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Superior judiciary: Curtailment of powers

The question what ‘Public Interest Litigation’ means and is has been deeply surveyed, explored and explained not only by various judicial pronouncements in many countries but also by eminent judges, jurist activists, lawyers, outstanding scholars, journalists, and social scientist etc. with vast erudition. This subject has acquired all the more importance in view of the threat to curtail power of Superior Judiciary in matters of public interest litigation

A good place to begin is to see how the term ‘public interest’ is defined in the legal lexicons. The Black’s Law Dictionary defines public interest as something in which the public or the common community at large has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or the interest of the particular localities, which may be effected by the matter in question. It includes interest shared by the citizens generally arising out of affairs of local states or national government. The Stroud’s Judicial Dictionary defines public interest as one in which ‘a class or community have a pecuniary interest or some interest by which their legal rights or liabilities are affected.

The higher courts have also endeavoured to lend meaning to the term in a series of cases. The Supreme Court said in one case that the phrase ‘Public Interest Litigation’ is intended to mean nothing more than what the words themselves state namely “Litigation in the interest of public.” A high court had felt that the expression ‘public interest’ is an ‘elusive abstraction’ meaning general social welfare or regards for social good. The expression ‘predicates interest of the general public in matters where a regard for social good is of the first moment.’ The expression in common parlance means an act beneficial to the general public. Thus, a thing is said to be public interest where it is or can be made to appear to be contributive to the general welfare of the community at large.

As far as the term ‘litigation’ goes it means legal action – including all proceedings under it – initiated in a court of law with the purpose of enforcing a right or seeking a remedy. A combined reading of the meaning of the three words in ‘public interest litigation’ leads to the following definition of public interest litigation which has been made clear by the Supreme Court of India itself, ‘a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or a class of community have pecuniary interest or some interest by which their legal rights or liability are affected.

Until the arrival of public interest litigation, civil litigation was patterned exclusively on traditional model. The traditional conceptions of adjudication believe a suit to be a means for settling the dispute between private parties concerning their private rights. It is a proceeding confined to the parties, dealing with definite framework of facts requiring identification through principles codified by statute, with the judge sitting over the contest as a mere passive neutral umpire.

It is now recognized that this ‘individual-centric’ tradition is inadequate to cope with a wide range of problems arising out of inequality of means of opportunities and entitlements in society. In public interest litigation, unlike traditional dispute resolution mechanism there is no determination or adjudication or individual rights. In a public interest action the proceedings cut across and transcend these traditional forms and structures. The grievance in a public interest action is generally about the contents and conduct of government action in relation to constitutional and statutory rights of the segment of society and in certain circumstances the conduct of government policies.

While in ordinary conventional adjudications the party structure is merely bipolar, in public interest litigation this can be ‘sprawling and amorphous’. In the words of the Indian Apex Court:

“In a Public Interest Litigation ‘necessarily both the party structure and the matter in controversy are sprawling and amorphous, to be defined and adjusted or readjusted as the case may be, according to the exigencies of emerging situations”.

Indeed most critical public interest litigation pending with the Supreme Court today aptly fit into the description of being ‘sprawling and amorphous’ with a wide array of parties being involved and in some cases even hundreds of intervention applications getting filed in one single public interest litigation specially in the case involving the missing persons.

If the law does not help access justice then, arguably, it is not worth pursuing at all. Especially over the last two and half decades public interest litigation has been the single most important instrument for people to access justice through the higher courts. Thus, one of the architects of the ‘Public Interest Litigation’ in India Bhagwati J said that public interest litigation represents sustained efforts on the part of judiciary in India to provide access to justice for the deprived and vulnerable sections of the Indian humanity. The Supreme Court thus saw public interest litigation constituting a relatively new chapter in justice delivery system and has acquired greater significance in modern legal jurisprudence practiced by a court in many parts of the world. In a similar vein, the High Court of Guwahati saw public interest litigation as a new dimension of a judicial process introduced by the Supreme Court of India to accomplish the social revolution contemplated by the makers of the Indian Constitution.

The courts exercising the power of judicial review found to its dismay that the poorest of the poor, the deprived, the illiterate, the misled and misguided labour of our country, as also the urban and rural unorganized labour sector, the women, the children and those handicapped by ‘ignorance, indigence and illiteracy’ had either no access to justice or had been denied justice. Public interest litigation was evolved with a view to rendering complete justice to the aforementioned classes of persons. Representative actions, pro bono publico and test litigation were entertained in keeping with the current accent on justice to the common man. The Supreme Court also observed in SP Gupta and others v Union of India & others that ‘it is a fascinating exercise for the Court to deal with public interest litigation because it is a new jurisprudence which the court is evolving, a jurisprudence which demands judicial statesmanship and high creative ability. The frontiers of public law are expanding far and wide and new concepts and doctrines which will change the complexion of the law and which were so far as embedded in the womb of the future are beginning to be born.’ Thus seen, public interest litigation ‘is an innovative strategy which has been evolved by the Supreme Court for the purpose of providing easy access to justice to the weaker sections of Indian humanity’. It is a powerful tool in the hands of public-spirited individuals and social action groups for combating exploitation and injustice and securing for the under-privileged segments of society their social and economic entitlements. It is a highly effective weapon in the armoury of the law for reaching social justice to the common man.

