India Staff Correspondent Sambhav Sharma, a final year law student at Amity Law School, offers his perspective on recent high-profile criticisms of India’s Public Interest Litigation (PIL) system. He files this for JURIST from New Delhi.

India’s Jammu & Kashmir High Court recently dismissed with costs a Public Interest Litigation (PIL) petition supposedly being filed in the name of public good, remarking that PIL is not a “pill for every ill”, flagging concerns over repeated misuse of the power and intent of the legal procedure.

Then on Monday, India’s Solicitor General Tushar Mehta offered his own negative opinion on PILs, telling the Delhi High Court that filing Public Interest Litigation petitions has become an industry and a career in itself. What he meant was that in the guise of doing greater good for society, PIL petitioners often seek to further hidden personal agenda or motives that would ordinarily not concern the “public”. This was not the first time that Tushar Mehta has taken a stand against PILs. In April, 2020, he remarked in the Supreme Court of India on how “professional PIL shops must be locked down”. He went on to denigrate the petitioners in that case by saying they were never “public spirited persons” and only used the PIL petition as a means to serve their own twisted ends. He reiterated this opinion a week later in the same court by adding that some PILs are nothing but “self-employment generating petitions”. The Solicitor General being one of the foremost representatives of the Central Government in the legal fraternity of India, one wonders why the government is up in arms against this form of litigation.

Let us first consider what PIL is. In general, in order to bring a case before a court, the aggrieved party must possess the necessary legal standing. But the concept of Public Interest Litigation is based on a something else. Any person can bring a claim to court if they can prove that the subject matter is in the interest of the public in general, and therefore, while the petitioner might not be directly involved or have suffered any personal damage, the litigation is allowed for the greater good of the society or “public”. A PIL is usually filed under Article 32 and/or 226 of the Constitution of India, which envisage the writ jurisdictions of the Supreme Court and High Courts respectively. Hon’ble Justices V.R. Krishna Iyer and P.N. Bhagwati, former judges of the Indian Supreme Court, are known as the pioneers of the PIL system in India; they continuously advocated for a mechanism to serve society better and relax the requirement of ‘legal standing’ in order to bring a claim to court.

The concept of PILs therefore began with a noble motive, i.e. to help those who cannot fight for themselves. This is evident from the first ever case involving PIL, Hussainara Khatoon v. State of Bihar (1979) where, based on news reports of the hardships faced by prisoners on trial, an advocate advanced a PIL petition in the Supreme Court of India. However, a mechanism that was meant to uplift the downtrodden eventually began to be abused for selfish motives by a few. These selfish motives have ranged from an attempt to gain publicity to addressing private grievances under the garb of “public interest”.

I am not attempting to tarnish the vitality and purpose of PIL. It is a powerful and rather extraordinary sword in the hands of an honest citizen, but it is an equally dangerous dagger in the hands of someone who does not have the public’s best interest at heart. PILs often tread very close to Trojan horsing, where the petitioner hides their true (selfish) intention under the disguise of a sincere (societal) claim. Many petitioners also fail to look before they leap, leading to frivolous litigation that wastes the time and effort of already overburdened courts. Only Tuesday, the Delhi High Court dismissed a PIL with costs for wasting the courts precious time. In such circumstances, it is only wise to tread lightly and not use the recourse of PILs as a “shot in the dark”.

But why is the Central Government, in the person of Solicitor General Tushar Mehta, opposing the institution of PIL petitions? While some concerns regarding frivolous PIL petitions are justified, the Central Government in the instant matter might just have another trick up its sleeve. To put it more candidly, what is apparent might not be the truth, and there might be more to the present objections than meets the eye.

The petitioner in the case before the Delhi High Court that Tushar Mehta objected to filed a PIL against the appointment of Rakesh Asthana, former director general of the Indian Border Security Force (BSF), as the new Delhi Police Commissioner. The PIL petition contended that the said appointment is bad in law, as it violated a clear judgment of the Supreme Court. In Prakash Singh v. Union of India (2006), the Supreme Court directed inter alia that for such an appointment, the candidate must have a residual tenure of 6 months and a minimum tenure of two years after being appointed through a merit-based transparent process. Rakesh Asthana did not qualify under that rule. The Prakash Singh case was a strong step by the Supreme Court against political interference in police postings. The court directed all states in India to bring police reforms to allow the police force to work without any meddling by political leaders.

In the present case, if the petitioners are to be believed, the Central Government is probably trying to appoint someone who might be favourable to it, thus throwing caution to the wind. Questioning the PIL could easily be a device to prevent the court from getting to the merits of the case. There is no question but that Rakesh Asthana’s appointment flies directly in the face of the Prakash Singh judgment. By alleging bad faith on the part of the Petitioners and claiming that the PIL is dishonest and an “industry and career in itself”, the government might actually be intending to get the matter delayed. After all, Prashant Bhushan, Indian Senior Advocate and a public interest lawyer, who has filed a similar PIL in the Supreme Court and represents the NGO ‘Centre for Public Interest Litigation’ in the present matter, has in the past led that  NGO in filing successful and honest PIL petitions. Therefore, his credibility in this case is unchallenged.

In the end, while we might speculate on the intent of the government as well as the petitioners, what remains to be seen is whether the merits of the matter are decided or the PIL is dismissed for being vexatious. Either way, the Centre’s robust stand in court against PIL petitions makes me wonder if it is the mode of litigation that bothers the government or the subject matter that might unveil what’s best hidden.