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The new avatar of the judiciary

By Rakesh Shukla

Public interest litigation started out as a way to make justice and fundamental rights accessible to the exploited and oppressed. There was a time when the higher judiciary would provide relief from the arbitrary actions of the executive, such as slum demolitions. Now the tables have turned and it is the courts that are ordering slum demolitions!

The auction of natural resources, conservation of tigers, guidelines for media reporting, preservation of the Taj Mahal, corruption, mid-day meals, CNG, location of industry, banks in residential areas…Today the list of issues before the courts appears endless. The origins of public interest litigation (PIL) seem to be overshadowed by the present avatar of PILs. Revisiting the genesis of PIL and subsequent developments in the context of the role of the higher judiciary since Independence, particularly the Supreme Court, can assist us in taking take a critical look at the phenomenon.

As far back as the 18th century, Voltaire pointed out the fundamental flaw in the Anglo-Saxon jurisprudence of our legal system: ‘The law in its majestic equality forbids the rich as well as the poor from sleeping under bridges and stealing bread.’ The judiciary did not recognise the inability, due to poverty, of an overwhelming majority of people to approach the Supreme Court and high courts for violations of the fundamental rights to life, liberty and equality. The principle of locus standi was strictly adhered to and the person whose fundamental rights had been violated was the only one entitled to approach the courts seeking redressal. Lack of implementation of social welfare legislation contributed to the pathetic condition of the exploited and downtrodden sections of our society. Attempts at mobilisation to secure minimum wages and an eight-hour working day, land to the tiller, or even the abolition of bonded and contract labour were repressed. Democratic and peaceful efforts to enforce rights under duly passed laws were met with police action and the institution of criminal cases.

Until the concept of public interest litigation (PIL) was introduced.

The new avatar of the judiciary

Glorious beginnings

On January 8, 1979, a news item appeared in a national daily revealing that hundreds of prisoners had been languishing in jails as ‘undertrials’ for periods longer than the maximum term for which they could have been sentenced, if convicted. A public-spirited lawyer filed a writ petition in the Supreme Court for violation of prisoners’ fundamental rights. In a historic departure from the principles of Anglo-Saxon jurisprudence and more in tune with the socio-economic realities of our country, the court entertained the petition on behalf of the prisoners. In a series of orders, in what is referred to as the Bihar undertrials case (1), the Supreme Court directed the release of such prisoners and laid down that speedy trial was an essential ingredient of the right to life and liberty guaranteed under Article 21 of the Constitution.   

This was followed by the Bhagalpur blinding case where the Supreme Court issued orders for the treatment of prisoners blinded by cycle spokes and acid by the police. The court also ordered an investigation by the CBI in order to punish the guilty (2). A letter petition by the People’s Union for Democratic Rights, for payment of minimum wages to workers employed in construction projects for the Asian Games in Delhi, resulted in the Asiad case judgment (3). A series of cases followed -- the Bandhua Mukti Morcha case (4) for the release of bonded labour, the Agra Mental Home case on behalf of women incarcerated in the asylum, the Sheila Barse case with regard to the condition of children in institutions, and the M C Mehta cases dealing with environmental pollution. These constitute some of the leading judgments of the era. Prisoners’ rights was another issue where a series of cases followed, led by the Sunil Batra case (5). Violence at the hands of police and security forces was an important area of intervention beginning with the award of compensation and direction to prosecute in the case of the disappearance of two people taken into custody by the army in Manipur (6).

Thereafter, the scope of PIL was extended to cover diverse issues like corruption, hawala transactions, fodder scams, petrol pump allotments, and the environment.

Paradigm shift

Although PIL started off as a pro-poor means to effectuate the rights of the exploited, it has been moving in a diametrically opposite direction. There was a time when the courts would provide relief from the harsh, arbitrary action of the executive, reflected in, say, a stay on demolition of slums on grounds of lack of rehabilitation plans or hardship of the monsoons or school examinations. Today, slum demolitions are being directed on orders from the courts. In fact, the tables have turned; today, it is the executive and legislature that are trying to put relief and rehabilitation schemes in place before demolitions, while the courts are maintaining that demolitions be carried out immediately and people rendered homeless. In fact, the Supreme Court declared that people staying in slums had no right to notification before eviction and that rehabilitating these encroachers on public land was “like giving a reward to a pickpocket” (7).

