Tuesday, February 03, 2009

Access to Justice & Emerging jurisprudence in PIL cases

Aditi Gopalakrishnan and Pranav Sachdeva

[Both our guest bloggers are students of Campus Law Centre, Delhi University. Aditi (II year)and Pranav (III year) are also members of CLC's seminar and discussion committee. We admire their enthusiasm in reporting this important lecture for us]

Mr. Prashant Bhushan, Senior Advocate at the Supreme Court of India delivered a lecture on ‘Access to justice and emerging jurisprudence in PIL cases’ at the Campus Law Centre, Delhi Law Faculty on Saturday, Jan.31. During the discussion, he dealt with many pertinent questions relating to the court’s changing attitude to public interest cases. He started by explaining how access to courts in India is already difficult at the threshold itself because the procedures are complex and cannot be negotiated by an individual entity without the help of a lawyer. There is also paucity of legal aid of decent quality which can contend with this system.

The real focus of the lecture, however, was the court’s attitude to such litigation which is in the interest of the public but may not necessarily be espoused by the same person whose interests are affected. The Supreme Court in the 1970s and 1980s enlarged the principle of locus standi in bringing a petition by holding that as long as a cause of action affects members of the public, any such member can bring the petition irrespective of whether his/her rights are affected or not. A corollary of such an enlarged principle was that the scope of Article 21 which guarantees the ‘right to life’ has also been expanded including within it the right to food, safe water, sanitation, shelter, education etc.

However, post-1990s or economic liberalization, human rights or the ‘right to life’ have been largely ignored when pitted against ‘development’ concerns (development here implying all those concerns which result in economic growth). In recent cases, in the cases where human rights are pitted against environment rights, the Court clearly favours the environment lobby. However, in a case where environment concerns are dichotomous with a growth-oriented concern, then the interests of such an enterprise takes precedence.

To sum up, the ‘development’ agenda clearly trumps environment issues, which in turn, trumps human rights placing human rights at the bottom of the pyramid of priority for the Court. To illustrate, he gave the examples of the slum clearances ordered by the Court in Yamuna Pushta and the lack of rehabilitation of people in Madhya Pradesh who were dislocated as a consequence of the Sardar Sarovar decision. The Sardar Sarovar dam decision itself was incredible for its complete disregard to logic because the Environment Assessment Impact (EIA) was ordered to proceed concurrently with the building of the dam!

He also cited the diversion of forest land for Sterlite's bauxite mining project and land acquisition for Korean steel giant Posco's 12-million tonne steel plant in mineral-rich Orissa as an example of the completely cavalier attitude that the Supreme Court exhibits towards actual development or environment issues. The Supreme Court order allows Sterlite, a wholly-owned subsidiary of UK-based Vedanta Resources Inc, to mine bauxite in the Niyamgiri Hill in Kalahandi district at the risk of extreme damage to the environment.

According to Mr. Bhushan, one of the main reasons for the callous approach of the Supreme Court to such public interest cases is that the judiciary is self-appointed and self-perpetuating. An independent statutory body that constitutes a search committee for judges to be appointed to the Supreme Court would go a long way in making the Benches more liberal and sensitive towards human rights issues.

He also cited the Gram Nyayalaya Act passed by the Parliament as a positive move towards increasing access to the justice system. He also made a distinction between PILs that are rejected by courts in the absence of locus standi from those that are vexatious in nature. "Sometimes, a cause of action may be brought by someone on behalf of, or for someone else who does not want to approach the court himself/herself at all which are summarily rejected by the Court. However, the Bench must consider whether the cause contains a legitimate, justiciable issue and this must be the priority when deciding such cases. It appears that greater degree of sensitivity towards human rights cases is essential for creating access to courts in India and this calls for a more active and compassionate judicial system", he observed.

After his talk, during his interaction with students Mr. Bhushan touched on a variety of subjects. He said it is easy for persons like the Ansal brothers to get bail, but the cases of poor are never taken up for quick hearing. The case of Binayak Sen is a stark example of how rights of commoners are being short-changed in this country. For almost 20 months, the soft-spoken doctor has been kept in jail on flimsy charges. Even as the case is unravelling, he has been denied bail right up to the Supreme Court, he said.

Responding to a question on who should appoint the judges, Mr. Bhushan said that India needs a full-time statutory body. Neither government (as was pre-1993) nor judges themselves (as is post 1993) should be the sole-appointing authority. His proposal for composition of national judicial commission is two judges, two government appointees and one person from civil society.
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