The interminable wait for justice

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WHEN PUBLIC interest litigation (PIL) was introduced in India about 10 years ago, it was hailed as a landmark in the development of the Indian legal system. Though touted then as a powerful tool, in improving social and environmental conditions through legal action, PIL has turned out to be relatively toothless and ineffective. A retired judge, who has done much to further the cause of PIL, said candidly, "Today, I would discourage anyone who asked me to file a PIL case on their behalf."

A typical case of PIL ineffectiveness concerned drinking water pollution in Bichhri, a hamlet nestling in the Aravalli range in drought-prone Udaipur district. The case was brought to the notice of the Supreme Court in 1989 by environmental lawyer M C Mehta, after it had been in the lower courts for more than a year. A member of the Indian Council for Enviro-Legal Action, Mehta has been involved in a number of pollution cases, including the oleum gas leak at Shriram Food and Fertiliser Industries in Delhi and the Ganga pollution cases.

He took up the Bichhri case, appalled at the severe pollution of the groundwater in the hamlet. The water in about 60 wells there was completely black because of seepage from sludge from the H-Acid (a dye intermediate) factory named Silver Chemicals. The villagers' fields and orchards were damaged extensively and the flesh of their cattle reportedly came off the bone because they drank the contaminated water.

The pressing need was for quick action to check the water pollution -- a clear threat to public health -- and ensure safe drinking water for the villagers. But, despite Supreme Court orders to this effect, three years later, the sludge remains and more poison finds its way into the groundwater. After much to-ing and fro-ing about who would be made responsible for removing the sludge, the ministry of environment and forests (MEF) was assigned to ensure the sludge is removed at the polluter's cost. But the ministry has done little so far.
New genre In a sense, PIL came into existence in the early 1980s, when reformist and activist judges like P N Bhagwati and V R Krishna Iyer started creative interpretations of the law to allow even people not directly affected by an injustice to file petitions in court on behalf of those less privileged and therefore unable or reluctant to approach the court.

This ushered in a new genre of cases known collectively as public interest litigation. In the last decade, PIL cases have spanned a range of issues as diverse as the rights of bonded labour and municipal mismanagement and they have been argued in the Supreme and high courts.

But legal experts now say PIL is losing its cutting edge because of interminable legal delays and the inability of the courts in too many cases to prod an indolent bureaucracy to ensure court orders are carried out. These experts also point out that PIL is still to develop into a clear category of law, such as income tax law or patent law because its shape is being decided by judicial rulings in individual cases. "The idiosyncrasies of individual judges don't make a system," a senior judge explained.

Like other cases stalled in overworked courts, PIL cases frequently remain pending for years. Mehta estimates more than 3,000 cases concerning environmental pollution alone have been lodged in different courts. In the Bombay High Court, for example, a ruling takes at least six years from the date that a writ petition is first filed and in Delhi, this could take three or four more years. This is because the respondents often seek adjournments, which can prolong a case indefinitely.

In the Bichhri case, for example, though it is clear that pollution has occurred, an uncooperative bureaucratic machinery has tried to find ways around the court's directions to remove the polluting sludge. This has caused delays even though it is generally recognised that in environmental cases, delayed justice is often almost as bad as no justice at all, especially when the damage done to the environment is irreversible. "Judicial activism is restricted to the courts and little activity actually takes place on the ground," deplored Chatrapati Singh of the Indian Law Institute in Delhi.

Though most legal experts agree that PIL should be a collaborative process between the state, the judiciary and the petitioner, the state is generally reluctant to help because the government is often the accused party in pollution cases. Spurred mainly by those in power, the MEF, in particular, reacts selectively. For example, Tarun Bharat Sangh (TBS), a voluntary group working in Alwar, recently filed a writ to halt dolomite and limestone mining within the Sariska wildlife sanctuary. Supreme Court lawyer Rajeev Dhawan, who represented TBS, recalls an MEF notification banning mining in the Aravalli hills had to be brought to the notice of the court by the petitioner because the government made no effort to do so.

Another lengthy court battle, involving the leasing of forest land to Karnataka Pulpwood Limited (KPL), a joint sector company in which the Birlas had a substantial holding, began in 1986 and is still going on. The Samaj Parivartana Samudaya initially filed a petition challenging the Karnataka government's decision to hand over the land to KPL. But though the court issued orders not to give the company more land, the Karnataka forest department attempted to release another 12,000 ha. A lawyer associated with the case says only when the petitioners filed a contempt petition did the government begin to worry.

Frequently, the government and other respondents divert the court's attention from the real issues. In the Sariska case, for example, instead of discussing the impact of mining on the game sanctuary, the local villages and the land and water in and near the sanctuary, the arguments revolved around demarcation of the actual forest area. A commission of enquiry that was set up went into this in great detail. Discussions also revolve around which mines should be closed, but the fate of the farmers and their fields has been ignored.

