PIL as an Industry

by

Shobha Aggarwal

“Truth could influence only half a score of people in a given time or age, whereas falsehood and mystery would drag millions by the nose.”

-Aristotle

When I joined Campus Law Centre, Delhi University after completing B.A, (Hons). Philosophy from St. Stephen’s College in 1984, I was much mesmerized by Public Interest Litigations (PILs). At that time I thought that after becoming a lawyer I would only do PIL work as some present day PIL stalwarts – then just beginners – tried to indoctrinate us into the PIL realm.  We were much influenced, if not brain washed by the media blitzkrieg centering around the court proceedings and pronouncements upon PILs filed by our professors! When I became a lawyer in 1989 I started a small group called ‘Legal Support Group’, which provided free legal aid to the poor and needy, but refrained from filing PILs for reasons not clear in my conscious mind then.

A PIL stalwart from Bombay approached me in 1992-93 on behalf of a group. This group wanted a lawyer in Delhi who would – on the basis of news paper reports – quickly do field visits and file PILs in the Supreme Court. I declined the offer. Another lawyer known to me had accepted this offer and was not even paid his salary for this work – so much for the phoney concern of the PIL wallas for minimum wages. In 1994 as a member of AIDS Bhedbhav Virodhi Andolan – non-funded, nonparty organization – I was the lawyer petitioner in the writ petition filed in the Delhi High Court for the repeal of Section 377 of the Indian Penal Code which criminalizes homosexuality. This I suppose may fall within the broad definition of a PIL, as the affected parties were not directly before the Court, though we consciously did not call it a PIL. For reasons explained below I did not pursue this matter when it came up for final arguments in 2001. In any case by then foreign funded organizations had sprouted up in defence of homosexuality and one of these organizations filed a regular PIL on the same issue.

In 1998-99 I finally discovered the reason for my discomfort with PILs all along, as I researched into the fundamental question viz whether the PILs have been able to provide justice to the poor or not. Not surprisingly I came to the conclusion that PILs have failed to provide justice to those who need it most i.e. the poor and the working class. The reason I realized was very basic – that PILs flout the principles of natural justice which is the very essence of justice in existence from times immemorial. At that time I met a popular PIL lawyer – presently a Delhi High Court judge – to discuss my research ideas viz that PILs violate principles of natural justice and adversely affect the poor. He said he will not allow me to undertake this research. I had to tell him that he was no one to stop me.

Later in 2005 the above said research paper was published as a Citizen’s Report entitled “The Public Interest Litigation Hoax – Truth Before The Nation” by the PIL Watch Group –a non-funded, nonparty organization. We had a press conference on 7^th April, 2005 at the Press Club of India to release the Report. Three major groups of victims of PILs viz industrial workers, professional blood donors and leprosy patients who were either adversely affected or did not benefit out of PIL judgements of the Apex court addressed the press conference. All the three PILs pertaining to these victims were filed by high profile lawyers and activists and these PILs were heard by equally high profile PIL judges. The press conference was attended by 10 journalists from major Delhi-based newspapers and news agencies. Only the Statesman carried a detailed report; and Jansatta reported in a few lines. Without getting disheartened we have continued to campaign against PILs for about three years.

PILs do not follow any due process of law. They are like bypass surgeries conducted for coronary artery disease which sustain the illusion that some good is being done. However an objective study will show that just like bypass surgeries do not deliver the touted good, PILs too do not deliver justice. Equally true just as bypass surgeries inhibit natural channels (blood vessels around the heart) from opening up and benefiting the patients, even so PILs violate the laws of natural justice. In the long term just as bypass surgeries have made no difference in the mortality and morbidity rates of heart patients, the PILs too have not provided justice to the poor.

In the ongoing debate on PILs and judicial activism (set in motion by Justice A.K. Mathur and Justice Markandey Katju) lots of articles have been written almost in all the Delhi based English language newspapers. An important point being harped upon by the perpetrators of PILs is that since the Executive and the Parliament are not performing their role properly the third pillar i.e. Judiciary could step in and set things right. Such a reasoning smacks of an utter contempt for the final arbiters of change i.e. the people of India who can and have overthrown dictatorial governments in the recent history precisely at a time when the judiciary was found utterly wanting in taking a principled stand. The real power is with the people. Any debate which excludes the people of India is contemptuous of the people of India. Also, a cursory look at the articles published in English dailies in the last eight weeks would show that barring a stray exception, the writers happen to be the very same ‘PIL stalwarts’ who file PILs; erstwhile judges who sat in the bench hearing the PILs. So it is only their opinion which is getting wide coverage. Hence the debate is one-sided.

So in the end in the name of the poor – who are yet to receive any advantage out of the PILs – the PIL has become a multimillion dollar industry. The day is not far off when PIL NGOs will be listed on the Bombay Stock Exchange (one such funding organization is already enlisted). Of course the only sad part is that the vested interest is not allowing the real debate on PILs to take place. These ‘PIL stalwarts’ – lawyers, ex-judges, NGO-activists – will be answerable to the future generations for ruining the Indian Jurisprudence. I have read somewhere that it takes about 100 years for a forest to regenerate by itself after being denuded for pecuniary interests. That is the time span it will take for the Indian jurisprudence to recover from the ravages of PILs. That, too, will happen only if the vested interest is crushed and a complete ban is put on PILs!!!

