Indian Courts Must Call Out PIL Bluffs And Dismiss ‘Ambush’ Litigation – OpEd


There’s an urgent need for courts to nip ‘ambush’ litigation and the media to curb cheap sensationalism.

When the Delhi High Court, recently imposed Rs 75,000 in costs while dismissing a public interest litigation filed by a law student seeking “extraordinary interim bail” for Chief Minister Arvind Kejriwal, currently in judicial custody related to a money laundering case stemming from an alleged excise scam, it was an apt case but, as usual, reported obliquely by select quarters of the media providing skewed and predictably limited interpretations of the issue.

A bench led by Acting Chief Justice Manmohan deemed the petition “totally misconceived,” asserting that the court cannot grant “extraordinary interim bail” to an individual holding a high office. The court highlighted the lack of basis in the petitioner’s claim of being the custodian of the people and emphasised that the petitioner has no authority to furnish any personal bond on behalf of Kejriwal. The issue was, in limited capacity, of locus standi and that the petitioner, also a law student, had none too to boot, went against him. 

Furthermore, the court questioned the petitioner’s commitment to legal principles, doubting whether they attend college classes. When it emphasised that Kejriwal has the means to pursue legal remedies and that the petitioner lacked the authority to make submissions on his behalf, again an issue of locus standi, it brought to fore yet another widely pertinent issue – that of the trend of students of law filing writs and PILs when they lack authority, locus standi, are bad in law or, simply, politically motivated.

The court underscored the principles of equality and the Rule of Law enshrined in the Constitution, noting that Kejriwal’s judicial custody was pursuant to unchallenged judicial orders. Consequently, it dismissed the writ petition and imposed costs of Rs 75,000 to the petitioner.

Of pertinence and reported loosely, even given the miss by most media, was the fact that senior advocate Rahul Mehra, representing Kejriwal, labeled the PIL as ‘ambush’ litigation, arguing that the petitioner lacked standing. The petitioner had sought “extraordinary interim bail” for Kejriwal, citing concerns for his safety due to being confined with hardcore criminals, and claiming that his physical presence was necessary to fulfill his duties as chief minister.

Identifying himself as “We, the people of India,” the petitioner, a law student, asserted that they sought no personal gain from the matter, only to serve the public interest.

“It is common knowledge that strategically initiated Public Interest Litigations (PILs), termed as “ambush PILs,” are deliberately filed with the aim of securing dismissal and obstructing legitimate litigants from accessing the Court. In 2021, the Supreme Court had underscored the need to safeguard against the loss of significant public interest issues when determining the applicability of the doctrine of ‘res judicata’ under the provisions of the Code of Civil Procedure, 1908. It emphasised that mere initial filing and dismissal of a petition without substantial adjudication on merits should not lead to the neglect of grave public interest matters.

Section 11 of the Code of Civil Procedure, 1908, encapsulates the principles of ‘res judicata,’ prohibiting the court from revisiting issues already addressed in earlier proceedings between the same parties or parties claiming under the same title, and that have been conclusively settled.

A bench comprising Justices D.Y. Chandrachud and B.V. Nagarathna had then highlighted the concerning trend of hastily-drafted public interest litigations filed shortly after media disclosures, with the explicit intention of securing dismissal and preventing genuine litigants from accessing the Court for public interest matters.

It stressed the necessity for the Court to remain cognizant of the contemporary phenomenon of ‘ambush Public Interest Litigations’ and interpret the principles of res judicata or constructive res judicata in a manner that upholds access to justice. The jurisdiction under Article 32 is deemed a fundamental right in itself.

These observations were made by the apex court while rejecting the Centre’s argument that an NGO’s plea challenging the proposed disinvestment of the government’s shares in Hindustan Zinc Ltd should not be entertained due to a previous dismissal of a similar plea in 2012.

In this instance, the bench noted that the previous dismissal by a three-judge Bench of the Court of the petition filed by Maton Mines Mazdoor Sangh (2012) lacked substantive adjudication on the merits of their claim, thus concluding that the present writ petition is not barred by res judicata.

Locus standi, a Latin term meaning “standing,” holds profound importance in the realm of Public Interest Litigation (PIL) before the Supreme Court of India. It serves as the threshold through which individuals or groups can access the judicial system to address issues of public concern. Locus standi serves as the gateway to justice, ensuring that only those directly affected or possessing a genuine interest can initiate legal proceedings. It acts as a safeguard against frivolous litigation, preserving judicial resources and upholding the sanctity of the legal process.

In S.P. Gupta v. Union of India (1981) popularly known as the ‘Judges’ Transfer Case,’ the Supreme Court emphasised the expansive interpretation of locus standi in PILs. The petitioners, including lawyers and journalists, challenged the government’s power to transfer High Court judges. Despite lacking personal grievances, the court allowed their standing, recognising the public interest involved.

