Role of PIL during COVID-19 Pandemic

This article discusses the Role of PIL during COVID-19 Pandemic, written by Shubha Sharma (LC II, University of Delhi).

Introduction

Covid-19 is a pan India disaster, the world is witnessing such an emergency that it has brought everything to a halt followed by a consequential lockdown. While the democratic setup of the governments is being praised and criticised in these unprecedented times, the gravity of the situation is so serious that no one can deny the rigorous violations of human rights and other legal rights. Citizens are left with no other option other than to approach the courts and compel them in such an unprecedented situation, to hear the suggestions or to raise concerns about lapses and lack of preparedness. Therefore, this avenue is provided by the concept of Public Interest Litigation. At present, the overburdened courts are working virtually to address the immediate malfunctions in the system and to realise the basic rights provided by the statues.

PIL in India

Public Interest Litigation in India is a dynamic concept having an activist magnitude. The novel dynamic methods and relaxed procedures adopted with the court’s activism by extending the meaning of rights outside the traditional realm of adjudication make this more imperative. Henceforth, PIL acts as a wheel for creating and enforcing rights and is critical for the sustenance of democracy with adequate checks and balances. It is a result of Judicial Activism or Judicial Adventurism. In India, PIL is a part of Constitutional litigation unlike in the USA as a class action or group litigation. Lexically, it is also known as Social Action Litigation. It is different from the adversarial legal system and provides an opportunity to make basic rights meaningful to the deprived and vulnerable sections of the society and to assure them social and economic justice.

Part III (FR’s) and part IV (DPSP’s) with Article 32 and 226 of the Constitution of India have provided avenues for reforms and to enforce diffused or collective rights which could be used by less advantageous groups to assert their interests through the courts.

History

The origin of Public Interest Litigation can be traced from the American jurisprudence where it is known as Public Law Litigation. The pioneers of this concept in India are Krishna Iyer J. and Justice P.N. Bhagwati, and the latter used the term ‘Epilostary Jurisdiction’. One of the earliest famous reported PIL is Hussainara Khatoon[1] case in which the plight of undertrial prisoners was dealt with.

The Supreme Court and High Courts through various judgments have widely enlarged the scope of Public Interest Litigation by relaxing and liberalizing the rule of LocusStandi, representative standing, adversarial system, and procedural requirements. The court saw that the rule of Locus Standi must be changed to address the difficulties of time and need. Therefore, this narrow view has changed into a more liberal view, structurally as well as substantially over the years.

Rights and Avenues

Judiciary is known as “Bastion of Rights and justice”[2]. With everything in lockdown, courts are seen as the last resort where they are functioning digitally via e-courts however that may be. Public Interest Litigation has seen a huge surge with cases being filed regularly in the Supreme Court and High Court for a varied number of causes when executive machinery has failed to tackle the virus with a huge population. There are various complaints of discrimination, loss of life, loss of livelihood, starvation, police excess, lack of medical facilities, etc.

The Government of India has invoked the Disaster Management Act, 2005 (Entry 23 and 29 of Concurrent List) on the centre level while the states have invoked Public Health Care Acts and Epidemic Diseases Act, 1987. Emergency has not been declared under the Constitution of India, 1950 and the government is working through provisions of Section 144 of the Code of Criminal Procedure, 1974 and Section 188 of the Indian Penal Code, 1860. It is pertinent to note that there is a bar on the jurisdiction of courts under Section 71 and there is no grievance redressal mechanism under the Disaster Management Act, 2005 other than the Constitutional Courts. In State of Madras v. V.G. Row[3], the courts were declared as Sentinel qui vive with regard to Fundamental Rights. People are forced to approach the courts and India being a signatory of the Universal Declaration of Human Rights demands vigilance from the government and courts.

