The article brings to attention how the Public Interest Litigation (PIL) is failing to meet its foundational justifications of representing the interests of politically and legally marginalised groups. The authors argue that courts have become a forum for politically partisan disputes by allowing over-representation of the interests of individuals and groups who are already deeply embedded in political and legal institutions. The article points to the absence of any ‘publicly articulated rationale’ for the courts to take suo motu cognizance of any matter as PIL to have rather ‘atrophied and morphed’ PIL from a counter-majoritarian instrument to a counter-democratic one.
Public Interest Litigation (PIL) emerged in the 1970s as a legal innovation by academics, social activists and activist lawyers, ably supported by judges of the Supreme Court. In Hussainara Khatoon and Sunil Batra , the court developed a new approach to secure access by the poor and the marginalised to justice — by relaxing the strict rules of standing to allow representative standing and modifying the rules of judicial notice to allow the court to take suo motu notice of public events and transform them into litigation. However, the “public interest litigation” doctrine was shaped and developed in three key cases: Fertilizer Corporation Kamgar Union , S.P. Gupta and People’s Union for Democratic Rights . Here, the court articulated a constitutional and political justification for this radical innovation in Indian constitutional adjudication — 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. The special constitutional role of the higher courts to respond to these specific political failures of the state justifies the modification of procedures and remedies that override conventional norms of the separation of powers.
In the last four decades, the “successes” of PILs have been celebrated and canonised by the bar, the bench as well as the media. 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.