The term ‘public interest’ is so open-ended that the fate of PILs rests on the length of My Lord’s foot

by Anupam Gupta

Reacting to a public interest litigation (PIL) moved by Prashant Bhushan’s Centre for Public Interest Litigation, a Supreme Court Bench headed by the Chief Justice of India has recently voiced a concern that goes back long years: the credentials and motives of the PIL litigant.

Professor Upendra Baxi prefers to describe this category of litigation in more conceptualised terms as “social class litigation” on the American pattern. However, the concept almost invariably employed in India for this phenomenon is ‘public interest litigation’. The nomenclature is crucially important in this case because the range of litigation that is embraced or encompassed in this phenomenon or concept happens to be almost unlimited and as subjective and elastic as the phrase ‘public interest’.

Supreme Court of India. AFP

Supreme Court of India. AFP

No less significant, however, than the identity and credibility of the PIL petitioner, whether an individual or an organisation, is the attitude and approach of the court or, more specifically, the Bench that is entrusted with the responsibility of hearing and deciding PILs.

A celebrated aphorism about equity jurisprudence in England in the past was that equity is “the length of the Chancellor’s foot”, the chancellor here being the Lord Chancellor who was then the head of the English judicial system and presided over the Court of Chancery.

This historic allusion is of some relevance here because, like equity, public interest litigation in India too is as short-lived or long-lived, as rigorous or loose, and as broad or narrow as the predilections, preferences, values and psychology of the Bench entrusted with hearing PILs.

The entry on “Equity” in the latest fourth edition of Jowitt’s Dictionary of English Law, published in 2015, a comprehensive entry spanning almost three closely printed pages, states that “for a long time equity was an indefinite standard of right and wrong, and was regarded as having the function of mitigating the rigour and supplying the defects of the common law without any limitation except the personal opinions of each Chancellor”.

It is fairly common nowadays that the Chief Justice’s Bench in a High Court, or the seniormost puisne bench next below the chief justice, hears PILs. During the tenure of a particular chief justice or the presiding judge of the PIL bench, the approach to PILs is a measure, dimension and reflection of the value system of the chief justice or presiding judge. If he is averse to public interest litigation, the PIL stream tends soon to dry up. If, however, he is receptive and sympathetic and does not attempt to cramp the jurisdiction, a whole variety and spectrum of causes come flooding before the court demanding judicial intervention.

In the last year or two, the Supreme Court, which was earlier rather circumspect, if not averse to, initiating suo motu action, has started acting suo motu. Judicial intervention on this basis, even more than a conventional PIL filed by a litigant, opens up a Pandora’s box of concerns.

From SP Gupta’s case in 1981 to Balwant Singh Chaufal’s case in 2010, the judicial discourse on PILs has been reiterated periodically with more or less eloquence and has now turned into a platitude. It remains, at the best, a massive truism.

The most important thing about PILs is the subjectivity of the exercise. The phrase ‘public interest’ is completely open-ended. The court or the bench concerned will employ this phrase to do what it wishes to do, by saying it is in the public interest so to do, and, equally firmly, not do something by saying that it is not in the public interest to do so. PIL is what the court or the bench entrusted with hearing PIL, chooses to make of it. This is an absolutely accurate measure and definition of public interest litigation both in its positive aspects, which are not few, and in its negative aspects which are often smothered in the platitudinous eloquence of judicial discourse but occasionally surface as with the recent observations of Chief Justice Thakur.

“Despite my more than three decades at the Bar, and a long line of distinguished judgements holding forth on PILs, I must confess that (from a purely functional point of view) I am none the wiser today on the true nature and scope of public interest litigation.”

There is a crying need to introduce discipline in the entire PIL exercise. There is also an indispensable imperative to maintain balance and display judicial statesmanship in handling PILs. Both judges and lawyers must of course be alive and sensitive to larger public and social concerns of the age, even of the moment. They should be wary, however, of immediate and simplistic translation of media reportage or coverage of contemporary events into litigation. Otherwise, the distinction between law as a discipline or adjudication as a responsibility of the highest order and what is happening outside the court would lose its definiteness.

Judges and the judicial process must, by definition, maintain a certain level of detachment and distance from immediate contemporaenity in order to take a deeper, richer and holistic view of the issue.

The quality of PIL pleadings, documentation and research also needs desperately to rise to the level of a “Brandeis brief” (after US justice Louis Brandeis, apropos of his labour as a lawyer before elevation to the Supreme Court), a paradigm that appears impossible today to attain or even to aspire to.

Senior Advocate, Punjab and Haryana High Court *As told to Firstpost

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Updated Date: Jan 16, 2016 11:09:00 IST

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