Don’t Weaken a Great Reform

- by K Ramachandra Murthy

“Do you have lands there? Have your lands been taken away by the Government?”
“No! The petitioners are not farmers. They are journalists.”
“Then what is your locus standi?”
“The State Government is entering into contacts with foreign governments and the private companies in those countries without involving the Central government. this is unconstitutional.”
“It if for the Centre to take care of it.”
“In the name of constructing state capital, fertile lands are being acquired from the farmers. The State Government has also ignored the report of the Sivaramakrishnan Committee appointed by the Centre.”
“Why did not you show dry lands? Are you not interested in constructing a new capital? Let the farmers who lost the lands apply. Your petition does not have any weight. We are striking it down.”

This in short is the conversation in the Apex Court between advocate of the petitioners - senior journalist ABK Prasad, editor of Leader Ramana Murthy and journalist-advocate Shravan Kumar - and Apex Court Chief Justice TS Thakur.

Is PIL a menace?

Justice DY Chandrachud and Justice Khanvilkar were members of the divisional bench along with the Chief Justice. In fact, DV Chandrachud’s father YV Chandrachud was a former chief justice of the Apex Court and is remembered for passionately encouraging PILs. But, it is also an open secret that Justice Thakur is impatient with those filing PILs because he is upset with the pendency. The cases are more and the judges are fewer. Moreover, at least some of the petitioners filing PILs have vested interests and hidden agendas.

The Apex Court has already asked the Law Ministry to look into ways and means to discourage such frivolous PILs and the Law Ministry is already on the job. Justice (Retd) PN Bhagawati, who pioneered and institutionalised the PILs is assisting the Law Ministry and another legal luminary Justice VR Krishna Iyer has helped the the Law Ministry till his death on December 4, 2014.

Pranab has backed PILs

President Pranab Mukherjee had lauded Justice Bhagawati as a pioneer in PILs. He had also said that Justice Bhagavati had immensely contributed to empowering the Lok Ayukta set up and to ensure that the poor and the marginalised get justice. When the President spoke after the then Apex Court Chief Justice Justice Kabir released PN Bhagavati’s ‘My tryst with Justice’ at the Rashtrapati Bhavan on December 3, 2012, he said PIL was a boon to the poor, the oppressed and those who cannot knock the doors of the court. He said the PIL would go a long way in ensuring good governance. There are instances galore when Apex Court pronounced great verdicts in PILs.

It is because of such verdicts that the poor and the marginalised are getting some succour. If the people have greater faith in judiciary than in executive and the legislature, it is because the judges have kept the social concerns in mind while interpreting the Constitution. Stalwarts like Justice Bhagawati, O Chinnappa Reddy, YV Chandrachud, VR Krishna Iyer, DA Desai and Jeevan Reddy have toiled hard to ensure justice to those languishing in the margins. It is because of their efforts that the legal system still has human values intact. If the Apex Court chief justice rejects a PIL without even going through the merits of the case, it becomes a precedent for the lowr courts. Even High Courts would simply reject genuine PILs without even going into the merits. This is grave injustice and disservice to the poor. This amounts to watering down a major reform achieved after long struggle.

A redoubtable journalist

The Chief Justice may not be knowing that ABK Prasad is a senior editor, whose career spanning six long decades is a saga of standing up for ethical values. It could be because his exposure to Telugu journalism is sparse. But, Chief Minister Chandrababu Naidu is very well aware of ABK Prasad’s contribution. For him to term ABK a lunatic for approaching the courts is nothing short of sheer insolence and vainglory. Of course, the people would decide who is insolent and vainglorious. One wonders what would be the response of Justice Thakur if the petitioner was either Arnab Goswami or Barkha Dutt. Things would have been different if only the chief Justice perused the contents of the petition for a moment. The chief justice also said that he would take cognisance if the farmers themselves approach the court as petitioners. Who can spend up to Rs 5 lakh per day towards the lawyer’s fee?

If only the PIL, filed to fight against the indiscriminate actions of the AP Government and fought by conscientious advocates with social concern, was given a perusal by hon’ble his lordship, the people would have been immensely benefited and the very purpose of pioneering PILs would have been served. It’s not just Justice Thakur, who spoke against the PILs. In fact, former chief justice Kapadia had even proposed penalising frivolous PILs. Justice Kapadia knows the value of PILs. It was just because of a PIL that the massive 2 G Spectrum scam came to light in 2008. It was Justice Kapadia, who monitored the CBI probe into the scam.

Justice Thakur, who rejected ABK Prasad’s PIL on the ground of not having a locus standi, had in fact issued a notice to the Central Government and the Union Law Ministry on May 12, 2016 on the basis of a PIL filed by BJP leader Ashwini Kumar Upadhyaya to double the number of judges in the Supreme Court. This PIL truly has public interest at heart. Hence, a petition that is meant to help the people should not be rejected outright without examining the merits of the case.

Legal succour to the poor

PIL is a strategic endeavour aimed at ensuring justice to the poor and the voiceless. This endeavour came about in the post-emergency days when the reputation of the judiciary was badly smeared. Several justices with social concern tried to take justice closer to the marginalised. Both Justice Krishna Iyer and Justice Bhagavathi published a report way back in 1977 asking the people to use Social Action Litigation. Then they began suo motu cognisance of letters they received.

One can understand the evolution of the PIL from an idea to an actionable instrument if one peruses the metamorphosis of the Article 21 of the Constitution, which ensures that the life and the liberties (as per the limits enshrined in the law enacted) of an individual are safeguarded.

