PIL spike in corona times

Few governments in the world waited for court orders to mitigate peoples' sufferings

Public interest litigation (PIL), which peaked like corona gra­phs during the lockdown, was conceived by the Supreme Court judges in 1980 and immediately faced resistance from within. When an activist bench passed an order in a PIL, directing the Uttar Pradesh government to provide fans, lights and a decent toilet in an Agra resettlement home for wo­men, one strict constructionist brother-judge ridiculed the order in a public meeting: “It looks as if the Supreme Court is running the home.”

The orders in PILs in recent weeks would look as if the courts have taken over the Covid crisis management and the government has ceded its territory to judiciary.

Judges have been passing orders to the executive authorities on each little issue, like filling the middle seat in the plane and norms for Ja­gannath Rath Yatra. As if petitions from public-spirited citizens are not enough, the judges took up issues suo motu in many cases after watching media re­ports. Most of the steps could have been taken by the governments without the prodding of the courts. But since the reaction of the central and state governments has been chaotic, the courts seemed to have stepped in. Go­vern­ments in other countries are not ordered about thus through PIL; they do what they can without push and shove from the judiciary.

Another surprising aspect of the PIL barrage is the tame acceptance by the executive of the courts’ jurisdiction. The government has been vocal against the locus of courts for stepping into its domain. Though the courts have now struck deep into the executive territory, there has been no whisper of criticism against it. The burden has been stealthily passed on to the judges, for well or ill.

The peril of such a move is that the unelected judges could be capricious. A review of orders in public issues would show that the judge’s outlook and personal predilections have a lot to do with the fate of the petitions before him. A judge with a neutral mind, impervious to forces outside, belongs only to school textbooks. 
 

This is confirmed by jurists themselves in their writings. “Tell me who is the judge; I will tell you the law” is a contumacious remark sometimes heard in the Bar association library. Artificial Intelligence is stated to be able to predict a person’s reaction given a problem.

The strength and weakness of judiciary have never been as glaring as when it dealt with the PILs on the corona collaterals. Judges gave contrary orders, interpreting the same words of the Constitution. The Madras high court judges said they could not hold back tears watching media images of migrant workers stranded without food, water and transport to go home. On the other hand, Supreme Court judges asked PIL petitioners: “How can we stop them walking on the tracks?” They accepted the government’s word that they are well-looked after. It echoed the infamous remarks in the 1976 habeas corpus case, that the Emergency detainees were given “maternal care”. Those words had found favour with the powers that be.

However, there was a change of heart when the court received a letter from a group of senior lawyers pointing out ground realities and how other courts were dealing with it. Though too little and too late, the apex court followed the high courts’ path. Change of bench also helped. Benches with different combination of judges could take surprising turns. In Gujarat high court, one bench called the condition of the Ahmedabad civil hospital, where many died of Covid, a “dungeon”. But the bench with a different set of judges which took up the case later was seen to be more accommodative to the hospital authorities. This recalls the discussion on “judicial vagaries” on death penalty in which late Justice P N Bhagwati asked: “Am I to live or die depending upon the way in which the benches are constituted from time to time?”

The composition of benches is not a mere procedural matter in which the Chief Justice has absolute discretion. In recent years, the formation of benches has been hotly debated and it was one of the issues on which four judges held a media event with a cry that democracy is in danger. Thirty-one judges of course cannot think identically. However, the judges who deal with PIL must have the capacity to feel the pulse of society and be responsive to its urgent calls. The blind-folded lady with the scale of justice may not ordinarily see the litigants before her, but PIL is an exception when she should remove the mask to see what is happening in society.