PILs are not always in public interest
BY DR P.C. ALEXANDER
The caution advised by the Supreme Court last week about courts interfering in matters relating to the economic poli cies of the government has not come a day too late. While setting aside an order of the Andhra Pradesh high court which had invalidated an amendment of the state government to the Stamp Act, the Supreme Court observed, "The courts do not have the expertise in these matters and in this age of specialisation when policies have to be laid down with great care after consulting specialists in the field, it will be wholly unwise for the courts to encroach into the domain of the executive and the legislature and try to enforce its own views and perceptions."
While judicial intervention in matters relating to economic policies has been sternly disapproved of by the Supreme Court, its caution is against all encroachments by the judiciary into matters which fall outside its domain. The only exceptions are those involving the rights and liberties of the citizens, for which the judiciary is of course the undisputed guardian. Even though there is no formal enunciation of the doctrine of separation of powers in the Indian Constitution, the Constitution has been anchored on the principle of checks and balances and this had been strictly honoured by the three organs of the government, namely, the legislature, the executive and the judiciary, till very recently without any controversy or confusion. However, the line of separation of powers among the three organs of government started getting blurred after the legality of Public Interest Litigation (PIL) was recognised by the Supreme Court relaxing the requirement of locus standi in filing petitions before the courts. The Supreme Court's intention was to open a new door of access for the poor and the disadvantaged sections of the society, which lack the facilities and the financial means to approach the courts. However, several courts had not properly understood the rationale of this decision and have been entertaining PILs assuming to themselves the functions of the executive or the judiciary. Several NGOs started taking up the cause of aggrieved parties and very soon judicial activism led to unauthorised intervention by the judiciary in matters outside its jurisdiction.
The most effective remedy against the misuse of PILs is of course for the executive to be more prompt and responsive in attending to the grievances of the people which fall within its sphere of responsibilities. The sad fact about administration in India is that it has not fully understood the implications of the transformation of the status of "subjects" into "citizens" with rights and liberties, with the attainment of independence by the nation. It must be added that even many citizens have not grasped the significance of this transformation because of their illiteracy or ignorance. The callousness and indifference with which people's demands are dealt with by the administration has led to the erosion of the confidence of the citizens in the executive's abilities or even its will to look after their interests. After the recognition by the Supreme Court of the PIL as inherent in the rights of the people, the people and the NGOs championing their causes started filing petitions before the courts on a wide range of grievances, some serious and some not so serious, such as the economic policies of the government, admission policies in educational institutions, conduct of examinations, orderly traffic in the cities, controlling the menace of monkeys, traffic hazards caused by wandering cattle, etc. In some cases the executive appeared to be even happy and relieved that the courts had encroached upon its jurisdiction, as it did not wish to have politically inconvenient issues on its hands.
A serious danger in the judiciary being saddled with petitions which normally should not have come within its purview is that this adds to the already heavy burden of the pendency in the higher courts. While curtailing the number of PILs based on the legitimacy of jurisdiction may not by itself make any substantial dent on the backlog at the level of the high courts, such a step will certainly help a great deal in arresting the present trend of people resorting to the PIL route to get their grievances redressed. The courts could help in stopping dubious petitions filed before them in the garb of PILs if they show greater strictness in rejecting such petitions at the threshold. It should not be difficult for the courts to identify petitions which do not qualify to be PILs at the preliminary stage itself. If the courts are not strict about jurisdiction, the backlog of PILs in the courts will become another cause of complaint against the judiciary.
It is also time to review in the light of the experience of the past few years, some of the concessions and relaxations regarding established rules and procedures followed by the courts in PILs. The low rate of fees charged for PILs is justifiable in cases where the petitioners are too poor to pay the normal rates of court fees, but this concession should not be allowed to be exploited by undeserving parties who opt for the PILs because they cost them very little.
According to the ruling of the Supreme Court, even a letter sent by post can be accepted by courts as a PIL, if the court is prima facie satisfied that public interests are involved. But relaxations like this are reducing the sanctity of the judicial procedures and opening up opportunities for misuse of the facilities intended for bona fide but helpless petitioners. If petitions are filed on the ground of public interest, the person or agency concerned should at least be asked to file an affidavit along with the petition so that he can be held responsible for the facts stated in the petition.
Several NGOs, motivated mainly by their commitment to serve the really poor and the disadvantaged sections, have been active in the PIL field. But there are also some who are not strictly guided by such noble motives. While dealing with PILs, the courts should not hesitate to levy appropriate penalties on those who wilfully exploit the procedure of PILs for selfish interests.
Public interest is not defined in any law now. Certain guidelines have been forthcoming from the Supreme Court, but there is still a lot of ambiguity as to what exactly constitutes public interest. Now that a good deal of experience has been gained in the handling of such petitions it should be possible to lay down a set of more tangible criteria for deciding whether a petition deserves to be treated as a PIL by the courts concerned. There could also be a negative list of cases which do not, prima facie, come under the criterion of PILs. There are of course several practical difficulties in having an exhaustive list defining public interest, but it is time that one is attempted and some of the loopholes in the procedure are plugged, as otherwise PIL which was intended mainly to help the poor and the disadvantaged group in society will itself get discredited.
DR P.C. ALEXANDER was the governor of Maharashtra and Tamil Nadu and is at present a Member of Parliament
The Asian Age, March 6, 2008 |