M.C. Mehta v. Union of India (1987), popularly known as the Oleum Gas Leak case, exemplifies the pivotal role of locus standi in environmental PILs. Advocate M.C. Mehta, acting on behalf of the citizens affected by the Bhopal Gas Tragedy, petitioned the court seeking relief and accountability. The court acknowledged his locus standi, underscoring the need for environmental protection. 

The Common Cause v. Union of India (2017) highlights the evolving jurisprudence surrounding locus standi in PILs. Common Cause, a non-governmental organisation, challenged the constitutional validity of the Aadhaar scheme, asserting violations of privacy rights. The court upheld the petitioner’s standing, recognising the broader public interest in safeguarding individual privacy and constitutional rights.

Locus standi remains a cornerstone of the Indian judicial system, balancing access to justice with the need for judicial restraint. While empowering citizens to champion public causes, it also necessitates a judicious approach to prevent abuse and maintain the integrity of the legal process. Through judicious application and evolving jurisprudence, locus standi continues to shape the landscape of public interest litigation, ensuring accountability, transparency, and justice for all.

The Supreme Court of India has also turned down Public Interest Litigations (PILs) due to lack of locus standi:

In S.P. Anand v. H.D. Deve Gowda (1996) case, the petitioner filed a PIL challenging the appointment of H.D. Deve Gowda as the Prime Minister of India, alleging corruption and misuse of power. The Supreme Court dismissed the petition, stating that the petitioner lacked locus standi as they failed to demonstrate any direct or substantial interest in the matter. 

In 2014, Advocate Manohar Lal Sharma filed a PIL seeking the cancellation of coal block allocations, alleging irregularities and corruption. The Supreme Court rejected the petition, citing lack of locus standi on the part of the petitioner, as they failed to establish any personal stake or genuine interest in the matter.

And, in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002), the petitioner challenged the appointment of the Director of the Indian Institute of Chemical Biology, alleging violations of statutory rules and nepotism. The Supreme Court refused to entertain the PIL, emphasising the petitioner’s lack of locus standi, as they failed to demonstrate any direct injury or substantial interest resulting from the appointment.

These instances underscore the Supreme Court’s adherence to the principle of locus standi in PILs, ensuring that only those with a genuine interest or direct stake in the matter can access judicial remedies, thereby preventing the misuse of PILs for personal or frivolous motives.

In the case of Manohar Lal Sharma v. Union of India (2014), Advocate Manohar Lal Sharma initiated a Public Interest Litigation (PIL) before the hallowed halls of the Supreme Court, advocating for the annulment of coal block allocations. His plea was underpinned by allegations of systemic irregularities and entrenched corruption within the allocation process. However, despite the gravity of the accusations, the apex court summarily dismissed the petition, citing the glaring absence of locus standi on the part of the petitioner.

The Supreme Court’s ruling rested upon a foundational principle of jurisprudence, namely, the requirement of a tangible and substantial interest on the part of the petitioner. 

In this instance, Advocate Manohar Lal Sharma failed to furnish compelling evidence or demonstrate any direct personal stake in the controversy surrounding the coal block allocations. His advocacy, though ostensibly in the public interest, lacked the necessary nexus to establish a genuine locus standi before the court. 

By rejecting the petition, the Supreme Court reaffirmed its commitment to upholding the sanctity of the legal process, safeguarding against the misuse or abuse of PILs for extraneous purposes. It underscored the imperative of ensuring that petitioners possess a bona fide interest in the subject matter, thereby preventing the dilution of judicial resources and the proliferation of frivolous litigation.

This precedent serves as a beacon of clarity, elucidating the stringent standards imposed upon PILs within the Indian legal framework. It delineates the boundaries within which public interest litigation operates, emphasising the need for petitioners to furnish substantive evidence of their standing and genuine involvement in the issues they seek to address. 

Through its discerning judgment, the Supreme Court fortifies the integrity of the judicial system, ensuring that justice is dispensed judiciously and in accordance with the principles of fairness and equity.

In the annals of Indian jurisprudence, the case of Subramanian Swamy v. Union of India (2016) stands as a testament to the Supreme Court’s unwavering commitment to uphold the sanctity of the legal process and preserve the integrity of Public Interest Litigations (PILs). 

Renowned for his litigious activism and penchant for headline-grabbing legal battles, Subramanian Swamy, a prominent public figure, sought judicial intervention through a PIL, ostensibly to address concerns of religious encroachment upon a historical monument.

However, beneath the veneer of public interest advocacy lay a calculated agenda of sensationalism and self-promotion. The Supreme Court, renowned for its discerning scrutiny, meticulously examined the petitioner’s motives and intent. Through judicious analysis, it unraveled the petitioner’s underlying pursuit of personal aggrandisement and media spotlight, rather than a genuine commitment to the welfare of society. The court’s discernment served as a bulwark against the erosion of judicial integrity and the distortion of PILs into mere publicity stunts. 

By dismissing the PIL, the Supreme Court delivered a resounding admonition, cautioning against the insidious misuse of the judicial forum for self-serving agendas. It reaffirmed the principle that PILs are sacrosanct instruments intended to redress systemic injustices and advance the collective welfare, rather than platforms for individual grandstanding or sensationalism.

