Has The Last Bastion – Judiciary – Finally Fallen?


The mainstream print media never tires of speaking up in favour of Public Interest Litigation (PIL). However in a recent article ‘The Rise and Fall of The PIL’ by Mr. Harish Salve (The Times of India, 05.06.2020) the author has been critical of PILs but in a selective way. As certain points raised by him cannot be left uncontested and the ToI is unlikely to print my viewpoint in full, I am taking the liberty of raising the same in CC.

While taking a dig at the UPA 2 government Mr. Salve states “2009-14 saw a dramatic rise in such PILs – as governance shrank … for nature abhors a vacuum”. However the 2018-19 Annual Report on Indian Judiciary published by the Supreme Court of India gives number of Letters/Petitions and Writ Petitions (Civil and Criminal) received/filed under PIL in the Supreme Court of India from 1985 to 31.10.2019. The data shows that maximum number of letter/petitions, Writ Petitions (Civil) and Writ Petitions (Criminal) filed under PIL till date were received by the Supreme Court in 2018 i.e. 61061, 350 and 49 respectively. Analysis of the data shows that there was an increase of 65% in letter/petitions, 59 % in Writ Petitions (Civil) and 38% in Writ Petitions (Criminal) received/filed as PIL in the Supreme Court during 65 months of NDA I & II (June 2014 to October, 2019) as compared to 65 months of UPA I & II (January 2009 to May 2014). If the number of PILs filed is an indicator of governance during 2009-2014 then by that same logic it implies total failure of governance from June 2014 onwards.

While Mr. Salve is scathing in his criticism of the protagonists of left-leaning economy he ignores that an increasing number of PILs are being filed to implement the right wing agenda. On 22 July, 2019 a day on which the Hon’ble Supreme Court dismissed ‘in limine’ my Special Leave Petition challenging the Delhi High Court judgement on the constitutional validity of Delhi Rent Control Act, 1958; the same bench issued notice in a petition (civil appeal) which inter alia prayed for immediate steps to save the “critically endangered species of indigenous cow progeny with immediate effect and stop their slaughter in any part of the country”. The court even condoned the delay in filing the said petition. In my petition it did not give me even few seconds to argue the petition. It refused to listen to the fact that a similar petition regarding U.P. rent act was already being heard by another bench in the Supreme Court. It did this even though testing the constitutionality of a law on the touchstone of the fundamental rights is the duty of the Supreme Court under the Constitution of India and not saving species of indigenous cow. That is the job of the executive.

When such orders are passed the inescapable feeling one gets is that the fate of a petition in the Supreme Court depends on external factors like the concerned bench, face value of the lawyer appearing etc. Many orders are apparently arbitrary and have little to do with the merits of the case. My impression is that in the last six years of NDA being in power more and more PILs are being filed and heard to further the right-wing agenda. The courts are also seen to be tilting towards it.

For instance even before the Central Government bifurcated the state of Jammu and Kashmir into two Union Territories in August 2019 and abrogated Article 370, there were PILs pending in the Supreme Court challenging the constitutionality of Article 370 of the Constitution of India. The right-wing tilt is further evident by the fact that bail has been denied to many human rights activists – arrested under draconian laws on flimsy grounds – even during the ongoing pandemic of COVID-19. The courts are in process of overturning the settled jurisprudence on bail. Judges are forgetting that ‘bail not jail’ is the norm. In such a situation a critical analysis of PIL – who files, who benefits – is the need of the hour.

I firmly believe that there should be a complete ban on PIL. But my reasons are entirely different from Mr. Salve’s. In 2005, PIL Watch Group – a non-funded, non-party organization published my research on PILs as a Citizen’s Report titled “The Public Interest Litigation Hoax – Truth Before The Nation”. In this report I had concluded that in PIL cases hundreds of thousands of poor people in India have been adversely affected to the extent of losing their livelihood, homes and even Constitutional guaranties all in the name of ‘public interest’; even though PIL in India derives its legitimacy as an instrument to provide justice to the underprivileged and the downtrodden. The most important reason for this is that in PIL the principles of natural justice are not followed. For example in the case of Delhi industries the Supreme Court thought nothing of taking away the livelihood of around one million workers (and their families) without giving them a hearing and displacing them from Delhi where they were rooted for two generations. When lower adjudicating authorities violate principles of natural justice the affected can appeal to higher judicial bodies. But if the highest court in the land violates principles of natural justice people have nowhere to turn to.

Even in cases where the Supreme Court adjudicated in favour of the oppressed like in PUDR v. Union of India (the case of construction workers of Asiad 1982), in which the Court directed the government to enforce labour laws the judgement never got implemented. It is the same story with most such judgements. Though now very few PILs, if any, are espousing the cause of the poor.

The disdain with which the Supreme Court has treated the poor in PIL belies its initial purpose. This contempt for the poor was again evident in the Supreme Court’s initial handling of the migrant workers issue recently when after 16 migrants were run over by a goods train on 8 May it reportedly said: “How can anybody stop this when they sleep on railway tracks?” It dismissed the application. Later when it came under heavy criticism it took up the issue suo motu!

That the judiciary would protect the rights of the poor in PIL was always a mirage. When my report on PIL was published I received positive inputs only from the people who were left of the centre. Veteran socialist thinker late Mastram Kapoor ji wrote a half-page article for ‘Jansatta’, a Hindi newspaper based on the report. In a touching gesture he made the effort to come to the Indian Coffee House to meet our group. He gave us his Hindi novel on caste in India titled ‘Kaun Jaat Ho?’ and a book on Madhu Limaye. He was about 80 years old then. In an email dated 27 May, 2005 Mr. Amitadyuti Kumar from Association For Protection of Democratic Rights (APDR), West Bengal commenting on the report observed “It is needless to say that such a study was long overdue. Not only because it was fairly long overdue to expose the ‘hoax’ but also because the ‘hoax’ was able to build up a myth about judicial activism and a sort of expectation that finally justice is available through judicial process.”

In 2005 my colleague, Dr. P. S. Sahni and I went to discuss the report with Gautam Navlakha, then Editorial Consultant with Economic and Political Weekly (and presently incarcerated in jail simply because the rulers don’t want a dissenter around). Gautam was excited about the report and encouraged us – as he would any fellow-activist. He telephoned the Editor, EPW there and then and gave a brief background of the report. In spite of Gautam’s sincere and best efforts the EPW Editor was reluctant to carry the report and I received a rejection slip 6 months later. Gautam asked me to try ‘Mainstream’ magazine, which duly carried a long piece.

But all attempts by the members of PIL Watch Group to get the funded NGOs or PIL lawyers to critically comment on the report failed. This is not surprising as PIL itself has become an industry. (See my article ‘PIL as industry’ in The Tribune). They continued to maintain a deathly silence on the issue. It was as if by ignoring the PIL Hoax Report elephant in the room will disappear.

P.S. I am not a member of any political party and I do not support either NDA or UPA.

Shobha Aggarwal is a non-funded, non-party rights activist and lawyer based in New Delhi. Email: [email protected]




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