PILs Give Power to the Judiciary in the Name of the People

An extract from Anuj Bhuwania’s book, Courting the People: Public Interest Litigation in Post-Emergency India, which examines how the PIL has become an instrument for the judiciary to micromanage governance.

Anuj Bhuwania’s new book, Courting the People: Public Interest Litigation in Post-Emergency India, published by Cambridge University Press, provides a forensic examination of how the PIL became both ubiquitous, as well as an instrument for the judiciary to micromanage governance as it saw fit. The book is part of a new book series entitled ‘South Asia in the Social Sciences,’ edited by Partha Chatterjee. As we debate the limits of judicial reach and overreach after the Supreme Court’s surprising judgement on standing for the mandatory playing of the national anthem in cinemas, few books could be as timely. 

An extract from the ‘Introduction’ makes for revelatory reading.

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Returning to live in Delhi in 2006, after being away for nearly four years, I found that PIL had become ubiquitous in everyday discourses around the city.

The urban fabric seemed torn asunder by PIL cases intervening in almost every part of the administration. The courts gave the impression of governing the city through the instrument of PIL. Newspaper headlines routinely quoted statements by the Delhi high court threatening to shut down the municipal corporation of Delhi (MCD): ‘Stop farmhouse weddings or we will shut MCD: HC’ or ‘Catch monkeys or shut down, HC tells MCD’. Slums labelled ‘encroachments’ were being demolished all over the city under court orders, the incidents reported with relish by new periodicals like Neighbourhood Flash and local sub-city supplements such as South Delhi Live that had begun to come bundled with major newspapers like the Hindustan Times. The city news became the site of both the demand and supply of the courts’ attention. Any political intervention against any of this – or even the intention of an intervention – would be declared ‘populist’. In those days, if one followed the city news at all, PIL was inescapable. The legal correspondent for a daily newspaper who reported from the Delhi high court later described the period to me thus: “I would have seven bylines in the first six pages. The government used to function with contempt of court hanging over it.” There were PILs pending, related to so many aspects of the city’s governance that newspapers would periodically carry random lists of such cases – the case topics in one such list included simian trouble, stray menace, urinals, no-parking zone, tinted glasses, save Yamuna, nursery admissions, Blueline buses, traffic fines, MCD demolitions, plastic ban, India Gate subways, free beds in hospitals, free seats in schools and illicit liquor – all of these were just in the Delhi high court and this was by no means an exhaustive list.

The city was being remade by means of PILs. Indeed, Delhi had already been transformed significantly because of PIL cases over the past decade, as we shall see in chapter 2. Every aspect of Delhi’s transport – for example, auto rickshaws, cars, buses, cycle rickshaws – had been reconfigured because of PIL. Urban heritage was another arena of PIL’s regular intervention: in November 2006, I was a witness to a well-connected lawyer specialising in heritage conservation cases threatening a local government official with the words “Main toh bas PIL thok doongi (I will just slap a PIL on you).’ Later, in December 2007, I heard an environmental scientist heading a new biodiversity park express the worry that the foreign species he had planted would be challenged by a PIL (This actually did happen, a year later.)

PIL procedure had enabled the court to monitor and micromanage every aspect of the city’s governance, making the whole city the direct object of its reformative attention. The all-encompassing nature of the court’s control over the city through PIL was slowly brought home to me as I began to follow the leads thrown up by newspaper headlines. In 2006, for instance, I was struck by the headline ‘Supreme Court chides Delhi government for power muddle’. The story turned out to involve a PIL about the lack of access to adequate electricity in the capital city that had been admitted in 1999 by the Supreme Court at the instance of a senior advocate.

