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In a group of petitions challenging the amendment to Article 370, which revoked Jammu and Kashmir’s special autonomy status, one petitioner insisted on being registered as the first petitioner in the case. The petitioner was a lawyer known to have filed several legal records registered in his name. The ruling on the constitutionality issue of the amendment will have national, if not international, ramifications, and it would be strange to see it named after a lawyer with no connection to Kashmir. The issue, not the petitioner’s name, should be the focus of attention in court. These circumstances prompted the ICC to order that the case would henceforth be known as In re: Article 370 of the Constitution. Hence this case will now be known as “in connection with Article 370 of the Constitution”. This is a welcome development. In re is Latin for “in question” or “in reference to”. It makes sense that when it comes to PILs, the title of the case gives a clear indication of the issues being dealt with. Hence, all cases brought in the public interest must be titled In re. All these cases are reported frequently in the press, and the public will get a clear message about the developments in this case in the High Court or Supreme Court.
Public interest litigation is initiated, as the title suggests, in the interest of the general public. This means that we all as citizens have a stake in the outcome of the petition. The procedure for filing public interest petitions has long been awaiting reform. Almost all higher courts have framed rules that must be adhered to by every person who petitions for the common good. However, the rules are limited to ensuring that the petitioner in question has no personal interest of a personal nature in the outcome of the petition. The rules also require that the petitioner be identified and that his means of income be disclosed. This is to ensure that no one with a vested interest will fund the litigation. All of these rules are intended to ensure that a PILs broker is not used for personal gain. Therefore, it becomes very essential that when an individual presents a PIL, it is described as re-removal of any element of special interest.
Over the years, the type of court cases in the Political Isolation Law have changed. In the context of issues of labor under labor contracts in the ASIAD complex, bonded labor, and people paid less than minimum wages, public interest litigation jurisprudence was a clear departure from the colonial rules of adversarial litigation. Justice P.N. Bhagwati explained the justification as appropriate to Indian circumstances in that the adversarial system requires “a self-determination of harm and a self-selection of remedy.” He said that given the widespread illiteracy in India and the lack of awareness of legal rights, it is just and necessary to allow civil society through its organizations or petitions on behalf of a group of persons who are unable to bring claims themselves to a court, or in connection with issues affecting the citizens as a whole. We have also witnessed a development in jurisprudence that gives legal personality to the environment and rivers as well as to animals.
Since then, public interest lawsuits have evolved to represent our concern for the environment, and this seemed logical, since the air we breathe affects us all. Over time, a green bench was formed, which dealt exclusively with environmental issues. Several cases have also been filed by MC Mehta, a prominent lawyer and environmentalist who has dedicated his entire life to the pursuit of sustainable development in his name.
Recently, organizations have been filing cases dealing with issues of corruption in public life, and much of today’s political isolation law revolves around these issues. There have also been cases brought to court by individuals, including the current clerk, relating to the administration of justice such as appointment and distinction between senior and junior lawyers, live broadcasting of cases, and provision of custody in the High Court. The attorney will have the right to sue in the public interest regarding the administration of justice.
What prompted the CJI to rename the group of petitions with respect to: Section 370 of the Constitution was something in the nature of race to be first above office on issues of public interest. The result is that the case is reported in the name of the person who brought the case to court. The ICC’s interest is genuine because it is the public who appears before the court, not the individual petitioner. Most importantly, the matter is before the court, and not the petitioner.
Indeed, litigation and public interest procedures require detailed reform. First of all, the court should issue a public notice in the newspapers inviting the concerned citizens to present their point of view as soon as a notice on the Political Isolation Act is issued. The outcome of these critical cases affects all of us, including those who have not been brought to court nor heard. The issuance of the Notice will enable relevant citizens, organizations or experts to present their views before the Court so that the judgment reflects a truly participatory process and is acceptable to the community as a whole. No doubt this will require strict time management by the court, limits on oral arguments and expertly written submissions filed in advance. Thereafter, the hearing time is allocated to the lawyers during the oral arguments.
In addition, the Court should encourage amicus briefs from organizations with a proven track record of working on cases, field experts such as those who have worked consistently on issues such as human rights in and out of the courts, and academics and activists who have worked tirelessly on public interest issues.
Courts have made it clear that public interest cases are of the nature of non-adversarial litigation. This means that governments and their advisors take a different approach to dealing with political legal persons, regardless of which government they represent. It is often forgotten that legal officials in governments are not civil servants but servants of the court (as are all lawyers) and are supposed to advise the government not to become their mouthpieces.
One must realize that the jurisprudence of the Indian courts has shown genius in liberalizing normative status rules for the common good. However, if we are to obtain the results we desire from these petitions, some discipline must be shown in the intellectual input that goes into the formulation and submission of these petitions. It is unfortunate that political issues are openly passed in the name of public interest lawsuits. Given the polarization of Indian society one has witnessed under the current system, we are likely to see more and more petitions pursuing a political aim through the courtroom. The danger is exacerbated by the politicization of the organization of bar associations and bar associations, which have sometimes issued statements in support of the ruling parties, forgetting that their mandate is to be independent of the executive or judicial authority. Judges need not be praised or condemned for their opinions, but academic criticism of their rulings is welcome.
The ICC renames the petitions as follows: Article 370 of the Constitution has made a leap forward in preserving the constitutional sanctity of the Political Isolation Act and this should become the norm. Finally, it must be said that this is not an appeal to limit the scope of the PIL but to encourage it. If there is no reform of the law of international law, there is a real danger of judges closing the doors of political isolation law. After all, they are the guardians of access to justice. First of all, petitioners must be treated with respect. Once notice has been issued, there should be no discouraging orders such as imposing costs on petitioners. This has had the chilling effect of well-meaning petitioners and organizations raising issues of violations of basic rights for all of us.
The writer is a senior lawyer and former Additional Advocate General of India
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