Need a liberal PIL policy

In a system so oddly loaded on probabilities and burdened by size, it is the task of the administrators of justice to see to it that the system is not polluted by abuse and misuse. A recent High Court chief justice would threaten advocates across the board with exemplary costs in cases where he thought the appeal or the petition was not based on his perception of law.

While this would be a far cry from the intent of the justice pattern or its physics and was surely an extreme which could at best be a bad example of the rationale, there are times when abuse of process needs to be checked. The obvious argument is one of scarce resource and the needless stress on it. However I am an advocate of a liberal pattern that would have the system abused than unused.

In his work ‘The Idea of Justice’ Amartya Sen points out rightly, “While rationality of choice can easily allow non-self-interested motivations, rationality does not on its own demand this. While there is nothing odd or irrational about someone being moved by concern for others, it would be harder to argue that there is some necessity or obligation to have such concern on grounds of rationality alone.

We can have sustainable reasons for action that reflect our inclinations and our own individual lines of scrutiny. Rationality as a characteristic of choice behaviour rules out neither the dedicated altruist nor the reasoned seeker of personal gain.”The prime minister talks about Swachh Bharat and also about cleaning the Ganga. Streams need to be cleaned up lest they pollute its regular bonafide user.

This is a near accepted theory. However, when a system like the judiciary is called upon to deal with a similar challenge the task is not only onerous but also an exercise in tight rope walking.Public Interest Litigation, when it started as a near judicial movement in India in the late 1970s, had its pioneers erring (and if I may add rightly) in favour of excess. A system that had grown apathetic to the concerns and rights of the common man required a jolt and it was but timely that the champions were stationed at the right place to give the cause its needed fillip.

Times have changed. Nor have we moved into a new and altogether different century but the words of we being a socialist republic has come to remain obviously cosmetic. We now talk of auctioning 4G rights and communications has shrunk the world beyond recognition. Can the judicial system afford to carry a fossil on its back? It then runs the risk of being the social dinosaurs. However, the more we change, the more we remain the same.

It is in this context that we need to recognise that India today is yet again screaming for a churning and there are not too many places to look for hope. Perhaps yet again it is the judiciary that is the last sentinel of hope. While as the rivers flow we have adjusted with the general pattern of a social order that wears corruption on its sleeve and yet endlessly screams about it, it is time the judicial system got into a hyper active mode to navigate the route back to sanity.

While there have been instances where PIL cases have been abused, at the cost of its abuse, the times demand a liberal absorption of the matters and the complaints lodged. The old designer net may not be tight enough to save the unruly fish but that should not stop us from fishing. There is just too much happening out there in the streets. The common man can hardly look up to the Executive- political or bureaucratic.

The legislature, well…the final sentinel and its learned sentries will have to over work to ensure that the system gets back on the rails. The top face in the Delhi is a change but that is woefully insufficient for change. The judiciary must gear up and give up its strict scrutiny test on public interest matters. More importantly it must tread a road that would tell the citizen in no uncertain terms what it stands for.

Conflicting view point based on individual thoughts can send worrying signals. All this before the common man echoes the resigned thought so well-articulated by Orhan Pamuk, “All these words and letters, all these dreams of liberation, all those memories of torcher and defeat and everything that’s ever been written about them, be it in joy or sorrow – they all add up to a single story.”