An letter written by eminent journalist Kuldip Nayyar on the plight of a TADA undertrial was taken as PIL. This enabled the judiciary to review the government actions. One can understand the evolution of the PIL from an idea to an actionable instrument if one peruses the metamorphosis of the Article 21 of the Constitution. This article ensures that the life and the liberties (as per the limits enshrined in the law enacted) of an individual are safeguarded. Till then, the judiciary opined that individual liberty and freedom would be curbed within the ambit of the law. In the AK Gopalan case, the Supreme Court had opined that preventive custody and arrest are in accordance with the constitution if the Government enacts a law or bring about an ordinance.

But, Menaka Gandhi case has brought about a change in this interpretation. The courts began saying that individual liberty as enshrined in the Article 21 should be interpreted in the light of the provisions of Articles 14, 19 and 21 in a rational and legal manner. It assured the citizens that all are equal before the law as per Article 14. The Article 19 deals with freedom of expression, legal and rightful assembly and organising agitations and to work for eking out a livelihood. The Apex Court has unveiled the innate oneness of these rights. If such situation arises when there is conflict with these rights due to the actions of the Government, it becomes the duty of the government to act with restraint.

These precautions may have been deemed necessary in view of the unsavoury experiences during Emergency. The interpretations of individual liberty and right to live became more liberal post the Menaka Gandhi case. The Indian Constitution uses the expression ‘ Procedure as established by law,’ while the American Constitution uses ‘ due process.’ The amendments insured that Article 21 incorprates the word ‘ Substantive due process’ by drawing from both concepts. It is essential to remember that all these became possible only because of PILs. The fundamental rights as enshrined in the third schedule and the directive principles in the fourth Schedule were interpreted together in such a manner as to aid the citizens. In the Unnikrishnan, JP vs State of Andhra Pradesh case, Justice Jeevan Reddy has said that fundamental rights and directive principles are not at variance with one another but are complementary.

He further said that fundamental rights are the instruments that help implement the directive principles. In the Keshavananda Bharati case too, the courts have said that both the directive principles and fundamental rights are to be used to achieve social transformation and welfare state. Thus the ambit of the Article 21 has been gradually expanded and Justice PN Bhagawati said that this right is deemed to be implemented only when people have their basic necessities fulfiled and live with respect and honour.

Benefits of PILs

It was mainly due to the PIL filed by journalist Olga Tellis that the attempts of big builders’ plans to evict slum dwellers could be foiled. The court did not question Olga’s locus standi. The series of stories published in the Indian Express ensured quick trial for the under-trials languishing in Bihar’s prisons. Similarly, Shiela Barse’s PIL has highlighted the plight of women convicts in prisons. It was because of her efforts that the Supreme Court had directed the Government to post female guards in women’s prisons and to keep women in separate cells. Also, it was again a PIL that made the Supreme Court direct the Government and the hospitals to ensure speedy treatment to accident victims.

The Apex Court activism ensured that fewer questions were raised about the locus standi of the petitioners. A PIL by the People’s Union for Democratic Rights against the usage of child labourers in the works of the Asian Games was responsible in making employing child labour a cognisable offence. It was the series of PILs by environmentalist MC Mehta that cleaning up of Ganga was taken up and polluting industries were moved out of Delhi. Vizag-based former IAS officer and environmentalist EAS Sarma is waging a relentless battle against the acts of omissions and commissions of the Government agencies. No court has ever asked his locus standi. Even today, he shoots off at least two missives every day against the politicos and the officialdom. When a PIL alleged that the mid-day meals scheme was not being properly implemented, the Apex court studied the case and gave requisite orders to ensure that the scheme is properly implemented. After the formation of Telangana, when the T Government issued a GO making the wards of those born in Telangana after 1956 ineligible for Government scholarships, the court took cognisance of a PIL and ensured that the GO was withdrawn. Eminent advocate Satyaprasad argued on behalf of the petitioner.

A potent weapon for the people

One cannot in anyway imagine that the Chief Justice of the Supreme Court does not appreciate the value of a PIL. At the same time, it is a no brainer that several frivolous PILs are wasting the valuable time of the Supreme Court. For instance, Justice Thakur dismissed four PILs on March 11. One of them wanted the Supreme Court to direct the Government to rename India as Bharat. The other one was a PIL on the massacre of Sikhs 32 years ago. The third was filed by expat Indian Dinesh Thakur seeking the regularisation of drug industry. In fact, the CJ had reprimanded him and said that he was seeking cheap publicity.

One cannot in anyway imagine that the Chief Justice of the Supreme Court does not appreciate the value of a PIL. At the same time, it is a no brainer that several frivolous PILs are wasting the valuable time of the Supreme Court.

On the fourth PIL, the CJ asked the petitioner if he was a professional litigant. The organisation led by legal luminary Prashant Bhushan was responsible for the unravelling of the 2 G Spectrum scam. He has several other successes to the credit of his organisation. One can also understand the anger of CJ Justice Thakur on unnecessary PILs. He has been repeatedly asking the Government to appoint more judges to address the pendency. On one occasion, he became teary-eyed in the presence of Prime Minister Narendra Modi. He also surprised many by slamming Prime Minister for not mentioning judicial appoints in his Independence Day speech. The number of judges should definitely be encouraged. But, it also important to note that PIL is a potent weapon in the hands of the people.

A study by Manmath Singh of Himachal University has shown that the number of PILs in the pending cases is not more than one per cent. Thus, there is a dire need to evolve a system whereby the chaff is sifted from the grain. Any attempt to water down the PIL, put in place by the efforts of great pioneering men with the avowed aim of benefiting the poor and the voiceless would surely be deleterious.