Archives

Heart Of The Matter by Fathima Razik Cader

(Continued from last week)

For the benefit of our readers, the following excerpts from the address by Justice P.N. Bhawati, former Chief Justice of India, delivered at the 16th annual sessions of the Organisation of Professional Associations, held recently, would prove informative. Public Interest Litigation (PIL) as a means of seeking redress by an affected party is still not possible in Sri Lanka and it might be prudent to highlight how the system was introduced in India.

The substance of public interest litigation in India is much wider than that of PIL in the United States of America. In essence, much of PIL focuses on exposing exploitation of the disadvantaged and deprivation of their rights and entitlements by vested interests and repression and violation of human rights by the agencies of the state and other custodial authorities. It also seek to ensure that the authorities of the state fulfil the obligations of law under which they exist and function.

Justice Bhagwati then went on to explain how the concept of PIL emerged in India.

One of the main problems which impleaded the development of effective use of the law and the justice system in aid of the disadvantaged was the problem of accessibility to justice.

Article 32 of the Indian Constitution which is in Part III of the Constitution dealing with fundamental rights confers the fundamental right to move the Supreme Court by appropriate proceedings for enforcement of fundamental rights and vests powers in the Supreme Court to issue any direction, order or writ for enforcement of such fundamental rights.

"The Court was for a long time used only by those who were wealthy and affluent and who, to borrow Narc Gallanter's phrase, were repeat players of the litigation game", said Justice Bhagwati. This resulted in the poor being priced out of the judicial system and it was next to impossible for the common man to approach the Court for justice.

This was compounded by the fact that the common man or the poor, lacked awareness regarding one's right, were unassertive and the non-availability of machinery for enforcing their constitutional and legal rights.

The Supreme Court found that the main obstacle which deprived the poor and the disadvantaged of effective access to justice was the traditional rule of locus standi, which insists that only a person who has suffered a specific legal injury by reason of actual or threatened violation of his legal right or legally protected interest can bring an action for judicial redress. No other person can file an action to vindicate such right.

Depart

The Supreme Court therefore took the view that it was necessary to depart from the traditional role of locus standi and to broaden access to justice by permitting any member of the public or any social action group acting bona fide to make an application in the High Court or the Supreme Court seeking judicial redress for the legal wrong or injury caused.

This move came to be regarded as legitimate within the meaning of Article 39 of the Constitution of India. This then was a major break through that the Supreme Court had achieved as it brought justice close to the large masses of people. In India, the Court had for a long time been the preserve of the rich and the affluent, the landlord and the gentry, the business magnate and the industrial tycoon and it was only the rights of such people that were protected.

But now, for the first time, the portals of the Court were thrown open to the poor, the ignorant and the illiterate resulting in numerous cases coming before the Court through public interest litigation. The deprived and the handicapped, the poor and the exploited began to feel for the first time that there was an institution to which they could turn to for redress against denial of their rights. Thus the Supreme Court in India became a symbol of hope for the deprived and vulnerable sections of the Indian community.

"This however did not go down very well with many. It shocked the conscience of conservative lawyers and judges clinging to the well worn-out values of Anglo-Saxon jurisprudence", noted Justice Bhagwati. They thought that what the Court was doing was heretical. On the other hand, the large masses of people applauded this new initiative taken by the Court. They began to feel for the first time that the highest Court in the country was assuming a new dynamic role as the protector of the rights of the people through the adoption of a highly goal-oriented and activist approach by some of the judges.

Litigation

But from the very beginning of public interest litigation, one difficulty which manifested was on account of the total unsuitability of the adversarial procedure to this new kind of litigation. The adversarial procedure is supposed to be based on the rule of equality and fairness.

Consequently, adversarial procedure can operate fairly and produce a just result only if the two contesting parties are evenly matched in strength and resource, which quite often, is not the case. Where one of the parties to the litigation belongs to the weaker section of the community and does not possess adequate social and material resources, he is bound to be at a disadvantage as against a strong and powerful opponent under the adversarial system of justice. This is on account of the difficulty in getting competent legal representation in addition to the inability to produce relevant evidence in court. The problem of proof, therefore, presented obvious difficulty in PIL brought to vindicate the rights of the people, most of whom are poor.

The problem becomes very acute in many cases because very often, the authorities or vested interests which are the respondents, deny on affidavit, the allegations of exploitation, repression and denial of rights made against them.

At times, they also contest the bona fides or the degree of reliability of the information given by social activists who come to Court. Interestingly, there are times when respondents attribute wild ulterior motives to such social activists and even go as far as denouncing the source from which such evidence is presented. This makes the work of public-spirited persons doubly difficult as far as PIL is concerned. It will therefore be only well organised social action groups or those with the necessary resources, be able to establish a case on behalf of people who come from the disadvantaged segments of society. But such social action groups are very few in number.

The question arises as to what can the Court do in such instances? Would it seem as though the Court is failing in the discharge of its constitutional duty? Would the Court adopt a passive approach because relevant material has not been produced by the party seeking intervention? Would one's fundamental rights remain an illusion as far as the persons affected are concerned?

Strategies

The Supreme Court then started experimenting with different strategies which involved departure from the adversarial procedure without in any way sacrificing the principle of fair play. It was found that the problems of the people and the weaker sections of society which had started coming before the Court were qualitatively different from those which had hitherto occupied the attention of the Court and they needed a different kind of approach.

It was necessary to abandon the laizzes faire approach in the judicial process and devise new strategies and procedures articulating, asserting and establishing the claims and demands of the people.

The Supreme Court, therefore, intiaited the strategy of appointing social activists, teachers, researchers, journalists, government officers and judicial officers as Court Commissioners to visit particular location on fact-finding missions and submit quick and detailed reports setting out their findings. In addition, their suggestions and recommendations were also solicited.

Taking all of these statements into account, one should appreciate the extent of concerted activity that took place to make public interest litigation a reality in India - which brings on the vital question - "How best can public interest litigation be advocated in Sri Lanka"? The Organisation of Professional Associations, for its part, is focused on seeing that its quest to make this a reality in Sri Lanka will in fact be realised. Areas pertinent to this topic were dealt with by professionals at the Technical Sessions of the Annual Sessions. Highlights of these presentations will be carried in these columns for the information of our readers.

But when all is said and done, it is civil society that must gear itself for action to ensure that justice prevails in all spheres.

For after all, this very important step is actively taken in the overall public interest by a handful of concerned Sri Lankans who are working hard towards ensuring that this 'PIL' sees the light of day!

www.crescat.com

News | Business | Features | Editorial | Security
Politics | World | Letters | Sports | Obituaries

Produced by Lake House
Copyright © 2003 The Associated Newspapers of Ceylon Ltd.
Comments and suggestions to :Web Manager