Not one of these NGO activists, not one of these PIL lawyers; and not one of these retired judges of the Supreme Court and High Courts have made any attempt to get a feedback from the very poor and downtrodden masses in whose name the PILs have been touted to be filed. Such is the utter contempt of the intellectual class towards the poor people. Not one of these “do-gooders” has ever conducted a research study to prove the very assumptions of their theory which profounds that the poor have benefited by the cottage industry that PILs have become.

In the interest of justice and fair play the Govt. should undertake an in depth nation wide study to ascertain whether the poor have benefited or not in the last thirty years of coming into existence of the PILs; or whether the poor have actually suffered on account of the PILs! For the study to be authentic and objective all those forces which have a vested interest in perpetrating PILs should not be associated with the study. Till such time that the results of the study are made public, if at all PILs are to be admitted it should be ascertained that the poor would benefit out of the PILs and in any case not harmed by PILs. Secondly, the poor themselves should be heard in these cases and not through any vested interests.

[The author is a Delhi based advocate and a member of PIL Watch Group and can be contacted at pilwatchgroup@gmail.com]

Also at:

http://www.sacw.net/article11110.html

Continued Incarceration of Political Prisoners in Kashmir Vs. Release of Political Prisoners in India After Lifting of Internal Emergency. A Study in Contrast

By

Dr. Paramjit Singh Sahni & Shobha Aggarwal

The whole of Kashmir valley has been likened to an open prison where people live in conditions akin to being in a state of perpetual Internal Emergency. The civil liberties and democratic rights of freedom loving people have been trampled upon by police, paramilitary and the armed forces. Draconian laws like Armed Forces (Special Powers) Act, 1958 [AFPSA] continue to exist. There is an army of occupation estimated to be numbering around 700,000 armed and uniformed personnel. The print, audio-visual and the social media face a situation of censorship every time the people of Kashmir rebel against inhuman and cruel living conditions; the right to rebel is effectively crushed. Even getting a private member’s resolution to be raised in the Assembly urging for return of mortal remains of Afzal Guru is effectively thwarted. The functioning of courts in conflict zones does not inspire much confidence. Even peaceful and democratic protests, say for boycott of elections, all over the valley are quelled through the use of indefinite curfew, police firing, preventive detention, encounters and torture. Since 1947 assurances given to people of Kashmir have been consistently violated; for instance plebiscite never took place. Article 370 has been effectively diluted, even as there is a constant refrain from the right wingers urging Article 370 to be scrapped altogether. As a last resort when a movement for ‘Azaadi’ is launched brute force is used to crush it. No options are then left for the people of Kashmir by the Indian State.

One period the people of India faced a repressive situation all over the country was during the imposition of Internal Emergency by the then Prime of India, Mrs. Indira Gandhi in 1975. But that period did not last beyond twenty-one months; during which time over a hundred thousand people were imprisoned including politicians, trade unionists, academicians, intellectuals, journalists, students, ultra-left activists and many others. The arrests were made under draconian laws – MISA (Maintenance of Internal Security Act) and DIR (Defence of India Rules). Freedom of speech was curtailed. There was press-censorship. The rulers amended and subverted the Constitution of India umpteen times for their vested interests. The right to life itself was suspended. (It is only now that Supreme Court judges of those times have started apologizing for the havoc their judgements brought on the citizens of India.) It was because of the tremendous resistance – both underground and over ground as well as nationally and globally that the Internal Emergency was revoked and political prisoners were released. It is true that even the new dispensation that emerged after overthrowing Mrs. Gandhi’s government was initially reluctant to release prisoners who are referred to as Naxalites by the establishment, but later ordered their release.

It will be in order to recapture the developments which led to the imposition of Emergency. During 1973 the Nav Nirman movement emerged in Gujarat led by students who were agitating against corruption and inflation. (Narendra Modi, the present Prime Minister is said to have been an active participant in the movement). The movement was supported by Bharatiya Jana Sangh, Congress (O), Communist Party of India (Marxist), SP and others. While it succeeded in getting Gujarat assembly dissolved – 95 people died during this agitation and 933 persons were injured due to the agitation becoming more violent which led to police firing. There was loss to public and private property. Nobody including the Sangh Parivar shed a tear for demise of the rule of law and constitutional means. A duly elected state government got overthrown using techniques like gheraos and the like; it was not through elections!

