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PILs deconstructed: The nuts and bolts of it all

The SC’s observation deprecating the growing tendency in the judiciary to encroach upon territory exclusively reserved for the legislature and the executive has once again stirred a debate over judicial activism.

india Updated: Dec 11, 2007 03:10 IST

The Supreme Court’s strong observation deprecating the growing tendency in the judiciary to encroach upon territory exclusively reserved for the legislature and the executive has once again stirred a debate over judicial activism and the excessive use of Public Interest jurisdiction by the constitutional courts.

What is locus standi?

In the 1970s, it was difficult to approach the Supreme Court or a High Court for enforcement of somebody else’s rights, as the courts were very rigid about the question of ‘locus standi’ of the petitioner. Courts would not allow anybody unconnected with the case to approach it. But the scenario began to change in the 1980s with the SC itself relaxing the rule to deliver justice to vulnerable sections of the society, which were not in a position to approach it on their own. The relaxation led to a spate in PILs.

What is PIL mechanism?

Ours is the world’s largest written Constitution, which guarantees a set of fundamental rights. In fact the whole chapter III of the Constitution (Article 12 to Article 35) lists fundamental rights. It also provides mechanism for enforcement of these fundamental and other rights. Under Article 32, a person can directly move the SC for enforcement of his/her fundamental rights. Similarly, he/she can move a HC under Article 226 for enforcement of his/her fundamental rights or statutory rights. The scope of Article 226 is much wider.

How does it work?

If there is a heap of garbage in your locality, can you file a PIL in the SC or the HC concerned? Yes. The only thing you have to do is to make out a case of violation of your fundamental right/s to approach the SC and a case of violation of fundamental or statutory rights to move the HC. It is a violation of your right to life guaranteed under Article 21.

What can the courts do?

The courts can issue directions to the authorities concerned (in Delhi MCD or NDMC) to clear the garbage and thereby remove the potential threat to the right to life of citizens.

What is Separation of Powers?

French thinker Montesquieu propounded the theory of separation of power in his famous work “The Spirit of Laws” and it has been accepted by most of the modern constitutions including ours. The theory envisages non-interference by the legislature, the executive and the judiciary into the domains reserved for each other.

Where does the problem arise?

Problem arises when instead of directing the authorities concerned to perform their duties, courts start doing it themselves by what is called “judicial enactments” or by inadvertently performing executive functions. There are several instances where the legislature or/and the executive have questioned judiciary’s authority to perform functions not to be discharged by courts.

Recent flashpoints

Recently there was heated exchange between an SC bench hearing sealing related cases and an Additional Solicitor General after the government took exception to the court extending the sealing drive to unauthorised colonies of Delhi. The government was of the view that the court could look into it only after the colonies were regularised, particularly because the union Cabinet had already taken a decision in principle to regularize 1,500 such colonies.