Regulation of Public Interest Litigation Jurisdiction of the Courts.

Suo Motu dilution of the principle of Locus Standi by the Higher Judiciary in India has given birth to the system which was never part of the Indian constitutional scheme. Constitution framers of this country could never have imagined the situation in which the higher judiciary will become so all-pervasive. Now a day’s public interest litigation (called PIL) has become most interesting rather amusing work in the higher courts of this country. Print and electronic media is almost always present in the courts in which PIL jurisdiction is vested, mostly in unnecessary hurry to publish what the judges observe (most of the time orally in the form of out of the pleading comments) than to wait for the final and considered judgment of the court. It used to be a settled principle of the court practice to remained confined and argue not beyond the pleadings of a case. However in PIL jurisdiction today such principle needs to be rewritten.

PIL cases in India in their initial days has delivered some of the most landmark judgments and contributed a lot to the Indian jurisprudence. But in today’s’ scenario certainly some corrections are needed. The manner in which PIL jurisdiction is being exercised by the higher courts in India warrants immediate caution from the government, which is unlikely to happen in an era of most passive governance in this country. Sovereignty lies in the people and represented through an elected government under the Indian constitutional scheme not through courts. As a law student, whenever I read that India has the most powerful judiciary on the planet, it generates a feeling of proud to be a part of that apparatus as a benign lawyer but when I see the functioning of that system it generates a feeling of fear and uncertainty. A very respectful and eminent lawyer of Supreme Court during the court proceeding characterized our judicial system as ‘judge to judge basis’, he certainly stopped short of making any value judgement on it. It seems truer in PIL hearings. Hardly any universality can be seen in the approach of courts while hearing public interest petitions. The outcome of the case depends more on ‘who is hearing’!

It is time the PIL jurisdiction needs to be clearly redefined not through self devised process of judicial innovation but the way it was anticipated by the framers of our constitution. Let the Parliament make laws for a change. PIL jurisdiction is inherently flawed. Courts now a day’s adjudicate everything under PIL cloak what they were never meant to adjudicate.

Every single incident of law breaking doesn’t warrant a notice from the courts principally meant for deciding the questions of law. The way in which most of the PILs are entertained in our courts specially High Courts, it essentially evaporates the process of trial and leaves things on the ‘prima facie’ or ‘discretion of a judge’. Neither civil nor criminal nor any public interest procedure code is applied in this jurisdiction. In a way PILs have made the courts vulnerable of becoming the tools in the hands of anyone having grudge against any single individual. If you cannot target him directly take him through PIL is fast becoming the approach of habitual litigants. As we see PILs are being also filed and entertained against individuals. May I recall an old law school teaching about the process of evolution of laws. Law breaking is also a part of law making. The evolutionary process of making the law is naturally based on the accounts and incidents of law breaking. That is how the evolutionary process of law making works. PILs kills the natural law making process. It hampers such evolution of law.

Many a times, conveniently it is cited that courts has to do this because the legislature has failed to enact and whatever enacted executive is delaying in implementation. I sometime even think who will be the judge in this cause. Who will decide that legislature has failed to enact and who will decide as to how much the executive is delaying. Is it the court who were meant only for ‘interpretation role’ or ‘We the People’ who has mandated the legislature with their votes and consented for either to make laws or equally ‘not to make laws’? Either it is omission or commission on the part of the legislature; it is directly answerable to the people who vote for it in a democracy. To say more otherwise, if the elected legislature has not framed some law or idle on the delay on implementation, then also it is reflecting the will of its electoral college.

We must understand that the system of court room practice does not allow you to negotiate, to have round table discussions about the pros and cons of a proposal or to analyze the reasons behind the law breaking. A proper forum may be the legislature or the government discussions at macro level and local bodies at the ground level, perhaps which is why prudence warranted that policy matters may not be adjudicated upon by the courts.