Restoring legitimacy to PILs
Public Interest Litigation (PIL) as a method was justified as it allows politically and legally marginalised constituencies (that have no effective representation in the political or administrative state and no regular access to the courts) a special dispensation to approach the High Court and Supreme Court to redress their grievances either directly or through representatives.
However, the contemporary practice of PILs has atrophied and morphed into a format that has lost sight of this original political and constitutional justification. In this essay we argue that too often than not the courts have allowed themselves to become a secondary arena of politics for the already enfranchised and the powerful to ventilate grievances and projects, which have failed to secure the assent of the democratic wings of government. The evolution of PILs, from being counter-majoritarian instruments into counter-democratic ones, poses grave threats to our constitutional and political institutions.
Commonly misconceived claim that the crisis of PILs is that they are a source of court delays and clogging courts. Recent empirical studies of Supreme Court caseloads between 1993 and 2011 show that PILs make up a relatively minuscule percentage of the Supreme Court’s docket being just about one per cent of the court’s workload.
Do PILs represent the interests of politically and legally marginalised groups?
Unfortunately, there has been no comprehensive study of all PILs to identify the character of the parties who have come before the court.
- However, we do know that in all appeals before the Supreme Court in 2011, 18.6 per cent came from Punjab and Haryana and 10.6 per cent from Delhi itself. Larger but poorer neighbouring States were less well represented.
- Furthermore, we do have careful empirical analysis to show that in PIL cases involving a violation of fundamental rights between 2000 and 2008, the win rates of “advantaged social class” claimants was a 73 per cent probability while the win rates of the “disadvantaged social class” was 47 per cent (Varun Gauri, 2013).
- The court received a total of 24,666 letters, out of which the court staff forwarded only 226 letters before the judges, who then accepted or rejected them for regular hearing (Nick Robinson, 2012). While there was no qualitative analysis of the basis for selection in this study, we must note that there is no publicly articulated rationale for the selection of these cases by the court.
The extent to which PILs have veered away from their original justification may be better understood by reviewing the recent record of the court in high profile cases.
- In S.P. Gupta , Justice Bhagwati specifically denied standing to persons who are mere “busybodies” or “meddlesome interlopers” acting in a mala fide manner. He noted that time and again, persons with political motives, oblique considerations and partisan interests filed PILs and they should be denied jurisdiction. The rationale for this exclusion was to avoid making the court a forum for partisan disputes. While the court has periodically reiterated this principle, most notably in Narmada Bachao Andolan , to doubt the legitimacy of the petitioners, they have been most solicitous of political actors of various stripes.
- Recently, Dr. Subramanian Swamy, previously of the Janata Party and currently with the Bharatiya Janata Party, when asked by Bar & Bench in an interview about the PILs filed by him candidly observes “… that I filed a large number of PILs and have lost count now.”
The Supreme Court has allowed itself to become a forum for partisan contestation, amplifying the interests of individuals and groups who are already deeply embedded in political and legal institutions.
So summary is that PILs have following ailments currently:
1. PILs representing the interests of politically and legally marginalised groups is questionable.
2. PILs today are not exclusively focussed on remedying deficient access to the courts.
3. Supreme Court has allowed itself to become a forum for partisan contestation, amplifying the interests of individuals and groups who are already deeply embedded in political and legal institutions.
Recent meetings on March 6 and 7 of departments and ministries of the Government of India, to discuss and review divergent views on the draft Assisted Reproductive Technology (Regulation) Bill, 2013 (ART Bill), have resulted in a proposal to revise the Bill with significant changes. The most crucial proposal is to restrict surrogacy in India to “infertile Indian married couples” only. Non-resident Indians (NRIs), Persons of Indian Origin (PIOs) and Overseas Citizens of India (OCIs) would be eligible but foreigners, unless they’re married to Indian citizens, will not. The purpose of this is to prevent exploitation of Indian women who may be tempted to take the risk of surrogacy in the face of financial hardships.
