The Hindu Business Line : PILs beyond the sugar coat

AFTER the MMS scandal that hit the mobile phones, we now have the apex court frowning upon unsolicited calls. Thus, in response to a public interest litigation, or PIL, filed by Harsh Pathak, the court has issued notices to the Government, cell companies and banks, and you can almost hear the tone of a new law against cell-spamming ringing in.

Recently, the US brought in CAN-SPAM, or the Controlling the Assault of Non-Solicited Pornography and Marketing Act. One of the first prosecutions under it is that of a software engineer, formerly employed at America Online (AOL), who misappropriated a list of 92 million AOL customer account screen-names; a co-conspirator used the list to promote a gambling business and also sold the list to other spammers. Therefore, it is only a matter of time before Indian law deals with spam too as crime.

Pathak's PIL plea has alleged that the spam calls are an invasion of privacy and violation of rights to live a peaceful life. While this charge may be a bitter pill for telemarketers offering loans and cards to unwilling customers, we may look at what a PIL is.

A PIL is not defined in any statute; therefore, a simple meaning is that it is an appeal filed before the court to protect public interest. Black's Law Dictionary defines PIL as "a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected."

In PIL, cutting out `litigation', which means lawsuit, the phrase `public interest' is self-explanatory. However, if you want a dictionary meaning, www.bartleby.com obliges with "the well-being of the general public; the commonweal." Corporate social responsibility requires companies to pay attention to public interest, and strong PILs can hit businesses, yet Oxford Dictionary of Business chooses to ignore `public interest', and moves on to `public issue' after `public examination'. Wikipedia explains public interest as "what is considered beneficial to the public" but mentions a common problem: "It is often very difficult to specify exactly what is meant by the `public interest', especially since `special interests' themselves so often speak in favour of their goals using the language of the public interest." An argument, that is, against judicial activism and activist outfits.

A free text search for `public interest' on http://indiacode.nic.in shows as the first `The Explosives Act, 1884'. "Where the licensing authority refuses to grant a licence to any person it shall record in writing the reasons for such refusal and furnish to that person on demand a brief statement of the same unless in any case the licensing authority is of opinion that it will not be in the public interest to furnish such statement," is a snatch from one of its provisions.

Normally, only an aggrieved party can knock at the doors of a court and seek remedy. As dictionaries on common law explain, the litigant has locus standi (Latin for `place to stand'), if a private right is interfered with. But in a PIL this norm gets turned on its head, giving more people a place to stand.

Thus, a person or a `pubic spirited' organisation takes the cause of a faceless public to don the garb of the aggrieved party. The issue of `standing' is relaxed, therefore, to allow citizens the right to access justice. PIL can give rise to `class actions' and representative proceedings, bringing in legal debate and social reform, as may begin raging now about sales calls on the cell.

From being locked into a procedural framework, the judiciary has emerged as a touchstone for law, and recourse for remedy when `fundamental rights' get jeopardised. But this has been a long journey.

In their paper on PIL's `potential and problems', Ashok H. Desai and S. Muralidhar (www.ielrc.org) plot the birth pangs that the PIL endured through the Emergency period. To help, however, there were reports, such as of Justice Bhagwati, who had observed that even while retaining the adversary system, some changes were necessary whereby the judge plays a participatory role in placing the poor "as far as possible, on a footing of equality with the rich in administration of justice."

Justice V. R. Krishna Iyer too had dealt with law and poverty; he wanted legal aid to reach the people, rather than requiring people to reach the law. The name the two judges had given to PIL in a 1977 report was different: `Social Action Litigation'.

A search for PIL around the world takes one to www.cepil.org, the site of Centre for Public Interest in Law of Ghana; BELA or Bangladesh Environmental Lawyers Association that is proud of its 1994 suit against `nuisance during election campaign'; and Kenya where public interest faces the hurdle of multiplicity of laws, as for example, 66 pieces of legislation addressing environmental concerns, each with its own provisions relating to enforcement, that Michael Ochieng Odhiambo, Executive Director of Resources Conflict Institute, explains in a paper. Fundamental Rights in our Constitution include Article 21 on `protection of life and personal liberty' that no person shall be deprived of his life or personal liberty except according to procedure established by law.

Article 32 is on `remedies for enforcement of rights' and these speak of the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights, and the power of the apex court to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights.

It is almost a quarter century since the PIL arrived on the Indian legal scene. The 1979 case Hussainara Khatoon vs Home Secretary, Bihar, merits special mention because the Supreme Court took suo motu notice of reports in a newspaper about undertrials languishing in Bihar's jails up to 10 years without their trials having commenced. The court said that free legal aid was an inalienable element of reasonable, fair and just procedure. Ever since, PILs have made their appearance in combats against pollution, terrorism, oppression of the poor, movies and infringement of religious rights. There have been forceful one-liners from the courts when deciding PILs. For instance, in D. K. Basu vs State of West Bengal, a 1986 case about custodial deaths, the judgment was categorical: "Law does not permit use of third degree methods or torture of the accused in custody during interrogation and investigation with a view to solve the crime. End cannot justify the means."

That apart, the court also laid down a procedure for the cops to follow when arresting. Likewise, in a case about the rape of tribal girls by defence personnel in a moving train, the court set out parameters for providing legal assistance to the victims. Thus, the courts have not stopped with a verdict on the immediate issue at hand, but proceeded to enunciate principles to serve as guidelines for the future.

Queer it may seem, but there have been PILs on appointment and transfer of judges. As the paper by Desai and Muralidhar cites, a PIL filed the All India Judges' Association saw the apex court give extensive directions to State governments on appointment for subordinate judiciary.

Environment has been enriched by much PIL, be it on Taj Mahal or Delhi traffic, Vellore tanneries or shrimp farms on the coast. In the process, the court has evolved standards such as `polluter pays', `precautionary principle' and so on, and `pollution fine', `The Green Bench' are some of the new terms in our vocabulary.

Yet, PIL is much like the pill, to be used with as much caution. The bitter truth that lies beyond the sugar coating is that an overuse of this weapon to achieve quickly the ends of justice even at the cost of cutting into the traditions of adversarial litigation and parliamentary policy-making can blunt it as just one more tool of sensationalism.

ZeroBase@TheHindu.co.in

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