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വായന

09 May, 2017

A noble legal tradition in jeopardy

BRP Bhaskar
Gulf Today

In an age of liberal thought a few enlightened judges charted out a new course which enabled India’s poor and marginalised people to surmount the obstacles that limited their access to the Judiciary. That age has passed and the noble tradition of public interest litigation which enhanced the quality of justice is in trouble.

The Constitution, proclaimed two and a half years after the country gained Independence, promised justice – social, economic and political – to all. It also guaranteed equality and equal opportunities, regardless of religion, race, caste, sex or place of birth. Of what practical use was all that to the millions who had been denied basic human rights for centuries and lived in squalor?

On the face of it, the transition which took place on August 15, 1947, the day British colonial rule ended, and on January 26, 1950, the day India proclaimed itself a secular, democratic republic, was of a superficial nature. The new dispensation worked with the same bureaucrats, same policemen, same soldiers, the same judges who ran the colonial administration.

The judiciary was the institution farthest removed from the masses. While it enjoyed a reputation for fairness among the educated elite and the rising middle class, it was beyond the reach of the poor. The lower courts treated them with the same disdain as during the colonial-feudal period, and the higher courts were beyond their reach as the legal process was too costly and time-consuming. The juridical practice inherited from the colonial period allowed only persons with a sense of injury or personal hurt to seek remedy from the court.

In the 1970’s, a couple of judges of the apex court broke down the barrier and allowed concerned citizens or groups to raise issues on behalf of suffering citizens. Thus began a phase of access to justice through class action, public interest litigation (PIL) and representative proceedings.

Supreme Court judge VR Krishna Iyer, a pioneer of PIL jurisprudence, outlined the philosophy behind the innovation in these words: “Little Indians in large numbers seeking remedies in courts through collective proceedings, instead of being driven to an expensive plurality of litigation, is an affirmation of participative justice in our democracy.”

When the apex court took up a PIL by Bandhua Mukti Morcha on behalf of bonded labourers, the government objected on the ground that it was an unregistered association. The court dismissed the argument and declared any person with no direct interest in the matter can champion the case of the downtrodden.

The court’s repeated intervention, coupled with legislative measures taken by the government, freed hundreds of thousands of people, mostly belonging to the Dalit and Adivasi communities, from generations of bondage. PIL was the instrument which made this possible.

By the 1980’s, the Supreme Court expanded the scope of PIL beyond the original intent of helping the poor to include broader issues of social concern like protection of the environment. Responding to pleas by environmental groups, it stepped in to prohibit mining operations and check pollution of waters by industries and of air by motor vehicles.

The 1990’s witnessed further expansion of PIL with judges allowing individuals or groups actuated by considerations of social good to raise issues of governance including corruption. Following the apex court’s example, high courts too began to entertain PILs.

Many foreign observers found the Indian judicial innovations praiseworthy. Zachary Holladay of the Indiana University’s Maurer School of Law, who studied the working of PIL, said the Indian system could serve as a model for other developing countries in addressing the problems of marginalised and disadvantaged communities.

There were at all times conservative elements in the Indian judiciary who did not look upon PIL with favour, viewing it as judicial activism. From time to time they sounded notes of caution. Public interest litigants who approached courts without adequate preparations played into the hands of those who were looking for opportunities to discredit the system.

In the last few years both the Supreme Court and the high courts have come down heavily on several petitioners for misuse of PIL. In some cases they have fined petitioners and barred them from raising PIL in future.

Last week the apex court fined a trust and its chairman Rs2.5 million and barred them permanently from filing PIL. Over the past few years the trust had filed 64 PILs, all of which had failed.

Such punitive action can have a chilling effect on public interest litigants and throw the system into jeopardy. PIL has contributed most to the high reputation the Judiciary today enjoys as the people’s last resort. The court’s desire to free itself from the burden of frivolous petitions is understandable, but it should guard against throwing the baby with the bathwater.

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