Delhi HC needs to pay attention to the Supreme Court’s warning on PILs

Recently, the Delhi High Court heard an interesting Public Interest Litigation (‘PIL’) petition. The PIL was filed by politician and serial litigator Ashwini Kumar Upadhyay and sought action against mass religious conversions. The content of the petition consisted of information and data procured from social media. The poor research forced the Court to remark, “Where are the instances (of conversion)? … You have given nothing. Where are the statistics?” . It also remarked, “What you can’t get directly can’t be given indirectly. This requires deeper consideration. Newspaper, WhatsApp, social media may or may not contain facts, but they can’t be basis for petition.”

In normal course, any Court would have dismissed the petition for want of proper research, but the Delhi High Court decided to give time to Upadhyay to amend his petition and adjourned the matter. By not dismissing a poorly researched petition and keeping it open, the Court agreed to waste precious judicial time on another date. However, the point of this post is not to discuss this petition in particular but a general trend emerging at the Delhi High Court i.e., the trend of entertaining inadmissible PILs filed by serial litigants like Upadhyay. By entertaining these PILs, the Court goes against the noble intention behind the creation of PILs, violates the guidelines regulating PILs, breaches the principal of separation of powers and also wastes precious judicial time. I shall be relying on the PILs filed by Upadhyay to make my case.

A. Contrary to the intentions behind PILs:

Article 32 and 226 of the Indian Constitution, allow any person to approach the Supreme Court and the High Court respectively, for enforcing her/his rights enshrined in Part III of the Constitution. In the early years of our Constitution, the Courts only allowed a person directly aggrieved from a government action to approach the Court. A third party could not approach the Court on behalf of another. For example, in Charanjit Lal v. Union of India, the Court refused to allow shareholders of a company to sue on its behalf, arguing that they were not personally aggrieved.

However, after a few years the Supreme Court felt that often a party cannot approach the Court for a violation of her/his rights due to reasons of poverty or social handicaps. To remedy this situation, it allowed third parties to file a petition on behalf of the person aggrieved if s/he could not approach the Court due to reasons of poverty or social handicaps. Later, this was further relaxed, and the Court allowed any member of the public to file a petition so long as s/he was raising an issue of public interest.

The underlying idea behind entertaining such petitions was to allow bona fide petitions that highlight genuine public concerns. The Supreme Court since the inception of PILs has called for exercising caution and ensuring that the judicial process is not abused by filing of frivolous petitions. In my opinion, this was the intention behind the Court’s PIL jurisdiction i.e., entertaining petitions that highlighting genuine public concerns and not those that are an abuse of process.

The recent petitions filed and entertained by the Delhi High Court are arguably an abuse of process. Let’s take the conversion petition itself. As per the Court’s own admission, the petition is poorly researched and hence, logically entertaining it would only waste the Court’s precious time. By devoting time to such a petition, the Court will be unable to hear another petition that might be more pressing. Further, the Court should be suspect towards petitions filed by Mr. Upadhyay who is a serial litigant known to file PILs frequently. PILs are taken up on priority and such frivolous petitions, end up divert precious judicial time from important matters.

B. Breach of Guidelines on PILs:

The Supreme Court itself has been cognizant of abuse of its PIL jurisdiction by serial litigants. To check this unfair practice, it issued detailed guidelines in State of Uttaranchal v. Balwant Singh Chauffal. It observed that while hearing a PIL, the Court should:

(a) Verify the credentials of the Petitioner;
(b) Be prima facie satisfied regarding the correctness of the contents of the Petition;
(c) Be fully satisfied that substantial public interest is involved;
(d) Ensure that the PIL is aimed at redressal of genuine public harm or interest;
(e) Ensure that there is no personal gain, private motive or oblique motive behind filing the PILs.
(f) Ensure that PILs filed by busybodies for extraneous reasons and ulterior motives should be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions.

Many of the petitions filed by Mr. Upadhyay and entertained by the Delhi High Court seem to violate these conditions.

