In public interest

Justice Sarosh Homi Kapadia, the senior-most judge in the Supreme Court, succeeded Justice K.G. Balakrishnan as the 38th Chief Justice of India (CJI) on May 12. Justice Kapadia, who will be the first CJI born after Independence, will have a tenure of two years and four months, as Supreme Court judges retire at the age of 65. He is known within the legal fraternity as a tough judge, and his appointment has aroused high expectations.

Justice Krishna Iyer, a former Supreme Court judge, hailed Justice Kapadia's appointment. He said it filled him with hope that we are on the verge of an era of constitutional justice. In a letter to him, Krishna Iyer said: India is a poor country and poverty jurisprudence and social justice must receive high priority. In his reply, Justice Kapadia spoke about his humble origins, how he started his career as a Class IV employee and went on to state that his only asset was his integrity.

Expressing his resolve to fulfil his obligation to the Constitution in the matter of achieving the goal of inclusive growth, Justice Kapadia said: Even as a judge of the Supreme Court I have used my knowledge of accounts and economics for the welfare of the downtrodden, including tribals and workmen.

However, the CJI's views on public interest litigation (PIL) have caused disquiet among those who consider it an effective method to achieve social justice. He said on his first day in office, while hearing a PIL as part of a three-judge Bench: Huge cost will be imposed for filing frivolous PILs.

On May 15, while hearing another petition, he said: PIL petitioners have been moving the courts straightaway without even bringing the problem to the notice of the authorities. And the courts have been entertaining these PILs, virtually taking over the function of the authorities. We will not allow such bypassing of the authorities to take place any more. In this case, a non-governmental organisation (NGO) had sought the implementation of road safety measures by the Andhra Pradesh government. The CJI sought to know whether the NGO had issued notice to the authorities concerned before approaching the Supreme Court.

Some may wonder whether the executive has to be reminded about its duty to implement road safety measures and whether such a reminder serves any purpose. The CJI's views could trigger a debate on the PIL and whether it should be the last option. The general perception is that waiting for the executive to show sensitivity to a grievance would mean letting it aggravate.

It will be of interest to examine the CJI's views on PILs in the light of the Supreme Court's judgment in the Balwant Singh Chaufal case, delivered on January 18. In this case, the High Court had directed the Uttarakhand government to decide whether the appointment of a person who was more than 62 years old as Advocate General of the State was valid or not. The law on this issue is settled: there is no upper age limit for a person to be appointed to the post.

The Supreme Court allowed the appeal and said: The State of Uttarakhand was a part of the State of U.P. [Uttar Pradesh] a few years ago. In the State of U.P., a large number of Advocate Generals appointed were beyond 62 years of age at the time of their appointment. The petitioner, a local practising lawyer, ought to have bestowed some care before filing this writ petition in public interest under Article 226 of the Constitution. In our considered view, it is a clear case of the abuse of process of court in the name of the public interest litigation. The petitioner ought to have known that the controversy which he has been raising in the petition stands concluded half a century ago and by a Division Bench judgment of the Nagpur High Court and was approved by a Constitution Bench of this court. The Supreme Court imposed an exemplary cost of Rs.1 lakh on the respondents for filing the frivolous PIL before the High Court.

The Bench then traced the evolution of the PIL in India. In the first phase of its evolution, the court tried to preserve and protect the fundamental rights of the marginalised and the deprived and poor sections of society by relaxing the traditional rule of locus standi and broadening the definition of aggrieved persons. The Supreme Court and High Courts earned great respect and acquired great credibility in the eyes of the public because of their innovative efforts to protect and preserve the fundamental rights of people belonging to the poor and marginalised sections.

The second phase began sometime in the 1980s and was marked by innovation and creativity of the courts, where directions were given to protect the environment.

Unfortunately, of late, it was increasingly felt that the method was being abused blatantly to file petitions with oblique motives. We think time has come when genuine and bona fide public interest litigation must be encouraged, whereas frivolous public interest litigation should be discouraged, the court said and laid down guidelines for High Courts on PILs. The Supreme Court directed all High Courts to frame and notify their rules in this regard.

The Supreme Court is monitoring the implementation of its directives, and the case came up for hearing on May 3 before the Bench of Justice Dalveer Bhandari and Justice Gyan Sudha Misra. The Bench found that some High Courts had responded and others sought time to do so before the next hearing on July 19.

