Public Interest Litigation (PIL) emerged in the 1970s as a legal innovation by academics, social activists and activist lawyers, ably supported by judges of the Supreme Court. In Hussainara Khatoon and Sunil Batra, the court developed a new approach to secure access by the poor and the marginalised to justice — by relaxing the strict rules of standing to allow representative standing and modifying the rules of judicial notice to allow the court to take suo motu notice of public events and transform them into litigation. However, the “public interest litigation” doctrine was shaped and developed in three key cases: Fertilizer Corporation Kamgar Union, S.P. Gupta and People’s Union for Democratic Rights. Here, the court articulated a constitutional and political justification for this radical innovation in Indian constitutional adjudication — it allows politically and legally marginalised constituencies (that have no effective representation in the political or administrative state and no regular access to the courts) a special dispensation to approach the High Court and Supreme Court to redress their grievances either directly or through representatives. The special constitutional role of the higher courts to respond to these specific political failures of the state justifies the modification of procedures and remedies that override conventional norms of the separation of powers.
In the last four decades, the “successes” of PILs have been celebrated and canonised by the bar, the bench as well as the media. However, the contemporary practice of PILs has atrophied and morphed into a format that has lost sight of this original political and constitutional justification. In this essay we argue that too often than not the courts have allowed themselves to become a secondary arena of politics for the already enfranchised and the powerful to ventilate grievances and projects, which have failed to secure the assent of the democratic wings of government. The evolution of PILs, from being counter-majoritarian instruments into counter-democratic ones, poses grave threats to our constitutional and political institutions.
Not a cause for court delays
Before we go further, we must counter a commonly misconceived claim that the crisis of PILs is that they are a source of court delays and clogging courts. Recent empirical studies of Supreme Court caseloads between 1993 and 2011 show that PILs make up a relatively minuscule percentage of the Supreme Court’s docket being just about one per cent of the court’s workload. Around 86 per cent of the admitted matters are Special Leave Petitions under Article 136 of the Constitution while just about 1-2 per cent of the docket consists of writ petitions filed for fundamental rights violations (Nick Robinson, The Indian Supreme Court by the Numbers). While the size of the docket does not exclusively determine the extent of court time spent on these matters, given these low numbers it is unlikely that PILs are a significant cause for court delays in India.
However, do PILs represent the interests of politically and legally marginalised groups? Unfortunately, there has been no comprehensive study of all PILs to identify the character of the parties who have come before the court. However, we do know that in all appeals before the Supreme Court in 2011, 18.6 per cent came from Punjab and Haryana and 10.6 per cent from Delhi itself. Larger but poorer neighbouring States were less well represented. There is good reason to assume that a comprehensive analysis of PILs will confirm that more wealthy litigants approach the court through PILs than otherwise. Furthermore, we do have careful empirical analysis to show that in PIL cases involving a violation of fundamental rights between 2000 and 2008, the win rates of “advantaged social class” claimants was a 73 per cent probability while the win rates of the “disadvantaged social class” was 47 per cent (Varun Gauri, 2013). It is often supposed that the Supreme Court taking up public interest matters suo motu by turning news reports and citizen letters into petitions further enhances access to the courts. The empirical data for 2008 puts this claim in perspective. The court received a total of 24,666 letters, out of which the court staff forwarded only 226 letters before the judges, who then accepted or rejected them for regular hearing (Nick Robinson, 2012). While there was no qualitative analysis of the basis for selection in this study, we must note that there is no publicly articulated rationale for the selection of these cases by the court. We are nevertheless aware that issues at the crest of the media cycle — cricket and corruption — invariably make it to regular hearing. Taken together, we may conclude that PILs today are not exclusively focussed on remedying deficient access to the courts.
Forum for partisan contestation
The extent to which PILs have veered away from their original justification may be better understood by reviewing the recent record of the court in high profile cases. In S.P. Gupta, Justice Bhagwati specifically denied standing to persons who are mere “busybodies” or “meddlesome interlopers” acting in a mala fide manner. He noted that time and again, persons with political motives, oblique considerations and partisan interests filed PILs and they should be denied jurisdiction. The rationale for this exclusion was to avoid making the court a forum for partisan disputes. While the court has periodically reiterated this principle, most notably in Narmada Bachao Andolan, to doubt the legitimacy of the petitioners, they have been most solicitous of political actors of various stripes. Recently, Dr. Subramanian Swamy, previously of the Janata Party and currently with the Bharatiya Janata Party, when asked by Bar & Bench in an interview about the PILs filed by him candidly observes “… that I filed a large number of PILs and have lost count now.” Mr. Prashant Bhushan, founding member of the Aam Aadmi Party, has through his organisation the “Centre for PIL” filed more than a dozen reported PILs in the last decade. Retired Cabinet Secretary T.S.R. Subramaniam, together with similarly placed colleagues, is now consistently before the court to strengthen and consolidate the interests of the Indian Administrative Services. Dr. Dina Nath Batra of the Shiksha Bachao Andolan Samiti, a front organisation for the Rashtriya Swayamsevak Sangh, has filed PILs to remove “objectionable material” in National Council of Educational Research and Training (NCERT) textbooks and thereby bring “Indianness in the field of education.” The Supreme Court has allowed itself to become a forum for partisan contestation, amplifying the interests of individuals and groups who are already deeply embedded in political and legal institutions.
PIL is a radical procedural innovation that allows the court to overcome conventional, constitutional norms of the separation of powers, dilute procedural norms and devise unique and far-reaching institutional remedies. This may only be justified if it is used as an extraordinary instrument that compensates for the political and legal marginality of groups or interests otherwise excluded by current institutional practices. The current use of PILs to amplify partisan and sectional interests that are often over-represented in the political and legal system has corroded the legitimacy of the court, by transforming it into a primary forum for politically partisan dispute. It is essential for the court to revitalise PILs by constraining them to their foundational justification before their legitimacy is eroded beyond repair.
(Sudhir Krishnaswamy is a professor of law at Azim Premji University and founder of the Centre for Law and Policy Research. Rajgopal Saikumar is a research associate at the Centre for Law and Policy Research.)