Subhas Dutta drinks boiled water. The man whose exhaustive knowledge about the state of the Maidan drove out the Calcutta Book Fair from the green, is also aware of how closely the sewage and the water pipes run in Howrah, where he lives. Such knowledge is power — for the public. Painstakingly gathered details, by Dutta himself, not merely about Howrah’s water supply and the Maidan’s use, but also about morgues, water bodies, floods, trees, ministers’ foreign travel and Victoria’s rotating angel, feed the tomes he regularly submits to the higher courts as public interest litigation.

Dutta, in many senses, is the ideal public interest litigant. He has no political affiliation, no personal interest or locus standi, in the traditional sense, on the cases he files in court. He runs a thorough check on the matter he presents so that the judiciary’s precious time is not wasted in pursuing false claims. For him, public interest litigation is a calling. He has taught himself English. He hung about the courts to learn the legalese, and now writes his own petitions and argues his own cases. With some 800 PILs to his credit, he is perhaps the most litigious citizen in the country.

Dutta is undoubtedly a major beneficiary, and an activist, of the civil rights movement that started in India in the Eighties after the Emergency. The excesses of the previous decade, the threat posed to the Constitution and the rights it guaranteed led to an acute awareness of civil and political rights. This heightened consciousness was behind the Supreme Court’s effort to preserve the “basic structure” of the Constitution and to assure “justness and fairness” for the citizen. To the people, the court gave a more malleable structure by which legal remedy could be sought for the violation of rights in order to compel executive compliance.

This was done by an emphatic shift in the definition of the “litigant”. Previously, only those who had a locus standi, or the aggrieved parties themselves, could approach the court for the redressal of grievances. But now, anyone can initiate legal action in the court of law in “public” interest, that is, a matter in which the public or a section of a community has an interest and feels that its rights are under threat.

The result was first a trickle, and then a flood, of PILs touching on all aspects of public and not-so-public life. In order to democratize the access to justice, particularly for the poor, the courts also heeded complaints made through letters or telegrams. On the basis of these, it initiated proceedings, ordered investigations and ultimately passed momentous verdicts which, in several cases, set the ground for a conflict between the judiciary and the other pillars of democracy.

Over the years, PILs have given Indian citizens a body of judicial directives, laws and policies that would have been difficult to achieve through the established procedures. PILs have been particularly effective in matters of environmental protection. Perhaps the largest number of PILs all over the country has been filed in matters concerning the environment. Crucial policy moves with regard to controlling vehicular pollution, setting up the green bench in the high court and the drive towards the formulation of a national environment policy have been possible through this process of litigation. Its role in attaining social justice for the marginalized and underprivileged sections of society has been just as important. A PIL initiated on the basis of a report on undertrial prisoners in Bihar ended up in the release of 40,000 undertrials. Welfare for asylum-inmates, children working in hazardous conditions, major breakthroughs in the reproductive rights of women, policies for the assistance and rehabilitation of rape victims, recognition of sexual harassment in the workplace have been possible because of PILs. They have also formed the basis of structural reorganizations within the judiciary itself.

Despite its proven efficacy in the enforcement of fundamental rights, PILs today are a cause for much consternation within the judiciary and an object of ridicule in the public sphere itself. The Public Interest Litigation (Regulation) bill was moved in 1996 in the Rajya Sabha, but it lapsed eventually. However, the voices against the abuse of PIL are heard as strongly as those upholding its virtue.

Some of the reasons why PILs evoke such derision are obvious. Although not immediately apparent to the court at the time of admission, a petition is often motivated by personal or political vendetta. PIL is often the most effective way to try and get a stay order on an unwanted construction or to disadvantage the other party in a property dispute. There can also be many political brownie points made by filing PILs against an opponent. A recent order directing Mulayam Singh Yadav and his family members to explain their source of income and investments came on the basis of a PIL filed by a person who was suspected of working on behalf of the Congress. In Jharkhand, last year, another such PIL was filed by a BJP member of the legislative assembly against the Madhu Koda government. It alleged that the shortfall of one member in the cabinet was a violation of constitutional provisions.

The court has the sole discretion to decide whether a PIL should be admitted. It tries its best to throw out a dubious PIL if the credentials of the applicant is suspect, the information supplied is incorrect prima facie, or vague. But even when these criteria are met, the court imposes certain restrictions on itself while entertaining a PIL.

The judiciary has been found reluctant to consider a petition which directly concerns legislative or executive policy or is strictly what is considered to be a political question (like the women’s reservation bill). Yet, on a question which is no less political, like the reservation of jobs for the other backward classes, the court has not shown the same reluctance. The judiciary has also been less forthcoming in dealing with alleged human rights violations arising from processes of development or industrialization.

For a conscientious citizen trying to address such important matters of public interest, the experience can be frustrating, particularly when issues of far less importance seem to have no problem in holding judicial attention. The issue of public morality is undoubtedly important. But should this be reason enough to give a “fair” hearing to litigants who vouch that a biltong-eating Brahmin like Ravi Shastri or stars who kiss on the screen or artists who paint nude goddesses compromise public interest in some way? Shouldn’t the overburdened judiciary be more discretionary in entertaining such suits that grossly abuse a legal provision?

The responsibility obviously lies with the litigant, who has to be made more accountable to the court. But there is a genuine problem here. The idea of the “public” is often not clear to the people who are actually trying to safeguard their own “private domain” of rights and entitlements from the overwhelming pressure and control of a State which could be seen as having failed to fulfil its role in public welfare and in mediating conflicting interests among sections of the population. The fundamental rights of education, health and physical security can now be assured only by denying the same to others. It is for this reason that the court’s upholding of the PIL against reservations for the socially and economically backward classes is decried by the backward classes as being “anti-people”.

Public interest litigation is often a matter of individual righteousness over public indifference. This is what turns activists like Subhas Dutta into serial litigants. Dutta takes the State to court on issues that range from arsenic contamination and green-cover depletion to what he sees as cruelty perpetrated on trees by driving screws into them for hanging display boards.

To him, each is as serious a violation of public interest as the other. He has also taken up the issue of the preservation of trees and parks in Salt Lake, where the residents have shown little concern for or interest in the need for such activism. Whose “public interest” is at stake then?

Recourse to PIL and, more recently, the Right to Information Act — though working in different ways — empower the Indian citizen enormously. While the first kind of litigation is used to further public interest, the second can be used in the private interest as well. Both, however, can be persistently misused. The judiciary often acts as a mediator between the State and the people. It ought to help in shaping public attitude and action with respect to these two powerful democratic tools, so that they are used in the right spirit and in the right mind.