PIL cases require considerable financial and technical support because they invariably require technical inputs. But the courts lack the machinery to collect data and government and quasi-government research organisations are usually reluctant to become involved in studies that have legal implications. When the National Environmental Engineering Research Institute in Nagpur was approached by the court to conduct a study on the extent of pollution in Bichhri, institute officials declined, saying their primary responsibility was to conduct research into indigenous pollution control technology.

Often, the courts themselves are reluctant to deal with technical subjects or interfere too much with the workings of the executive. The Supreme Court, for example, threw out the Tehri dam case on the grounds that it was in no position to judge the dam's technical feasibility. But the courts take a different stance when the powers-that-be are interested in a particular case. In 1987, for example, the Rural Litigation Entitlement Kendra in Dehra Dun successfully moved the Supreme Court to ban limestone quarrying in the Mussoorie hills. Its success was dependent on a number of social and political factors and not just on court directives.

"The administration acted promptly in the Doon Valley case," said Prashant Bhushan, who appeared for the petitioners, "because pressure beyond the courts was exerted. Then prime minister Indira Gandhi took a keen interest in the case as her family had had close connections with the valley for generations." Now that limestone mining has moved away to Sirmour in Himachal Pradesh and Pithoragarh in Uttar Pradesh, few worry about impact in these areas.

The courts alone are not to blame. The malaise is deeper, say experts who also point out that social and political conditions in the country often result in the poor being denied justice. Says Mehta, "Courts are a function of the society within which they work." A lack of awareness of their rights and a reluctance to plough through legal quagmires frequently keep people from approaching the courts for redress. In fact, even though the effects of pollution may be felt in a community, its residents may be quite unaware they can seek legal redress. Even when they are aware of this, to take on the state and also the vested interests is no easy task and Krishna Iyer says such a contest is invariably unequal. The court needs facts, statistics, affidavits and evidence before it can come to a conclusion whether fundamental rights have been violated. In a court case, the government, with the entire administration at its command, is one side. The polluters, who are often in league with those in power, have substantial resources and can hire an entire army of lawyers. On the other is an idealistic individual or organisation seeking justice, with little knowledge of the technical issue and of court procedures and scanty financial resources.

Lack of information
PIL petitioners are seriously handicapped by their inability to obtain information from government sources. Though courts do set up commissions of enquiry, they usually delve deeper into the issue once a prima facie case has been established with the petitioner providing the initial information. Legal experts insist that unless the right to information is recognised statutorily, PIL cannot be meaningful. Says one former judge, "The secrecy in this country is unwarranted and the first fundamental right should be the right to information. People have a right to know what impact new projects will have on their lives".

Obtaining such information becomes even more difficult when PIL cases are filed in Delhi in the Supreme Court, but the issue involved is in some far-flung corner of the country. Few agencies can afford to provide adequate support to both litigants and their lawyers and so PIL cases are usually filed by people who have links in Delhi.

Practising PIL doesn't pay because petitioners are usually not well-heeled and the quantum of legal aid available in the country is minimal. Consequently, few lawyers are willing to take up these cases and Dhawan explained why: "Lawyers function within the market economy and are usually uninterested in such cases because the financial rewards are meagre." Today, there are only a handful of committed PIL lawyers and a trained body of personnel is yet to develop.

Harassing tactics
PIL has sometimes suffered because of misuse by people seeking to move the court in their private or political interest. Recently, in one such case, an influential coal trader filed a suit alleging West Bokaro Collieries was polluting the Bokaro river in Bihar. On investigation, the court learnt the petitioner was trying to harass the colliery because his business dealings with West Bokaro had snagged.

Legal experts stress the need to strengthen PIL by legislating who can file such cases and what constitutes public interest. Such a law, some lawyers say, would at least make it obligatory for judges to entertain such cases, and not leave it solely to the judge's discretion.

Speedy justice is crucial when the environment is endangered and public health is at stake. To this end, Bhagwati has proposed the setting up of environmental courts, empowered to dispense justice without delays in environmental cases. Unfortunately, the Bhagwati proposal died an early death because of petty politicking. P D Mathew, director of the legal cell at the Indian Social Institute, says there is a need to have a permanent special cell that would provide scientific evidence to facilitate the work of the courts. Furthermore, realistic financial resources for legal aid and the development of institutions to provide logistical and technical support to both lawyers and litigants should be ensured.

Legal experts warn that in the final analysis, PIL alone cannot ensure environmental justice. In the KPL case, for example, the company was closed down by a combination of hard work by local activists and lobbying and pressure exerted by the court. It is becoming painfully clear that without sustained popular pressure and constitutional support, PIL cannot ensure justice.