The case came to be legally titled Power Crisis in National Capital Territory of Delhi vs Union of India. The senior advocate in question was made the amicus curiae, meaning ‘friend of the court’. The court went on to supervise the privatisation of electricity in Delhi from 1999 onwards. By 2003, when privatisation was complete, the PIL came to focus on transmission and distribution losses attributed to power theft. By 2006, this particular PIL’s remit had turned to inadequate power supply in Delhi and the court heard big power-generating companies talk of setting up 1,000 megawatt gas-based power plants. In May 2006, the judges in this case reportedly expressed the worry that if the power situation in the capital did not improve, “how will we organise the Commonwealth Games in the year 2010 here?” More than four years before the scheduled games, the PIL court’s worry about the availability of electricity in Delhi was expressed through anxiety about the high-profile event. The court’s ire in this case throughout this period was particularly excited by power theft in ‘illegal’ settlements – unauthorised colonies and especially slum clusters. While ostensibly the court’s concern was the city as a whole, it was these communities that had emerged as the most visible symbols of illegality in its eyes. It was this conspicuousness that it wished to erase.

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I will illustrate the qualitatively transformed nature of the relationship between the court and the city’s heterogeneous publics in this period by discussing three revealing vignettes from three PIL proceedings I encountered during my fieldwork. The first was in March 2007 during the hearing of a case in which a two-judge bench of the Supreme Court was supervising the formulation of the municipal corporation of Delhi’s draft scheme for grant of tehbazaari (vending rights) to street vendors in Delhi. The case was Sudhir Madan vs MCD. The MCD scheme had envisaged a process that would require first identifying sites in the city where hawking could be carried out, then inviting applications from interested eligible people and then granting such rights. During the day-long hearing, an alternative was suggested to the MCD scheme by one of the vendors’ organisations. They suggested instead that first a census be conducted for the existing street vendors in the city and based on that ground-level mapping, vending rights be formalised at the already existing sites. The judges were livid at such a suggestion. If such a suggestion was accepted, Justice B.P. Singh interjected, Delhi would have to be renamed ‘Hawker Nagar (‘hawker city’)’. There would soon be hawkers selling food in the Supreme Court building, he exclaimed.

The second vignette is from a hearing before a two-judge bench of the Delhi high court in 2009, where a PIL against begging on the streets of Delhi was being heard. The presiding judge, Sanjay Kishan Kaul, was particularly agitated about the proliferation of beggars in Delhi. He was specifically concerned about having come across beggars even while being chauffeured around the India Gate roundabout, the heart of the imperial capital. If the situation remained unchanged, he said, the day was not far when there would be beggars in the high court building itself. The bench went on to order the active implementation of 18 ‘zero tolerance zones’ for beggars in Delhi, including road intersections near New Delhi’s court complexes as well as all railway stations and bus terminals in the city.

My final vignette is from a hearing in a PIL about traffic congestion in Delhi in 2006, which was narrated to me in an interview by one of the lawyers in this case. As part of this PIL, the high court had ordered the removal of a slum called Nangla Machi, which abutted an arterial road in central Delhi and was allegedly causing traffic jams. When arguments were raised by a lawyer for the slum-dwellers in a court hearing, Justice Vijender Jain pointed out that currently, the slum concerned was less than two kilometres from the high court. If action was not taken immediately, he said, the slum dwellers would soon invade the court premises itself and squat there.

A spectre was haunting the court. The spectre of the unruly masses of the city – street hawkers, beggars and slum dwellers – invading its pristine environs. These were precisely the unwashed masses that PIL had originally invited into the courtroom. But now, PIL seemed to have adopted a path where it wanted to devour its own.

Political commentators Nivedita Menon and Aditya Nigam called the fantasy of ‘Delhi-en-route-to-Paris’ being played out in the city around 2006, the result of a ‘judicial coup d’etat’:

Propelled by a judiciary with no accountability and a media that is deeply implicated in this new game, there has emerged a technocratic elite which desires hypermodern cities cleansed of all the ‘mess’ and ‘irrationality’ that comes with democracy and the people.

Anuj Bhuwania is a lawyer and an anthropologist.  He currently teaches at South Asian University, New Delhi.