In rendering its verdict, the Supreme Court upheld the noble ethos of the judiciary, ensuring that justice remains blind to the allure of publicity and vigilant in safeguarding the public interest. The case of Subramanian Swamy v. Union of India serves as a seminal precedent, reminding litigants and advocates alike of the profound responsibility inherent in wielding the power of PILs and the imperative of genuine commitment to the pursuit of justice for the betterment of society.

‘Political’ Interest Litigations (PILs) represent a vexing challenge within the Indian legal landscape, often wielded as tools of political maneuvering rather than genuine advocacy for public welfare. These litigations, cloaked in the guise of Public Interest Litigations, seek to further partisan agendas, settle political scores, or garner media attention under the pretext of addressing public interest concerns. 

However, the Supreme Court of India has consistently demonstrated a steadfast refusal to entertain such politically motivated litigations, resolutely upholding the integrity of the judicial process and safeguarding against the erosion of the judiciary’s independence.

In numerous instances, PILs have been employed as weapons in the arsenal of political vendetta, with litigants leveraging the judicial forum to settle scores or target political adversaries. These litigations often lack genuine public interest concerns and instead serve as conduits for advancing partisan agendas or tarnishing the reputation of opponents through legal means.

The Supreme Court, cognizant of the dangers posed by ‘Political’ Interest Litigations, exercises meticulous scrutiny to discern the true intent behind such petitions. Through rigorous examination, the court seeks to ascertain whether the petitioner’s motives are driven by genuine concerns for public welfare or by political expediency and ulterior motives.

Upon uncovering the political underpinnings of purported PILs, the Supreme Court remains steadfast in its refusal to entertain such litigations. It emphasises the paramount importance of preserving the sanctity of PILs as instruments of justice and societal welfare, free from partisan influences and political manipulation.

By safeguarding the judiciary from undue political interference and ensuring the integrity of the legal process, the court reinforces its role as the guardian of constitutional principles and the rule of law.

The Supreme Court also plays a pivotal role in educating the public about the dangers posed by ‘politically-motivated litigations’ disguised as PILs. Through its judgments and pronouncements, the court raises awareness about the need to preserve the integrity of PILs and guard against their exploitation for political ends.

In 2019, a Public Interest Litigation (PIL) filed by Ashwini Kumar Upadhyay, a leader of the Bharatiya Janata Party (BJP), sought to have political parties registered under section 29A of the Representation of People Act, 1951 declared as ‘public authority’ under the Right to Information Act, 2005.

This PIL aimed to bring political parties under the purview of the RTI Act, thereby increasing transparency in their functioning. However, it’s important to note that the PIL was filed by an individual associated with the BJP, and not the party itself.

The PIL was significant because it highlighted the need for greater transparency and accountability in the functioning of political parties. By seeking to bring them under the RTI Act, Upadhyay aimed to ensure that political parties were subject to the same level of scrutiny and transparency as other public authorities. This was seen as a crucial step towards curbing corruption and promoting good governance in the country.

By safeguarding the integrity of the judicial process and upholding the principles of impartiality and justice, the Supreme Court reinforces its role as the guardian of constitutional values and democratic principles within the Indian legal system.

Yet, the media, in its limited understanding and compounded by their overwhelming bias, again and again fails to report objectively on issues of pivotal importance in modern-day litigation. Failures include, among others, the failure to call the bluff of speedily-filed public interest litigations filed almost instantaneously after disclosures in ‘select’ media; the failure to call out attempts to misuse res judicata only to prevent genuine litigants from accessing Court; the failure to correctly analyse judicious interpretations of locus standi by the Apex Court; and the failure in maintaining objectivity even in the face of overwhelming and ‘subjective’ public sentiments. The media must never succumb to the temptation to grab eyeballs, read, ‘hits’ and ‘likes’ by hook or by crook. That, must strictly lie in the domain of influencers.

Gajanan Khergamker

Gajanan Khergamker is an independent editor, legal counsel and documentary film-maker with over three decades of media-legal experience across India. He is the founder of DraftCraft – an India-based think-tank. Through strategic writings and columns across global media; niche workshops held for the benefit of police personnel, lawyers and media students as well as key lectures held at corporate venues and in Law and Mass Media colleges and universities across India, he analyses and initiates 'live' processes that help deliver social justice through the media and legal channels. He trains students, journalists, lawyers and corporate personnel to ideate, integrate and initiate the process of social justice which “isn't the sole responsibility of the State”. He holds legal aid workshops and creates permanent legal aid cells for the deprived across India through positive activism and intervention. He furthers the reach of social responsibility by initiating strategic process by offering consultancy services to corporates in the rapidly-growing CSR scenario. To further the reach of social responsibility, Gajanan Khergamker works closely with state entities, law universities, educational institutes, research think-tanks, publications and media houses, corporates and public-spirited individuals. His areas of interest include public affairs, inclusion, conflict of interest, law and policy, foreign affairs and diversity.

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