Monday, June 30, 2014

Time to end the PIL System

The news is that a PIL has been filed in the Supreme Court against PM Narendra Modi for not bringing good days (acche din) to the country, as promised in the election campaign and thus, misleading the public. This is, of course, just one more jewel in the PIL crown, that has seen PILs filed for as frivolous reasons as changing the national anthem to something purely in the realm of the executive, such as river-water interlinking.

Ever since Husnara, PILs have become a powerful tool of judicial activism, allowing the courts to explicitly determine what is or is not in the public interest. By bypassing the duly elected legislature and executive, PILs have become what many call the last hope for the country. And that is precisely the problem. PILs are an extremely paternalistic system that is grounded in the belief that people are incapable of electing a good government and therefore, courts can intervene in the realm of the executive and legislature to fix it. This idea is inherently undemocratic not because the courts are not popularly elected but because they act as a pressure release valve and actually allow the executive and legislature to get away with their pathetic performance. Because people believe that PILs can be a way out of their predicament, they do not adequately focus their energies on holding their elected representatives accountable.

It is not true that the people of India cannot come together in crisis - in 1951, 1991 and 2014, they showed that democracy could be used to fix a problem. But the problem is that Indians do not do this unless presented with a visible, clear and close crisis. Only in the last minute do we act and that too if there is no alternative. By giving such an alternative, PILs allow poor governance, caste and religion-based politics to continue. The poor do not gain from it - most PILs are not even about the poor and in any case, the greatest loot in India has been committed in the name of the poor. Poor people are not a license to break as central a tenet as separation of powers in our democracy.

Although Justice Kapadia did warn of substantial fines on frivolous PILs, they have continued to grow, overburdening our already overburdened higher judiciary. And the reason is clear - fines fight the symptom, and not the problem, which in this case is quite clearly an obscurity created in the separation of powers, through which litigants try to control an elected government and legislature. Courts do have an important role in our democracy and certainly, as an anti-majoritarian institution their role is not limited to the law books, but that role cannot destroy the doctrine of separation of powers. Because PILs do just that, the time has come to annul the system. 

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