Guidelines

In its January 18 judgment, the Supreme Court Bench, comprising Justices Dalveer Bhandari and Mukundakam Sharma, laid down the following guidelines to be followed while admitting PILs:

The courts should prima facie verify the credentials of the petitioner before entertaining a PIL;

prima facie be satisfied about the correctness of the contents of the petition;

be satisfied that substantial public interest is involved;

ensure that the petition that involves larger public interest, gravity and urgency is given priority;

before entertaining a PIL, ensure that it is aimed at the redress of genuine public harm or public injury;

ensure that there is no personal gain, private motive or oblique motive behind filing the PIL; and, finally,

ensure that petitions filed by busybodies for extraneous and ulterior motives are discouraged by imposing exemplary costs or by adopting similar novel methods.

Some observers have suggested that the judgment is silent on the need for such uniformity in the Supreme Court in entertaining PILs. Further, such a guideline can be seen as judicial legislation being implemented in a sphere where there is no law. In a system where there is a clear separation of powers, the sphere of legislation should be left to the legislature, observers say.

They wonder whether it would be feasible to verify the credentials of petitioners, considering the volume of litigation in India. Regarding the guideline that the court should prima facie satisfy itself as to the correctness of a petition, it is pointed out that every petition is supported by an affidavit of the petitioner. In case a false statement is made therein, he or she is liable to be prosecuted for the offence of perjury.

The guideline that the court should be satisfied that substantial public interest is involved has also led to some concern. In most cases, this can be done only when the court hears the parties on merits. Imposition of exemplary costs on frivolous petitioners too, observers say, can only be done after the court hears the parties. In the Balwant Singh Chaufal case, the petition might well have been a frivolous one. The High Court did not find it so and the Supreme Court decided it to be so only after hearing the parties concerned. If High Courts are to filter PILs according to their discretionary standards of frivolity, it would start a disturbing trend and undo some of the achievements of the PIL movement.

Conflicting tendencies

To many, the CJI's view conceals the fact that there are two conflicting tendencies among Supreme Court judges on the question of PILs. In University of Kerala vs Council of Principals of Colleges, Kerala, decided on November 11, 2009, reported at (2010)1 SCC 353, Justice Markandey Katju and Justice A.K. Ganguly have referred the question of judicial legislation by courts in PILs to a larger Bench. The questions referred to that Bench are

1. Whether the court by an interim order dated September 22, 2006, can validly direct implementation of the Lyngdoh Committee's Report (on holding of student union elections in colleges and universities);

2. Whether the order dated September 22, 2006, really amounts to judicial legislation;

3. Whether under the Constitution the judiciary can legislate, and, if so, what is the permissible limits of judicial legislation. Will judicial legislation not violate the principle of separation of powers broadly envisaged by the Constitution;

4. Whether the judiciary can legislate when in its opinion there is a pressing social problem of public interest or only make a recommendation to the legislature or concerned authority in this connection;

5. Whether Article 19(1)(c) and other fundamental rights are being violated when restrictions are being placed by the implementation of the Lyngdoh Committee report without authority of law; and

6. What is the scope of Articles 141 and 142 of the Constitution? Do they permit the judiciary to legislate and/or perform functions of the executive wing of the state?

The CJI is yet to constitute a Constitution Bench to consider these questions. However, the divisions within the Supreme Court on the question of PILs are becoming sharper, with some judges openly advocating restraint and others articulating a nuanced approach to the admissibility of PILs on the basis of guidelines that are debatable.

But there are certain public interest petitions that do not require lengthy hearing to decide whether they are frivolous. On May 5, a PIL petitioner sought the Supreme Court's direction to introduce the text of the Constitution in primary classes. He argued that the Constitution should be learnt as quickly as possible as it was the foundation of all laws in the country. Another petitioner wanted the court to direct the Union to repeal laws, including the Indian Penal Code, which the colonial British wrote for the country as, in his view, only those laws passed by Parliament should continue. Another petitioner wanted total abolition of paper currency. No doubt these deserved to be dismissed, and indeed were rejected, at the entry stage.

Former Supreme Court Judge Justice P.B. Sawant once said a judge should develop a strong sense of smell. If something stinks, then he must be extra careful. It is the right judicial instinct and the skill of the judiciary that will stop the misuse of PILs and restore to them their pristine and useful character. Any amount of guidelines, laws and rules in this regard can only lead to suspicions regarding the judiciary's real intent with regard to PILs.