20 Dec 2007

Prescribing a code for PILs

'The Supreme Court on Friday said it will consider laying down the guidelines for judiciary to entertain public interest litigations (PILs). A three-judge bench headed by Chief Justice K G Balakrishnan said, “it is better to have some guidelines whether these types of PILs can be entertained”. ' A nice observation indeed. But then the legal experts would agree that this was coming, sooner or later. After all the law-spearheading institution cannot remain law-less. And why do I say so? Because the concept of Public-Interest-Litigation is like that only.

Developed in 1980s by Justice P.N. Bhagwati in the famous case of S.P. Gupta (for law buffs, S.P. Gupta - I) wherein lawyers asked the judges to give an end to the glaring interferences of executive in judicial appointments, and it was so done, only by developing a new medium of locus standi to give those lawyers a right to be heard. And since then this new medium, which has been re-christened as 'public-interest-litigation' has come a long way. Traditionally employed as a tool to deal with ill treated under-trail offenders, mental patients, rights of children, governmental policies and then boiling down to filing for entertain petitions on anything and everything under the sun, PILs have indeed come a long way.

Some time ago I had the occasion to edit an article which made a comprehensive analysis on the manner in which the Supreme Court started taking a tough view (notably since 2001 with the BALCO disinvestment case) on the genuineness of these petitions and also on the grounds of judicial encroachment on executive domain. And then today we have this concern to develop a code of conduct and lay down guidelines on the subject-matter concerning these PILs and manner for dealing with them.

But then, judicially laid down guidelines again??? Though since 1980s the Courts have been laying down guidelines but it again it sounds to be an executive function. But still the Courts have been very liberal in their approach towards framing these guidelines, the most prominent being the the guidelines against sexual harassment at work places (Vishakha Case) and the guidelines for Police to ensure against mis-treatment at times of arrest (D.D. Basu Case). There have been others as well like the inter-country child adoption (Lakshmikant Pandey Case) and all but then all boast of erudite law-making and arousing suspicion on the capabilities of the law-makers.

Then truly and fully, I appreciate that there is a need to bring to law this extra-constitutional self-proclaimed jurisdictional and give legal certainty to the system. It would no doubt reduce the scope for abuse but may as well carry the potential to make the stringent and closed in a manner that genuine cases may be shunted out without giving a hearing. But then again, everything has pros and cons and the benefits of regulating this system may as well outweigh the costs.

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