It has been pointed out above that our legal system has traditionally been designed to resolve disputes between the parties directly involved. However, in a country like Pakistan where more than a quarter of population is steeped in poverty and a third of the citizens lack basic reading and writing skills, it will be reasonable to expect that there will be many situations where individuals may not be in a position to pursue a matter themselves. It is then easy to see that ensuring access to justice will be better served if a wider range of bodies is empowered to protect the interest of those who cannot represent themselves. The Supreme Court thus observed that, public interest litigation is generally justified on the basis of vast areas in our population of illiteracy and poverty, social and economic backwardness and of insufficient awareness and appreciation of individual and collective rights. In this context it is felt that the judiciary has to play a vital role not only in preventing and remedying abuse and misuse of power, but also in eliminating exploitation and injustice. To quote Bhagwati J of India again: ‘The compulsion for the judicial innovation of the technique of public interest action is the constitutional promise of a social and economic transformation to usher in an egalitarian social order and a welfare state. For this purpose it is necessary to make procedural innovations in order to meet the challenges posed by the new role of a active and committed judiciary. In fact during the last three decades judicial activism has opened up new dimension for judicial process and has given to new hope to the justice starved millions. The concept of public interest litigation, which has been and is being fostered by the judicial activism has become increasingly important in the arena of constitutional and legal treatment for ‘the unrepresented and under-represented’. These urges are responsible for the birth of new judicial concepts and for expanding the horizons of juridical powers.

The ‘urge’ of the courts referred to above including their powers and duties when confronted with a public interest Petition can be seen from the following words of the Supreme Court:

“Where the court finds, on being moved by an aggrieved party or by any public-spirited individual or social action group, that the executive is remiss in discharging its obligations under the Constitution or the law, so that the poor and the underprivileged continue to be subjected to exploitation and injustice or are deprived of their social and economic entitlements or that social legislation enacted for their benefit is not being implemented thus depriving them of the rights and benefits conferred upon them, the court certainly can and must intervene and compel the executive to carry out its constitutional and legal obligations and ensure that the deprived and vulnerable sections of the community are no longer subjected to exploitation or injustice and they are able to realize their social and economic rights…

When the court passes any orders in public interest litigation, the court does not with a view to mocking at legislative or executive authority or in a spirit of confrontation but with a view to enforcing the Constitution and law, because it is vital for the maintenance of the rule of law that the obligations which are laid upon the executive by the Constitution and the law should be carried out faithfully and no one should go away with a feeling that the Constitution and the law are meant only for the benefit of a fortunate few and have no meaning for the large numbers of half-clad, half-hungry people of this country. That is a feeling, which should never be allowed to grow”.

The observation above suggests that the burst of public interest litigation in the Pakistan legal system can also be said to mark, the vocal Pakistan legal fraternity’s exposure to ‘direct experience of pain and suffering’ widespread in society. How much this interface between human suffering and human rights has been carried forward throughout the history of public interest litigation in Pakistan is a moot question. The fact that there are structural problems in exposing the legal system to social suffering has been convincingly argued by an Indian Professor Upendra Baxi who says that ‘the statist human rights discourse in its enunciations of human rights does not relate to languages of human pain and social suffering.’ In contrast, the Pakistan people’s struggle against regimes practicing the politics of cruelty stand rooted in the direct experience of pain and suffering.

The period of the 1960s in US was an important period of social embroilment during which significant institution reforms took place; one of which was the evolution of public interest litigation. In the US, public interest law is seen as an effort to provide legal representation to groups and interests that have been unrepresented and under-represented in the legal process. These include not only the poor and the disadvantaged, but ordinary citizens who, because they cannot afford the lawyers to represent them have lack of access to the courts, administrative agencies and other legal forms in which basic policy decisions effective their interests are made.

The above understanding is captured by the Council for Public Interest Law in the US, which defined the public interest litigation as follows:

“Public Interest Law is the name that has recently been given to efforts providing legal representation to previously unrepresented groups and interests. Such efforts have been undertaken in the recognition that ordinary marketplace for legal services fails to provide such services to significant segments of the population and to significant interest groups. Such groups and interests include the proper environmentalists, consumers, racial and ethnic minorities and others”.

The concept of public interest litigation though had its origin in the US, over the years, it has passed through various changes and modifications in different common law based systems. Legal aid programmes in Australia and Canada have been restructured to serve the divergent aspects of the public interest. Some countries have gone to the extent of broadening its scope even beyond litigation and including many varieties of negotiations and even non-litigating approaches.

Major public interest litigation in Pakistan include those pertaining to bonded labour, ban on kite flying specially during ‘Basant’, restriction on serving meals during wedding, privatisation of national projects at throwaway prices, ban on plying heavy vehicles during day time in major cities specially in Karachi land grabbing, construction of highways buildings on unauthorized places etc. More public interest litigation remain to be taken up by a superior judiciary including money from the national exchequer spent on visits abroad taking friends, relatives and family members for unproductive visits, etc., by our so-called representatives.

