157pp, Rs 495; Cambridge
So widespread is its appeal that its cinematic rendition too had to face one – a real PIL (Public Interest Litigation) against a reel PIL – for representing the legal profession in poor light. Jolly LLB appealed to viewers as it celebrated the power of PIL in challenging the elitist and exclusionary dimensions of legal procedures. To the average individual, PIL is reminiscent of the bell that hung outside Emperor Jahangir’s palace. Aggrieved subjects could pull it to seek instant justice. However, the question of why the poor didn’t get justice in the first place has remained unanswered.
PIL, which was introduced in the late 1970s as a tool to represent subaltern interests, aimed to erase class biases. It was hailed as a responsive move by the judiciary that eased traditional judicial procedures and provided speedy justice. Judges donned their activist avatar, and in the interest of the public, proclaimed solutions, reprimanded officials, and enforced orders. A celebratory clamour followed as the public lauded the court’s role in filling the ‘vacuum in governance’.
But what began in the late 1970s as a judicial revolution was reduced by the mid 1990s to a tool that worked against the interests it had promised to serve. Citing the ruthless ‘slum demolition’ and the controversial ‘sealing drive’ cases in the capital, author Anuj Bhuwania unfolds how a promising judicial tool was appropriated by the court to jump jurisdictional limits in taking control of urban governance through PIL. It did improve matters but at the cost of the larger public good. The sealing drive, especially, is a case in point. Then Chief Justice YK Sabharwal took a personal interest in turning a long-running PIL about the relocation of industries into a case about the misuse of commercial properties, purportedly to serve the interests of his own family. Although the charges of corruption against the judge, now deceased, remain unproved, the ideological slant in favour of corporate capital affecting the livelihoods of millions remains evident.
The cases referred to in Courting the People make it clear that the non-procedural and arbitrary nature of PIL has helped the court initiate a case in public interest on its own, appoint its own lawyer, investigate the issue, and issue orders for implementing its decision. In a majority of cases, victims were neither consulted nor allowed to enter the court room before the court pronounced on their fate. Class-based exclusions were materially inscribed. Considering such instances, the author wonders how PIL has been allowed to become a giant machine that turns those who could have been plaintiffs into mute victims.
(Courtesy the author)
The book does not present PIL entirely in poor light. It argues that with the right kind of judges, who do not take the procedural liberties on offer, the right kind of judgement is still possible. Bhuwania’s emphasis is not so much on the unjust outcomes of PIL cases but rather on the profound injustice of the judicial process adopted in them. There is little denying that the pathology of PIL infected legal culture more generally in the post-Liberalisation era as, armed with its radical potential, appellate judges could pursue the political causes they deemed fit.
In the din of emerging PIL culture, the challenging aspect of integrating the three-tiered judicial system into a functioning machinery that can provide justice to the subaltern has largely been side-stepped. The lower judiciary with its inefficient and corrupt system continues to be perceived as purely pathological, whereas the heroic persona is reserved for higher courts that are viewed, thanks to PIL, as the panacea to endemic social and political ills. In the market-driven demand-supply scenario, the culture of PIL with its star judges and celebrity lawyers has acquired a conspicuous and higher political status in the country’s appellate judiciary. Its self-congratulatory nature with its inbuilt justifications will only perpetuate it.
Courting the People raises more questions than it sought to address. It is a somewhat disturbing read that points out the fundamentally protean nature of PIL which stems from its mimicry of ideas of popular justice. As long as it is believed that the poor can gain justice from benign paternalism of the presiding judge, the idea of Emperor Jahangir’s Zanjir-e-Adl will continue to resonate in the corridors of appellate courts. Bhuwania’s efforts would be well served if his research is made available in a language that is accessible to a wider readership.
Sudhirendar Sharma is an independent writer, researcher and academic.