The Ministry of Home Affairs (MHA), according to the guidelines of July 9, 2012, restricted surrogacy to foreign nationals; i.e. a man and a woman married for at least two years would be required to take a medical visa for surrogacy in India. As of now, even though surrogacy is an administrative concern and in the domain of the MoHFW, it has been decided that till the enactment of a law on the ART Bill, 2013, the guidelines issued by the MHA will prevail till then. Hence, foreign single parent surrogacy is barren.
Restricting surrogacy to infertile Indian married couples only, and debarring all foreigners other than OCIs, PIOs and NRI married couples, is a turnaround in the thought process. The suggestion barring foreigners from commissioning surrogacy in India is stated to be subject to there being no conflict with other Indian laws applicable to foreigners, such as those for adoption. The most important contradiction and inconsistency seems to be that arising from the Guidelines Governing the Adoption of Children, 2011, for inter-country adoptions, which now have statutory sanction by virtue of them having being enacted under the Juvenile Justice (Care and Protection of Children) Act, 2000. The Juvenile Justice Act clearly provides that a court may allow a child to be given in adoption to an individual, irrespective of his or her marital status.
Moreover, the Guardian and Wards Act, 1890 and The Hindu Minority and Guardianship Act, 1956 permit a guardian to be declared or appointed where the Court is satisfied that it is for the welfare of a minor. Barring single parents to adopt is not statutory but can be a restraint in a particular case upon examination by a competent court. Therefore, debarring single persons and foreign nationals from being parents will amount to rewriting laws in existence which have been enacted by Parliament.
The sum and substance is not to shut the door to surrogacy which is an accepted societal practice in India and grown slowly over almost two decades. Medical technology, advancement of science permitting free export of frozen embryos and other scientific methods have offered hopes to childless people. The more pragmatic approach would be to make a law hedged with safeguards, checks and balances. The appropriate and desirable method would be to create a mechanism to judge the suitability of proposed surrogate parents rather than to debar all single and foreign persons. This would also avoid any conflict with existing laws of adoption wherein foreign persons including single parents are allowed to adopt through a strict and rigorous mechanism provided by CARA.
Simply trying to shut out surrogacy for foreign nationals and single persons may not be the ideal way to stamp out the hopes of persons wishing to be a parent. Whether Indians or foreign nationals, law treats persons as individual parents when required. A restrictive meaning to the word “person” cannot qualify or change the definition by restricting it to an Indian national. The celebrated view of the apex court in widening the horizons to prevent discrimination on grounds of sex or gender identity is a new thought process based on international covenants of human rights. We cannot permit our thinking to be retrograde simply because of the problems accompanying surrogacy. Administrators cannot usurp law making functions to be a law unto themselves.
The sad state of India’s security
- As the United States State Department noted earlier this week, India’s internal security infrastructure is severely anaemic. In spite of the massive expansion of police manpower and large investments in technology after 26/11, training standards and personnel skills are well behind minimal acceptable standards.
- In areas involving specialist skills, like forensics, acute staffing deficits are evident. Last year, The Hindu revealed that the intelligence services, the cutting edge of the country’s counter-terrorism efforts, were yet to fill staffing deficits of up to 33 per cent, a full five years after the Mumbai carnage.
- The case of the Railway Protection Force, tasked with protecting trains and tracks along with the State government-controlled Government Railway Police, is illustrative. Though the 65,000-strong force has grown steadily in numbers over the last decade, instances of serious crime occurring around the railway system — murder, rape and burglaries — are all up. Even where infrastructure exists for frisking passengers and luggage, it is utilised only cursorily.
- The same story unfolds in cities around the country, where ill-trained personnel wave metal-detectors over cars or people carrying metal objects — and simply ignore the beeping. The situation has not changed because political leaders and bureaucrats simply don’t care enough about the issue to ensure that police forces are adequately equipped and trained to discharge their functions.
A high-level RPF committee at the south-zone level has recommended that
- the squad must consist only of personnel trained to handle and maintain anti-sabotage equipment.
- The squad should confine only to detecting explosive substances and leave their disposal to the bomb detection and disposal squad of the State police, it said.
- it should not be utilised for other duties
Centre can order NIA probe
The Union government, under the National Investigation Agency (NIA) Act, 2008, is empowered to suo motu direct the agency to investigate any scheduled offence such as an act of terror.