It is a constitutional provision of the law which empowers the Supreme Court of Pakistan to entertain petition for the welfare of the common man who is in a disadvantaged position and cannot knock the door of the courts. Enforcement of fundamental rights on a large number of people vis-à-vis the constitutional duties and functions of the government is to be decided by the superior judiciary as a public interest litigation even releasing procedural laws as also relating to pleading if injustice is meted out to large number of people, the Supreme Court will not hesitate in stepping in. the International Convention of Human Rights provides for reasonable and fair trial. The role of locus standi is required to be relaxed so as to enable the court to look into the grievance complained on behalf of the poor, deprived, destitute and the disabled who cannot vindicate the legal right or legal injury caused to them for any violation of any constitutional or legal rights. The Supreme Court cannot shrug its shoulder and say that priorities are the matter of policy and it is the matter for the policy-making authorities. The least the court can do is to examine whether appropriate considerations are borne in mind and irrelevancies have been excluded in decision-making. If a court is prima facie satisfied with variation of any constitutional right of a group of people belonging to the disadvantaged category has taken place, it will not allow the Government from raising the question as to the maintainability of the petition. For this reason even procedural laws do not apply to public interest litigation cases. Where matters are of great importance, even principles of res judicata do not apply. No doubt, a dispute between two warring group purely in the realm of private law would not be allowed to be agitated as a public interest litigation unless the court, in furtherance of the public interest, deems it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice.

Supreme Court of Pakistan entertaining public interest litigation cannot reject the petition on ground of non-availability of sufficient material. In such an event, the court has power to appoint a commission and/or a fact-finding body to assist the court. In other words, in special situations the Supreme Court may appoint commission or other bodies for the purpose of investigating into the litigation and find out the facts.

No doubt the Supreme Court will not transgress its jurisdiction while purporting to protect the rights of the people from being violated. A constitutionality or validity of a statutes or statutory rule cannot be entertained in a writ petition by way of public interest litigation. In other words, there must be a public injury caused by wrongful or ultra vires acts or omission of the government or a public authority and for enforcement of basic human rights of weaker sections of the community the Supreme Court can compel the executive to carry out its constitutional and legal obligations.

The spheres where the Supreme Court has intervened and is intervening through public interest litigation can include petitions which are not individual but shared widely by a number of people which may include missing persons, bonded labour, under trial prisoners, etc. As also the affected persons belonging to the disadvantaged section of society like women, children, clamouring to know about the whereabouts of their near or dear ones. Formulation of judicial law-making which is necessary to avoid exploitation which may include education of the children of prostitutes, maiming menacing and disabling small children, specially their heads so as to utilize them for begging purpose specially in Punjab is essential. Judicial intervention is necessary for protection of the sanctity of independence of judiciary.

Thus any constitutional amendment which strikes at basic structure of the Constitution, as also the Fundamental Rights of the people of this country, can be struck down by the Supreme Court of Pakistan. Even administrative decisions relating to developments which are harmful to the interest of the community and jeopardize people to excess natural resources such as air or water can be interfered with.

No doubt, all developed legal systems have to face the problem of adjusting conflicts of public interest and desirability of encouraging individual citizens to present actively in enforcement of law and the undesirability of promoting professional litigants, strangers and meddlesome interlopers to invoke the jurisdiction of the court in matters in which they are not concerned. This aspect of the matter has been admirably discussed by De Smith in his thesis “Judicial Review of Administration Action” – Pages 99 and 100. It is under these circumstances high time for the Supreme Court to examine if certain meddlesome interlopers can be repeatedly permitted and allowed to invoke the jurisdiction of the Court at the behest of certain vested interest. Such interlopers should not only be discouraged but their licences to practise be revoked and they be subjected to heavy exemplary costs and it be found out as at whose behest these meddlesome interlopers have been mischievously filing cases before the superior judiciary.

It is about time the government constituted a high-powered committee; comprising distinguished former judges of the Supreme Court of Pakistan to make rules for locus standi which are broad-based so that not only community proceeding of public interest litigation proceedings and actions alone can be raised which are financed and/or undertaken almost exclusively by legal aid organisations and public interest lawyers unlike those who are meddlesome interlopers.

Let the initiative be taken by professional labour leaders of the country by filing public interest litigation to ascertain and determine the role of the Directorate of Labour Welfare in all provinces, as to how far they are instrumental in encouraging and fermenting labour unrest in our country and also determine as to how and why labour legislation in letter and spirit are not implemented. Factors and reasons as to the delay in decision of Labour Court and labour appeal cases be ascertained and attempts be made at expeditious disposal of labour law cases in a summary matter within few days. Under no circumstances is inherent judicial power of supreme judiciary curtailed due to political expediency. “Impossible to live with you, but I know I could never live without you”- Shirley Bassey American Actor.

Mahmood Abdul Ghani, "Superior judiciary: Curtailment of powers," Business Recorder. 2018-04-01.
Keywords: Outstanding scholars , Public interest , Social scientists , Labour legislation , Supreme court , Legal obligations , Shirley Bassey , Pakistan