Jayaprakash Narayan (J.P.) inspired and encouraged a similar movement in Bihar for the dissolution of the assembly; there, too, students were in the lead. The number of fatalities was 70 and the number injured was 500. The year 1974 also saw the all India strike by railway men under the leadership of socialist leader, George Fernandes. The strike lasted for twenty days. It was brutally suppressed through use of strong arm tactics. There was flagrant violation of civil and democratic rights. Thousands of railway men were sent to jails and lost their jobs. This has been likened to a dress rehearsal for Mrs. Gandhi’s Emergency regime. In early January, 1975 L.N. Mishra, the Union Railway Minister was assassinated in Samastipur, Bihar. This was followed by an attempt on the life of the Chief Justice of India.

Indira Gandhi’s response was through the imposition of Internal Emergency triggered by her election being set aside by the Allahabad High Court. Mass arrest of political leaders of all hues followed including socialists, communists, Jan Sanghis, members of Rashtriya Swayamsevak Sangh (RSS), break away factions of the Congress; members of Akali Dal, Muslim League and others. L.K. Advani, Atal Bihari Vajpayee, Arun Jaitley too faced imprisonment. George Fernandes led an underground movement and garnered support from several sources to use dynamite to blast government buildings and to “transport the explosives from Baroda to Varanasi.” Upon arrest in 1976 he was tried under the Baroda Dynamite Case; this case was withdrawn when Janata Party came to power. Later in Atal Bihari Vajpayee’s regime Fernandes rose to be the Union Defence Minister. The Bharatiya Janata Party (BJP), the RSS and other right wing bodies were comfortable with the idea of George Fernandes as the Defence Minister; that the unity and integrity of India would not be threatened by someone who was at one time – during the underground movement in mid-seventies – self-confessedly dynamiting government buildings. Even as late as 2005 before his memory faded he had publicly acknowledged the support he had received from the DMK chief Karunanidhi in the Baroda Dynamite attacks during Emergency with moral and material support.

Fernandes and his associates had every right to rebel against Mrs. Gandhi’s dictatorship. It is appropriate that he was treated as a political prisoner and released by the Janata party government. Even as serious criminal charges were leveled against Fernandes, the attempt of Mrs. Gandhi’s government then was to ensure that civil society would be less inclined to canvas for his release. This is a standard ploy used by all regimes from the British era down to Modi’s regime. Draconian laws are framed and political activists during their legitimate political activity are framed under such black laws. As always the attempt is to discredit the political activists and ensure that a wave of protests for the activists to be treated as political prisoners is effectively prevented.

But shouldn’t such courtesy i.e. being released as political prisoners from jails, withdrawal of criminal cases be extended to those who participated in and spearheaded the May-June 2010 Quit Kashmir movement launched against the Indian Army?  Those who participated in that movement were sick and tired of the atrocities committed by the army personnel. The trigger point was the staged encounter at Sona Pindi of three young Kashmiri Muslims who were taken from their Nadihal Village in Baramulla District and how eventually it was found to be fake. The Kashmiris had every right to rebel which they did through hurling pebbles – sorry stones – when confronted by the might of the police and paramilitary forces all over the valley. It resulted in the death of over one hundred and ten civilians and 537 civilians were injured during the stone pelting incidents including many teenagers and a 11 year old boy between May to September 2010. A large number of CRPF men and police personnel were said to have been injured. Just as the leader of the Quit Kashmir movement – Masarat Alam was released on 7 March, 2015, political parties of all hues protested against the release in and outside the Indian Parliament. The BJP leaders at the Central Government raised the bogey of not being consulted prior to his release insinuating thereby that they would have objected. The central BJP leadership and members of Sangh Parivar and all political parties should remember how they themselves were released from jails as political prisoners just a few decades back. Kuldip Nayar –  veteran journalist, who was himself jailed under MISA during the Emergency – should  have been supporting Masarat Alam’s release. The Quit Kashmir movement leaders were only urging for the army to be withdrawn from Kashmir. Contrast it with the statement of Jayaprakash Narayan just a day before the Emergency was imposed wherein he had urged the police and the army to disobey illegal orders challenging Indira Gandhi to bring charges against him if she thought he was preaching treason! Notwithstanding treason, J.P. was released.

It is learnt that a number of political prisoners of the Quit Kashmir Movement as also several hundred arrested during the earlier phases of struggle are languishing in jails in Kashmir and elsewhere. If people charged under the Baroda Dynamite Case can have cases withdrawn and released from jails, there is no reason why political activists in Kashmir have to face continued incarceration in jails. There is a very real possibility that false criminal cases under draconian laws may have been filed even against those involved in the Quit Kashmir movement. In the interest of justice and equity each one of those involved in that movement should be released forthwith.

After the release of Masarat Alam the Jammu and Kashmir government has reportedly decided against release of anymore political prisoners. Historically, political prisoners put behind bars are released when the regime changes. This is the first time that Peoples Democratic Party (PDP) and BJP combine is in power in Jammu & Kashmir. It would be politically wise to release all political prisoners put behind bars by the earlier political dispensation.

[Paramjit Singh Sahni, Orthopaedic Surgeon & Shobha Aggarwal, advocate are members of Public Interest Litigation Watch Group. Email: pilwatchgroup@gmail.com]

Also available at:

http://www.countercurrents.org/sahni050415.htm