Earlier today, a two-judge bench of the Supreme Court – consisting of the Chief Justice and Deepak Gupta J. – issued notice in a PIL filed by an organisation styling itself “Lawyers Voice.” The petition asked the Court to constitute a Special Investigating Team that would investigate (under Court supervision) “into the apparent illegality and non-action of the government in registering IPC, PC Act, PMLA, Income Tax Act and other offences” (sic) against Indira Jaising, Anand Grover, and the Lawyers Collective. While providing no specific details, the petition alleged that “various malpractices” had been committed by the Respondents (the Ford Foundation and its CIA connections also features in the petition). In a press release released shortly afterwards, Indira Jaising pointed out various irregularities in the manner in which the PIL was listed and heard before the Court today, and stated that these proceedings were initiated to harass her because of her support for the complainant in the case involving allegations of sexual harassment against the CJI.
That apart, the decision of today’s bench to issue notice in the case raises a few crucial questions:
A. Maintainability: After three-and-a-half decades of PIL, one basic legal point remains clear: because it is filed under Article 32 of the Constitution, a PIL is maintainable only if there is a violation of one or more of the fundamental rights guaranteed under Part III of the Constitution. No matter how much the requirements of locus are loosened and how expansively Article 142 is interpreted, this threshold bar continues to exist, and cannot be wished away by the Court. With that in mind, what fundamental right of the petitioner-NGO – or of anyone else for that matter – has been violated by the government’s alleged inaction in prosecuting Indira Jaising, Anand Grover, or the Lawyers Collective? The petition is silent on this point, and for good reason: there is none. But if the PIL is non-maintainable, why has the Supreme Court issued notice on it?
B. Threshold for an SIT Investigation: In the Judge Loya Case, the threshold for ordering a Court-monitored investigation was made very clear, and a high bar was set – a point that I made recently, in the context of the Supreme Court not following that very precedent in the Utsav Bains Case. Recall that in Loya, notice was not issued, and the petition was dismissed on the basis of pleadings and oral arguments. Clearly, therefore, precedent dictates that the notice threshold in cases like these is a high one as well (a position that makes eminent sense under classic separation of powers theory, where the job of carrying on investigations is not that of the court). Why then has the Court refused to follow Loya twice in two weeks?
C. The statutory scheme: Leading on from the previous point, there is a specific procedure to be followed in case a crime has been committed, and it appears that the police is not registering an FIR: and that is to approach the Magistrate under S. 156(3) of the Code of Criminal Procedure. Admittedly, in “special cases”, the Supreme Court has ordered investigations in PILs before, without this requirement being fulfilled (see Abhinav Sekhri’s critique here); in this case, however, given points A and B above, there surely ought to have been something showing that the PIL-petitioner had tried the 156(3) route, and failed – and if not, then reasons why this was a special case where the normal procedure needed to be bypassed. However, the petition does not contain even a whisper about any of this.
D. Why not the High Court?: As the PIL itself points out, there are ongoing proceedings before the High Court of Bombay pertaining to the cancellation of Lawyers Collective’s FCRA license by the government. That being the case, why was this petition not filed before the Bombay High Court? More particularly, a few weeks ago, when the Aadhaar Ordinance was challenged before the Supreme Court, the Chief Justice dismissed it and asked the petitioners to approach a High Court (this was a constitutional challenge, no less). Here, on the other hand, notice is issued in a PIL where at least a part of the bundle of facts upon which it (purports to be) based is already in litigation before the Bombay High Court. Is there no obligation of basic intellectual consistency?
At a deeper level, today’s PIL – and the Court’s decision to issue notice – marks the high point of what I propose to call “fourth-phase PIL.” I use the term “fourth-phase PIL” in response to classic PIL theory, which divides the evolution of the jurisdiction into three phases: first phase (1980s), where PIL was a tool to vindicate the rights of the vulnerable and the marginalised; second phase (1990s), when it was primarily used by the court to tackle environmental (and other related issues); and third phase (2000s), when the Court used PILs to intervene into issues of corruption and secure good governance.
I define fourth-phase PIL as follows:
The use of the court as a vehicle, through public interest litigation and the procedural and substantive flexibilities that it allows, to restrict or curtail individual rights guaranteed under Part III of the Constitution, and/or to achieve political goals that are blocked by normal political routes, and/or to stymie existing legal proceedings or bypass statutory process.
While fourth-phase PILs are often filed by political parties or their proxies (a prominent contemporary PIL-filer, for example, is also the spokesperson of a national party), this need not always be the case. Recent examples of fourth-phase PILs include the national anthem proceedings, the NRC proceedings, and the attempts to have Aadhaar linked to SIM cards and to voter ID cards through judicial fiat; readers who have followed the Supreme Court over the last couple of years will doubtless be able to add many more.
Fourth-phase PIL takes to the extreme the various procedural and substantive innovations that were evolved – in very different contexts – in the first three phases. From the first phase, it takes the loosening of locus standi (which was done so that people who were not able to access the court could be represented), and turns it into an absence of locus standi: now, it seems, anyone can file a PIL about anything, without having to demonstrate that there exists an affected party unable to approach the court. From the second phase, it takes the elongation of Part III provisions, and transforms them into an irrelevance: now, a PIL petitioner need not even mention in their petition how a Part III right has been violated. And from the third phase, it takes the expansion of Article 142, and transforms it into a power vaster than empires: there is now no question about separation of powers, institutional capacity, or judicial encroachment. In fact, if fourth-phase PIL was to be given a moniker, it should be titled “Article 142 litigation”: it is as if the only article in the Constitution is Article 142. There is no Article 32, no Part III (not even Article 21), and no basic structure separation of powers, once fourth-phase PIL is engaged.
Today’s proceedings exemplify the place that fourth-phase PIL has taken us to. An NGO approaches the Supreme Court, asking it to order the government to take criminal action against another NGO (and two lawyers). It does not show locus, it does not show how the petition is maintainable, it does not explain why the Supreme Court should take it up while the Bombay High Court considers an overlapping petition, it provides no justification for shredding the existing statutory scheme, and it provides no documentary evidence. In any other court in the world, this petition would have been dismissed with punitive costs. The Chief Justice of India, on the other hand, issues notice.
But perhaps that’s why fourth-phase PIL/Article 142 litigation is a unique phenomenon in global constitutionalism.