Busybodies Hazir Ho

In one of Shakespeare's plays, the lead character says: "The ides of March are come." His astrologer responds: "Ay, Caesar; but not gone." This year, in our higher judiciary, the ides of March have come—but not gone.

On March 1, in a PIL filed by an avowed Congress sympathiser, a bench of the Supreme Court directed the CBI to investigate into the assets of the leader of a rival party. "Good," said some, "he had it coming", but the judgement was ill-timed: elections in the state, UP, had already been announced. A month later, there was a judicial bolt from the blue: an almost unknown judge of the Allahabad High Court positioned himself into prominence by handing down an explosive verdict just two days before the UP polls: that Muslims in the state had ceased to be a minority community! Sandwiched between these events was an interim judgement of a bench of the Supreme Court directing the OBC quota mandated by a parliamentary enactment in IIMs be not implemented in the academic year beginning June '07: the order drew a lot of flak.

Let me examine the three events.

As to the "sandwiched" case—it is true that staying the implementation of legislation before its unconstitutionality has been established is not a normal feature of judicial review, but it is not unusual either. Many years ago, when as a law officer I resisted an application for staying the implementation of the Gold Control Act passed by Parliament, I told the judges (in my impetuousness) I had never heard of a central law being stayed pending hearing of a petition for striking it down. The presiding judge on the bench merely smiled and said: "Well, Mr Solicitor, you're hearing it now—we stay the Act"! Chief Justice S.M. Sikri was a no-nonsense judge; he believed in upholding the Constitution and laws, though the "heavens may fall".

As for the Allahabad High Court judge, the incident smacks of an attempt at cheap publicity—but mercifully, the effect of the single judge's judgement lasted only a few hours; on appeal, it was promptly stayed by a division bench.

The judgement in the Mulayam Singh case is certainly a more serious matter. It has had its own backlash of unsalubrious events: when the judges granted the relief prayed for in the PIL, they agreed a few days later to hear in open court a review petition filed against their judgement—just then, an anonymous letter was received by one of the justices (and publicly disclosed by him) the recipient cited this as a reason to decline hearing the review petition. When suggested that an inquiry be made into the source of the scurrilous letter, the same judge publicly declared, "the matter is now closed": as if a deliberately malicious attack on a sitting judge of the Supreme Court was a purely personal matter. To me, this was indeed strange and very confusing.

But amidst this confusion, the prime minister made clear his views when addressing a conference of chief justices. And he gave some unsolicited advice—on PILs: they contributed to what he called "judicial overreach".

The proliferation of PILs over the years has given the higher judiciary a bad name: many of them have responded to the "felt necessities of the times", but some PILs have not. Hence, the need for guidelines and safeguards. In March '94, Chief Justice Venkatachaliah had referred to a constitution bench of five judges questions relating to overseeing the bona fides of PILs. He then requested senior counsels to assist him on how and to what extent PILs should be judicially monitored. Some of us filed written submissions. But when the matter came up for hearing, the lawyers appearing in the case said, "through their judicial pronouncements courts have already evolved guidelines and principles for entertaining public interest litigation", and so far as the power of the court to take suo motu action was concerned, "the same would depend upon the facts and circumstances of each case. " After recording these submissions, the petition was "disposed of" by the court. Unfortunate. Extremely unfortunate.

PILs had originated in the need for the poor and indigent to find a voice that would be heard in courts—the court had responded (in 1982) by dispensing with the requirement of personal interest whenever an administrative order or decision was challenged. But PILs have now degenerated into publicity-seeking litigations. And many are motivated by one or another "lobby". I feel distressed that in the high courts, particular days are set apart for hearing only PILs: an open invitation to busybodies. "When you play in the mud-pile, some of the mud will stick!" When motivated petitions are entertained in "public interest", the court somehow willy-nilly becomes a participant in the "game".

I'm proud to have been a student of the 150-year-old Government Law College, Bombay. Its motto was Ne vile fano. Latin for 'Let Nothing Defile the Temple'. Yes, let not questionable PILs sully the image of our Temple of Justice.