ETHICS OF PUBLIC INTEREST LITIGATION

In the Indian context, the Public Interest Litigation (PIL) is interpreted as a mechanism to fulfil the Constitutional objectives extending beyond the interests of individual litigants in a case. As the name indicates, it is the litigation to represent the unrepresented/under-represented, while extending the locus standi regime, in the public interest. 

The Supreme Court of India, the pioneer of the PIL, has given the remarkable judgments in the matters of bonded labour (Bandhua Mukti Morcha vs. Union of India) neglected children (Bachpan Bachao Andolan vs. Union of India); exploitation of casual labourers, and non-payment of wages to them (People's Union for Democratic Rights (PUDR) vs. Union of India); prisoners’ reforms (Sunil Batra vs. Delhi Administration); illegal detention (Hussainara Khatoon vs. State of Bihar); matters relating to environmental pollution, disturbance of ecological balance (MC Mehta Cases); etc. 

Transformative Constitutionalism: - The PIL system, since its inception in the 1980s, has given us the motivation to promote transformative constitutionalism, which was recently interpreted in the case of Navtej Johar vs. Union of India. The Apex Court stated that this principle requires that individuals and groups pursue their own conceptions of the good. 

Though, the Constitution does not set up a maximalist system that dictates to people exactly what is valuable in their lives or how they should go about achieving those values; the very objective of the PIL is to imbibe those transformations in their lives. 

But the question arises of how far the PIL system has been successful in bringing transformational changes in the society. The entitlements to the resources and capabilities are also needed to be free from threats to survival and to form and enact these transformations. 

Litigation alone is not sufficient: - There is no doubt in saying that the rights are not self-implementable; hence, the litigation is not a panacea for all the cures. For instance, the Supreme Court in the case of Justice K.S. Puttaswamy vs. Union of India held the right to privacy as a Fundamental Right under Article 21 of the Constitution; or in the case of Hussainara Khatoon vs. State of Bihar, Hon’ble Apex Court has given the directions in the cases of detention of a person by the authorities. The question here is how far the vigilant state is considering these judgments. 

Judicial Overreach vs. Judicial Constraint: - It is uncontentious fact that the Constitution; not Parliament is supreme in India, and that Constitutional Courts are the arbiters of whether law and conduct withstand constitutional scrutiny. The PIL system promotes the philosophy of judicial activism, wherein in decision-making, judges allow their personal views regarding a public policy instead of constitutionalism.

However, while doing so, the Court sometimes blurs the Lakshman Rekha between the judiciary and the legislature. For instance, in the case of Subhash Kashinath Mahajan vs. State of Maharashtra (2018), the Court amended the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, by annulling Section 18 of the Act, which stated that no anticipatory bail will be granted to persons accused under the Act.

Hence, it is the ethical dilemma for the Indian judiciary whether to entertain a case or where to restrain to prevent judicial overreach. 

Clogging of the Cases: - There are more than 3 crore cases pending in the different courts in India. Many of these cases are pending for more than 10 years. In such a situation, the PIL has led to new problems such as an unanticipated increase in the workload of the superior courts, lack of judicial infrastructure to determine the factual matter, gap between the promise and reality, abuse of power, friction, and confrontation with fellow organs of the government, and dangers inherent in judicial populism. Moreover, the lack of a mechanism to segregate the frivolous complaints also makes the tack of the Court more difficult. 

Way Forward: -

Judicial Restraints: - The judiciary should evolve a method to segregate the PILs of genuine concerns; at the same time, the judiciary should elf-restrains herself from entertaining each and every case considered to be of public interest. The separation of power doctrine, which is also a part of the basic structure of the Constitution needs to be exercised judiciously. 

Rejuvenating Judicial Infrastructure: - As proposed by Chief Justice N V Ramana, the National Judicial Infrastructure Authority will lighten the burden of the judiciary through technological evolution; moreover, the appropriate infrastructure will also pave the way for the segregation of the PILs. 

State’s Intervention: - Majorly, the PILs are filed against the state or state entities; the state and the administration should understand their duties and act in an appropriate manner to protect, and preserve the public interest. The state should also promote the idea of transformative constitutionalism by bringing it into practice. 

Ethical Duties of the Citizens: - Lastly, it is the duty of the common public to judiciously avail the route of the PIL. They should restrict themselves from filing false, frivolous, and trivial matters in the PIL. A drastic behaviour change among the masses is required to justify the ethical aspects of the PIL. 

Despite all the criticism, the PIL proved to be an effective tool for the Judicial Review and has proven its importance in several instances. It completely democratizes access to Justice for all. Hence, despite being subjected to many criticisms, the PIL has established itself as a great positive tool for Judicial Activism. 

However, certain loopholes should be filled to continue faith in the PILs. The accountability of PIL activists should be increased more so that the abuse of PIL can be prevented and will further lower the burden of the overburdened Judiciary. 

Lastly, we need to understand that the PIL is not a pill to the injustices; transformative constitutionalism is needed to be imbibed in the system.