Why Modi Is Correct About Five-Star Activists

The problem is that we do not have a system that can establish the bona fides of the litigants.

Prime Minister Narendra Modi’s statement, a few days ago, advising the judiciary not to be intimidated by five-star activism has drawn sharp criticism from various quarters. The statement was strong and the opposition stronger, but that does not belie the basic fact that there is something fundamentally wrong with the Public Interest Litigation (PIL) system and the interaction between judiciary, activists and the State. It is my contention that the PIL system suffers from three main defects that are structural, which go beyond the misuse by “bad people”.

A PIL, for beginners, is a writ proceeding filed under Articles 226 and 32 for the enforcement of legal or constitutional right before the High Courts and the Supreme Court. The difference is that, unlike an ordinary writ, a PIL can be filed by any public-spirited person who has no direct association or interest in the matter. Indeed, the court is empowered to proceed with the matter suo motu. This is unique to India; though the concept of “public interest standing” is available in Canada [Canadian Council of Churches v Canada (Minister of Employment and Immigration), 1992, 1 SCR 236] and Australia [Australian Conservation Foundation v Commonwealth, 1980, 146 CLR 493], strong procedural safeguards exist in those jurisdictions.

This brings us to the first defect of PIL. The rules of standing and capacity are product of long evolution; they flow from equity, caution and procedural due process. They are not, as some would argue, mere technicalities. Once they are removed, the door is open for malicious, frivolous or worse sponsored litigations. The Courts are off course acutely aware of the defect. The Supreme Court in a strongly worded judgment in Janata Dal vs H.S. Choudhary [1992 (4) SCC 305] held that an action not based on good faith by a meddlesome interloper or busybody shall be dismissed. In several later cases the courts have dismissed such actions whereby the bona fides of the litigant is in question, sometimes with costs.

So, if good people file PIL it is accepted; bad people file them, it is dismissed — end of the matter, right? It would be so, but for the fact that there is no mechanism in place to determine the ‘soundness’ of the petitioner. The court does not conduct a voir dire or trial within trial to determine the same. In any case, the writ proceedings unlike a suit are not designed for detailed factual enquiry; thus, there is no cross examination, discovery or other fact finding mechanisms in a writ. There is usually no discussion on the petitioner’s motive. Only the grossest abuse that is manifest on the record shall catch the attention of the court. (Voir dire originally referred to an oath taken by jurors to tell the truth (Latin: verum dicere), i.e., to say what is true, what is objectively accurate or subjectively honest, or both.)

This brings us to the second defect of PIL — predominance of certain individuals and large NGOs as PIL petitioners. Since the courts cannot effectively determine who has the bona fides, it is more likely to accept PIL filed by certain chambers, NGOs and individuals who are insiders to the system and have some authenticity with the court. A cursory look into the PIL cause titles and the advocates on record filing them would establish my point. These entities that are often ideologically motivated get a disproportionate clout in the government and public affairs of the country — a decibel power often unmatched by either popular legitimacy or any demonstrable expertise on the subject matter.

The third defect of the PIL is in its very nature. The proceedings are designed to decide ‘public interest’, which is best described as the balance of interests between various members of the public (that, in turn, can be considered to be synonymous to the whole body of citizenry). The balancing is both moral and utilitarian. It can be decided either within the framework of rights (that is, as a legal issue) or as a governance issue.

The courts unfortunately can decide it only within a narrow framework of ‘rights’ (jus of justice). Thus, to decide, say, whether limestone quarrying can be allowed in a certain place, the court can only decide whether:

– the activity is violating any right to ‘clean environment’;

– any consideration as to effect of the same on X and Y that is present before the court, and Z that is not;

– the national economy;

– the future of the industry, supporting industries and such other factors would be ancillary.

In any case, the court would have very limited ability to engage with the matters since it is confined to party submissions and the affidavits. It does not have access to the resources and expertise available to the state.

However, if the State is to apply its mind on the matter, it shall treat it as a ‘governance issue’. It shall typically assess the economics, politics, security and long term impact of the matter. It has the benefit of vast resources and expertise. Furthermore, it has the benefit of popular legitimacy. Democracy even at its reductive worst has to mean government by vote.

So, what is a better way to decide the question? The answer is self-evident. However, the supporters of PIL would point out that its use has expanded into these areas because the State has been reluctant to engage with certain matters.

Thus PILs merely supplement the State and not supplant it. This is an unprovable point. Can we say that in the period 2000-2015, for instance, CNG auto-rickshaws would not have plied on the streets of Delhi if the Supreme Court had not intervened? Or, for that matter, some other remedy would not have been discovered? Did the apex court mandate the Delhi Metro? Did it mandate the BRT? The State is capable of taking initiative and making positive difference to people’s lives with or without any input from the courts.

The over interference by the courts may be in certain ways undermining the initiative of the State. Politicians do not feel obligated to tackle issues because the activists seek remedy from the courts and do not put pressure on the legislature. It is a vicious circle of interference and abdication of responsibility.

It is to be understood that these defects in the PIL are adding costs both to the judicial system and the wider economy. These are direct and opportunity costs. The direct costs are those of litigation, delay, capital due to threat of litigation etc. These costs are being put on the exchequer or the private party; over a period of time, they accumulate to a significant amount.

The Intelligence Bureau, for example, has assessed the costs to the economy by activism (which is wider than just PILs) at 2-3 per cent of the GDP. This is certainly an overestimation, but as the Tort Reform advocates in the US shall point out, the costs of aggressive litigation in the end add up to a very substantial amount. These costs will eventually be passed on to the consumers — you and me — who will pay in terms of increased insurance premiums, increased costs of services and, perhaps, even increased taxes.

Another less understood cost is that of opportunity. Every time judicial manpower is directed to these PILs, they are diverted from ordinary civil, criminal and administrative matters. There are costs attached to not deciding these matters. Every time a criminal matter is delayed some one’s liberty is in jeopardy; every time a money suit is delayed it reduces liquidity in the economy; delaying a suit for divorce probably forces someone in an abusive relationship. These costs are impossible to enumerate but adds up over the period of time and puts the legitimacy of the system to question. This is particularly significant in India where the judicial structure is already overburdened. The calibre of a judicial system is in the quality of the ordinary civil, revenue and criminal adjudication and not merely in high visibility public law judgments.

In spite of its manifest defects, I present no argument for total abandonment of PIL system. Undeniably it serves oversight functions under certain circumstances, especially in matters where corruption by public bodies is involved. My submission would be to have a more structured PIL regime that would reintroduce some of the standing provisions, may be introduce fines for malicious litigation or as recently suggested by Finance and Information & Broadcasting Minister Arun Jaitley require a preliminary investigation on the source of the funds of the litigants.

In addition, we may also enquire into other methods of oversight and private enforcement of private rights like a strong anti-corruption agency, or even class action litigations etc. Whichever way regulating the PIL monster is the need of the hour. I hope to see a public debate on the need and form of a PIL statute. The bar, the bench, the legislature and legal academia need to apply them to address these concern. The prime minister’s remarks, therefore, need reflection more than outrage.