PIL envisages access to justice through class action: Bibhu Prasad Tripathy

In an interview, eminent lawyer Bibhu Prasad Tripathy, has told journalist Sugyan Choudhury that Public Interest Litigation is a medium of class action for justice. The interview is published in daily Pioneer, Bhubaneswar edition, on 7 October 2014. Viewed as enlightening to general public in matter of their collective legal right, we prefer to place the entire text in public interest. And, here it is:

What is the relevance of PIL as an instrument of law? Has it served its purpose?

PIL envisages access to justice through class action. Those very large sections of the society because of poverty, ignorance, discrimination and illiteracy had been denied justice for time immemorial and they had no access to justice. The opportunity is not to be denied by reason of socioeconomic or other disabilities. Therefore, the Supreme Court has declared access to justice in matters of fundamental rights. Therefore, the “Little Indians” legal cause can be espoused by any person having no interest in the matter. PIL is not in the nature of adversarial litigation; it is for the purpose of making basic human rights meaningful to the vulnerable sections of the community.

Though initially PIL was a strategic arm of the legal aid movement, today there has been a serious concern about the use and misuse of PILs. There are several blackmail litigations for private objectives or for settling disputes between individual parties in the court in the name of PIL since the term litigant in PIL is not confined to a person who is affected or injured by State action but comprehends a wide class. Today, PIL is filed in many cases having absolutely no real public interest except private profit either for themselves or as a proxy for other or for any other extraneous motivation or for publicity purpose. Persons who describe themselves as ‘public spirited’ and others as ‘social organisations’ or ‘activists’ spring up overnight to canvas issues for oblique reasons.

It is alleged that excess use of PIL results in judicial activism affecting the Legislature and the Executive; is it true?

The courts act as a watchdog for citizens’ rights which ensure that governance is to be carried out according to the Constitutional norms. The courts review the State’s action for promotion of good governance. PIL is an effective instrument of legal services delivery for ensuring administration of justice and Constitutional entitlement of weaker sections. PIL is not a measure of taking over governance itself or a process of supervising or monitoring every State direction. It is a measure involved in governance where fundamental or other rights are infringed or State is demonstrated to be in abuse of power. Now, the judiciary has to be vigilant for discharging the judicial function, but the court has to respect the separation of powers under the Constitution. The power of judicial review is recognised as part of the basic structure of the Constitution. People’s faith constitutes the legitimacy of the court and judicial activism.

What are your considered opinions about the success of PIL as seen in the State of Orissa and West Bengal today?

It’s true that a good number of PILs are filed in the Orissa High Court and the Calcutta High Court, but the bona fide PILs have to be encouraged and the frivolous ones are to be discouraged. The PIL litigants and their lawyers should be made accountable because law is meant for people and not that people are meant for lawyers. Both in Orissa and West Bengal, the Adivasis, Dalits, slum dwellers, street vendors, prisoners, sex workers and physically challenged have no access to the justice delivery system. There are many prisoners who have been falsely arrested and incarcerated for long years.

The provision extended by PIL does not envisage security of a petitioner. What measure can be taken to protect the petitioners serving as Cassandra to the cause of society?

It is true that the whistleblowers in the PIL may face threat from different quarters, but this is not a regular phenomenon. A public spirited person who approaches the court with clean objectives and without any mala fide intention may not face any security problem since people are the biggest security for him. But wherever a genuine PIL petitioner is facing a threat, he may approach the court to provide him security.

Can you please tell us some memorable PIL cases you have handled?

I’m telling the story of Pratap Nayak, a tribal boy, languishing in jail for 10 years despite the High Court’s acquittal order which could not reach the jail authorities in time. Prabir Kumar Das, a human rights activist and a lawyer, filed a PIL seeking compensation of Rs 10 lakh for Nayak for suffering mental trauma. The Orissa High Court disposed of the petition stating that the petitioner had no locus-standi in the case. The case finally went to the Supreme Court where I represented the matter. The apex court directed the High Court to look into the matter and Pratap was not only acquitted but awarded a compensation of `five lakh.

I can tell you the Delhi Noida Flyover PIL case, the Malkangiri Jail case where a prisoner was cooling his heels for lack of a Koya language interpreter and also the Sal forest PIL case where justice was meted out to the petitioners through PILs.
The Supreme Court recently intervened in a matter relating to the siphoning of crores of money in Orissa and West Bengal by chit fund companies and ordered a CBI probe to ensure that the influential people involved do not escape the teeth of law. Thus, PILs are impacting a lot of transformations by removing somnolence from the society and by ushering in an era of affordable justice.

What are your prescriptions for creating awareness towards wider use of PIL?

PIL has to be used by courts in the discharge of their Constitutional obligation to ensure enforcement of right to life and dignity. In a State like Orissa, use of justice delivery system by weaker sections is one of the major challenges. For an Adivasi of Malkangiri, right to food as fundamental right has no meaning because if the fundamental right is violated he cannot approach the High Court by engaging a lawyer. For him, the legal system becomes illusory. Civil society groups and public spirited activists along with some pro bono lawyer need to form a team to protect the interest of the deprived sections. A new social action strategy has to be evolved for institutional support for pursuing the Public Interest Litigation. There should be clarity and bona fide intent in making use of the social action litigation to wipe out the tears from the eyes of the starving population of Orissa that stand deprived of their basic rights and dignity.