In fact, a similar trend is reflected in many areas of PIL. Thus, in the case which led to the decision to shift heavy industries out of Delhi (8), the court heard the public interest litigant, owners of the industries, and the government, but denied an opportunity to the workers to be heard. In the name of public interest, people whose life and livelihoods were directly going to be affected by the decision were not even heard by the court!

Protection of environment is another area in PIL where the people-versus-environment paradigm has been constructed. The courts seem to be coming out with a series of orders in the ongoing Godaverman case to evict tribals and other villagers from sanctuaries, national parks and tiger reserves. The right to life and livelihood of thousands of people residing in these areas finds no place in the developing environmental jurisprudence.

Overview of the Supreme Court

An overview of the functioning of the Supreme Court since its inception is instructive in forming an understanding of the transition of PIL from its roots in trying to make justice accessible and fundamental rights real for exploited and oppressed sections and communities, to its present avatar. It also has lessons for us on the role of the institution in terms of the interests of various sections of society.

Land reforms:After Independence, abolition of the zamindari system and implementation of land reforms formed the agenda of the Congress party and the government. Zamindars were symbols of oppression and there was near-total support from the rural population for these measures. Land reform laws were passed in most states by Congress governments in power. The landlords challenged the validity of these Acts in the courts. The court’s approach was one of protection of the rights of property, an aversion to land reforms, and indignation that zamindars were being deprived without adequate compensation. The Bihar Land Reforms Act of 1950 was struck down by the Patna High Court as violative of the right to equality. After the Act was struck down, parliament amended the Constitution in order to protect laws passed for acquisition by the state of any estate, or any rights from being struck down on grounds of violation of fundamental rights (9). Despite the amendments, however, the provisions of land reform legislation were struck down by the Supreme Court in cases like Maharajadhiraj Kameshwar Singh (1952) (10) and Thakur Raghubir Singh (1953) (11). Cases of compensation after acquisition of land or property were inevitably decided in favour of the owner of the property, as in Bela Banerjee (1954) (12), Dwarkanath Das (1954) (13), Subodh Bose (1954) (14) and Saghir Ahmed (1955) (15).

Economic laissez-faire:Thereafter, the court supported economic laissez-faire and struck down the nationalisation of banks in the R C Cooper case (1970) (16) holding it to be discriminatory and violative of the guarantee of compensation. The Banking Companies (Acquisition and Transfer of Undertakings) Act, 1969 had been passed with the objective of public control over national finance and elimination of concentration of wealth. However, the court ruled in favour of private business and private enterprise. There was a strong demand for the abolition of privy purses granted to erstwhile rulers of princely states. The court, in H H Maharajadhiraja Madhav Rao Jiwaji Rao (1971) (17), held the abolition to be unconstitutional, violative of fundamental rights and contrary to the rule of law. The judgment declared that the government did not have the power to abolish the concept of rulership, privy purses and privileges on grounds that these were incompatible with democracy, equality and social justice.

Civil liberties: In the area of civil liberties, the court soon after its inception had to engage with the issue of preventive detention in the case of communist leader A K Gopalan. The Preventive Detention Act, 1950 had been passed by parliament. Under the provisions of this Act, a person could be detained if the government was satisfied it was necessary that he be prevented from acting prejudicially to the interests of the state or maintenance of public order. There would be no trial but the person could be put in jail for a period of one year.

Gopalan was arrested by the Madras government as there was disturbance in public order in Telengana. He challenged the constitutionality of the Act as well as his detention. The submission was that a person who is detained would lose his other fundamental rights like freedom of movement, freedom of speech and expression, freedom to conduct a business, trade or profession. Under the Constitution, these rights could only be taken away if the legislation satisfied the test of ‘reasonableness’. Therefore, the preventive detention law must satisfy the test of reasonableness. A majority of the judges were of the view that guarantees and restrictions relating to other freedoms should not apply to preventive detention.

Each of the fundamental rights was held to be specific and independent with its own individual limitations. Justice Fazl Ali, representing the minority view, held that principles of elementary justice applied and a person could not be condemned without a hearing by an impartial tribunal. The majority judgment of the court declared that the test of reasonableness was not applicable and upheld the preventive detention law in Gopalan’s case (1950) (18).

