In Episode 1 of the DAKSH Podcast we discussed policing in India. The police are at the frontline of the criminal justice system yet they are possibly the most feared and the least trusted arm of the system. Every time there is a high profile incident of police excess there is talk of police reform. Yet as the saying goes the more things change the more they remain the same.
In this episode we chatted with Vipul Mudgal who helped us understand the nuances of the policing system better and suggest paths to reform. Vipul is the Director and Chief Executive of Common Cause. Common Cause is a Delhi-based organisation that has been in the vanguard of the campaign for probity in public life and integrity of institutions. Over the years, it has earned a reputation and credibility for its initiatives, advocacy and public interest litigations (PILs). Common Cause periodically publishes the Status of Indian Policing Report an indepth evaluation of policing across India through an analysis of official data and elaborate perception surveys.
In the accused Naryan Kamde 865 is charged under Indian Penal Code Section 306 abatement of Sucide.Vikas Dubay is dead he’s been killed after an encounter broke out. This is the big breaking news that’s coming in. Suspense is finally over the Mumbai trial court today gave more with Momhamad Amin Cassab death sentence for murder and waging war against the country 17 months. The Consitutent assembly will frame the Constitution in terms of paragraph three of the resolution.
Hi, I’m Leah and welcome to the Daksh podcast. Daksh is a Bangalore based nonprofit dedicated to judicial reforms and access to justice in India. Through this series, we will explore the law and justice system with the help of our wonderful guests. In this episode of the Daksh podcast, we discuss PIL of public interest litigations. PIL’s are a uniquely Indian judicial innovation designed to empower citizens to protect the larger public interest from an act or inaction by any government, government agency or officer. These are judicial proceedings initiated by an individual group or organization filed in a high court or the Supreme Court. One of the first PIL was Susannah Khatoon v. State of Bihar in 1979. That focused on the inhuman conditions of prisons and undertrial prisoners. Since then PILs have become ubiquitous and have been a part of a higher Judiciary for more than 40 years now. They are seen as a simple means for citizens to access higher courts and claim their rights or the rights of communities they represent. Whether it is getting the municipality to fix potholes, or ensuring that river pollution is mitigated. The route to getting to courts to look at these problems is through PILs. The media has mostly reported on PIL in glowing terms. However, a deeper look at such cases raises some disconcerting questions. This week, we’re chatting with Anuj Bhuwania, who will help us peel the layers of the large onion that public interest litigation has become. Anuj is a professor at the OP Jindal global university in Sonipat. He is the author of Courting the People: Public Interest Litigation in post emergency India. In his book, Anuj has studied PIL is related to the national capital of Delhi in some detail, and revealed some disturbing trends often overlooked in the glorified coverage of PIL In the media. I began by asking him what is the difference between a PIL and a writ petition? And in his opinion, what was the gap that the Supreme Court was trying to fill by the introduction of this kind of judicial proceeding?
So PIL cases are all writ petitions and a big difference is, in PIL cases, the defining aspect of it is that the locus standi of the person directly affected can be diluted, meaning that ordinarily in a legal proceeding, only the person directly offended can approach the court. But in a PIL any citizen or any representative of a person who is directly affected can approach the court through this process. The second question, what gap was the supreme court trying to fill just not available to citizens earlier? No. PIL is coming from a certain moment in Indian political and judicial history. By the early 70s, there was a perceived crisis of legitimacy affecting the judiciary now as to give a background to what is it that the court is trying to do in the 70s, which is different. So from 1967 onwards, particularly, there’s a direct conflict that decisions that the court gives, which are seen as inimical to some of the fundamental policies of the new Indian state, particularly, the socio economic reforms symbolized by land reform is challenged in various Litigations right from 1950. But in 67, to the tipping point where, in the famous Golaknath case, the Supreme Court actually says that fundamental rights are unamendable, and that the legislature had been amending the constitution with regard to Fundamental rights cannot be tolerated. The point is to say that from 67 onwards, the court tried to argue with position as a protector of fundamental rights in a manner that the government of the day saw as inimical to its interests. And from there on we started seeing a political attack on the judiciary, led by the then Prime Minister, Indira Gandhi’s government, which saw the judiciary is elitist as obviously as culturally alien, as colonial in origin, etc. So there is a kind of attack on the code for its being inaccessible. The political language of this period was to in a sense, tame the judiciary. This question of access to justice, which was repeatedly invoked, was sought to be addressed through all kinds of political legal cultural change in the 70s with two kinds of languages. One was the language of legal aid. And the second was in terms of informalization. Now, the Legal Aid issue, unfortunately, did not get the primacy deserved, because at some level, the problem was that people did not have the resources to approach the court and while legal aid as the language has continued, but somehow that has not been given the importance of deserves. On the other hand, the informalization aspect has become the primary panacea that the judiciary and the government wants to introduce to kind of solve the problems with the judiciary and PIL is a classic instance of that. So what the court tries to do in this informalization, combined with access to justice language is that it says that the kind of complex procedure, which limits access to justice will be diluted, and particularly symbolized by the fact that only the person directly affected can approach the court. And that dilution of locus standi enables the court to directly address the problems of the country, now, in my view, in the last half century, Supreme Court, in a sense, was trying to address its crisis of legitimacy and the crisis in accessibility through Yeah.