Article 21 of the Constitution of India provides for the Right to life and life has been interpreted as something more than a mere animal existence[4]. The extended meaning provided to article 21 by the courts includes the Right to live with Dignity[5], Right to Food[6], Right to Shelter[7], and Right to Medical Care[8]. In the Parmanand Katara case[9], Apex Court held that the preservation of human life is of paramount importance. Once life is lost, status quo ante cannot be restored. However, it is pertinent that the PILs filed for the protection of these rights shouldn’t be frivolous. In S.P. Gupta v Union of India[10], this Hon’ble court held that:

“…Individual who moves the Court for judicial redress in cases of this kind must be acting bona fide with a view to vindicating the cause of justice and if he is acting for personal gain or private profit or out of political motivation or other oblique consideration, the Court should not allow itself to be activised at the instance of such person and must reject his application at the threshold”.

While hearing one of the PILs in April 2020, the Solicitor General of India commented that these ‘Professional PIL must be locked down’ and reportedly said “none of the petitioners have even bothered to serve the poor and needy or the persons suffering from the virus and, therefore can never be treated as ‘public spirited citizens’.

Some of the recent notable PIL has been listed below in the wake of Covid-19:

• The Hon’ble Supreme Court took suo motu cognizance of a letter written by a Lok Sabha MP which highlighted the plight of migrant workers and appealed that unless a serious and immediate intervention was made by Executive agencies, thousands will perish from starvation and lakhs more will face the risk of contracting and spreading the COVID-19 virus. However, the said PIL was dismissed without giving any reason.[11]
• The Apex court took suo motu cognizance on decongesting of jails and issued notice to the government to ensure safety against the spread of the virus as social distancing is crucial. The court called upon the High Court to appoint high-level committees to assess the situation and determine the class of persons who may be released on parole.[12]
• A petition was filed by a journalist in Supreme Court for more testing labs and quarantine centers in the country by roping in the private hospitals. The petition sought the protection of life which includes the right to health and protection from all illnesses.[13]
• In Sumit Mehta and Vikrant Narulla v UOI, the PIL seeks for Supreme Court intervention alleging that the government is inexperienced and ill-equipped in handling the pandemic and sought a number of prayers.[14]
• The Delhi High Court took suo motu cognizance of a video clip showing a man struggling to find a hospital bed for his COVID-19 positive mother due to unresponsive helpline numbers. The court observed that this recording raises serious issues of public concern.[15]
• Not many “public spirited individuals” who move the Courts these days have much merit in their pleas, a sitting Judge of the Supreme Court remarked while hearing a petition challenging a Bombay High Court order. The Bombay High Court, in June this year, had imposed costs to the tune of Rs. 5 lakh on a PIL petitioner who had sought free treatment of all COVID-19 patients in the State of Maharashtra.[16]
• The Bombay High Court made the observation while passing its judgment on a batch of over 20 PILs raising numerous issues that had arisen in the wake of the COVID-19 pandemic and lockdown that “The responsibility thrust on the media to disseminate correct information is onerous and is not supposed to be taken lightly.”[17]
• The High Court of Karnataka at Bengaluru, vide order dated May 12 in Mohammed Arif Jameel v Union of India, sought response from the state and Central government on the issue of transportation of migrant workers.
• The Telangana High Court emphasised that the “medical emergency” of the COVID-19 pandemic cannot be cited as an excuse to violate the right to life and health under Article 21 of the Constitution.[18]
• The Karnataka High Court dismissed a Public Interest Litigation (PIL) led by two residents seeking directions to the authorities to shift or close down a COVID-19 testing laboratory in their locality. The court remarked “The laboratory has to be there somewhere, where it (COVID – 19) can be tested. Somebody else’s backyard, not in my backyard, that’s your approach.”[19]

The Supreme Court has released a report[20] on the progress of hearings via video conferencing, necessitated by the ongoing COVID-19 lockdown. As of May 1, 2020, the Supreme Court has conducted virtual hearings for a total of 22 days. 116 benches had been constituted to hear cases – 43 benches for main matters and 73 benches for review petitions.

During this period, the Court has taken on board a total of 538 matters, along with 297 connected matters. It has delivered verdicts in 57 cases and 268 connected matters. Additionally, 49 special leave petitions, 92 writ petitions, and 138 review petitions have been taken up.

