BY S. KANAGASABAI MOSES, SENIOR ADVOCATE.
Public Interest Litigation and the Balco Employees Union Case
In the matter of Balco Employees Union Vs Union of India, the judgement was delivered by Kirpal, J. on behalf of the other judges V. Shivraj Patil and P. Venkatarama Reddy.
In this case many a question of constitutional importance on public interest was raised and decided, but the quorum of the judges was only three, not five. When the case was heard it ought to have been referred to five judges constituting constitutional Bench, since it involves substantial question of law as to the interpretation of the constitution.
The PIL which originated in the Supreme Court of the USA in the case of Gideon Vs Wainwright and subsequently the Supreme Court of India implanted the PIL which spread like a banyan tree. The seed of the PIL was sown by Krishna Iyer, J. while delivering and penning various judgements and the PIL was strengthened by his Lordship Bhagavathi, J. during his tenure of office as Chief Justice.
The question is when a writ petition is filed on public interest in the Supreme Court, can the Supreme Court bypass the quorum of 5 judges constituting a constitutional Bench? In view of the Balco case, several changes have been to the handling of PILs, as these excerpts show:
IN PARA 100, PAGE 383 (2002) 2 SCC — It is in the public interest that there should be a quick disposal of cases. Public interest litigation should therefore be disposed of at the earliest as any delay will be contrary to the public interest and thus become counterproductive, as observed in the Balco case.
PARA 99 — No ex-parte relief by way of injunction or stay, especially with respect to public projects and schemes, or economic policies or schemes, should be granted. It is only when the court is satisfied, for good and valid reasons, that there will be irreparable damage, can an injunction be issued after hearing the necessary parties. Even then the petitioner should be put on appropriate terms, such as providing an indemnity or an adequate undertaking to make good the loss or damage in the event the PIL filed is dismissed, as observed in Balco case.
The greatest contribution to the world of jurisprudence is the PIL. It is an innovation by the judges of the Supreme Court in the Indian environment of ignorance, illiteracy and poverty prevailing since independence. His Lordship Bhagavathi, J. inaugurated PIL by treating a letter from a woman as writ petition under Art. 32 of the Indian Constitution. Thereafter, when a PIL is filed, the traditional role of procedural jurisprudence was abandoned in the interest of prudence, reason, justice and equity.
The only clog is that a PIL should not be an academic exercise so that the person who may be affected at a later stage may not find it a hardship when the real factual situation arises before the court to decide. The sweeping observation that the PIL has become publicity interest is something the Supreme Court ought not to have observed. Statements such as the one in paragraph 79, “there is in recent years a feeling which is not without any foundation PIL is now tending to become Publicity Interest Litigation or Private Interest Litigation and has a tendency to be a counter productive,” are unwanted and will discourage PILs in general.
PIL has served the Indian democracy in particular in the following cases:
Indira Sawhney Vs Union of India.
The interpretation of the Constitution in Jayalalitha’s case under Art. 164 regarding the period of 6 consecutive months when a minister is not member of the legislative assembly.
The recent decision on election methods.
The right to information regarding the antecedents of contesting candidates.
The obiter dicta of his Lordship Kirpal, J. will not be in the interest of a PIL. That the Samata case, reported in 2001 SCC 633, is inapplicable as legal provisions are different from the Balco case is not correct. The Balco case was heard by a Bench of three Judges, just as the Samata case reported in 1997 8 SCC 191 was also decided by a Bench of 3 Judges. So the Samata case is binding in the subsequent Balco Employees Union case and his Lordship ought to have referred to the constitutional Bench instead of leaving it to be decided by a Bench of 3 judges.
The reasoning is it involves the interpretation of Schedule V of the Constitution. Also, the image of the Supreme Court of India is esteemed for its role in building PIL brick by brick without any statutory provision passed by the Parliament. The judges must remember what they have decided case to case.
South Africa has praised Indian jurisprudence of the role of the Supreme Court of India from Bhagavathi, J. to Khare, J.
The Supreme Court in the seventies and eighties of the last century, instead of deciding in the rights of the princes regarding privy purses, began to peep the cottages on the pavement of the common man in Olga Tellis Vs. Bombay Municipal Corporation in interpreting Art. 21 of the Indian Constitution and under Art. 19(1)(g) the citizen’s right to have an occupation.
To practice any profession or to carry on any occupation, trade or business as decided in Sodan Singh Case, which was a vital pivotal point in majority interpreting the right of who starts educational institution in the later 11 judges Bench reported in PAI Vs State of Karnataka (2002) 8 SCC are all the great mansion built by Supreme Court and the Supreme Court judges coming later in the office and state should not frequently change the screen on the stage to change the colours like a chameleon to their own likes and dislikes what PIL philosophy and procedure should be and thereby the earlier mansion of PIL and pillar on which it stands should not be pulled down by the whims and fancies of the later judges on the stage of the Supreme Court and it will bring uncertainty in PIL.
If a petitioner with a good case is turned away merely because he is not sufficiently affected personally, that means that some government agency is free to violate the law and that is contrary to PIL. This is the object and reasoning of PIL in India.