Maha Bharat: Episode 5

What is a PIL

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If it is a court case that is making news, it is most likely related to a PIL.

Take any of the big court cases that you may have heard of recently: Triple Talaq? Right to Privacy? Sabarimala? Section 377? All of these cases began because a Public Interest Litigation or a Janhit Yaachika was filed in the court at some point.

But, what is a PIL?

We tell you the story of something that accidentally changed the course of history in India.

Show notes

All clips and voices used in this podcast are owned by the original creators

We thank wholeheartedly our guest who appeared on this episode:

  • Anuj Bhuwania

Links to clips used in this episode —

Full transcript of Episode 5

[We hear news reports of PILs being filed.]

P-I-L yaani Public Interest Litigation.

If it is a court case that is making news, it is most likely related to a PIL.

Take any of the big court cases that you may have heard of recently: Triple Talaq? Right to Privacy? Sabarimala? Section 377? All of these cases began because a Public Interest Litigation or a Janhit Yaachika was filed in the court at some point.

But, what is a PIL?

A PIL is a petition that is filed in a court to seek a remedy or justice in a larger social issue.

The Hindi name for PIL makes the meaning clearer: Janhit Yaachika, yaani a petition that is filed in the court for the good of the people. 

Anyone can file a PIL and it is always filed either in the High court or the Supreme Court. The only condition is that it should ideally be about an issue that affects society or a significant section of society at least. It cannot be a private matter.

Let me explain this with a recent example:

Recently after Prime Minister Modi announced a nation-wide lockdown to stop the spread of novel Coronavirus, many many daily-wage labourers across the country were stranded with no work, no food and in some cases, no place to stay. So, they actually started walking back to their villages.

[We hear news clips of migrants walking back home.]

So, Alakh Alok Srivastava, a lawyer, filed a PIL in the Supreme Court about this.

Through his PIL, he asked the Supreme Court to give directions to the Central Government to do something to help migrant workers during the Coronavirus lockdown and asked for clarification on what steps the Government was taking to handle this issue.

In other words, Srivastava ji was concerned by an issue that affects crores of citizens in India, he took it to the Supreme Court and asked for a remedy (upaay/solution). The Supreme Court then asked the Central Government about the steps that it had taken to help migrant workers in the country, and the Central Government had to issue this clarification to the court.

You can equate PILs with activism — in fact, PILs do come under the category of judicial activism. Over the years, a number of PILs have picked up issues like environmental pollution, sexual harassment at the workplace, and many more.

But, how did this concept of PIL start in India? 

This story begins in January 1979.

One day, Kapila Hingorani, a Supreme Court lawyer, read an article about the inhuman conditions in which undertrials were kept in the jails of Patna and Muzaffarpur in Bihar. 

Undertrials are people who are held in custody (jail) while they are waiting for their court trial to proceed or for a verdict to be pronounced.

This article was published in the Indian Express newspaper and was written by KF Rustamji who was a member of the National Police Commission.

Rustamji’s article had stories of some of these undertrials — about how these people had reached the jails (kaise yeh inn jailon mein pahunche). There were 18 of them, out of which 6 were women and one among the women was Hussainara Khatoon, a young woman who fled from Bangladesh along with her family some time in 1975. When she reached India, she was arrested under the Foreigners Act and was kept in jail for four years.

This was not right because the Indian government had actually given instructions that all those who were arrested under the Foreigners Act coming from Bangladesh should be released on bond. But that didn’t happen with Hussainara and she had already spent far too long in jail for no fault of hers.

There were many others like Hussainara who were similarly held in custody for years — they had spent far too much time in jail; 

In fact, they had spent more time in jail than they would have spent if they been tried in court and punished.

So Kapilaji, the lawyer, was very affected (prabhaavit) after reading the article and she wanted to do something to help people like Hussainara. She asked around for some advice. Her husband Nirmal Hingorani, also a lawyer, then suggested that she could file a petition called a habeas corpus petition. And that’s what Kapila ji finally did.

So, what is habeas corpus?

Let’s pause here because there are a couple of legal concepts that we need to understand before we proceed with the story. For example,  before we understand habeas corpus, we need to understand another legal concept and that is locus standi.

I took some help from legal expert and author Anuj Bhuwania to understand it. 

Anuj Bhuwania
In the Indian legal system which follows the British legal system, also called Common law, only a person who is the victim in a particular case can approach the court. That is, this is the idea of locus standi i.e. only if I’m directly affected, can I approach the court and nobody else can do that on my behalf ordinarily.