Conclusion

PIL acts against the governmental lawlessness, provides basic rights to those who do not have access, and prevent exploitation and deprivation of the marginalised section of the society. The court through the Public Interest Litigation acts as a bulwark for the marginalised communities and ensures that the fundamental freedoms do not become a parchment in a glass case. Due to extreme poverty, ignorance, discrimination, and illiteracy, the courts have a greater responsibility to realize those rights in the times of Covid-19. With the rigorous human rights violations especially of those who are more economically affected such as migrant labourers and factory workers; it cannot be denied that the access to the right to justice is fundamentally the need of the hour.

In such situations, it is an obligation on the constitutional courts to suo motu register PILs, closely pay attention to PILs screened by the PIL cell and monitors the same for the effective implementation of the Disaster Management Act, 2005, as to ensure rule of law and protection of human rights as guaranteed under the Constitution of India. The debate over the limits of Judicial Activism in the area of Public Interest Litigation has been vigorous. However, during this pandemic, the very same activism is being used by courts as a device or handy tool to exercise the day to day basis or intra the legitimate domain of the executive and legislature. Time and again it is imperative that the government follow the directives and orders with the same accountability.

[1] Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar (1980) 1 SCC 108.

[2] Austin, Cornerstone of a Nation, p.175.

[3] AIR 1952 SC196: 1952 SCR 597.

[4] Kharak Singh v State of U.P., (1964) 1 SCR 332: AIR 1963 SC 1295: (1963) 2 Cri Lj 329.

[5] Francis Coralie v Union Territory of Delhi, 1981 AIR 746, 1981 SCR (2) 516.

[6] People’s Union for Civil Liberties v. Union of India & Others, (2013) 2 SCC 688: (2001) 7 SCALE 484.

[7] Chameli Singh v State of U.P., (1996) 2 SCC 549.

[8] Parmanand Katara (Pt.) v Union of India, (1995) 3 SCC 248: 1955 SCC (Cri) 464.

[9] Ibid.

[10] AIR 1982 SC 149.

[11] Mahua Mohitra V Union of India Writ Petition (Civil) No.470/2020 (Dismissed on April 13), https://www.barandbench.com/news/litigation/coronavirus-lockdown-west-bengal-mp-mahua-moitra-writes-to-cji-sa-bobde-about-the-condition-of-migrant-workers-amid-lockdown accessed on 04.04.2020.

[12] https://thewire.in/law/covid-19-set-up-panel-to-consider-release-of-prisoners-on-parole-says-sc-to-states-uts accessed on 24.03.2020.

[13] https://economictimes.indiatimes.com/news/politics-and-nation/pil-seeks-increase-in-testing-labs/articleshow/74782474.cms accessed on 24.03.2020.

[14] https://www.livelaw.in/top-stories/covid19-pil-seeks-scs-intervention-on-account-of-governments-inexperience-inefficiency-to-tackle-calamity-read-petition-154493 accessed on 24.03.2020.

[15] https://www.barandbench.com/news/litigation/delhi-hc-takes-suo-moto-cognizance-of-a-video-clip-of-a-man-struggling-to-find-hospital-bed-for-his-covid19-positive-mother accessed on 21.05.2020.

[16] https://www.barandbench.com/news/litigation/public-spirited-individuals-have-too-much-spirit-without-any-merit-supreme-court-remarks-while-dismissing-plea-challenging-costs-imposed accessed on 03.06.2020.

[17] https://www.barandbench.com/news/litigation/covid-19-crisis-media-responsibility-to-disseminate-correct-information-bombay-high-court accessed on 14.06.2020.

[18] Ganta Jai Kumar v State of Telangana and ors. Writ Petition (PIL) No. 75 of 2020, https://www.barandbench.com/news/litigation/covid-19-an-emergency-of-any-sort-is-not-an-excuse-to-trample-on-the-rights-under-article-21-telangana-high-court accessed on 25.05.2020.

[19] https://www.barandbench.com/news/litigation/by-that-logic-we-have-to-close-down-the-court-karnataka-hc-dismisses-pil-seeking-to-move-covid-19-test-laboratory-from-residential-area accessed on 23.07.2020.

[20] https://www.barandbench.com/news/courts-of-law-not-public-parks-open-court-does-not-imply-unlimited-unregulated-public-access-sc-says-virtual-hearings-are-here-to-stay accessed on 06.05.2020.