Yeah, that’s a good segue to my next question, which is about the procedures that are followed in PIL. If you could just explain how procedures have been made flexible, you’ve used a very interesting phrase for this The Unbearable Lightness of PIL procedure, if you could just elaborate on that.
Ordinarily, when we think of PIL, the kind of obvious aspect that defines PLL is that ordinarily the person directly affecting can go to court or alone, but this aspect of procedure is not the only one which is diluted. And that is to be addressed. The procedure is seen as a weight, which mediates way too much the relation of the litigant to the judicial institutions. So therefore, the grand solution that is, in essence attempted, and this is articulated best by two of the main votaries, two of the most influential judges who were instrumental in introducing the other is V.R. Krishna Iyer and Justice P.N. Bhagwati. And there’s a particular phrase that really tells us a particular line that has been used ad nauseam by the Indian courts, is that procedure is but the handmaiden to justice and not his mistress. So this idea that procedure is basically an obstacle to justice, right? That’s how it starts being viewed. So therefore, when we talk about PIL, while the most conspicuous dilution is with regard to the introduction of the case itself, it’s not just that it’s the processing of the case, meaning the evidentiary processes of the case gets diluted to the depths of how evidence is collected, how evidence is sought to be understood by the judges is diluted, and in how the judges look at the finality of the case, the ways in which judgments are written and PIL cases itself is sought to be informalized in certain way meaning that the art of writing judgments is, of course, a deeply formalized one very partial evidence in a particular manner to martial law in a particular manner. But what happens with PIL is that not just the initiation, but the process of the litigation, as well as the end of the litigation, each and every aspect of it gets informalized. And because there’s a kind of ideological move that underlies this. So what is important to understand is that this way of thinking about justice, which allows for an unmediated relationship between the judges and the cause, that is being adjudicated, and the fact that procedure is seen as innocence mediates that relationship is sought to be done away with. So we will hear this is Bhagwati in particular, talk about this in great detail that, you know, he saw the problems of the country when he would travel, and he would see naked and hungry children and you know, he wanted to solve their problems is that is the idea that distance that judicial proceeding necessarily requires in the common law system is sought to be done away with.
Yeah, so I’m not one aspect of this informalization of procedure and of judgment, writing, as you described, is the practice of frequent interim orders. PILs. So could you just explain this practice to our listeners? And, you know, what is the impact of this practice on precedent?
Some of the most well known PIL cases that many of us would have heard of is, for instance, the finest case which has been adjudicated now for 26 years or in the daily pollution case, the various river pollution cases with for instance, the Yamuna pollution case, etc. Now, these cases have been heard some of them for more than three decades. And what happens in such cases is that once this isn’t taken by the code once once an order or a judgment is given, usually orders by the way, it’s very important to note the difference between judgment and order judgment has the reasoning behind the order as well as the order order is just the bare decision, not necessarily justified by the code. So in with interim orders, what we see is that the code is following up on a specific cause of action and trying to, let’s say the executive authorities or people can do certain things. This we see a spiral of interim orders without much reasoning behind it or any reasoning often enough, and obviously, orders cannot be present in the same way judgments, because there’s no reasoning behind it. They’re just straight off. You know, it says the force of law without any, in that sense, public reason behind it.