So in the Indian legal system which is based on the British legal system, you can go to the court with a complaint only if you are the one that is affected by it. In legal terms, this is called Locus Standi. The logic is simple — you are affected, so it is you who goes to court to get a remedy and not someone else — basically you have the right to bring that matter to court. 

Now if for some reason, the affected person is not able to go to the court. Then what happens? Like in Hussainara’s case, she is stuck in jail — so she can’t go to court. But she’s the affected party. So, then? In such cases, someone related to her can go to court on her behalf and ask for a remedy.

How? 

By filing a habeas corpus petition.

Anuj Bhuwania
Habeas Corpus has existed in England since the 17th century. Idea behind it is that somebody is in illegal detention,then somebody else, who is called the next friend could go on behalf of the victim to the court asking for relief. This idea was invoked by the Hussainara Khatoon case by Ms. Hingorani.

Habeas Corpus is a remedy that is specifically for cases where the person is in prison, missing or in some type of private custody. Since the person himself or herself cannot get to court, their complaint is taken to court by someone related to them. 

Now, Kapilaji decided to file a Habeas Corpus petition to get Hussainara and others released. 

But there was one obvious problem.

Kapilaji was not Hussainara’s relative. She didn’t even know her. So how could she file this case? Remember, habeas corpus petitions in general were filed by relatives of the affected party.

Surprisingly, Kapilaji took a chance and filed the petition. And now it was up to the court to accept her petition.

The interesting thing that Kapilaji did was that she filed her petition not as a lawyer but as a common citizen who wants to protect public interest. To make this clear to the court, on the day she filed the petition, she appeared before the Supreme Court dressed in plain clothes and not in the official attire of an advocate. In other words, what Kapilaji was saying was that she is not related to Hussainara but as a public citizen of India, she is bringing an issue that she feels needs a remedy. And this issue concerns many many prisoners. 

The Registrar’s office in the court was reluctant to accept Kapila’s petition because it was so unusual. But Kapila persisted and soon her petition came up for hearing before a three-judge panel: Justice PN Bhagwati. Justice RS Pathak and Justice AD Khoshal.

Surprisingly again, the judges actually accepted the case. They accepted Kapilaji’s argument that as a citizen, she has a right to bring this matter to court. And so, they asked the Bihar government to respond to the complaint.

And this is where it gets interesting. There was no response from the Bihar government, so the court decided that the allegations against the Bihar government are correct. The court then took a bold step and ordered the release of all the prisoners named in Rustamji’s newspaper article. 

And just like that, and without any plan, Kapila Hingorani had created history and Hussainara Khatoon and the other undertrials were free.

This case, which was called the Hussainara Khatoon versus State of Bihar case became known (maana jaata hai) as the first public interest litigation case. Hingorani even holds the title ‘The Mother of PILs’.

Through this case, the judges championed the idea that a citizen of this country can bring a matter to the court on behalf of someone who needs justice. is case  ke maadhyam se, judges ne yeh elaan kiya ke koi bhi desh ka naagrik supreme court or high court ke saamne aise cases la sakta hai jinke through society mein vanchit ya garib logon ki madad ho sake

Kapilaji did not know that her case would set a precedent (example) for a whole new genre of law: the Janhit Yachika in India. 

All of this was pretty incredible.

There’s also an explanation for why the judges in this case accepted Kapila Hingorani’s petition.

Back in the 1970s, the top courts were considered a place where only the rich went, or at least those with fancy networks went. 

The process of going to court for anything was considered intimidating and expensive. And it was not the place that the common man, particularly the poor of India, could think of going to get justice.

Justice PN Bhagwati who was among the judges who gave the verdict in Hussainara’s case, said that he and other judges of the Supreme Court wanted to do something to make the courts more accessible to the poor in India. In an interview given to mylaw.net, he said this.

[Justice Bhagwati talks to mylaw.net in an interview.]

Justice P.N. Bhagwati
You see when I became judge or even chief justice, I went to the rural areas of Bihar, Orissa, UP and I saw stark naked poverty. You see, since I was a judge of the Supreme Court, people came in large numbers, out of a sense of admiration for me — already I had made a name for myself. And I could see, many of them were in tattered clothes, some of them with sunken bellies, they had hardly had food, hardly any proper clothing, but they came attended my meetings because, out of admiration for me and I realised that my justice was not reaching them at all. My justice was confined to only a fortunate few rich people. Who would come to the court, who could afford, the luxury of litigation. Because if you want to go to a court, you’ve got to go to a lawyer, you’ve got to brief him, you’ve got to pay him. And again, if you go to the supreme court, it means a lot of cost, which the poor man cannot afford. 

