not misused?

“Justice AP Shah (pictured) successfully brought these slum demolition cases to an end.”
“Justice AP Shah (pictured) successfully brought these slum demolition cases to an end.”

AB: The Chief Justice of India and the Chiefs of the high courts have enormous power to transform the culture of the court. When he was Chief Justice of Delhi High Court, Justice AP Shah successfully brought these slum demolition cases to an end. There might be what we consider ‘good judges’ like Justice Shah, but we need to institutionalise it. We can’t rely on every judge to be like that.

We have to incorporate PIL in the Supreme Court Rules and the High Court Rules. There should be rules as to how it works, not just in terms of the type of cases that may be entertained, but also in terms of evidence, court commissioners etc.

As I have said in Chapter 4, there have been attempts to institutionalise it in the past. The logic for why it has not happened is perhaps best provided by Pratap Bhanu Mehta, when he writes,

“The legitimacy and power that India’s judiciary does enjoy most likely flow not from a clear and consistent constitutional vision, but rather from its opposite.”

AK: The judiciary itself has been critical of this point.

AB: There seems to be some inconsistency on this issue. Recently, the Supreme Court criticised the Himachal Pradesh High Court for passing a judgement where it basically created a legislation. But the Supreme Court itself does it all the time and so many high courts have done it over the years. One the one hand, it does it itself, and on the other, it criticises others.

I am not making an argument that we should go back to the pre-PIL stage. Justice Pathak’s judgment in the Bandhua Mukti Morcha case is something to go back to. What he warned us about has actually happened. Justice Hidayatullah had also said in 1983 that PIL would lead to annihilation of procedure.

There were some fundamental questions that were being asked of PIL in the 80s that people don’t ask anymore. Everybody seems to be on the gravy train. The judges get more power than ever, lawyers also become more important, and so do journalists!

AK: What role have lawyers played in the evolution of the PIL?

“A man like TR Andhyarujina (pictured), who was sceptical about it, was in a very small minority.
“A man like TR Andhyarujina (pictured), who was sceptical about it, was in a very small minority.

AB: Prof Baxi had written that in the early 80s, much of the Bar was against PIL. But now, the entire Bar is in favour of it. A man like TR Andhyarujina, who was sceptical about it, was in a very small minority. Ultimately, the responsibility of cleaning up the mess that has been created by PIL has to go to the judges.

People don’t get money out of being Amicus Curiae, but they get a certain proximity to the judges, and a certain power that is perhaps much more important than money. It is a path to social mobility in judicial circles at this point.

AK: You end the book on a rather ominous note, with a quote from Foucault that says, ‘Popular justice, once reified into a court-like institution, becomes its deformation’. What are the dangers of dispensing popular justice?

AB: Popular justice is a fascinating romance that many people have had at various points in time. What we find repeatedly is that any attempt that the state makes to approximate this communitarian idea ends up entrenching state power in more insidious ways. India has taken a path since the emergency where we have diluted legal standards and created parallel institutions like Lok Adalats, tribunals and PIL. People compare PIL courts to panchayats, but I agree more with former Chief Justice of India HM Hidayatullah, who in 1984, compared the PIL courts to medieval darbars.

At this point, it is no longer popular justice, but another State law, without the protections. People rightly say that there is so much delay in litigation that procedure is the punishment in India. The way to deal with this is however not by creating parallel institutions, but by reforming our procedural laws and making them work. Nobody wants to deal with the heart of the problem; they just want to create these romantic fora. So based on our undemocratic history and our entrenched inequalities, we should be very vary of popular justice.

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