It is a familiar story. Courts were faced with the problem that a “large section of the society because of extreme poverty, ignorance, discrimination and illiteracy had been denied justice". These reflections from 2010 in State of Uttaranchal v. Balwant Singh Chaufal describe the Supreme Court’s original intent in permitting public spirited individuals to approach the higher judiciary even in cases where they are not directly affected. The halo around the nearly four-decade-old public interest litigation (PIL) jurisdiction flows from this narrative. Today, however, a dissonance exists between how PILs were envisaged and their current content.

The Supreme Court has drifted from its early object of facilitating access to justice for the poor, which was largely restricted to the first phase of PIL. The second phase dealt with cases of environmental protection. In the third phase, the court has shifted focus to probity in governance.

In a study for NITI Aayog, we found that matters related to land, public facilities and public officials were the most frequently litigated in the Gujarat high court PIL docket in 2015. The three categories were dominated by issues of urban quality of life, involving what can be characterized as middle-class concerns. Further, the category of education saw prayers made to the court to issue mandamus to a university for starting an online distance education course, and to regulate admission to medical courses. There were exceptions, such as a prominent number of cases on land challenging land use allocation, especially that of gauchar (grazing) land. The category of land also saw PILs being used both for and against the poor. For instance, while some cases challenged the eviction of slum dwellers and sought their rehabilitation, other cases targeted slum dwellers for illegal encroachment.

Economist Varun Gauri’s 2009 study has established that win rates for claimants from disadvantaged classes (2000-08) have fallen compared to the 1980s. Moreover, Anuj Bhuwania has shown in Courting The People: Public Interest Litigation In Post-Emergency India that PILs can be used to bring about anti-poor outcomes; for example, the large-scale slum demolitions undertaken in Delhi. In such a view, the disadvantaged have become casualties of the very enterprise made for their benefit.

Thus, courts recalling the injustice meted to the poor has become a disingenuous rhetoric to link PILs with its roots of procedural relaxation. This is the ‘poor’ proxy: where benefits to the poor are being used to justify outcomes unrelated or prejudicial to them.

One way to ascertain the socio-economic sway of PILs is to empirically examine factors such as the profile of the litigant and right holders, whether access to justice has been impeded, and win rates. Nonetheless, it is problematic.

First, the Supreme Court and most high courts do not explicitly tag a case as a PIL. The Gujarat high court is a notable exception. This hinders the exhaustiveness of any proposed study.

Second, our own study reveals that the Gujarat high court has been lax in rendering reasoned decisions. Judges often do not refer to explicit provisions of the law they are acting from. Thus, it is not possible to gauge whether fundamental rights, statutory rights or mere interests are at stake. Interests are loosely referred to as legal rights, blurring what is deserving of legal protection. Significantly, the subject matter of 35.47% cases was unknown to us from available data on the PILs. Gauri has pointed out, in his 2009 paper, how “the subject matter of PIL cases and orders remains difficult to discern because over 70% of them are classified as ‘other.’" This is worrisome as it creates unpredictability for petitioners and obstructs judicial transparency. The social class of the petitioner can generally not be ascertained, or the social class is too diffused.

Use of the ‘poor’ proxy and outcomes unrelated to or against the poor are facilitated by the institutional procedural relaxations inherent in the PIL jurisdiction, along with the struggle in pinpointing collective rights of a public nature. This manifests in the court selectively examining questions of fact in some cases and refusing to do so in others, basing orders and judgements on poor evidence presented by petitioners (for example, photographs) and passing judgements with limited nexus to the dispute at hand.

In order to address this dissonance between the object and the present content, the PIL leviathan should be reined in to its origins. This can be done by (a) expanding legal aid, (b) strengthening direct government mechanisms for grievance redressal, and (c) reasoned decisions locating facts within the original PIL framework.

First, the inadequacy of legal aid goes back to the creation of the jurisdiction, where procedural innovations were accompanied by a poorly funded legal aid system. PIL is pitched as “a strategic arm of the legal aid movement", but mere relaxation for matters under epistolary jurisdiction is insufficient. Rather, increased funding and initiative from the Bar are needed to ensure that the disadvantaged are able to represent their own interests and be impleaded.

Second, the urban middle-class character of PIL litigation will reduce if existing government grievance redressal mechanisms function better. Its responsiveness will curb the gap-filling role assumed by courts.

Third, there should be a general emphasis on providing reasons, and a specific emphasis on linking the instant facts of a case to the PIL ambition. This is necessary to justify the concomitant procedural relaxation, and will prevent resorting to the ‘poor’ proxy.

It is time for the disingenuous guest to leave.

With inputs from Lalit Panda.

Sohini Chatterjee is a research fellow at the Vidhi Centre for Legal Policy.

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