In the shameful A D M Jabalpur case (1976) (19), during the 1975-77 Emergency, the Supreme Court upheld a suspension of the fundamental right to life and declared that no habeas corpus petitions could be filed for deprivation of life and liberty. The Terrorist and Disruptive Activities (Prevention) Act (TADA) was upheld by the court in Kartar Singh’s case, in 1994 (20), the Armed Forces Special Powers Act in the Naga People’s Movement for Human Rights case in 1997 (21), and POTA in People’s Union for Civil Liberties in 2004 (22). In fact, it is parliament that allowed TADA and POTA to lapse.

Industrial jurisprudence

Akin to the paradigm shift in PIL today, the trend in industrial law has a similar anti-worker/employee and anti-egalitarian aspect. As in the area of demolitions, the courts earlier provided protection against harsh and arbitrary actions by governments and employers, directing the implementation of social reform legislation and expanding the concept of equality. Equal pay for equal work was laid down as part of the fundamental right to equality, in the Randhir Singh case (23). In a number of cases, the courts, led by the Supreme Court, directed the regularisation of contract workers performing work of a permanent nature. Reinstatement with back wages was the norm in case of harsh punishments imposed by employers.

In this era of globalisation, however, there is a lot of pressure to change India’s labour and industrial laws in favour of employers. Indeed, even before any such changes have been effected, the court has begun changing the face of industrial jurisprudence. The recent trend in the courts and tribunals is of non-interference in administrative action, quasi-judicial decisions and cases where harsh and disproportionate punishment like dismissal of employees for minor infractions (24) has been imposed. Labour legislation, the preamble and directive principles of state policy in the Constitution laying down the move towards a more equitable distribution of material wealth remain, yet the approach of the courts today is of dilution of principles like equal pay for equal work (25) and the abolition of contract labour for permanent work (26).

Constitutional balance of power

The Constituent Assembly Debates make clear that the Supreme Court was never visualised as playing an active role in India’s policymaking or governance. At that time, parliament, representing the sovereign will of the people, was considered the final arbiter of the policies and laws that would serve the best interests of society. However, in more than half-a-century of functioning, the court has come a long way and today occupies centrestage in almost all aspects of policy and governance.

The area of public interest litigation has played a major role in the enhancement and expansion of the court’s powers in almost every sphere of life and governance. It has also impacted on the balance between the three wings of the Constitution -- legislature, judiciary and executive.

In fact, in the ongoing Godaverman forest case, an application was moved by the amicus curiae seeking intervention with respect to the Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 which was to be tabled in parliament. The apex court, rather than dismiss it outright as not maintainable, thought it fit to keep the application pending before it. Although totally antithetical to the Constitution, we seem to be moving towards a stage where courts consider passing orders restraining the legislature from passing laws, judging them to be unconstitutional even before they are made!

The plummeting credibility of other institutions has led to the court being looked upon as the ultimate resolver of all society’s social ills. Instead of judicial restraint, the court appears happy to usurp this space. The current slew of scams, corruption and bribery cases has resulted in the legitimacy and moral integrity of the political class reaching a new low. A weak and unstable Centre, coalitions with razor-thin majorities and defections have all contributed to an unhealthy tilt in the balance between institutions. Under our Constitution, parliament and state legislatures are independent sovereign entities; the courts do not have the powers to inquire into their proceedings. The totally unconstitutional act of setting a date for the UP assembly session, the Supreme Court fixing the agenda for a composite floor test to determine a majority in the assembly in the Jagdambika Pal case (27), is a striking illustration of this. A government where the judiciary treats the legislature like an inferior court! It seems unlikely that the genie of public interest litigation jurisdiction enabling the higher judiciary to intervene in every sphere regardless of constitutional provisions or validly enacted laws can be circumscribed to fulfil the original limited objective of making fundamental rights real for the marginalised and the poor.

