PIL or PBL, which is constitutional?an article by Adv.Mathews J.Nedumpara
“What
is in a name”, asked Shakespeare in Romeo and Juliet. Five hundred years since the said question
was posed, the Supreme Court of India happened to rewrite Articles 124 and 217
of the Constitution by its judgments in Judges-2 and Judges-3 cases , namely, Supreme Court Advocates-on-Record v. Union of India, (1993) 4 SCC 441 and In re Special
Reference 1 of 1998, AIR 1999 SC 1. Later
in its judgment of 16th October, 2015 in Judges-5 case (not Judges-4
case), namely, Supreme Court
Advocates-on-Record Association and another v. Union of India & Ors. [Writ
Petition (Civil) No.13 of 2015 and others decided on 16th October,
2015] the Supreme Court struck down as unconstitutional the Constitution
(Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointment
Commission Act, 2014 (the Acts, for short), which Acts had the unanimous
support of both the Houses of the Parliament and ratified by 2/3rd
of the States, except for veteran Ram Jethmalani, only because instead of the
words “Pro Bono Litigation” (PBL), the words “Public Interest Litigation” (PIL)
were chosen to be used. Had the Supreme
Court of India, the legal fraternity and the press chosen to describe the
benevolent procedure of allowing a person aggrieved, where the constitutional
Courts are beyond his reach due to his poverty, illiteracy and other
disabilities, as PBL instead of PIL, what is done in the name of PIL, which
legendary Justice Krishna Iyer described as a “ravenous wolf in sheep's
clothing”, would not have happened. To
state in the simplest of words, legendary Justices like P.N. Bhagwati, Y.V. Chandrachud,
Krishna Iyer et al, by relaxing the concept of locus standi by their judgments
in Peoples Union for Democratic
Rights v. Union of India (A.I.R.
1982 SC 1473), Shriram
Food & Fertilizer Industries v. Union of India, AIR (1986) 2 SCC 176, M.C.
Mehta v. Union of India,
(1988) 1 SCC 471, Parmanand
Katara v. Union of India,
AIR 1989 SC 2039, Council For
Environment Legal Action v. Union Of India, (1996) 5 SCC 281, etc., made it amply clear that
where a person’s fundamental or legal rights are infringed, nay, a person
aggrieved is unable to approach the constitutional Courts for enforcement of
his rights out of his illiteracy, poverty and other disabilities, any person
acting pro bono publico can represent his cause before such Courts. The Supreme Court did not discover a new
jurisprudence or any new remedy; it only relaxed the procedure for institution
of a suit or proceeding by converting even a letter sent in a post card as a
Writ Petition. The PBLs, which the Court
thus promoted by its activist approach, are still litigations for enforcement
of the fundamental or legal rights of a private individual or a group of
individuals. It did not envisage a
scenario where any self-appointed champion of a public cause could act as if he
is the Attorney General/Advocate General who alone can represent a public
interest. Had the words “public
interest” were not used and the words “pro bono” were used, Courts would not
have been deciding whether or not the executive Government should appoint
Judges of the higher judiciary, which is what our Constitution mandates, or the
collegium; whether or not the Parliament was wise in enacting the aforesaid
Acts; whether or not the Union Law Minister should be a member of the NJAC;
whether or not buses and, of late, taxies in Delhi should run on diesel or CNG;
whether or not mining of iron ore be permitted; whether or not to investigate
the black money stashed outside the country and, if so it should be done by the
CBI or the Special Investigation Team (SIT) constituted by the Supreme Court;
whether the Augusta Chopper Scam should be investigated by the CBI or the SIT,
to name a few. Justice Krishna Iyer even
lamented that India today is ruled by Judges, though he did not go to the
extent of what some people had lamented that we are no longer a democracy but a
“judgeocracy”.
The use of the
words “public interest” instead of “pro bono” has meant the superior Courts
delving into many matters which are in the exclusive domain of the executive
and legislature as if the judiciary is the executive and legislature and acting
in substitution thereof, both at once.
While many of the orders passed by the higher Courts by wittingly or
unwittingly entering into the domain of the executive and legislature, like
banning of diesel buses in Delhi, have served enormous public good, which has
also led to the popularity of the PIL as a lego-political tool in the hands of
citizens at large, if one were to take stock of the overall benefit which the
misconception of the words “public interest” and the words “pro bono” has
resulted in, one could say safely that it has done more harm than good. To cite an example, when the concept of relaxation
of locus standi was conceived by legendary Justices like P.N. Bhagwati, Y.V. Chandrachud,
Krishna Iyer et al, they had in mind the amelioration of the plight of the
undertrials, slum dwellers, bonded labourers and the like. But today PIL is used against the poor for
whose benefit it was conceived. For
instance, more than 70% of the population in Mumbai lives in slums, of which
50% are unauthorized. The Government of
Maharashtra conceived a scheme for providing home for all slum dwellers by recognizing
their occupation of illegal slums, so too their rehabilitation, by allowing the
slums to be redeveloped through MHADA/Builders.
However, the High Court of Bombay by entertaining PILs quashed the
extension of the cut-off date for regularization of slums from 1st
January, 1995 to 1st January, 2000.
The Court did even the unthinkable, namely, secured an affidavit at the
hands of the State Government that the cut-off date will not be extended beyond
1st January, 2000. Later the
Slum Act was amended extending the cut-off date to 1st January, 2000
after securing an opinion from the Attorney General that the Government is
competent to enact a law notwithstanding the undertaking given to the High
Court not to extend the cut-off date.
The BJP Government, which came into power on a popular mandate on a
manifesto that the Government will regularize all slums till date and its
endeavour is to provide homes for all, took a decision to regularize
slums/structures in the State of Maharashtra set up upto 31st December,
2015. The unkindest cut of all is that
the High Court of Bombay a few days back refused to grant permission to the
Government to implement the said cabinet decision. What makes one shudder to think is that why
at all a Government, which came to power on a popular mandate, sought
permission of the Court to implement its decision.
The
concept of PIL, which is no longer what it was conceived to be but came to be a
“ravenous wolf in sheep's clothing”, has made the public
at large, nay, even Judges and legal luminaries, to think that it is legitimate
for the Court to delve into matters which are in the exclusive province of the
executive and legislature. And that is
the reason why the Government of Maharashtra was ill-advised to seek the
permission of the Court to implement its decision to regularize all
slums/illegal structures set up prior to 31st December, 2015. The Court’s refusal to grant the permission
has inconceivable ramifications on the common man. Seventy two per cent of the buildings in
Mumbai and Thane are illegal. The Courts
acting on PILs earlier had ordered demolition of all illegal structures. Thousands and thousands of shanties and
structures were demolished, but it received little public attention. The only one which received public attention
is of Campa Cola because it concerned the rich, if not the super rich.
*******
-Adv.Mathews J.Nedumpara,
President, National Lawyers’ Campaign For Judicial
Transparency And Reforms.
