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.



[1] AIR 1982 SC 149

[2] AIR 1994 SC 868

[3] 2016 SCC 1 Vol 5.

[4] 1992 SCC Supl. (1) 44

[5] People's Union for Civil Liberties v Union of India, Writ Petition (civil) 490 of 2002

[6] (1997) 6 SCC 241

Comments

Popular posts from this blog

Teacher As: Critical Pedagogue

ROLE CONFLICT PROBLEM AMONG WORKING WOMEN

Rights and obligations of Issuer, Participant and Beneficial owner under the Depository Act, 1996