HVK Archives: Voice and echoes
Voice and echoes - The Hindu
Rajeev Dhavan
()
9 May 1997
Title : Voice and echoes
Author : Rajeev Dhavan
Publication : The Hindu
Date : May 9, 1997
The Indian public interest law (PIL) is a rare species which arose like a phoenix
from the ashes of the Emergency (1975-77); and, in particular, the embarrassing
preventive detention case when the judiciary abandoned its review over detention
without trial. But, the rarity of our PIL does not just draw from the inventive
ways in which commissions are appointed by the courts which monitor relief. That
is one aspect of it. What made our PIL famous is the "letter petition" whereby
even a "post card" to a judge, drawing attention to a news item, could invoke the
court's jurisdiction.
This "epistolary" jurisdiction brought many issues concerning mining, prison
conditions, the adhivasi landless, bonded labour and a host of others to the
attention of the court. It also democratised the judiciary; and, instantly -
overnight - made it an institution of the people. Where the letter-writers could
not argue the cases themselves, lawyers stepped in. The letter-writer acquired a
sense of purpose, was treated with great warmth by the court (if he was genuine)
and - even if lawyers were present was permitted his say. This created a bond
between the judiciary and the people, especially activists. Hitherto, most major
cases in the Supreme Court, which had laid down great law, came from landowners,
the propertied classes, politicians, former rajahs and maharajahs. Hereafter,
activists and others enlarged the meaning and purpose of the Constitution and
function of the judiciary.
Has this bond between the judiciary and the people broken', Is it likely to get
weaker? To begin with, the letter petition is almost becoming a thing of the
past. The Supreme Court's own procedure on such letters is highly bureaucratised
and finds sustenance in file room dust. The letters that have broken the barrier
are direct letters by prominent citizens to individual judges - such as the
journalist, Mr. Kuldip Nayar's letters to Mr. justice Kuldip Singh which led to
important decisions on handcuffing and on the huge hotel complex in Vasant Kunj in
Delhi. No doubt, the professionalisation of the PIL at the hands of a new tribe
of PIL lawyers who prepares, files and argues cases is both necessary and proper.
But the professional PIL should never be allowed to eclipse the voices of the
people from whom alone democracy acquires strength and vibrancy.
Of late, there has been another Supreme Court development which cannot escape
democratic appraisal. The issue concerns a question raised by the Chief justice,
Mr. Ahmadi: who should have the carriage of proceedings in PIL cases, The answer
to this innocuous question may well result in significant changes in the manner in
which PIL cases are presented in court. In cases concerning criminal law
prosecutions, it may well be that too many voices - no less those which are
politically motivated - would obscure rather than assist, though this may not
invariably be the case. This is what has led to Mr. Justice Verma's famous
procedure in the hawala case in which one counsel - Mr. Anil Diwan - acts as
amicus curiae (friend of the court). In the context of that politically-charged
case, this procedure congealed the wisdom and experience of the judges. But is
the hawala procedure to be applied to all the PIL cases? If so, to what extent?
In the Vohra Committee case, at the last stages, Mr. justice Ahmadi refused to
allow counsel for the other petitioners to argue, insisting that the carriage of
proceedings lie with one person. This may have had the effect of shutting out
voices. More recently, there is more than a suggestion that this single voice
procedure should become a standard form in PIL cases. In many other cases, the
court made it clear that it would hear one counsel: and the other petitioners must
simply assist that counsel. One can see this new doctrine at work in the Enron
case in which counsel for the CITU filed an application to represent everybody
publicly interested in the matter. This arose under peculiar circumstances which
do not directly concern us. The result was that the name of the other petitioner
was deleted as a petitioner, and an activist's petition dismissed although his
lawyer was allowed to assist the main counsel. in the famous Forest cases, the
court has asked all activist voices to be heard through the amicus curiae, who as
it happens is also the lawyer for Tamil Nadu. All the persons directly and
indirectly affected (tribals and timber merchants) have now been told that they
must approach the court through their States.
This rule has not been followed rigidly. The timber and mining industry and
tribal groups have been heard; but some have been shut out. Mr. justice Kuldip
Singh appointed amicus in various cases also. In the long-run, for no fault of
counsel, this may have led to mistakes because the parties concerned were not
heard. For the moment, we are concerned only broadly with both the democratic and
justice implications of the emerging procedure.
To some extent, all this can be seen as an exercise in time management and attempt
to avoid duplication of arguments. Such an exercise works in the U.S., where the
Bars get together to evolve strategies; and - in a system dominated by written as
opposed to oral arguments in such cases - each voice is thoroughly read if not
heard. In India, because of the way the law is practised and given the
multiplicity of interests, the unheard voice remains unheard. if this procedure
had been followed in the Babri Masjid case, the case would have been dominated by
'Hindu' and 'Muslim' voices; and, the 'secular' voice, which was articulated later
in the proceedings, would not have been part of the carriage of the proceedings.
More significantly, the extra PIL voices should not be treated as a nuisance: and,
necessarily an infringement of court time. Such a rule is not applied to private
voices when many cases with many petitioners are heard together. Everyone has a
fair chance of presenting his/her views. This does not mean that the same
arguments are repeated ad nauseam (sometimes they are). Usually, loquacious
repetitions (more a signal to the client that the lawyers are earning their fee)
are nipped in the bud by judges, and by lawyers who 'adopt' the arguments of their
predecessors. But, the multiplicity of private voices is heard. This will be
revealed in any law report dealing with a tax, a property dispute. a land
acquisition matter and other cases even where the facts are similar.
If the private interest voice is heard, so, too, should be the public interest
voice. In the Mussorie Hills case, each aspect of the private interest was
examined. It seems ironic that in a property or service matter, each affected
office, (albeit by the general provision) and each property owner are heard, but
public voices are rationed and rationalised into silence.
There seems to be an assumption underlying these developments that the "public
interest" is single and not multifaceted. This is not true. In the telecom case,
various shades of the public interest were manifest - the corruption interest. the
consumer interest, the workers interest and so on. Everyone was heard. Likewise.
the Tomco-Lever merger attracted both the shareholder and the workers' interests.
But, perhaps - even though the case arose out of a merger and amalgamation - it
is the public interest that was crucial and not just commercial considerations.
It is a plurality of interests and points of view that creates a plurality of
voices. And, it is the plurality of voices that creates richness in both law and
democracy. In the telephone tapping case, the actual public interest petitioner's
case was on the verge of dismissal when lawyers present in the court for some
other matters pleaded that it be heard and that they be allowed to present
additional points of view. The result was a landmark decision on telephone tapping
which honours our jurisprudence.
But to return to the new evolving procedures on PIL. If PIL is here to stay, it
represents an important bond between the people, activists, journalists and the
courts. Given the relative failure of other institutions of governance, it has
become the major vehicle of accountability in Indian governance. It depends on
activist voices being heard. There is a difference between a voice and an echo.
The bureaucratisation of the letter petition, the new procedures to evolve one
representative PIL petitioner and the silencing of the multiplicity of voices will
deprive the Indian PIL of its uniqueness. As one activist put it to me: "I have
worked on this campaign for years and helped bring this sorry state of affairs to
light. Now, I am told my voice must be an echo". PIL is a bonafide part of
Indian democracy. It must be encouraged and developed over time. To streamline it
would be to destroy its vibrancy. That is why activists have resisted the courts
laying down inflexible procedures.
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