SC has shown great foresight in striking against proxy PILs as instruments of intimidation

In the space of seven days, two benches of the Supreme Court have, in their own way, signalled that the era of frivolous cases and using the courts as a tool for personal and petty ends is coming to an end. They highlight the underbelly of how litigants abuse the process of law. While the judgements under analysis pertain to trusts and non-governmental organisations, the spirit of the order in one case and comments in the other can easily be transplanted on to any type of case anywhere in the country, where smart operators use judicial processes not to seek justice but as a weapon for negotiation, intimidation, reputation destruction and other personal gains.

The two cases under analysis are against the Sri Aurobindo Ashram Trust (SAAT) and Reliance Jio. Disclosure: Reliance Jio is a subsidiary of Reliance Industries Ltd, which owns Firstpost.

Supreme Court of India. Reuters

According to Tuesday-datelined news reports, a Supreme Court bench of Chief Justice TS Thakur, and Justices AK Sikri and R Banumathi came down sharply on senior counsel Prashant Bhushan and expressed concern about the functioning of his organisation, Centre for Public Interest Litigation. “Your organisation should not become an instrument in the hands of commercial rivals of others and it should not appear that both of you work hand-in-glove,” the bench observed, according to a PTI story. It also questioned the NGO’s mechanism to scrutinise and verify the information it receives.

“Even the companies can approach you with complaints about competitors and send their executives with briefcases of documents,” the bench said, asking why those who give information to him couldn’t file the cases themselves. “We will not allow the process to be taken for a ride. Any number of petitions are filed by you. We can't allow you to be perpetual litigant.”

Prashant Bhushan has helmed some very important PILs that have delivered lasting change in the public space. It is no secret that the veneer of public interest litigation carries with it a far greater credibility than one filed as a writ by an individual or a company. When a company is expected to gain from a court ruling, the credibility of justice-seeking is narrowed to one of commercial benefit, of ‘private interest’. But when the litigant is an NGO, riding on the interest of the ‘public’, the moral weight of the accompanying credibility is higher – the litigant has nothing to gain, as Bhushan told the court. It is this rising trend of credibility asymmetry that the apex court was perhaps addressing.

Over the years, NGOs have become a hallowed institution of nobility and sacrifice, ready to fight for the underprivileged. Several of them have done good work, no doubt. But as with all institutions, in the hands of vested interests – the interest could be money, access, power or simply fame – rot has been setting in. Instances of NGOs threatening companies with litigation – another word for delays in project implementation by as much as five to 10 years – if they are not paid money have become so rampant that it is raising the sordid crime of blackmail to the level of a well-oiled institution, a process.

This must end. And the comments of the apex court must be studied and restraint used while admitting such proxy PILs simply on the basis of the track record of a high-profile litigant. With these words, the bench is hinting at an important issue that their brother judges on another issue have expressed in the SAAT order – introspection.

“If the persons in management of the trusts are subjected to multiplicity of legal proceedings, funds which are to be used for charitable or religious purposes would be wasted on litigation,” the apex court in the SAAT versus R Ramanathan case noted in their January 5, 2016 order. “It is time for all of us, litigants, lawyers and judges to introspect and decide whether a litigation being pursued is really worth the while.”

The case is simple: because SAAT did not expel scholar and writer Peter Heehs from the ashram for writing a book that a handful found to be “sacrilegious”, the latter wanted the trustees to be removed. While the case of the book is currently in the Orissa High Court, the excerpt based on which the dissolution is being sought, is to any mind, anything but sacrilegious; on the contrary, it is deeply reverential, as the following paragraph reads.

“Early in the afternoon the Mother rejoined him, and they walked together to the small outer room where they sat together on a sofa, the Mother on Sri Aurobindo’s right. Here they remained for the next few hours as ashramites and visitors – more than three thousand by the end of the 1940s – passed before them one by one, “There is no suggestion of a vulgar jostle anywhere in the moving procession,” a visitor noted. “The mystic sits bare-bodied except for a part of his dhoti thrown around his shoulders, a kindly light plays in his eyes,” Sri Aurobindo looked directly at each person for a moment “the moving visitor is conscious of a particular contact with these [eyes] as he bends down to do his obeisance. They leave upon him a mysterious ‘feel’ that baffles description. The contact, almost physical, instils a faint sense of a fragrance into his heart and he has a perception of a glow akin to that spreading in every fibre of his being.” Most visitors had similarly positive experiences. But some, particularly those from the West, were distracted by the theatricality of the setting and the religiosity of the pageantry.” [SIC.]

If such is the basis on which the Odisha government has found Heehs’ book, The Lives of Sri Aurobindo, deserves to be banned and “its copies, reprints, translations or other documents containing extracts taken therefrom be forfeited to the Government”, it clearly shows that reason is fighting for life in the state. We hope the Orissa High Court, to which the Supreme Court has left the matter of the ban, brings reason back.

The Sri Aurobindo Ashram is not alone in being a victim of power play. Across the country, clever litigants are tying the hands of institutions in inaction and inertia, emerging from which takes money and invaluable time that could be better utilised. All institutions are entitled to a wide discretion in the administration of a trust, the apex court said.

“A disagreement with the exercise of the discretion (however passionate the disagreement might be) does not necessarily lead to a conclusion of maladministration, unless the exercise of discretion is perverse,” Justices Madan B Lokur and SA Bobde concluded. An important point they have made is that not expelling a historian simply because he has written a book that some consider sacrilegious is not reason enough to remove the trustees.

The judiciary is not unaware of the blatant misuse of the process of law. But now, it seems to be moving towards ending it. That all participants in this institution of justice – litigants, lawyers and judges – need to introspect can’t be overstated. In the battle to control frivolous litigation, the SAAT judgement and the comments on Prashant Bhushan’s serial PILs are two strong wins. Earlier, in October 2014, the Bombay High Court had levied an “exemplary cost” of Rs 5 lakh on a petitioner for filing a frivolous PIL (in this case he did not disclose that the “P” in the PIL stood for “personal” – his brother owed the bank Rs 1 crore, a fact he did not disclose). But these are small victories in a long and looming war, winning which would mean fighting several such battles.