PIL: A hidden roadblock in large infrastructure projects

In December 2022, the Supreme Court was hearing an appeal against the dismissal of a plea by the Bombay High Court in a public interest litigation (PIL). The PIL had challenged the redevelopment of a plot of land in Mumbai’s Worli. While concurring with the High Court’s findings, the Supreme Court observed that PILs were being increasingly abused to target infrastructure projects. It added that PILs stood in danger of degenerating into a tool of blackmail when an infrastructure project was in question. Worryingly, this was not a one-off instance but was happening across cities The Bombay High Court’s judgment was categorical that the judiciary needed to remain vigilant to thwart attempts to make PILs subserve ‘extraneous and motivated purposes’. It pointed out that the purpose of a PIL is not to settle the right of one individual against another; it is envisioned to promote and vindicate the public interest, which demands that violations of constitutional or legal rights of large numbers of disadvantaged people do not go unredressed.

A bare perusal of the objects of the society clearly showed that the promotion of ecology was not its object, as claimed by the petitioner.

The Bombay High Court examined the matter and found that the primary petitioner was a society registered under the provisions of the Societies Registration Act. A bare perusal of the objects of the society clearly showed that the promotion of ecology was not its object, as claimed by the petitioner. The court concluded that the petition did not merit consideration as a PIL and was filed for ‘extraneous and motivated’ reasons. Thus, the Court dismissed the same imposing costs of INR 1 lakh. The Indian judicial system has picked up the concept of public interest litigation from American jurisprudence. As enunciated by the courts, this genre of litigation is restricted to matters that could be agitated before the judiciary that have a wide-ranging impact on society. PILs could comprise subjects such as environment, human rights, road safety, exploitation, and atrocities of different kinds. PILs have been made inexpensive, and the term locus standi (the right to bring an action before the court and appear before it) has been liberally interpreted to allow a broad spectrum of people to represent public causes. The courts have further facilitated PILs by appointing commissions in some cases to elicit and collect information that may not become available to ordinary petitioners. While PILs, to begin with, had their share of contributing to society’s welfare and goading the government into action in certain substantial areas that had suffered neglect, their use significantly degenerated over time. On the one hand, numerous PILs paraded private interests under the garb of public interest. On the other hand, even in many cases of public interest, the objective was to succeed by merely stalling progress through the judicial architecture.

The courts have further facilitated PILs by appointing commissions in some cases to elicit and collect information that may not become available to ordinary petitioners.

Among the very recent PILs, one before the Delhi High Court stretched the limits of a PIL by challenging the appointment of the Chief Justice of India. The petitioner argued that the appointment of the CJI was violative of the constitutional provisions and pleaded for a stay on the appointment forthwith. The petitioner’s demands also included an inquiry by security agencies to establish whether the newly appointed CJI had any linkages with the Naxalite Christian terrorists and anti-nationals. The Delhi High Court termed the PIL as a ‘publicity interest litigation’ filed for the sole purpose of publicity and was completely devoid of any material evidence. It dismissed the PIL with costs of INR 1 lakh. PILs could be categorised into several groups. Some genuinely represent the public interest, especially of the weak. Others espouse environmental causes or come camouflaged to serve corporate interests. There are many others that political parties champion with the hidden intent of seeking political advantage. Several other varieties of PILs have also walked the corridors of the courts. The former Attorney General of India, the late Soli Sorabjee, had advised the application of three screening instruments to file any PIL. Firstly, he suggested the rejection of such PILs at the threshold itself that prima facie provided no element of public interest. He recommended visiting them with exemplary costs wherever the courts deemed appropriate. Secondly, wherever PILs sought to challenge important projects or socio-economic regulations and filed them after unreasonable delay, they did not need to be entertained. They deserved outright dismissal right at the beginning. The third suggestion was more radical. It proposed that PIL petitioners should undertake before the court that if the PILs were ultimately dismissed, the petitioners would make good the damage caused by the PILs.

The Delhi High Court termed the PIL as a ‘publicity interest litigation’ filed for the sole purpose of publicity and was completely devoid of any material evidence.

Impact of disingenuous PILs

Disingenuous PILs have had many adverse effects on the higher judiciary in India. They have led to an unanticipated increase in the workload of the higher courts that already stand overburdened and are suffocating under a load of enormous pendency. The heavy flow of PILs has led to a greater clogging of the courts, pushing traditional litigation to more delays. Such PILs threaten the entire judicial structure, derailing the normal system of dispensing justice. They also devalue PILs and bring the whole genre of PILs into disrepute. India is set on the path of economic growth. Infrastructure projects have a huge role to play in this rise and any obstacle in their path slows down the country’s economic rise. However, there is a need to highlight several significant negatives in the matter of PILs that raise issues regarding large infrastructure projects. Such large infrastructure projects have their own process of due diligence. They get scrutinised for their socio-economic value, impact on the environment, tendering process and issues of equity and viability. They involve the analysis of a considerable amount of background data that have been collected over a period of time and gone through by expert agencies. Petitioners who file PILs against such projects are only privy to some of this information. Allegations against the non-observance of any of these stipulated steps by governmental agencies cannot be taken as true and fit for judicial scrutiny. The presumption ought to be the opposite – that these allegations are suspect unless proved otherwise. This can be done by allowing the project to proceed as scheduled and the courts refusing to stay the project unless they are convinced that something is seriously amiss. Halting a large public infrastructure project has enormous implications of cost, denial of service for many years, and a drag on the nation’s economy.

The heavy flow of PILs has led to a greater clogging of the courts, pushing traditional litigation to more delays. Such PILs threaten the entire judicial structure, derailing the normal system of dispensing justice.

Bogus PILs carefully choose such projects. They generally allow the projects to roll out and subject them to a barrage of litigation when they can be caught in midstream. Derailing the projects at that stage inflicts maximum damage. If this gets combined with any encouragement from other quarters, the project opponents have had their purpose served. The courts must realise that these large infrastructure projects fall into a category of their own. They are nation-building efforts and not the average profit-oriented venture. Thus, they need to be generally protected and supported unless emphatically established that they have little national or social value.

• Law and Justice
• India
• anti-nationals
• cases
• judgment
• PIL
• socio-economic

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