Under Section 6 (5) of the Act, the Centre is empowered to order an NIA investigation on its own.
Home Ministry sources said the government was considering the Chennai blasts as an act of terror as defined in Section 15 of the Unlawful Activities (Prevention) Act, 1967, a scheduled offence under the NIA Act.
NIA officials pointed out that a State government may request the Centre to hand over the investigation of a case to the agency, provided the case had been registered as per the schedule to the NIA Act. The agency could also seek the assistance of the State Police during investigation of cases, and in that situation, it was incumbent on the State police to assist it. The State government could also investigate cases under the scheduled offences.
High-level panel suggests setting up of FRA
- The committee under Financial Stability and Development Council, chaired by RBI deputy governor Anand Sinha, said the experience and expertise of Deposit Insurance and Credit Guarantee Corporation (DICGC) could be transformed into the proposed FRA to deal with failures of banks.
- FRA will be to resolve failed financial institutions and market intermediaries along with providing deposit insurance and protection to insurance policy holders and investors within certain limits.
- Outlining the need for a prompt corrective action to avert a bank failure, the committee said the government may, on recommendation of FSDC, be empowered to place a financial institutions under "temporary public ownership" to ensure to protect public interest.
- The panel recommended setting up of a "resolution" fund, which would be different from a deposit insurance and investor protection funds. The FRA may raise the fund through bonds, which could be guaranteed by the government.
- The panel also advocated setting up of crisis management groups and forging of cross-border cooperation agreements to handle cases of a global systemically important financial institution.
White House this week signalled its intention to placate privacy advocates by announcing that the government collection of “Big Data” would eventually be subject to privacy protections for non-citizens.
“Big Data” is collected both by the public and private sectors and is used for everything from targeting specific consumer segments with differential pricing in the financial products market to using geospatial parameters to locate debris from the lost Malaysian Airline flight MH370.
The second major concern that has raised temperatures in civil liberties advocacy circles here is the fact that Big Data can be used to “personalise” prices, promotions, and access to financial services, significantly raising the risk of discrimination against minority groups.
The Army has been called out and an indefinite curfew imposed in the Bodoland Territorial Area Districts (BTAD) of Kokrajhar and Baksa in Assam after militants killed 20 persons and injured 10, all Muslim migrants, in three separate attacks on Thursday night and Friday.
Union Finance Minister P. Chidambaram, in his third letter to his Swiss counterpart Eveline Widmer Schlumpf within four months, strongly objected to Switzerland’s denial of information about account details of certain Indians at HSBC’s Swiss bank branches in whose cases Indian investigators have found “incriminating evidence of tax evasion”.
Mr. Chidambaram also wrote that the interpretation made by Switzerland that it could not share information as per India’s request was not in accordance with international standards. Switzerland had refused to share the said information through a letter dated April 7 to Chidambaram. The stated reason was that India initiated investigations on the “HSBC” accounts on the basis of information extracted from data a disgruntled HSBC employee had stolen in 2011. India had received this “stolen” data from France.
China wants to tap India’s expertise in services sector
China sees a huge potential for cooperation between the two countries, especially in economic development, according to Cheng Guang Zhong, minister-counsellor of the Chinese Embassy in Delhi.
Mr. Cheng, heading a four-member delegation on a visit to Chennai from May 2 to 4, said China could gain a lot from India’s expertise in the services sector.
He said the Chinese Ambassador would visit Chennai by month-end and one of the purposes was to identify the place for setting up a Chinese Industrial Park, planned when Prime Minister Manmohan Singh and Chinese Premier Li Keqiang exchanged visits last year.
Mr. Cheng also revealed plans to launch a joint venture project for production of power equipment as there was only one state-owned company in India.
While India and China were holding talks for cooperation in the Information Technology and Health sectors, the two countries could have broad cooperation in agriculture also, he said..
“We also see a huge potential in the field of infrastructure development and construction, especially in the area of railway, port and road development,” he said.
Asked how China could help India in the agricultural sector, he said China’s agricultural revolution had solved the problem of feeding a 1.3-billion population. The two countries could have cooperation on seeds and high production.
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