Litigation Nation

IN 1978, Sunil Batra, a death row prisoner in Delhi’s Tihar jail, mailed a letter to the Supreme Court detailing the torture of a fellow prisoner in an adjoining cell. The apex court turned that postcard into a habeas corpus petition. In the event, the requirement of locus standi—a direct interest in the case—was waived off. That celebrated case and developments after the First Judges Transfer Case (1981) birthed the Public Interest Litigation.

The rest is history, though not always edifying. Instead of evolving into a tool for bringing justice to citizens who cannot afford expen­sive, individual litigation, PIL has now become a device for “politics by other means”. Highways, roads, ports, dams and projects of national importance are now hostage to PILs that are routinely filed against infrastructure programmes. Delays and cost over-runs in thousands of crores is normal even as these cases wind for years through the judicial system.

The Centre is now trying to persuade the Supreme Court to change the nature of PIL litigation in at least one domain: PILs that pertain to religious practices. In a num­ber of cases, these PILs pertaining to one religion have been filed by activists who do not practice that re­ligion, utterly degrading the requirement of locus standi. In a written submission filed in the on-going Sabarimala reference case that is being heard in the Supreme Court, the Centre has argued that in case a person does not belong to a particular faith or profess belief in a deity, he or she should not be allowed to challenge practices and traditions of the faith.

Among other arguments, the Centre’s submission said that the task of reforming a religion belongs to the legislature and not the judiciary. That, too, has a bearing on the PIL “strategy” adopted by activists. The task of initiating any forward-looking political action belongs to the legisla­ture; the backward-looking task of correcting the mistakes belongs to the judiciary. But over time these distinctions have been blurred. The 2018 decision of the apex court in the Sabarimala case was one such instance where the court opened the doors of the Sabarimala temple to women of reproductive age, a step that went against tradi­tion as well as the law, in this case The Kerala Hindu Places of Public Worship (Authori­sation of Entry) Act, 1965.

This decision rightfully belongs to the legislature, as the Centre is arguing in the reference case being heard now by a nine-judge bench.

The origins of PIL juris­prudence lie in what was a tumultuous time in India’s politics. During the Emer­gency, the court bent over backwards to the Executive as exemplified by the case of ADM Jabalpur vs Shukla. In the years that followed, the court undertook a course correction and the origins of PIL lie in that period. But as is the case with many such far-reaching actions, the law of unforeseen consequences takes over after a while. In the 21st century, PIL has become a tool in the hands of ambitious activists who desire political change but are unwilling or unable to undertake the grind of politics—the task of convincing citizens—to do what is necessary. This has had adverse consequences in cases that span a wide arc from infrastructure projects to traditional religious prac­tices and more.

It is unlikely that the apex court will agree to fully undo a part of Indian jurispru­dence that has evolved over nearly five decades. But if the Centre’s submission is able to carry weight in the Sabari­mala reference case, then a wedge would have opened for necessary changes in the coming years. It is time the court undertook a course cor­rection in the matter.