International Indexed &Referred Research Journal, May, 2012. ISSN- 0975-3486, RNI-RAJBIL 2009/30097;VoL.

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Research PaperLaw

PIL & SAL- A new mantra

* MonikaGarg **Satinder Kumar May, 2012 * Assistant Professor, BSAIL, Faridabad ** Research Scholar, Kurukshetra University. Kurukshetra
Introduction PIL has been in vogue in the country for nearly two decades. An analysis of the courts' decisions pertaining to PIL reveals that the object served by PIL is a multidimensional, speedier remedy, less expensive, efficacious and shorn of procedural intricacies involved in an ordinary proceeding. It facilitates access to courts and helps deprofessionalisation of the legal process. It makes the overall administration accountable for acts and omissions and thus induces them to adopt a pro-people outlook. PIL also serves the object of educating people, creating consciousness and motivating the people to assert their rights. The lapses of administration are exposed to the people, thus lowering the government in esteem of people and forcing it to rectify its mistakes and try to be cautious in future. As Prof.Baxi observes that SAL literally takes the mask off the face of power which does not want to be held within the law, power that is colonially repressive and at times openly brutal and which only the courts could have checked. Ultimately they have as their goal, justice to common man and ensuring that he is able to enjoy his rights free from undue state interference.SAL has protested a vandalistic expropriation of India's resources by a corporate few whether by challenging rapacious tree felling or indiscriminate dam-building. PILhas enabled the Supreme Court to exercise affirmative action to Traditionally called unenforceable socioeconomic rights traditionally and enlarged the scope of Article 32. According to Prof Baxi , SAL has achieved many things. 1. SAL marked the advent of judicial populism. 2. It marked a moment of judicial catharsis.Apex Indian adjudicators began performing a judicial penance for their outrageous emergency decisions. 3. The Court democratized access to judiciary as a collective right of the peoples of India through a variety of approaches such as invoking epistolary jurisdiction, innovating new practices of fact find ing. 4. The Supreme Court recognized and created new Fundamental Rights resulting in a gradual ero sion of the distinction between Part Ill and Part IV of constitution. 5. The Supreme Court assumed the role of a custo dian of political morality such as to prevent run away reservation quotas, which served more po litical convenience than constitutional conviction. 6. The nineties witnessed the retreat from the Antulay decisions, Judicial Activism enunciating the most fundamental of all fundamental rights of the In dian people, the right of all citizens of India to immunity from acts of corruption by people in high places manifesting in Supreme Court virtu ally divesting the supreme executive of its powers to control the operations of the CBI and has taken over its day to day investigation of charges of cor ruption in high places, even to the point of now requiring approval of the Court to transfer the head of the agency. FindingsThe judiciary has thus become a prime instrumentality of re-democratizing the processes of governance and practice of politics. The contemporary patterns of judicial behaviour of the judiciary have transformed it from a mere apparatus of governance into an institutionalized social movement. However there can be no doubt that the Court's object of taking up PIL will be best served if the legislature and executive are induced by these decisions to come forward and the vacuum created in implementing the socioeconomic rights is filled by endeavouring to make the basic human rights meaningful and thereby reduce the burden of the judiciary. Thus it is seen that while PIL may be expanding into newer areas, it appears to be getting detached from the goals and objectives which activated it. A number of questions arise, vitally of the obedience of the orders of the court which challenges the basic premise of PIL that it is to be a collaborative effort between the courts, petitioner and the government . At the same time, the orders of the Courts may venture into the area of policy or may be very sweeping. It may be said that PIL is like that potent weapon which should be used prudently and cautiously and with circum-

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International Indexed &Referred Research Journal, May, 2012. ISSN- 0975-3486, RNI-RAJBIL 2009/30097;VoL.III *ISSUE-32

spection, less it can cause much harm to our delicately balanced constitutional system. On the flip side, judges have sculpted limits on their constitutional power and duty even in matters entailing violation of people's rights This was manifestly seen in the Bhopal Gas Tragedy case which has reflected the inability of the system to grapple with the problems of a mass Gas Disaster of a horrendous nature involving criminal acts, torts, liability, death, permanent incapacitation, and other known and unknown diseases. Ranganath Mishra,(Chief.Justice) in his separate judgement while concurring with the conclusions of the majority judgement said, "I am prepared to assume, nay, concede, that public activists should also be permitted to espouse the cause of the poor citizens but there must be a limit set to such activity and nothing perhaps should be done which

would affect the dignity of the Court and bring down the serviceability of the institution to the people at large." Conclusion Despite this, PILs pertaining to the tragedy continued unabated leading to appointment of amicus curiae. The principal judgement in this case has been termed as 'a saga of judicial betrayal of the very activist enunciations offered though SAL' by Prof Baxi while also displaying "an unprecedented solicitude for the rights of global capital against and over the fundamental rights of the people of India, expansively affirmed by the Court itself" The same holds true of the majority judgement in Narmada BachanAndolan where the rights of people appear to have been given the go-by. This has onlyaccentuated the criticism of the PIL processes.

R E F E R E N C E
1. 2. 3. 4. 5. 6. 7. 8. 9. Public Interest litigation Social action litigation Prof.UpendraBaxi, "Judicial Activism: Usurpation or Re-democratization?" SCALE PIL. VineetNarainv. Union of India 1996 (2) SCALE SP 42 VineetNarainv. Union of India AIR 1998 SC 889. Gaurav Jain v. Union of India (1997)8 SCC 114: AIR 1997 SC 3021. Union Carbide Corporation &Orsv. Union of India (1989) 1 SCC 674 Union Carbide Corporation &Orsv. Union of India 1991(2) SCALE 675 at 682. Narmada BachaoAndolanv. Union of India (2000) 10 SCC 664.

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