The phrase PIL, you know, has the words public interest in it. So from your research, do you believe that parties and communities who seek justice have been fairly heard by courts in PIL? And also, how about affected communities? Are they given a hearing?
What happened with PIL? So depends on who you are, who your lawyer is. So just like any other case, in that sense, but the difference in PIL, perhaps, which is important to note is that the petitioner is just initiating the case, but it’s not what’s called the Dominus litis, this is the case. So, you know, there was this case from the 1980s, where a petitioner called Sheila perse wanted to withdraw her petition out of you know, because the fact that the case was not going anywhere, and she was just fed up, the court said that Petitioner can withdraw herself from the case, but the case would continue. So the idea is that the petitioner is just an informant to bring the matter to the court. Right? Just like, you know, if I witnessed an act walking down the street and bring it to the attention of the police, I can file an FIR as a as an informant. But I’m not party per se, in that. I mean, I’m not really significant party, my FIR have some input, but I’m not directly part of the process in the fundamental sense. So you know, in criminal law, we have a difference between an informant and a complainant, right, the informant is someone who will bring something to the attention of the of the legal process, and the police can take it in whatever direction they deem fit. With PIL, The petitioner is merely the informant, and the court does, and very often does take it to whatever deductions it deems fit. So it depends on how powerful you are in the eyes of the court. But because of the very nature of PIL, that it’s a judge less jurisdiction, it’s not the parties matter as much in the eyes of the court in the eyes of the jurisdiction, so to dictate the nature of the proceeding, or the direction of the proceeding, depends on your social status. So of course, in many instances, the court does go by what the parties or the community is concerned, want to be addressed. But you know, the important thing is that to understand where the dilution of locus standi comes from, and what it means now, dilution of locus standi was never really alien to the writ proceeding process. And remember, the PIL is a writ. Now habeas corpus, by definition, is a kind of a proceeding where a person directly or directly affected cannot approach the court because, you know, he or she is elected under illegal detention of some kind is not really able to come to court, right. So somebody called that somebody called the next friend, somebody who appears on behalf of this person who was illegally detained, and approaches the court for for redress, that is also a dilution of locus standi. And that is somebody acting as the representative of the person directly affected. Now, we have to remember that the first PIL the so called first PIL, that is the Hussainara Khatoon was actually a habeas corpus. I mean, it obviously wasn’t a PIL when it started, because because you know, only in retrospect, it was it was a PIL. You know, that’s seen as the first PIL now. So basically, it was a case filed by a lawyer Kapila Hingorani, in the Supreme Court saying that, you know, she read a newspaper article, basically, that in Bihar, there’s documented instances of under trials in jails spending more time in jail than what they would have if they had been found guilty. So that problems she brought to the attention of the court through a habeas corpus. Now, if we understand PIL, as an extension of the process of habeas corpus, right, which is basically a system which allows for a representation of somebody directly affected. So that’s called representative standing. On the other hand, what has happened in Indian courts is not sticking to this idea of representative standing, but going much beyond it by providing what’s called Citizen standing, that is me as a citizen of of this country, sees various social problems through whatever means, you know, I read the newspaper or I hear about it or see something, I encounter some social economic problem, and I bring it to the attention of the citizen without having any in any way direct connection to that the problem at hand. And the court then takes over. So what has happened over a period of time is that citizen standing has become far more common than representative standing. If it wasn’t a PIL had continue the logic of representative standing, perhaps the kind of problem that we’re talking about would not have happened. So there is a reason why the court can say the petitioner does not matter is merely an informant precisely because the code that the petitioner does not necessarily have any special relationship with the cause of action. But if I’m directly affected, or if I’m representing somebody directly affected, the linkage between the two is not too far apart, then it would have been very different so so I’m just saying intrinsic to the logic of dilution of Locus standi and in extending it so far has meant that is Courts who can decide based on their predilections how to Hear the parties concerned?
Yeah, if you could just describe also whether courts here affected communities, for example, you know, the mass, the slum eviction cases that you’ve described in your book, I mean, the people whose houses were demolished were they heard, were their representatives heard.
