Sudhir Krishnaswamy and Rajgopal Saikumar had this interesting piece in the Hindu this weekend cautioning the judiciary against Public Interest Litigation that is used by groups already well represented in the political process who may be pressing their own partisan agenda (I think there is a John Hart Ely-like undertone to their argument that deserves lengthier exploration). The Court clearly has its job cut out for it to sort valid petitions from the many others that can often be pressing narrow interests, sometimes on the basis of outright misinformation.
Today, I had this piece in the Indian Express, also on Public Interest Litigation, where I advocate a fairly straightforward reform requiring all PIL (and eventually all cases before the Court) to have their filings made public and oral argument recorded. I personally think this reform makes sense for all types of litigation before the Court – with perhaps a few exceptions – but certainly for PIL. In PIL the Supreme Court is clearly making public policy decisions and it’s important for the public and interested observers to know who is moving the Court, the basis for their arguments, and how the Court is reasoning throughout the decision-making process. As I mention in the op-ed, Parliament makes public the legislative process. Ministries and regulatory agencies are increasingly making public the rule-making process. Why shouldn’t the Court make public the PIL process? In PIL litigants are often claiming they are acting on behalf of thousands – or millions – of people who cannot come to Court themselves. These people though have no way of knowing what these litigants are arguing or how they are representing their interests. This seems dangerous and unfair.
Making filings and oral argument public won’t solve all representation problems with PIL, but it is the sort of simple small step that should open up the process more to outside scrutiny from the media, other activists, academics, and the public more generally, helping mitigate against some of the types of problems described in Krishnaswamy and Saikumar’s op-ed.