Should the PIL jurisdiction be reconsidered?

Public Interest Litigation (PIL) emerged in the 1970s as a transformative judicial innovation aimed at widening access to justice for the poor and the marginalised. This was achieved by relaxing the strict rules of standing to permit representative actions, and by broadening the scope of judicial notice to allow courts to take suo motu cognisance of public issues and convert them into litigation. Over time, however, concerns have been raised about the misuse of this jurisdiction. More recently, during the ongoing proceedings in the Sabarimala reference case, the Union government has urged the Supreme Court to reconsider the PIL framework altogether, citing the rise of “agenda-driven litigation.” Should the PIL jurisdiction be reconsidered? Anuj Bhuwania and Talha Abdul Rahman discuss the question in a conversation moderated by Aaratrika Bhaumik. Where should courts draw the line on who can file PILs?Anuj Bhuwania: The evolution of PIL can be traced to the Supreme Court decisions of the late 1970s, such as Hussainara Khatoon & Ors. vs. Home Secretary, State of Bihar (1979), which marked a departure from the traditional doctrine of locus standi, under which only an aggrieved party could approach the court, towards permitting representative standing. This enabled third parties to institute proceedings on behalf of marginalised groups unable to access justice due to systemic barriers. Over time, however, there has been a discernible shift towards a broader model of citizen standing, where individuals approach the court not as representatives of affected groups but in their own capacity as members of the citizenry. This transition has led courts to engage with issues in an open-ended and, at times, indeterminate manner. In my view, the court’s jurisdiction ought, as far as possible, to be invoked by those who are directly affected or, at the very least, by those with a clear interest in the matter. Talha Abdul Rahman: I do not believe that the rules of locus standi should be reverted to their earlier, restrictive form. The structural barriers that justified its relaxation decades ago remain largely intact, and courts continue to be inaccessible to the poor and marginalised. For instance, individuals whose homes are demolished by the state as a purported punitive measure may often lack the means or capacity to seek judicial redress. In such circumstances, if third parties step forward to challenge these demolitions on the ground that due process has not been followed, they ought to be accorded standing. This is not merely a representative action, but an assertion of a constitutional guarantee — that the rule of law must be upheld in its full measure, even where the harm is not personally suffered. PILs often involve complex, polycentric disputes. Do they risk judicial overreach and the exclusion of key stakeholders?Talha Abdul Rahman: The concern is valid. There have been instances where courts, while hearing such matters, have had to respond to executive inaction. This then raises a recurring question: do they possess the institutional competence to navigate such issues? In my view, they do, particularly when assisted by able counsel and robust adversarial presentation. At the same time, courts have also consciously refrained from encroaching upon the domains reserved for the executive or the legislature. For instance, on April 29, the Supreme Court declined to direct the enactment of specific laws on hate speech, instead leaving any legislative redress to the appropriate authorities. This reflects an important reality — there are limits to what the courts can do. Anuj Bhuwania: In the past, there have been several instances where courts, while hearing PILs, have proceeded without hearing those directly affected. This was particularly evident in a series of cases before the Delhi High Court in the mid-2000s concerning slum evictions, where PILs filed by resident welfare associations sought the removal of slums, but the slum dwellers themselves were not impleaded as parties. Similarly, the Supreme Court’s handling of pollution-related litigation over the past four decades, much of it arising from PILs filed by environmentalist M.C. Mehta, highlights the limits of judicial intervention in addressing problems of such scale and complexity. How can courts address the rise of ‘ambush PILs’ filed to preclude genuine claims?Anuj Bhuwania: Increasingly, there have been instances of litigants rushing to court with poorly drafted petitions, often with the intention of securing an early dismissal and thereby precluding genuine litigants from approaching the court. These petitions are frequently driven by partisan motives. This is deeply concerning, as it risks prompting courts to deal with such matters in a cursory manner, without fully engaging with the complexities they warrant. In my view, this is not merely an issue of abuse of jurisdiction, but a problem rooted in the very nature of PIL itself. Talha Abdul Rahman: It is often difficult to distinguish an ‘ambush PIL’ from one that raises genuine grievances. Yet, their proliferation has fostered an environment of suspicion, with courts increasingly questioning the bona fides of petitioners. While this may not fully address systemic concerns, there are procedural safeguards. The Supreme Court Rules, 2013, require that a writ petition contain a specific pleading identifying the fundamental rights alleged to have been violated. In the absence of such a disclosure, the Registry may decline to list the petition. Courts have also imposed costs to deter such filings. Have courts ensured meaningful compliance with the directives issued in PILs?Talha Abdul Rahman: Ensuring compliance with the directives in PILs often depends on the Bench. Where a judge is inclined to see a matter through, the case is kept pending, interim directions are issued, and compliance is periodically monitored. However, there has been a growing tendency in the Supreme Court to step back once a final judgment is delivered, leaving enforcement to the High Courts and trial courts. This is where gaps begin to emerge. In my view, the Supreme Court ought to retain some degree of oversight post-judgment, including initiating contempt proceedings for non-compliance. Anuj Bhuwania: There are clear violations of several important directives issued by the Supreme Court in PILs, often without any recourse to contempt proceedings. This tends to create a culture of impunity, allowing authorities to disregard court orders with little consequence. That said, the problem is more endemic and not confined to the PIL jurisdiction. Should guidelines be laid down on the role of the amicus curiae (a lawyer appointed to assist the court)?Anuj Bhuwania: The role accorded to an amicus in PIL proceedings raises several concerns. In dealing with complex cases, courts have, at times, expanded the role of the amicus to an extent that risks diluting basic procedural safeguards, particularly the right of affected parties to be heard. For instance, in T.N. Godavarman Thirumulpad vs Union of India, which originated as a PIL to protect forest areas in the Nilgiris and Kerala, the amicus, at various stages, was filing applications for directions and had effectively stepped into the role of the petitioner’s counsel. The issuance of guidelines in this regard would be a welcome step. Talha Abdul Rahman: Typically, courts appoint lawyers of a certain competence and integrity as amici, with the expectation that they will assist the court in navigating the pleadings and arguments in a case. However, the role of the amicus is not uniform and can vary across jurisdictions. In my view, an amicus should refrain from taking sides and instead assist the court by fairly presenting the arguments on all sides. Given how fluid the role is, clearer guidelines are needed. What reforms are needed to strengthen the PIL jurisdiction?Talha Abdul Rahman: One requirement for entertaining a PIL should be that it is well-researched and confined to challenging enacted laws or executive action or inaction, rather than inviting the court to make policy choices. For instance, a petitioner should not approach the court seeking the enactment of a Uniform Civil Code. Anuj Bhuwania: We need to return to the fundamental idea that PILs are an extrapolation of the principle underlying habeas corpus —that parties who cannot, for unavoidable reasons, appear before the court are represented by someone else. Only then will PILs retain their legitimacy. Listen to the conversationAnuj Bhuwania is professor of law and author of Courting the People: Public Interest Litigation in Post-Emergency India; Talha Abdul Rahman is an advocate based in Delhi