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India: PIL as an Industry

by Shobha Aggarwal, 24 April 2015

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sacw.net - 24 April 2015

[an edited shorted version of the below article had appeared in The Tribune in 16 March 2008]

“Truth could influence only half a score of people in a given time or age, whereas falsehood and mystery would drag millions by the nose.”
— Aristotle

When I joined Campus Law Centre, Delhi University after completing B.A, (Hons). Philosophy from St. Stephen’s College in 1984, I was much mesmerized by Public Interest Litigations (PILs). At that time I thought that after becoming a lawyer I would only do PIL work as some present day PIL stalwarts – then just beginners – tried to indoctrinate us into the PIL realm. We were much influenced, if not brain washed by the media blitzkrieg centering around the court proceedings and pronouncements upon PILs filed by our professors! When I became a lawyer in 1989 I started a small group called ‘Legal Support Group’, which provided free legal aid to the poor and needy, but refrained from filing PILs for reasons not clear in my conscious mind then.

A PIL stalwart from Bombay approached me in 1992-93 on behalf of a group. This group wanted a lawyer in Delhi who would – on the basis of news paper reports – quickly do field visits and file PILs in the Supreme Court. I declined the offer. Another lawyer known to me had accepted this offer and was not even paid his salary for this work – so much for the phoney concern of the PIL wallas for minimum wages. In 1994 as a member of AIDS Bhedbhav Virodhi Andolan – non-funded, nonparty organization – I was the lawyer petitioner in the writ petition filed in the Delhi High Court for the repeal of Section 377 of the Indian Penal Code which criminalizes homosexuality. This I suppose may fall within the broad definition of a PIL, as the affected parties were not directly before the Court, though we consciously did not call it a PIL. For reasons explained below I did not pursue this matter when it came up for final arguments in 2001. In any case by then foreign funded organizations had sprouted up in defence of homosexuality and one of these organizations filed a regular PIL on the same issue.

In 1998-99 I finally discovered the reason for my discomfort with PILs all along, as I researched into the fundamental question viz whether the PILs have been able to provide justice to the poor or not. Not surprisingly I came to the conclusion that PILs have failed to provide justice to those who need it most i.e. the poor and the working class. The reason I realized was very basic – that PILs flout the principles of natural justice which is the very essence of justice in existence from times immemorial. At that time I met a popular PIL lawyer – presently a Delhi High Court judge – to discuss my research ideas viz that PILs violate principles of natural justice and adversely affect the poor. He said he will not allow me to undertake this research. I had to tell him that he was no one to stop me.

Later in 2005 the above said research paper was published as a Citizen’s Report entitled “The Public Interest Litigation Hoax – Truth Before The Nation” by the PIL Watch Group –a non-funded, nonparty organization. We had a press conference on 7th April, 2005 at the Press Club of India to release the Report. Three major groups of victims of PILs viz industrial workers, professional blood donors and leprosy patients who were either adversely affected or did not benefit out of PIL judgements of the Apex court addressed the press conference. All the three PILs pertaining to these victims were filed by high profile lawyers and activists and these PILs were heard by equally high profile PIL judges. The press conference was attended by 10 journalists from major Delhi-based newspapers and news agencies. Only the Statesman carried a detailed report; and Jansatta reported in a few lines. Without getting disheartened we have continued to campaign against PILs for about three years.

PILs do not follow any due process of law. They are like bypass surgeries conducted for coronary artery disease which sustain the illusion that some good is being done. However an objective study will show that just like bypass surgeries do not deliver the touted good, PILs too do not deliver justice. Equally true just as bypass surgeries inhibit natural channels (blood vessels around the heart) from opening up and benefiting the patients, even so PILs violate the laws of natural justice. In the long term just as bypass surgeries have made no difference in the mortality and morbidity rates of heart patients, the PILs too have not provided justice to the poor.

In the ongoing debate on PILs and judicial activism (set in motion by Justice A.K. Mathur and Justice Markandey Katju) lots of articles have been written almost in all the Delhi based English language newspapers. An important point being harped upon by the perpetrators of PILs is that since the Executive and the Parliament are not performing their role properly the third pillar i.e. Judiciary could step in and set things right. Such a reasoning smacks of an utter contempt for the final arbiters of change i.e. the people of India who can and have overthrown dictatorial governments in the recent history precisely at a time when the judiciary was found utterly wanting in taking a principled stand. The real power is with the people. Any debate which excludes the people of India is contemptuous of the people of India. Also, a cursory look at the articles published in English dailies in the last eight weeks would show that barring a stray exception, the writers happen to be the very same ‘PIL stalwarts’ who file PILs; erstwhile judges who sat in the bench hearing the PILs. So it is only their opinion which is getting wide coverage. Hence the debate is one-sided.

So in the end in the name of the poor – who are yet to receive any advantage out of the PILs – the PIL has become a multimillion dollar industry. The day is not far off when PIL NGOs will be listed on the Bombay Stock Exchange (one such funding organization is already enlisted). Of course the only sad part is that the vested interest is not allowing the real debate on PILs to take place. These ‘PIL stalwarts’ – lawyers, ex-judges, NGO-activists – will be answerable to the future generations for ruining the Indian Jurisprudence. I have read somewhere that it takes about 100 years for a forest to regenerate by itself after being denuded for pecuniary interests. That is the time span it will take for the Indian jurisprudence to recover from the ravages of PILs. That, too, will happen only if the vested interest is crushed and a complete ban is put on PILs!!!

Not one of these NGO activists, not one of these PIL lawyers; and not one of these retired judges of the Supreme Court and High Courts have made any attempt to get a feedback from the very poor and downtrodden masses in whose name the PILs have been touted to be filed. Such is the utter contempt of the intellectual class towards the poor people. Not one of these “do-gooders” has ever conducted a research study to prove the very assumptions of their theory which profounds that the poor have benefited by the cottage industry that PILs have become.

In the interest of justice and fair play the Govt. should undertake an in depth nation wide study to ascertain whether the poor have benefited or not in the last thirty years of coming into existence of the PILs; or whether the poor have actually suffered on account of the PILs! For the study to be authentic and objective all those forces which have a vested interest in perpetrating PILs should not be associated with the study. Till such time that the results of the study are made public, if at all PILs are to be admitted it should be ascertained that the poor would benefit out of the PILs and in any case not harmed by PILs. Secondly, the poor themselves should be heard in these cases and not through any vested interests.

[The author is a Delhi based advocate and a member of PIL Watch Group and can be contacted at pilwatchgroup at gmail.com]