So, by the time Kapilaji came to the court with her petition, judges like Justice Bhagwati felt that it was time th at the court threw its doors open to the poor. So, in 1981, just a little while after the Hussainara case, Justice Bhagwati said this:

“It must not be forgotten that procedure is but a handmaiden of justice and the cause of justice can never be allowed to be thwarted by any procedural technicalities.

Justice Bhagwati said that the court should attempt to make legal procedures easier for ordinary people, so that they approach the court. 

He declared that anyone and everyone is free to come to the top courts of the country to seek a remedy in an issue that they think affects society. And if for this, legal procedure and its complicatedness has to be relaxed or done away with, let’s do that.

And that was part of the reason that the PIL became more popular. 

In fact the two judges Justice Bhagwati and Justice Krishna Iyer are seen as the architects of PIL.

To encourage more people to come to the courts, these judges back then even accepted letters written by people as petitions — petitioners didn’t even need to formally file petitions in court.

Ek aur reason tha In the 1970s, after their role in the Emergency, the Supreme Court and its judges did not have the best reputation. So they were looking for some solution to fix their reputation. And PIL seemed like a great idea for this.

The Supreme Court especially turned fully activist-like: it started playing an active role in the investigation of facts in PIL cases, It started giving rapid decisions and relief in the form of interim orders. 

And in some cases it also would monitor the implementation of a verdict. So with the PIL, the court had basically relaxed many many rules and gone all out to reach out to the poor.

Over the years, PILs have only increased in number. There have also been some important verdicts that have been delivered as a result of a PIL. 

One among them is the Right to Food campaign which argues that every person in India has a fundamental right to be free from hunger and malnutrition and the primary responsibility to ensure this is of the state.

Toh ab aapko lag raha hoga At this point, PILs seem like a very useful and important part of  the law, right? 

But that’s not the exactly the case.

The thing is, over the years, PILs have become a problem — many legal experts have in fact started calling PILs a joke. 

This is why.

[We hear a news clip from CNBC-TV18.]

News Anchor
The Gujarat High Court issued notices to the developers of Pokemon Go, the Central Government as well as the state government. This after a petitioner alleged that the game is disrespectful to Hindus and Jains. His rationale? Well Pokemon Go allows people to capture eggs inside temples, which is according to the petitioner outrageous.

A PIL was actually filed in the Gujarat High Court against the game Pokemon Go and the argument was that the game was hurting religious sentiments and so, it should be banned. The Gujarat High court issued notices to the game developers of Pokemongo and the Central and State Government about this issue.

So, like we already know, because anyone is free to go to court to file PILs, experts have pointed out that numerous useless PILs have been filed over the years and the court’s time has been wasted because of them. Most of these PILs are not actually linked to actual serious social issues. And the courts too have taken up several of these PILs.

Anuj Bhuwania
This is just a consequence of the complete doing away of locus standi standards. Relaxation was one thing but doing away with it has meant that it has just led to quite a chaotic situation where anybody can just go and bring an issue.

In May 2017, the then Chief Justice of India, J.S. Khehar, had imposed a penalty of Rs 25 lakh on Suraz India Trust  and its chairman, Rajeev Dahiya, for filing as many as 64 frivolous petitions. CJI Khehar had also restricted Dahiya from filing any more PILs from that point.   

You could argue: who decides what is a frivolous or a useless petition? For example, an issue that matters to me may not matter to you but does that mean you don’t have the right to file a PIL? Of course you have the right.

What experts point out is that every time the judges sit to hear a case, it costs money. So the question is whether that money is being spent on an issue that affects public interest or not. Also, India’s courts have tons and tons of cases pending in front of them. So each hearing is valuable and precious in that sense.

Doosra point jo critics of the PIL also argue that some petitioners file PILs for publicity because if it is a case that reaches the top courts of our country, it tends to make headlines. And this defeats the original purpose of PILs since they were introduced mainly to give the poor and the disadvantaged access to the courts.

What perhaps both petitioners and the courts need to ask themselves is whether the original ideals surrounding the PIL are being upheld.

Anyway, I’ll let you guys make up your mind about PILs in India.

That’s it from me in this episode. I’ll be back next week.

Credits

Narrated by – Dhruv Rathee
Producer – Gaurav Vaz
Research help –
Written by – Archana Nathan
Title Track Design – Abhijith Nath
Audio Production –
Recorded at –