This principle is a procedure that, you know, in any proceeding, the Necessary and Proper parties have to be brought to the board and have to be, they have to be part of the proceedings, right, they have to be heard. Now, suppose, read this file and code, as it was very often in the 90s and 2000s, that, you know, that slum,, which is creating a nuisance, which needs to be removed, you know, typically file by what’s called a RWA or resident welfare association or organization, is the person directly affected would be the people who are living in that in that so called slum very often the court would not bother making the slum dwellers into parties to the case. This is almost the norm in the period that I studied, which was between 2006-2009. But even before that, I mean, once we start to start talking about dilution of process, one of the fundamental ideas of civil adjudication that is people affected have to be heard that itself was diluted repeatedly. And obviously, this dilution is much more rampant when the people affected are poor, and find the courts and really inaccessible. So when I started this research, I started through one such case, particular basti got an eviction notice, the short eviction notice had the number of the writ petition mentioned in it, except nobody in the Basti never heard of that writ petition before. So these people had obviously never been heard before. And then they had to get themselves in pleaded and the court will often ignore in pleading necessary and effective proper parties in litigation and even if they are made part of the proceeding. For instance, in the there’s a notorious hearing in the Niyamgiri case, you know, this is a case of bauxite plant in Odissa, run by Vedanta industry in sterlite vedanta and when the communities initially tried to be heard by the court, through their lawyers who by the way is a prominent lawyer now Senior Advocate, Sanjay Parikh, the court said that we will take care of the interests of these people, meaning that they don’t have to be heard. So they don’t have to be necessarily, their their point of view does not need to be heard by the court for the interest to be taken care of. So it’s a fundamentally patronizing form of thinking about the adjudicative process. And that’s intrinsic to PIL.
Another interesting feature of PIL is is the appointment of amicus curiae. amicus curiae Are you know, lawyers are members of the bar whom the court appoints to assist them. Now, if you look at regular litigation, like commercial litigation, you don’t see amicus curae being appointed. So why has this practice grown in PILs? And what is the impact it has?
This is very interesting, actually. Because you’re right, of course, almost never did we hear about it in commercial litigation. And what we have in India is the kind of thing that you said that the court asks a member of the bar usually to assist them in litigation. What does that mean? It’s almost a form of delegation of judicial responsibility, because unlike in the American form, whether my case is basically filing a brief in favor of one side or the other, or the view of the of the matter here that Amicus is asked by the judges to present their point of view to the court. Obviously, every litigant has a particular point of view. And I think surprising for anybody to think of the amicus, as a member of the bar not having a point of view, you know, this idea of amicus, has grown into a huge problem now in the judiciary, and it’s almost become a route of social mobility. You know, I mean, the in the legal profession, I’m not saying in the sense that most amicus, amicai are not paid for their work. I mean, very rarely, they are almost, I mean, I don’t think most of amicus lawyers are doing this for for monetary benefit, but it does lead to a certain intimacy with the judges. And of course, there are amicus in cases which are long running for the for instance, the forest case. During the 26 years. It used to be heard every week. And often, if anybody’s ever followed such cases, the amicus will be speaking for almost half the time in such such hearings. Now, this idea of judicial delegation to a member of the bar is troubling for many reasons. So another problem with this is, for instance, how do you choose a amicus, it is always arbitrary, because the judges decide whoever they think they like maybe made into a into amicus is not often they are bit lawyers. And I mean, I’m not talking about their individual integrity. It’s a really random process. It’s obviously these two kind of a favoritism for the judges. But I think the practice itself is pernicious and needs to be dealt with, in the form that it has been adopted in the last 25 years, but it goes
so coming to Delhi, which has been the focus of your book, you’ve described Delhi as a relentless laboratory of PIL distinction. So can you tell us a little bit more about that.
