July 05, 2020
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The Justices Of Class

Meant to be the poor man's weapon, the PIL now serves the rich - and many judges and lawyers are up in arms.

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The Justices Of Class
Courtastrophe'-that's the new addition to the Indian legal lexicon. Coined by retired Supreme Court Justice V. Krishna Iyer to describe a dangerous malaise that, he feels, has crept into the Indian legal system-namely the misuse of the Public Interest Litigation (pil). Iyer says his "heart is full of judicial consternation" at its wrongful use and the total insensitivity of today's judges towards the underprivileged.

A growing clutch of lawyers and former judges have been very critical of the judiciary's total disregard for and bias against what they call the daridra narayana class: the slum-dweller, the repressed gender, the bonded labourer and the Dalit scavenger. A stratum distinct from members of the creamy layer: a communal leader, a political operator or a manipulator acting on behalf of an mnc. Notes Justice . Krishnaswamy Reddiar, former judge of the Madras High Court: "Technically, there can't be a judicial tilt towards the rich and influential. It's for the courts-high court and the apex court-to see that the pil remains an empowering tool in the hands of the needy. Anyone can file a pil. But it's ultimately the judiciary that decides the outcome, so the onus is on it to ensure the protective role of the pil."

According to Iyer, some judges of the Bombay High Court have shown a bias in a recent ruling on a pil in which they "negated human rights the like of which no eye has seen, no heart conceived, (of which) no human tongue can adequately tell." This has sparked off a debate on the misuse of the pil, which Justice Iyer had introduced in India when, in the '70s, he converted a letter written to him about the torture of prisoners in jail into a writ petition. Soon, the pil became an excellent remedy for various causes in the interest of the poor and deprived who couldn't afford the cost of going to court-Indians "with theoretical access to justice but steeped in privation or despair." Not any longer. The pil is now an instrument the rich use to further deprive the poor as, says the Indian People's Human Rights Commission (iphrc), seen in the court-ordered slum demolitions at the Sanjay Gandhi National Park in Borivili, Mumbai. The iphrc, led by Justice Iyer and three other retired judges-Justice H. Suresh, Justice Rajinder Sachar and Justice S.M. Daud-has been sharply critical of the pil being turned into a "wolf in sheep's clothing".

So much so that the Maharashtra government and a sympathetic CM, who've taken a stand against the demolitions, can do little against the court's intractable view that demolitions are not to be linked with rehabilitation. "But it's not about the slums at the national park alone. It is also about the Supreme Court judgment on Narmada, or on tribals in jungles-described as thieves who should be despatched forthwith, or tenants deprived of legitimate rights when judges act on behalf of the propertied class," says Justice Suresh, who was one of the judges on the iphrc tribunal which studied the slum demolition and came up with a harsh report titled "Crushed Homes, Lost Lives''.

Former Supreme Court judge Justice Ratnavel Pandian has clearly defined the pil in his 1992 ruling in the Janata Dal vs H.S. Chaudhary case: "Only a person acting bona fide and with sufficient interest in the proceeding of the pil will have a locus standi and can approach the court-to wipe the tears of the poor and needy, who are suffering from violation of their fundamental rights-but not a person for personal gain, private profit, political motive or any oblique consideration. A vexatious petition under the colour of the pil brought before the court deserves rejection at the threshold."

Judicial generals. Another term that's used for today's judiciary. The kind described as "field marshals" who ordered helicopter surveillance for demolitions overseen by retired army officers, shut down schools, hospitals and ration shops, cut off electricity and stopped bus services to forests where people have lived for years. "The demolition diktat of the Bombay High Court was a bizarre homage to Sanjay Gandhi. What jurisprudence empowers the court to confiscate a poor evictee's belongings? What law authorises the demolition of ration shops, dispensaries and schools? This is too harsh to be called justice. Only judicial field marshals with military flair and militant mood can conceive of such in terrorem commands," says Iyer. Constitutional lawyer Rajeev Dhawan believes that in pils, a schematic relief must be worked out or they can lead to a mess. "The Delhi polluting industries case is a classic example. The idea seems to be to punish first and provide justice later. That's not what pils are for," he says. Adds former Delhi High Court Chief Justice Rajender Sachar, "One view of the Delhi case is that non-conforming industries should move out. Frankly, that's an unacceptable approach. It doesn't take into account ground realities."

But one has to go to the core of the issue to understand why the judiciary has become so insensitive to the rights of the poor and allows the misuse of the pil by the rich. According to Justice Suresh, it's a class interest that prevails today. "They come from a particular background whereby their own homes are either at Malabar Hill or they are entitled to extremely subsidised housing in posh areas. Consequently, this class interest makes them unable to see the point of view of the poor." Adds Sudha Ramalingam, civil rights activist and lawyer, "The pil was frowned upon by the middle-class when the poor used it as an effective tool to protect their legitimate rights. But the moment this class realised its potential, it was appropriated. It's unfortunate that pils against the rights enshrined in the Constitution, like public protest, are the ones that get the judicial nod. There's a perceptible class shift not only in filing pils but in getting favourable rulings. The judiciary shouldn't be seen as a vanguard of middle-class values but as an upholder of the law."

Nothing illustrates the misuse of the pil better than the example Justice Iyer cites-the Bar Council of a state filed a pil demanding that judges be given the same facilities as ministers, including Rs 1,50,000 to furnish their homes. Instead of throwing this pil out, the judges actually congratulated the Bar Council. According to former judges, it's this very class interest that makes MPs across party lines come together to amend laws that once stipulated that their retirement privileges continue only if the Lok Sabha completes its full term. So while in the '70s the executive raised a hue and cry when those in power resented the fact that pils were affecting their interests, the merging of class interests in the '90s brings about a complete convergence in the views of the legislature, the executive and the judiciary.

While former judges like Suresh see no light at the end of the tunnel, Justice Iyer thinks otherwise. Says he, "It's a paradox that while people seek justice from the courts, now humble humans have to seek justice against the court. It's sad to use a hard word against judges but I feel bad in my soul if I slumber when judges blunder. If it's the vision and mission of Indian justice to achieve the transmutation of the social order from the feudal-capitalist to a social justice system, the judiciary's task is moral-spiritual." And to infuse these values, and prevent more "judi-blitzes", as he puts it, Iyer says one must underscore the value of a judicial review. "When a court commits a tragic error, the remedy is a review by the bench because judges have no big ego and small minds but can rise to reverse themselves once they realise their egregiousness.''

But for this to happen, the judges themselves have to initiate the process. And whether this will ever happen is another story.

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