Calling the PIL Bluff: How Not to Misuse This Judicial Tool

The SC recently rejected a PIL against writer Kancha Illaiah, upholding the fundamental right to free speech.

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The dismissal of a public interest litigation (PIL) filed by advocate KLNV Veeranjaneyulu, who took exception to a particular chapter in a book written by social scientist Kancha Illaiah, came as a breath of fresh air.

The Supreme Court dismissed the petition on the grounds of upholding the fundamental right to free speech, “keeping in view the sanctity of the said right and also bearing in mind that the same has been put on the highest pedestal by this court.”

The judiciary’s stand on the issue couldn’t be clearer. It will not permit an individual or group to curb a fundamental right through a motivated PIL.

A bench of Chief Justice of India Dipak Misra and Justices AM Khanwilkar and DY Chandrachud recorded in the order:

Any request for banning a book of the present nature has to be strictly scrutinised because every author or writer has a fundamental right to speak out ideas freely and express thoughts adequately. Curtailment of an individual writer or author’s right to freedom of speech and expression should never be lightly viewed.

Under the guise of representing the public, politically-charged or personally-motivated individuals have been misusing the PIL tool for their skewed ends. Now, however, the judiciary has called their bluff with heart-warming alacrity.

In a nation where masses are hugely illiterate and have little access to legal aid otherwise easily accessible to the middle-class and the moneyed few, Article 32 of the Indian Constitution provides a tool to a member of the public to file a suit through judicial activism.

That member can be a non-governmental organisation, an institution, or an individual acting on behalf of the aggrieved parties.

Also Read: 5 Public Interest Litigation Cases That Changed Our Lives Forever

When Was the First-Ever PIL Filed?

It started in the late 1970s when senior advocate Pushpa Kapila Hingorani produced two pages to the apex court, detailing the deplorable condition of undertrial prisoners. These were men, women, children, lepers, and mental patients who were languishing in Bihar jails. Ignored by the state, these prisoners had to ask the court to intervene and give orders to release them on bail.

An appalled Supreme Court bench, headed by Justice PN Bhagwati, went on to release 40,000 prisoners from various jails across India. The case, better known as Hussainara Khatoon vs Home Secretary, Bihar, was India’s first PIL.

Over the three decades that followed, PILs grew from being a far-reaching tool of justice for a vibrant judiciary and a socially-inclined activist media to getting reduced to a juicy byte ensuring a moment of fame by the media and legal professionals alike.

It’s only now that the judiciary has, in a strategic display of judicial activism, identified and isolated the scourges at play.

Also Read: PIL Power: How the Public Changed the Law

What Was the 1991 Historic Verdict on Maintainability of PILs?

Look at the stand the apex court took even against the surge in populism. Despite tempers running high across India with regards to the Varnika Kundu case, wherein the ‘politically powerful’ were accused of stalking and attempted abduction, a PIL filed by human rights lawyer Ranjan Lakhanpal seeking judicial supervision of the probe into the incident, was promptly dismissed by a division bench of the Punjab and Haryana High Court.

Citing a 1991 Supreme Court judgment, the division bench of Acting Chief Justice SS Saron and Justice Avneesh Jhingan maintained that the court would have no difficulty taking up the case if Varnika herself approached the High Court.

They ruled, “In a criminal case, only the aggrieved persons have a right to file the PIL,” citing the landmark 1991 judgment on maintainability of a PIL, in which the SC had ruled that “even if there are million questions of law... in a criminal case… it is for them [aggrieved parties] and them alone to raise all such questions and challenge the proceedings initiated against them... and not for third parties under the garb of public interest litigants.”

Putting to Rest ‘Public Interest’ in a ‘Private Issue’

This ruling examined the issue of locus standi and underlined the tendency for private individuals under the garb of public interest to file PILs and thereby load the already-buckling legal system.

It was an incisive ruling that put to rest everybody’s interest in an issue that was primarily a private one. This, now, has become a precedent for similar private motivated motions masquerading as litigations of public interest.

Soon after, the Delhi High Court dismissed BJP leader Subramaniam Swamy’s plea seeking a court-monitored SIT probe into the death of Congress MP Shashi Tharoor’s wife, Sunanda Pushkar, through a PIL.

Terming his PIL as a “textbook example of a political interest litigation,” the Delhi High Court bench of Justices S Muralidhar and IS Mehta said the petition by Swamy cannot be entertained as a PIL.

It said that from what was placed before the court, it was unable to be persuaded that the probe, being carried out by the SIT, is ‘botched up’ or ‘under the influence of any party.’

Also Read: Sunanda-Tharoor PIL a Political Interest Litigation: HC to Swamy

'Judicial Process Shouldn't Be Used by Politicians for Their Own Purposes'

Although Subramanian Swamy claimed he did not conceal any data or information, when asked specifically about the basis of his allegations in the petition, his response was “to seek time to file an affidavit,” thereby, clearly showing that what was to be disclosed at the first instance was not done, the court said.

The bench maintained that “courts need to be careful that judicial process is not used by political persons for their own purposes.”

“This is not to say that political persons cannot file PILs, but courts have to be extra cautious when allegations are made against other political persons,” the bench added.

This ruling examined, once again, the issue of locus standi and underlined the tendency of politicians, under the garb of public interest, to file PILs and thereby use the legal system to level grudges. It was a strategic ruling that publicly identified political parties’ interest in PILs and will serve as a precedent for stopping similar future misadventures.

It is indeed heartening to see that the courts are consciously looking to ensure that PILs are used in the way they were actually meant to be.

Also Read: Madras HC Judges Dismiss PIL Against ‘Mersal’, Schools Petitioner

(Gajanan Khergamker is a Mumbai-based writer, solicitor, and filmmaker.)

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