So somehow Delhi has attracted enormous interest on the court, the court a Supreme Court of India has actually supervise the shifting of, of an avatar from Old Delhi to East Delhi. Old Delhi to Ghazipur,it has supervised the construction of a flyover East Delhi, imagine the Supreme Court of India doing that. Supreme Court has repeatedly done that. So, how it has come about? I think it’s just, it’s a pattern that started in the 80s, especially with environmental cases, it’s just become more and more common. I mean, it’s been documented nowadays, recent empirical studies of the court that much more of litigation in Supreme Court comes from high courts, which are near to Delhi and Delhi, of course, particularly Delhi. So it’s easy for litigant to approach the Supreme Court, just like, you know, at some level, it’s no more, it’s not particularly more difficult for litigant to go to trial court in Delhi than to go to Supreme Court, if you’re located in Delhi already, you know, it’s not massively more expensive process, necessarily. So you know, just the ease of access, perhaps also, and also the fact that the judges live in Delhi, they, it’s just become the norm and generations of judges have acted on it.
You’ve spoken a lot about you know, how the conspicuousness of the poor is seen as a problem. And connected to that is what you describe as bourgeois environmentalism. So if you could just describe a little about how, you know, people at the margins of legality, people like slum dwellers, auto drivers, how would they blamed for environmental degradation, and how the court reacted to that?
Now, much of my book is really about Delhi. And Delhi is, of course, I mean, it’s been seeing this environmental apocalypse, for for a long time. Now. I mean, it’s just, we are still in the middle of it, there’s no end in sight. It’s getting worse every year. And somehow the rise of environmental law in this country has been coterminous with the rise of PIL. Because with the rise arising in the early 80s, if you look at a standard environmental textbook like Rosencrantz and divan, you will see that much of environmental law has really been preceded through PIR cases. So somehow, this is a field which has been dominated but we are not so much the statutes that that were drafted, that were enacted with regard to environmental law, but really, it’s it’s a lot of PIL. So the courts have been always, you know, for the last three, four decades closely involved with dictating the direction of environmental law in this country. But the difference with the PILs is that they’re able to act on these biases in a very much more decisive manner. So a classic example, which I would write about is this case with regard to slum demolition into particular basties in Delhi, but randomly on another bench was sitting the same matter, the bench attended by then Delhi High Court justice Vijendra Jain. He randomly, you know, moves the case into a complete different direction, saying that Yamuna has a lot of pollution, and the pollution is being caused by people living next to that river. So basically, he said that anybody living within a certain proximity of the of the river was causing pollution in the river. Now, obviously, there’s a problem river pollution. Now how do you see that problem? Do you see it as people living right next to it, particularly this idea of nuisance that comes from because because of the poor, this idea of nuisance, and that nuisance in particular, often gets manifested through the act of defecation, the defecate near the river indirectly causing that as if the untreated sewage that goes from houses the people like me, middle and upper classes of Delhi is not causing the pollution. And of course, studies show that because of the nature of sewage networks, the city that slum housing causes a very, very small proportion of river pollution compared to when bourgeoise communities now that’s a classic example of Bourgeoise environmentalism, that you blame the poor for the environmental crisis that you witnessed, and you make them pay for solving the problem. Another classic example, probably the most well known one is the CNG move, right? So the idea that Delhi, of course, was already very polluted in the late 90s. And the solution that was found was to make public transport vehicles move forcibly to CNG, from from diesel, or to drivers, and buses, etc. So what what did it lead to? It led to the fact that this change in technology that was being dictated by the by the court, in their wisdom, had a huge transition period ,had huge costs. And the question was, who will bear the costs? And also, even if the costs are borne by the government partly subsidized, how will this transition period panned out so what it actually led to was that right now in Delhi in 2021, there are less number of buses than they were in 1999. This is the legacy of the judgement . auto rickshaw drivers in particularly badly affected because they had to queue up for CNG for three, four hours easily. Most of the days were spent doing that. And you know, the cost of the technological change led to the fact that while earlier auto rickshaw fleet was multiplied by people who used to only got access, but the costs rose so much that the drivers could not afford to buy the richer the lead to, you know, finance mafia taking over and also accompanied by the fact that the court imposed a limit on the number of auto rickshaws which could be licenses, the licenses itself became really expensive to buy the environmental crisis that we face for instance right now, we are facing with regard to