First, Mr. Upadhyay is a serial litigant who has a history of filing poorly researched petitions for publicity. Often petitions filed by him make the news even before they are heard since they are shared with the media. This is a clear act of seeking publicity and not raising genuine public concerns. In fact, on one occasion the Court itself has remarked, “This seems to be an exercise in publicity. You have no business going to the press and informing them that you’ve filed this petition, it will be coming up…When a petitioner does anything of this kind, the impression court gets is that it is merely a publicity stunt.”  

Second, he is a serial litigant which raises questions of his credentials. When a person files poorly researched petitions for the sake of them, it raises questions of his bona fide. In fact, while hearing his PIL seeking a ban on liquor and drugs in the national capital, the Court had remarked, “Mr Upadhyay, how many petition you have got typed, in your drawer, in printing. We will keep it all on October 1 and see in which notices are to be issued…” Unfortunately, instead of reprimanding him for filing so many PILs, the Court agreed to hear them at once. In this year alone, Mr. Upadhyay has filed 11 PILs before the High Court.

C. Violation of Separation of Powers:

The principle of separation of powers clearly demarcates the role of the three pillars of governance, where the Legislature makes the law, the Executive implements it, and the Judiciary checks its compliance with the Constitution. While there may be incidental encroachments on each other’s areas of functions, it is a settled principle that one organ cannot usurp the functioning of the other. Emanating from the principle of separation of powers is the universally accepted principle that policy making is the role of the Executive and the Courts cannot enter into this domain. However, by regularly entertaining PILs, the Court is breaching this principle.

If one peruses the last few petitions filed by Mr. Upadhyay, it is clear that they are seeking a policy direction from the Court. His petitions have sought a direction to implement a common syllabus in mother tongue by educational boards, a direction demanding common curriculum for Madrasas and Vedic Schools, seeking equal status Vande Matram and Jana Gana Mana and mandating its singing in schools etc.  The issues raised here are matters of policy and should be decided by the central government and not the judiciary. By entertaining these matters, the court breaches the cardinal principle of separation of powers. Even if the Court merely directs the central/state government to consider the petitioner’s plea/request, such a direction carries the backing of a judicial order and hence, compels the government to consider it. This shouldn’t be the case, as matters of policy are the sole domain of the central government.

In fact, exacerbated by this trend the Supreme Court on a petition by Upadhyay had once remarked, “These are political issues. Please take it up with the government. If we have to take up all your PILs, then why did we elect the government? There are houses like Rajya Sabha and Lok Sabha.” However, despite the Supreme Court’s warning, the trend to seek policy directions from the Court has continued.

D. Waste of Judicial Time:

The Court treats its PIL roster on priority. In many Courts, special days are set aside when only PILs are entertained by a bench. For a judicial system plagued with a significant backlog of cases and an overburdened docket, the Courts should be careful while entertaining petitions by serial litigants. Even if the Court ultimately dismisses the PIL, there is significant judicial time and effort that is wasted. The Court should look at the petition and assess whether it prima facie complies with the PIL guidelines and if not, it should dismiss it on the first date.

In fact, the Court should impose costs on serial litigants who waste the Court’s precious time. The Court in Balwant Singh’s case had categorically observed, “The court should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations.”

Despite these guidelines, the Delhi High Court’s approach has been underwhelming as it has time and again entertained frivolous PILs. Interestingly, on the same day the Delhi High Court heard one of Mr. Upadhyay’s PIL, the Supreme Court in a judgment deprecated the trend of mushrooming of PILs. It observed, “In the recent past, it is noticed that there is mushroom growth of public interest litigations. However, in many of such petitions, there is no public interest involved at all. The petitions are either publicity interest litigations or personal interest litigation. We highly deprecate practice of filing such frivolous petitions. They are nothing but abuse of process of law. They encroach upon a valuable judicial time which could be otherwise utilized for considering genuine issues. It is high time that such socalled public interest litigations are nipped in the bud so that the development activities in the larger public interest are not stalled.”  (Ardhendu Kumar Das v. State of Odisha, C.A. 4515 of 2022)

While the Delhi High Court kept the matter pending, the Supreme Court imposed a cost of Rs. 1,00,000 on the litigant for wasting the Court’s time. In my opinion, adopting the Supreme Court’s approach will go a long way in deterring frivolous petitions and also, reduce the burden on the court’s docket.

Views are personal.

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