Introduction

Public Interest Litigation (PIL)[1] in India has its origins in the post-emergency period when the Supreme Court sought to expand access to justice for the poor and disadvantaged sections of society. [2] PIL allows public-spirited citizens, civil society groups and social activists to approach the higher judiciary to remedy violations of fundamental rights of weaker sections who are unable to approach the courts themselves. [3] Through PIL, the Supreme Court and High Courts have expanded their jurisdiction beyond traditional private law remedies to address issues of public interest pertaining to good governance, social justice, environment, human rights etc. [4]

However, PIL has also been plagued by issues of judicial overreach, unregulated discretion and lack of accountability. [5] There are growing concerns that PIL is being misused by activists and lawyers to settle political scores or gain publicity by filing frivolous petitions on issues falling under the domain of the executive and the legislature. [6] This has led many to argue that PIL now requires significant reforms to prevent misuse and judicial encroachment on functions of co-equal branches of government. [7]

This blog examines the key reforms required in PIL to address these concerns while retaining its core purpose of expanding access to justice. The suggested reforms involve all three organs of the state – the judiciary, executive and legislature, reflecting the need for a collaborative approach.

Judicial Reforms to Check Overreach in PIL

The judiciary needs to exercise restraint to ensure PIL does not become a route for judicial overreach and policy-making. [8] Courts should limit PIL to enforcing existing laws and welfare schemes rather than issuing continuing mandates on the executive branch on policy matters. [9]

For instance, in many PIL cases relating to environment, human rights, prison reforms etc. the Supreme Court has continued mandating the executive to report back on compliance, sometimes for decades. [10] This had led to the judiciary assuming an administrative role. Instead, the focus should be on securing enforcement of existing legislations. [11]

Courts should also encourage democratic deliberation by not dictating specific policies in PIL cases and rather outlining constitutional guidelines for the executive and legislature to formulate appropriate policies. [12] For instance, in PIL cases relating to police reforms and anti-corruption laws, the Supreme Court laid down detailed policies which are ideally formulated by the democratic legislature. [13]

The process of appointment of amicus curiae in PIL cases needs reform to prevent bias and ensure proper perspective. [14] Their role should be limited to assisting the court on legal issues rather than recommending policies. [15] Accountability can be improved by having Constitution Benches hear PIL cases and giving reasoned judgments subject to appeal rather than relying on informal ‘bench opinions’. [16]

Executive Reforms for Effective Compliance of PIL Orders

The government needs to set up a permanent mechanism to monitor compliance of PIL directives. [17] This can be in the form of an ‘Office for PIL Accountability’ under the Law Ministry to liaison between ministries and collect compliance data. [18]

District-level committees can be formed to audit compliance of PIL orders, identify lapses and recommend action. [19] The government also needs to allocate separate funds for implementing PIL directives. [20] For instance, for PIL orders relating to providing food, employment or housing for the poor, adequate budgetary allocations are needed. [21]

The government should also frame executive guidelines on compliance of PIL orders. These guidelines can define the roles of nodal ministries, accountability mechanisms, and contempt procedures for non-compliance. [22] Contempt proceedings should be regularly initiated against errant officials for willful disobedience of PIL orders. [23]

Legislative Reforms for PIL Oversight

Parliament should enact a comprehensive law to regulate PIL defining the scope of the court’s jurisdiction, remedies and accountability mechanisms. [24] This can introduce certain safeguards against misuse such as imposing costs for frivolous petitions. [25]

The law should enable the government to appeal broad policy directives issued in PIL judgments before a Constitution Bench. [26] Currently, review petitions are rarely entertained giving the original bench wide discretion. [27]

Parliamentary committees should be set up to review developments in PIL and examine if the judiciary is overstepping into the domain of the legislature or executive. [28] These committees can recommend suitable legislative measures to maintain checks and balances. [29]

Before appointing commissions in PIL cases, the court can be mandated to consult the government on the scope and terms of reference. [30] The government can be empowered to appoint its nominees to such commissions to present its perspective. [31]

Conclusion

While PIL has played a seminal role in expanding access to justice, it now requires significant reforms to remedy some of its flaws in practice. An incremental approach balancing judicial independence and separation of powers needs to be adopted. The judiciary should focus on enforcement of rights rather than policy-making. The executive should invest in improving compliance and accountability. The legislature should bring in transparency through statutory regulation. A spirit of collaboration between the three organs can help reform PIL to fulfill its constitutional purpose as an instrument of access to justice for the disadvantaged sections.

References

[1] Public Interest Litigation was devised by Justice PN Bhagwati.

[2] S.P. Sathe, “Judicial Activism: The Indian Experience”, 6 Wash. U. J.L. & Pol’y 29 (2001).

[3] Jamie Cassels, “Judicial Activism and Public Interest Litigation in India: Attempting the Impossible?”, 37 Am. J. Comp. L. 495 (1989).

[4] Clark D. Cunningham, “Public Interest Litigation in Indian Supreme Court: A Study in the Light of American Experience”, 29 J. Indian L. Inst. 494 (1987).

[5] Prashant Bhushan, “Supreme Court and PIL: Changing perspectives under liberalisation”, Economic and Political Weekly (2003).

[6] Lavanya Rajamani, “Public Interest Environmental Litigation in India: Exploring Issues of Access, Participation, Equity, Effectiveness and Sustainability”, 19 J. Envtl. L. 293 (2007).

[7] Shylashri Shankar and Pratap Bhanu Mehta, “Courts and Socioeconomic Rights in India”, in Varun Gauri and Daniel M. Brinks (eds.), Courting Social Justice (2008).

[8] Ibid.

[9] Supra note 5.

[10] Surya Deva, “Public Interest Litigation in India: A Critical Review”, 28 Civ. Just. Q. 19 (2009).

[11] Supra note 7.

[12] Ibid.

[13] Vineet Narain v. Union of India, (1998) 1 SCC 226; Prakash Singh v. Union of India, (2006) 8 SCC 1.

[14] Nick Robinson, “Structure Matters: The Impact of Court Structure on the Indian and U.S. Supreme Courts”, 61 Am. J. Comp. L. 173 (2013).

[15] Ibid.

[16] Anil Divan, “Crystallising Judicial Accountability through Judicial Impact Assessment”, J. Nat’l L. U. Del. (2013).

[17] Supra note 5.

[18] Ibid.

[19] Supra note 7.

[20] Ibid.

[21] Right to Food Campaign, “Supreme Court Orders on the Right to Food: A Tool for Action” (2008).

[22] Supra note 5.

[23] Ibid.

[24] Raju Ramachandran, “The Supreme Court and the Basic Structure Doctrine”, in S.P. Sathe (ed.), Supreme But Not Infallible: Essays in Honour of the Supreme Court of India (2000).

[25] Ibid.

[26] Nick Robinson, “Expanding Judiciaries: India and the Rise of the Good Governance Court”, 8 Wash. U. Global Stud. L. Rev. 1 (2009).

[27] Ibid.

[28] Supra note 7.

[29] Ibid.

[30] Ibid.

[31] Ibid.