Future

The portents are ominous: declining authority and erosion of the legislature and executive along with an increasingly activist judiciary favouring the haves rather than the have-nots. More than two decades ago, then Law Minister Shiv Shankar remarked (28): “Mahadhipatis like Kehsavananda and zamindars like Golaknath evoked a sympathetic chord nowhere in the whole country except in the Supreme Court of India. And the bank magnates, the representatives of the elitist culture of this country, ably supported by industrialists, the beneficiaries of independence, got higher compensation by the intervention of the Supreme Court in the Cooper case. Antisocial elements, ie FERA violators, bride-burners and a whole lot of reactionaries have found their haven in the Supreme Court.” Certain other corporate entities like Vedanta, Sterlite and POSCO could also perhaps be added to this list.

(Rakesh Shukla practises law and psychotherapy)

Endnotes
1 Hussainara Khatoon vs Home Secretary, State of Bihar, AIR 1979 SC 1979
2 Khatri vs State of Bihar, 1981 (1) SCC 623
3 PUDR vs Union of India, AIR 1982 SC 1473
4 Bandhua Mukti Morcha vs Union of India, (1984) 3 SCC 161
5 Sunil Batra vs Delhi Administration, (1978) 4 SCC 49
6 Sebastian Hongary vs Union of India, 1984 (3) SCC 339
7 Justice B N Kirpal sitting with M B Shah and D P Mohapatra. J J speaking on behalf of a three-judge bench of the Supreme Court in Almira. Patel vs Union of India, AIR 2000 SC 1256
8 M C Mehta vs Union of India, (1996) 4 SCC 750
9 Articles 31 A and 31 B -- First Constitutional Amendment 1951
10 Sections 4 (b) and 23 (f) of the Bihar Land Reforms Act, 1950 were declared unconstitutional and void in the State of Bihar vs Maharajadhiraj Kameshwar Singh, 1952 SCR 889
11 Section 112 of the Ajmer Tenancy and Land Records Act, 1950 was declared unreasonable and violative of the right to “acquire, hold and dispose of property” under Article 19 (1) (f) in Thakur Raghubir Singh vs Court of Wards, Ajmer, 1953 SCR 1049. Article 19 (1) (f) was omitted by the Constitution (Forty-fourth Amendment) Act, 1978
12 Section 8 of the West Bengal Land Development and Planning Act, 1948 was struck down as unconstitutional and void in State of West Bengal vs Mrs Bela Banerjee, 1954 SCR 558
13 Taking possession of Sholapur Spinning Mills when the mill was closed first by an ordinance and then by an Act was declared to be overstepping the limits of legitimate social control legislation in Dwarkadas Shrinivas vs the Sholapur Spinning and Weaving Co Ltd, 1954 SCR 674
14 State of West Bengal vs Subhod Gopal Bose, 1954 SCR 587
15 With the exclusion of private bus owners from road transport, the UP Road Transport Act was held to be unconstitutional as it amounted to deprivation of property without compensation as well as violative of the fundamental right to carry on a business, trade and profession under Article 19 (1) (g) of the Constitution in Sagir Ahmed vs the State of UP (1955), 1 SCR 707
16 Rustom Cavasjee Cooper vs Union of India, (1970) 2 SCC 298
17 H H Maharajadhiraja Madhav Rao Jiwaji Rao vs Union of India, (1971) 1 SCC 85
18 A K Gopalan vs State of Madras, 1950 SCR 88
19 A D M Jabalpur vs S S Shukla, (1976) 2 SCC 521
20 Kartar Singh vs State of Punjab, (1994) 3 SCC 569
21 Naga People’s Movement for Human Rights vs Union of India, (1998) 2 SCC 109
22 People’s Union for Civil Liberties vs Union of India, 2004 (9) SCC 580
23 Randhir Singh vs Union of India, (1982) 1 SCC 618
24 State of NCT of Delhi vs Sanjeev, (2005) 5 SCC 181; Damoh Panna Sagar Rural Regional Bank vs Munna Lal, (2005) 10 SCC 84
25 State of West Bengal vs T K Ghosh (2005) 10 SCC 339; Deb Narayan Shyam vs State of West Bengal, (2005) 2 SCC 286
26 SAIL vs National Union Waterfront Workers, (2001) 7 SCC 1
27 Jagdambika Pal vs Union of India, AIR 1998 SC 998
28 Excerpted from P N Duda vs P Shiv Shanker, (1988) 3 SCC 167, where it was held that the statement does not amount to contempt

Infochange News & Features, March 2013