The activist judiciary

0

Judicial activism in India has worked out for the best, especially in curbing politically motivated misadventures, avers Gajanan Khergamker.

The judiciary in India has been phenomenal in its vocal addressing of issues that the legislature or the executive shy away from addressing. And, in keeping with this had come the dismissal of a Public Interest Litigation (PIL) filed by advocate K.L.N.V. Veeranjaneyulu, who had taken exception to a particular chapter in a book written by writer and social scientist Kancha Illaiah. The Supreme Court (SC) had dismissed the petition to uphold the fundamental right of 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”. A motivated PIL initiated by an individual or a group to curb a fundamental right simply could not be permitted. The judiciary’s view on this was crystal clear.

“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/author’s right to freedom of speech and expression should never be lightly viewed,” said a Bench of Chief Justice of India Dipak Misra, Justices A.M. Khanwilkar and D.Y. Chandrachud, in the order.

The PIL as a tool
Very often, under the guise of representing the public, politically charged or personally motivated individuals have been misusing the PIL tool for their vested interests. The judiciary had, clearly, been calling their bluff with welcome alacrity.

In India, where the 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.

It was initiated in the late seventies when senior advocate Pushpa Kapila Hingorani produced two pages in front of the SC, detailing the deplorable condition of undertrial prisoners – men, women, children, lepers and mental patients – languishing in jails in Bihar, ignored by the state, and asked the court to intervene and give orders to release them on bail. The Supreme Court bench, then headed by Justice P. N.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, the 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 activism, identified and isolated the scourges at play.

To put things in perspective, you may look at the stoic stand that the apex court took in the face of the surge in populism: Despite tempers running high across India with regard 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.

In India, where the 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.

Citing a 1991 apex court judgment, the division bench of Acting Chief Justice S.S. 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 Supreme Court had ruled that “even if there are million questions of law to be deeply gone into and examined 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 at the appropriate time, before the proper forum and not for third parties under the garb of public interest litigants”.

This ruling examined the much-confabulated issue of locus standi and underlined the recent 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, becomes a precedent for similar private motivated motions being masqueraded as litigations of public interest.

Soon after, came the Delhi High Court dismissing BJP leader Subramaniam Swamy’s plea seeking court-monitored SIT (Special Investigative Team) probe into the death of Congress Member of Parliament Shashi Tharoor’s wife Sunanda Pushkar, through a PIL.

Calling Swamy’s PIL a “textbook example of a political interest litigation,” the Delhi High Court bench of Justices S. Muralidhar and I.S. 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. “Although Subramanian Swamy claimed he has not concealed any data or information, when asked specifically about the basis of his allegations in the petition, his response was to seek time to file 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 the judicial process is not used by political persons for their own purposes”.

This ruling examined, once again, the issue of locus standi and underlined the tendency for 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.

For the PIL tool to be used in the manner it was originally intended, is indeed welcome. And the judiciary has done an exemplary task to ensure it happens.


Gajanan Khergamker

Gajanan Khergamker is an independent Editor, Solicitor and Film-maker. He is the founder of the International Think Tank DraftCraft.

Comments

comments