Public Interest Litigation

Public interest litigation is an unique jurisdiction assumed by the supreme court in India as compared to other jurisdiction in other countries in the world. For social or public interest any person may move to the court. This is called expansion of the ‘ right to be heard’ . It is n exception to locus standi rule where the public in general are interested in the vindication of some right or the enforcement of some public duty. But this right is also not unfettered. The petitioner has to prove real public cause and not the frivolous or illusory one only based on presumptions and hypothesis. ‘’A PIL would not be maintainable where it is filed at the behest of some powerful business house.’’ The jurisdiction of supreme court in PIL cannot be pressed into service where the matters have been completely and effectively adjudicated upon in the individual petitions and also in the writ petitions raising larger questions.

However, PIL is being misused by some advocates who want to come in limelight to brighten their legal practice by making non-issues even as public interest issues.

This results into wastage of precious court’s time, whereas many bonafide litigants are constantly waiting for years for disposal of their long pending cases. There is no doubt that the invocation of jurisdiction by the supreme court has done more benefit to the public and the country than the loss because the executive had become non-responsive and exercises unbridled and unfettered power. It has made the executive more accountable and lot of benefit has percolated down to the people. A confidence has been created in the country to stand against misuse of authority by persons in power.

However, now the PIL has reached the subordinate courts and some magistrates or judges are assuming the jurisdiction on application by some lawyers to come In public glare or media which is against the professional ethics of the judicial officers. It is high time that proper checks and balance are to be put in place, otherwise the institution by PIL will divert the judiciary into a field which is not its field of expertise. The elected representatives in democracy are there to understand the people’s problems and the remedies thereof. They are also accountable to public for their actions or inaction after every five years or earlier. Petitioners by some lawyers on the basis of newspaper reports or some research may cause irreparable damage to the judiciary which is already overburdened with cases.

It is happily noted that the supreme court has fined many PIL litigants but that is not enough. Regular PIL petitioner and advocate ML Sharma got penalized for the hazards of pushing the already stretched limits of public interest litigation in the recent case dated 2nd September , 2014 as the supreme court imposed 50,000/- cost on him for seeking a direction to the centre to find the whereabouts of Netaji subhash Chandra Bose. A bench of chief justice. R.M. Lodha and justices kurian joseph and R.F. Nariman allowed Sharma, dressed in lawyer’s uniform with forked band neatly tied to his white shirt collar, to go the full distance in arguing the PIL and explaining why he filed the habeas corpus(produce the body) petition. At the end of his argument, Sharma got an unexpected order. “We find the petition hopeless and frivolous. Such petitions should not only be dismissed but exemplary cost should be awarded for wasting the court’s time, “the bench said and quantified the cost at $ 1 lakh , Immediately ,there was a torrent of apology from Sharma, who was also pulled up by the bench for violating rules by choosing to appear in lawyer’s uniform despite arguing as ‘petitioner in person’. But Sharma kept apologizing, expressing inability to pay the hefty sum. He had been recently asked to pay cost of $25,000 for another PIL.

This was one of the most required and benchmark step taken by the supreme court for curtailing the misuse of provision of PIL, which is vested for the public motive. Since now-a-days, it has become, practice for the vested interest, it is required to be discouraged. The PILs are also now multiplying by heaps and bounds and in future, the main-course litigation will be grossly overlooked. This is not what is expected of the PIL. A decision, judgement or order remaining unimplemented is just a piece of paper.

An analysis of orders in PILs will show that the governments do not have the funds, resources or infrastructures to implement all PILSs for the next ten years as per the rough estimate. The Apex court is , therefore, urged to come hard on PIL and keep the power only with it and no further.

The supreme court held that the government policy cannot be enforced by writ under Article 32. A directive principle cannot be enforced by writ under Article 32. But the supreme court is veering around to attach more sanctity to the directive principles vis-à-vis fundamental rights. However, the judicial review in matters of appointment of high court judges would be permissible only on the ground, i. e .lack of eligibility and lack of effective consultation. A writ petition cannot be filed to circumvent an earlier decision in the supreme court. But for deprivation of right to life and personal liberty, compensation may be awarded. In a false encounter, rupees 20 lacs was awarded due to loss of his son.

33.Power of parliament to modify the rights conferred by this part in their application to Forces, etc:

parliament may, by law, determine to what extent any of the rights conferred by this part shall, in their application to,

(a) the members of the Armed Forces; or

(b) the members of the Forces charged with the maintenance of public order; or (c) persons employed in any bureau or other organization established by the state for purposes of intelligence or counter-intelligence; or

(d) person employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organization referred to in clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.

COMMENTS

The Article empowers Parliament to restrict or abrogate the application of fundamental rights in relation to armed forces, paramilitary forces, the police, etc. parliament may empower Government to impose restrictions. Such legislation may restrict the operation of fundamental rights, such as equality, free expression, freedom of association, personal liberty under Article 20 and 21. Unless the substantive fundamental right itself has been excluded by a law made under Article 33, the right of services and consequently the remedy of writ also survives like in quasi judicial proceedings in relation to court martial. The supreme court may interfere if the sentence imposed by the court martial is disproportionate to the crime. Or there are breaches of natural justice or there is error of jurisdiction on law on the face of record. However, the supreme court will not enter into question of fact or irregularities caused. Similarly, the Air Force Act, 1950 and the Rules made under it were not found violative of Article 21 insofar as they did not provide for a counsel at state expenses in the court martial proceedings. They were protected by Article 33.

So long as the restriction is in respect of the forces covered by Article 33 and for the purpose specified in that Article, i.e. proper discharge of their duties by such forces and the maintenance of discipline among them, the court cannot examine the propriety or suitability of the restrictions.

34. Restriction on rights conferred by this part while martial law is in force in any area:

Notwithstanding anything in the foregoing provisions of this part. Parliament may by law indemnify any person in the service of the union or of a state or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area.

COMMENTS

In Martial Law, the right of trail by the ordinary court is suspended. The constitution does not have a provision authorizing proclamation of martial law. However, parliament may by law indemnify any person for anything done in contravention of fundamental rights for maintenance of order during the operation of martial law.

35. Legislation to give effect to the provisions of this part:

Notwithstanding anything in this constitution-

(a) parliament shall have, and the legislature of a state shall not have, power to make laws-

(i) with respect to any of the matters which under clause (3) of Article 34 may be provided for by law made by parliament; and

(ii)for prescribing punishment for those acts which are declared to be offences under this part; and parliament shall, as soon as may bee after the commencement of this constitution, make laws for prescribing punishment for the acts referred to in sub-clause (ii); (b) any law in force immediately before the commencement of this constitution in the territory of India with respect to any of the matters referred to in sub-clause (i) of clause (a) or providing for punishment for any act referred to in sub-clause (ii) of that clause shall, subject to the terms thereof and to any adaptations and modifications that may be made therein under Article 372, continue in force until altered or repealed or amended by the parliament.

Explanation-

In this Article, the expression ‘’law in force’’ has the same meaning as in Article 372.

COMMENTS

Article 35 lays down that the power to make laws to give effect to certain specified fundamental rights shall vest only in parliament and not in state Legislatures. Section 8 of Jammu and Kashmir preventive Detention Act is not in excess of or inconsistent with the provisions of clause (c) added to Article 35 of the constitution by the constitution (Application to J& K) Order, 1954.