What should the courts should do or intend to achieve via the Public Interest Litigations?
a. PIL as a
means to prevent Judicial Accountability
SC by a series
of PILs has ensured the dominance of judiciary concerning issues of appointment
and transfer of judges, their conditions of service and removal etc. S.P.
Gupta v Union of India[1]
, SCAORA v Union of India[2]
and the NJAC Judgment[3]
have all worked towards promoting judicial supremacy into arenas, which were
traditionally, and predominantly the domain of the Parliament and the
executive. By introducing the Collegium system, it can be argued that it has
amended the language of A.124 (3) and not interpreted it. This raises a deep
fundamental question as to how far constitutional interpretations may be
stretched to obtain this judicial supremacy. Moreover, this has been made
possible because judges have entertained PILs in matters where the concern is
not the enforcement of rights but a tussle for power and supremacy of
authority, revealing a glaring evidence of lack of judicial accountability.
PIL, therefore, has become a vehicle for the courts to decide matters
concerning themselves, thereby hampering separation of powers, envisaged in our
Constitution specifically for such purpose.
b. The divide
between Law and Policy: Foraying into the Executive
PILs suffer from
the problems of judicial predictability when it comes to enforcing socio
economic rights and deciding on matters that have serious policy implications.
The Supreme Court has at certain instances refused to entertain PILs on the
ground that it deals with policy matters (Tehri Bandh Virodh Sangharsh Samiti v
State of UP)[4],
at times has sought to enforce the existing policy mechanisms but in a rigorous
manner to achieve better implementation (The right to food case)[5]
and at times jumped in to adjudicate in matters where there was no existing
policy (Vishakha v State of Rajasthan)[6]
.
Thus, the Supreme
Court has been inconsistent when it comes to deciding whether it wants to
interfere in a matter of policy or not. This is problematic because it would
end up in replicating the work of executive when it does decide to interfere.
There is no concrete rationale behind how SC approaches such cases. It could
follow the democratic experimentalism approach
and not only ensure that the institutions do not encroach into each
other powers but also allow itself restrained powers to mobilize the executive
to fulfill its duties, if necessary. In my opinion the best way forward would
be to allow policy formulation to be left to the devices of the legislature, it
implementation to be entrusted to the executive, and for the judiciary to
engage with them only in cases of implementation failure or to direct a policy
formulation where necessary.
Therefore, in no
sense is PIL ideal. It does not always achieve what it sets to achieve. At
times, it is even a concern for misuse of judicial power as mentioned above. It
could be a facet/tool of weak form of Judicial Review (if applied to executive
action) for example, when it has dialogues with the government to ensure
citizen their rights but could also help transform the judicial process into a
strong form of judicial review if enough power is entrusted to it without
proper checks and balances, for example in the judicial appointments matter. I
nevertheless, wish for it to stay and evolve in a consistent manner to promote
better guarantee of rights to the people. I particularly emphasize on the role
of judges here because, how they perceive a problem is how they decide upon it.
Since the powers are quite expansive with very little mechanism to curtail it,
Judges should be cautious as to what they entertain and how they proceed with
this evolving tenet of judicial practice. Lastly, though this may seem
undemocratic in essence to provide judges with such expansive powers in the
process of PILs, in my opinion, in practice it is necessary, in contemporary
India, to solve the concerns of institutional failure.
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