Chief Justice of India TS Thakur recently voiced a concern regarding the misuse of PIL as an instrument to ‘settle scores with corporate rivals and also for personal vendetta’. This has posed, once again, serious questions regarding the exercise of PIL. To understand what has gone wrong with the PIL mechanism, which has undoubtedly helped in massive social transformation in last few decades, Shishir Tripathi spoke to eminent jurist and former Attorney-General of India Soli Sorabjee on this issue and others related to higher judiciary.
Question: In December 2014 a bench of Chief Justice HL Dattu and Justice AK Sikri remarked that “public interest litigation was started with a good intention to help the poor people of this country. But it is being misused now". What, according to you, has gone wrong with PIL, Sir?
Soli Sorabjee: Public interest litigation (PIL) is a valuable mechanism to redress the problems of the neglected, alienated and marginalized sections of society. Now, one prerequisite is that it must be instituted ‘bona fide’ and must avoid the three pitfalls associated with PIL: namely ‘private interest litigation’, ‘political interest litigation’ and ‘publicity interest litigation’. In a way the Supreme Court has itself brought upon itself the problem by entertaining PILs very liberally, if I may say, extravagantly. Every matter of public interest cannot be a matter of public interest litigation. For example rise in the price of onions. So public interest litigation requires a good jockey in the saddle to keep it on the right track and fulfil the objectives for which it was originally designed.
There have been instances when the court has rejected the so called PILs by discerning an oblique motive of serving a private interest or harming a rival industrialist. The trouble is that different benches have different mindsets in entertaining PILs which leads to inconsistencies and lack of coherence. (Related story : The term 'public interest' is so open-ended that the fate of PILs rests on the length of My Lord's foot.)
Q: What can be done to check this misuse?
SS: If the court authoritatively declares that it will interfere only in cases of violation of fundamental rights related to people who cannot themselves approach the court because of poverty and lack of resources then it serves a good purpose. The problem is that public interest litigation is indiscriminately resorted to. While it can be misused, it is up to judges to see that it is not. I feel judges sometimes want publicity, to see their names in paper and so entertain sensational PILs.
Q. But with observations like that made by the bench headed by Chief Justice TS Thakur regarding the functioning of the Centre for Public Interest Litigation (CPIL), the credibility of the institution of PIL is also undermined.
Soli Sorabjee:Yes you are right. It is affected. But I think more than PIL it was the criticism of CPIL and Prashant Bhushan. But I think the Chief Justice’s remark was a bit harsh and would reflect on the utility and credibility of CPIL, which on the whole has done good work.
Q: In a letter to Supreme Court secretary general Ravindra Maithani Mr Fali Nariman has categorically stated that no PIL filed by CPIL was approved or scrutinised by him.
SS: Yes he has written so to put the record straight. Nariman’s intention was nowhere to run down CPIL.
Q: It has been observed by many legal experts that PIL is really a response to the needs of society and has helped in massive social transformation. What can be done to prevent such an important instrument of social change denigrating and downgrading into an instrument of promoting vested interest and settling personal scores?
SS: Well, judges need to ensure necessary discipline in entertaining PILs. The main objective of PILs is to protect the fundamental rights of people who themselves cannot approach the court. That is why we have liberalised ‘locus standi’. The basis of PIL was to redress violation of the rights of people, working in a factory, children working in bad conditions. Because they don’t know what Constitution is, what their fundamental rights are. PIL is not meant to be used by someone intending to harm a rival’s factory by saying that the environment is being polluted and article 21 is infringed.
Q: Do you think that the shield of ‘contempt of court’ is a big hindrance in making the judiciary accountable
SS: The Contempt of Court Act has been amended. That is the last thing I did when I remitted office as attorney general. In a case of libel truth is a defence but in contempt truth was not a defence, which I thought was very strange. The thinking was that contempt is not libel against judge but it undermines the faith of people in the institution of judiciary. But then if there is documentary proof and one can prove the malpractice and corruption on a part of a judge then truth can be a defence. So the law now stands amended. But of course, the man making the allegations should have some prima facie material.
Q: The NJAC Act has been struck down but the fact remains the collegium system too has major loopholes. But then it’s back.
SS: Of course, the main problem with the collegium is that that judges exclusively took the power to appoint. To my mind the judges should have an edge, they know better about the judges to be elevated from the high courts to the Supreme Court. They have gone through their judgments. Further they know better about the lawyers who have appeared for them. But that cannot be exclusive. Other inputs too have to be taken into consideration. The mere presence of the law minister does not take away independence of the judiciary.
Q: Do you foresee any alternative?
SS: I don’t know what they will do. May be they will bring in another constitutional amendment. We can still make the collegium work. If the Supreme Court takes inputs from others quarters too, not litigants, but from institutions like the Bar Council of India and then decides appointments. Judges in the collegium may not know certain facts about a certain individual, which others might know. I don’t like their thought that the monopoly of wisdom is with the judges.
Q: Last week, the Supreme Court declared that it would hear a PIL on the issue of allowing women entry in Ayyappa temple in Sabarimala, Kerala. The same month the same court refused to intervene in the case of release of a juvenile convict in the December 16 rape case saying it has no ‘legislative sanction’ do so. Don’t you think it reflects an inherent contradiction in the way the apex court deals with social issues?
SS: In case of the juvenile’s release the court does not actually have authority to say, do not release him. You must make a law. Once there is a law then it is a different matter. In case of Sabarimila there is no doubt that it is a clear case of gender discrimination and judicial interference is warranted.
Q: Do you feel judicial overreach is actually a problem or is just a critical jargon?
SS: Overreach in some cases happens but not on the whole. In some cases judges are swayed and it depends upon the mindsets of different benches.
Q: Transparency in appointment of judges was an important issue. But as Mr Nariman stated while pointing out its pitfalls “one may say Nariman is not good enough to be a judge, but (Soli) Sorabjee is. Transparency is all too well to say. But what will happen to the practice (as lawyer) of the person rejected”. How can we address such issues?
SS: He is right. They can say so and so is not fit but cannot dwell into why he is not fit like stating that he is lazy or has not got a good temperament. What will happen to his practice as a lawyer or working as a judge in the high court if he not elevated on the grounds that have been already made public?