The right judicial instinct and skill will stop the misuse of public interest litigation, writes Goolam E Vahanvati, Solicitor General of India
HALISBURY LAW SEPT 2008
Public interest litigation (PIL) was a revolutionary concept initiated with a laudable object. In the words of the Supreme Court of India, it was aimed at “fostering and developing the laudable concept of PIL and extending its long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go unnoticed, un-represented and unheard”.
This led to the dismantling of the traditional concept of locus standi. The courts could be approached by persons espousing the case of the underprivileged, who were by themselves not in a position to access the courts. The rules of procedure in technicalities were loosened, justice became flexible and the courts became accessible. As a result, one has seen a surge in public causes being taken up in various the High Courts as well as in the Supreme Court. The use of public interest litigations in matters pertaining to the environment, including clear air and preservation of forests, has led to dramatic and palpable improvements in the environment.
In the last few years, there have been serious concerns about the use and misuse of public interest litigations and these concerns have been expressed at various levels. The time has come for a serious re-examination of the misuse of public interest litigation.
This misuse comes in various forms. The first is what Justice Pasayat in the case of Ashok Kumar Pandey v. State of W.B. described as “busybodies, meddlesome interlopers, wayfarers or officious interveners who approach the court with extraneous motivation or for glare of publicity”. Such litigation is described as “publicity interest litigation” and the courts have been fraught with such litigation. How else would one describe a public interest litigation filed for “reliefs” such as that the higher judiciary would be provided with private planes and special transport? A petition to this effect was filed by a lawyer practicing in U.P. As could be expected, it was summarily rejected, but not before the gentleman had his day in the sun, however momentary it was. Examples of this kind of litigation are innumerable. No sooner has an event of public interest or concern occurred than there is a race to convert the issue into a PIL.
Public Interest or Political
The tragedy is that while on most occasions the court sees through the motivation of such petitioners and such litigants, in several cases it is not so. It would be unfortunate if the reason why petitions are not thrown out is because of the resulting headlines that orders in such petitions generate.
Then, we have the misuse of PILs by political interests. In the case of S.P. Gupta v. Union of India, Justice Bhagwati said;
“24. But we must be careful to see that the member of the public, who approaches the court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The court must not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain a political objective. Andre Rabie has warned that ‘political pressure groups who could not achieve their aims through the administrative process’ and we might add, ‘through the political process, may try to use the courts to further their aims’. These are some of the dangers in public interest litigation which the court has to be careful to avoid.”
This was reiterated by Justice Pandian in the case of Janata Dal v. H.S. Chowdhary and Others, as under:
“109. It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have a locus standi and can approach the court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly, a vexatious petition under the colour of PIL brought before the court for vindicating any personal grievance, deserves rejection at the threshold.”
In a series of judgments, Justice Pasayat has reiterated these principles. This principle was accepted and taken further in Rajiv Ranjan Singh v. Union of India, in which Justice Lakshmanan held that PILs were not meant to advance political gain and settle political scores under the guise of PIL.
Despite the clearest possible statement of law on the point, courts are nevertheless entertaining public interest litigations which are clearly political interest litigations. It is sad to note that such litigations are not even dressed up. There is no disguise. The petitioners are rival politicians themselves and political opponents are arrayed as respondents personally. What is more disturbing is that before filing and after proving such petitions, a sustained press campaign is resorted to. Trial by press has come to stay, but the publicity that such litigation is being given itself should put courts on notice and on guard. It is a sad fact that the Bar in several parts of this country has become politicised and openly espouses the causes of select political parties. Political petitioners in such cases are represented by lawyers sympathetic to their parties, and as and when the party comes to power, the lawyers get their due rewards by way of various types of offices and posts.
Hidden Litigants Call the Shots
The third and equally disturbing aspect is the misuse of PIL by hidden litigants. This is happening in all sorts of matters; rival business groups are settling scores by resort to PILs. Persons who describe themselves as “public spirited persons” and others as “social organisations” spring up overnight to canvass these causes. A case in point is the judgment of Chief Justice Sabharwal in TN Godavarman Thirumaulpad v. Union of India. Following the decision in Janata Dal’s case, and Justice Pasayat and Justice Kapadia’s decision in Dattaraj Nathiji Thauvare v. State of Maharashtra, the learned judges observed that howsoever genuine a cause brought before a court by a public interest litigant may be, the court has to decline its examination at the behest of a person whose bona fides and credentials are in doubt. It was held that the applicant, who was a man of scarce means, had spent huge amounts in litigation and was obviously nothing but a name lender; costs of rupees one lac were imposed on him. Such petitions are increasingly being filed in relation to matter of projects of public importance by unsuccessful tenderers, but the use of public interest litigation in such cases needs to be deprecated. Yet, this is happening all the time; there are various ways in which judges can and should see through the bona fides of such litigants.
Judge, Wake Up
A judge should be immediately suspicious when the petitioner, who has nothing to do with the tender, produces himself and sometimes even hidden documents before the court official. The use of official documents by persons who ordinarily would have no access to them has been commented upon adversely. In Ashok Kumar Pandey’s case, Justice Pasayat observed:
“The other interesting aspect is that in the PILs, official documents are being annexed without even indicating as to how the petitioner came to possess them. In one case, it was noticed that an interesting answer was given as to its possession. It was stated that a packet was lying on the road and when out of curiosity the petitioner opened it, he found copies of the official documents. Whenever such frivolous pleas are taken to explain possession, the courts should do well not only to dismiss the petitions but also to impose exemplary costs.”
A judge need not be a rocket scientist to see through bogus matters. For instance, when a public interest litigation is being pursued by lawyers, whose huge fees are well known, there is likely to be more than meets the eye. This is particularly so when lawyers “fly down” to various cities and different fora to settle corporate scores or stop public projects, developments or tenders. Given the fact that money has various colours, one should not accept at face value, the protestation that the advocates are not charging fees. This may seem so officially, but there are other ways of being compensated. There are cases which are fought not only in the High Court but pursued in the Supreme Court with great vigour. The cost of travel and stay at five star hotels is staggering, but no one seems to be willing to ask the questions as to who is footing such costs. In a judgment on public interest litigation rendered by Justice Pasayat, he has laid down the following tests:
“The court has to be satisfied about: (a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; and (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike balance between two conflicting interests: (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the court cannot afford to be liberal.”
The misuse of public interest litigation will stop only if the courts are vigilant. In every matter, the first question that the courts must ask themselves is whether the petitioners are bona fide, whether the concern of the petitioner is real or whether there is something more than meets the eye. I am not suggesting that all public interest litigations should be viewed with suspicion; far from it. Justice P B Savant (who retired as a judge of the Supreme Court) once told me that 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 which will stop the misuse of public interest litigations and restore it to its pristine and useful character.
Goolam E Vahanvati was appointed as the Solicitor General of India in 2005, prior to which he was the Advocate General of Maharashtra. He attained his Bachelor’s degree from St. Xaviers College, Mumbai, where he was selected as the Tata Scholar, and LL.B. from Government Law College, Mumbai. He has appeared before the Bar in important cases like the tainted ministers case; challenges to the Master plan 2021; wire tapping case for the Union of India, among others. In 2004, he was appointed by the International Cricket Council to hold an enquiry into the allegations of racism in Zimbabwe, and was appointed as the Single Member Commission to inquire into allegations of racial abuse on South African cricketers during their tour of Australia, in 2005.
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