the stubble burning from Punjab many of these changes were altered they got fuel etc requires technological change. question is who will bear that cost between technological change not just in the kind of subsidized subsidizing whatever but the cost of the transition? What happens with bourgeoise environmentalism is the firstly blame the poor for being responsible for the pollution you blame the farmers in the case of stubble burning or you blame the the slum dwellers in the case of river pollution or you blame the auto rickshaw drivers in the case of vehicular pollution. And the solution is to get rid of them solution is to destroy whatever limited livelihood they have. A distribution is not through the kind of public investment, or to make those people pay who can most afford it can most afford the cost of this transition. There’s another instance for instance, with regard to industrial pollution in Delhi, in 1996, they basically closed down also called hazardous industries in Delhi, which led to the loss of livelihood of more than one lakh workers who suddenly lost the permanent jobs. It’s the big deal in this country as you as many of the listeners would know, the language the factory stood was in fact allowed by the court to be diverted by the owners for non industrial purposes, actually, the factory owner made a killing but the workers you know, with the brunt of it suddenly being made jobless. So, this particular attitude that you know, we will take this drastic action will close down hazardous industries without thinking about workers. And because the workers are responsible, seemingly will not care about that we will not make the owners bear some cost will make only the workers pay the costs or for instance, is the vehicle pollution, we will be the auto rickshaw drivers and the people who ride buses or you know, who ply buses pay for the cost, not the people who drive expensive diesel vehicles. So the question of move from diesel didn’t happen. For the longest time, the Court refused to do that. We said making the poorest the most vulnerable pay the cost similar again, the same story with regard to slum housing. Obviously, that doesn’t in any way the demolishing of the slum did not in any way reduce significantly the yamuna pollution. But I think that being CNG much is very important because it has been such a significant case study, right? It’s such a, it’s just got so much coverage and so much attention, because the thing is that it temporarily did bring out a blip, you know, temporarily between, let’s say 99, and let’s say 2008, for about a decade period, there was a decline in air pollution relatively in Delhi. But that was not sustainable simply because you’ve destroyed public transport in this period, you this led to massive expansion of private transport, and over a period the sheer volume of private transport is caught on. And now when we have this disaster, you know, the last five, six years is at least that, you know, I believe so. So I would say in fact far from the court actually helping in the in the in the air pollution metric and CNG to actually be responsible for that catastrophe that we have right now with regard and presented no solution in sight in Delhi.
And as you say, I mean, it’s not like the Yamuna has become any cleaner. And you know, elite projects like the actual dam temple and the Commonwealth Games village were allowed on the Yamuna floodplain, you know, whereas the slum dwellers were evicted. So, this has been a fascinating discussion we could go on for a long time, but we are running out. So I’ll just go to my last question. So do you think that given everything we’ve discussed PIL, should be reined in? And if so, how?
So you know, unfortunately, I wouldn’t hold my breath. I mean, I don’t see PIL being reined in a hurry. But if at all it can be I think it can be through culture of criticism, I see growing with regard to the court in the last five to 10 years who are remarkable expansion of legal journalism, legal academia, as well as practicing lawyers participating more actively in a critical manner with regard to legal matters. But yeah, I think eventually it has to be institutional solution. Very often we find that certain kinds of ills of PIL sometimes temporarily vanish, because the incumbent that is the Chief Justice for this respective High Court Supreme Court changes and that we have witnessed, but that’s a temporary solution. We cannot be relied on individual requires an institutional solution. And unfortunately, I’m not optimistic on that score.
This was my conversation withAnuj Bhowania. And you’ve been listening to the Daksh podcast. This episode was hosted by me Leah Varghese. If you liked the show, don’t forget to follow or subscribe to us wherever you listen to your podcast so that you don’t miss an episode. We would love to hear from you. So do share your feedback either by dropping us a review or rating the podcast where podcasts apps allow you to talk about it on social media. We are using the hashtag daksh podcast, it really helps get the word out there. Most of all, if you found some useful information that might help a friend or family member, share the episode with them. Especially thank you to our production team at made in India. Our production head and editor Joshua Thomas mixing and mastering Karthik Kulkarni and Project Supervisor Shawn Phantom. If you want to find out more about this topic, please have a look at the reading list in the episode description. And to get in touch visit our website DakshIndia.org that’s D A KSH India dot o RG Thank you for listening