PILs promised justice for the powerless. They turned judges into kings instead

Why You Should Read This
  • Public Interest Litigation was created by the Supreme Court in 1979 to deliver justice to those who couldn’t otherwise access the justice system.
  • Indian law typically only allows court cases to be brought by parties that are directly affected by an issue. In a PIL, this restriction is relaxed. Even people who are not directly affected can take a matter to court as long as it is in the broad public interest.
  • PILs have enabled a lot of judicial activism, which has often been cheered on and celebrated by the public. This is especially true when it comes to issues like the environment where the judiciary is seen as a source of being more proactive than the government.
  • However, unlike in traditional cases where the powers of judges are restricted by rules of procedure, PIL cases sometimes lead to seemingly arbitrary conclusions. As this 2018 paper by Anuj Bhuwania shows, these cases often have terrible consequences for the lives of the people in whose name they are supposedly being prosecuted.
  • This is Part One of a two part summary of Anuj Bhuwania’s 2018 paper about a PIL that transformed Delhi.
  • We have condensed the original 15,000-word paper into a 1,600-word summary. You can read it in fullClick on each point to dig deeper and get the complete picture. in 8 minutes or skim itRead only the numbered points. in 2 minutes.
  1. In the 1980s, a lawyer named MC Mehta filed a number of Public Interest Litigation (PIL) cases in the Supreme Court of India. Unlike other cases, PILs can go on indefinitely, focusing on new concerns as they go on. Four of Mehta’s PILs are still in progress today – more than 35 years later. As cases that have turned the city of Delhi upside down multiple times over the years, they are great examples of why PILs are unlike anything else in Indian law.
    • The four surviving PILs are commonly known as the Taj Mahal Pollution case, the Ganga Pollution case, the Delhi Vehicular Pollution case, and Writ Petition (Civil) 4677/1985.
      • These cases are all regarded as milestone cases in the history of Indian law regarding urban governance and environmental regulation.
    • Unlike in regular cases, a PIL sometimes does not have a “final judgement”. They can keep expanding in scope and focus according to the decisions of the judge overseeing the case.
      • This means that they can continue for a long time and the issue they deal with can also change – sometimes ending up very far from where they started.
    • The fourth case – Writ Petition (Civil) 4677/1985 – has transformed fundamentally many times over the last 30 years.
      • When it started, it was about stone-crushing units in Delhi. Then it became about pollution in the river Yamuna. Then, it became about Delhi’s Ridge Forest. Then, about mining in the Aravalli mountains. Then, it became about large industries within Delhi. Then about industrial pollution. Then, finally and most famously, it became about commercial outlets in residential areas.
      • This PIL completely transformed the city of Delhi and almost single-handedly led to the deindustrialization of the city. It affected the lives of lakhs and lakhs of people in a thousand different ways.
      • It will be discussed in more detail in Part 2 of this article.
  2. Justice Kuldip Singh, who was trying to build a reputation as a “green judge” in the 1990s, took charge of these cases. Various legal professionals have described the discussions around these PILs to be like a medieval royal durbar where the judge, unconstrained by rules of procedure, dispenses his personal wisdom as justice. Unlike other cases, PILs can be defined by the judge in charge, who has great power of the scope and boundary of the issues being discussed.
    • Shyam Divan, a Supreme Court lawyer, described the scene like this, “Each Friday a huge shoal of advocates, administrators, company executives, and public officials attentively follow the Court proceedings as a range of snappy judicial directions are issued… The Ganga Court functions a bit like a village panchayat dispensing justice in the shade of a banyan tree.”
    • In fact, in 1984, Justice Hidayatullah compared PIL judges to Emperor Jehangir. People could come and pull the gold chain which hung from his balcony. Then the Emperor would come out, hear their case, and provide an answer.
  3. In Part One of this article, we look at one of those PILs, the Delhi Vehicular Pollution case. After over a decade of hearings, this case took a sudden turn that shot it into public focus when in 1998, Justice Kuldip Singh suddenly ordered that each and every public transport vehicle in the state of Delhi should switch to CNG, even though CNG’s sustainability was still being debated at the time.
    • Initially, the PIL was to deal with issues of leaded gasoline and old commercial vehicles. But eventually it led to “a complete overhaul of private and public transport in the city”.
    • By this time, the original petitioner, MC Mehta, was not even active with the case.
    • Concerned with the problem of Delhi’s pollution levels, the Court, which was now driving the case on its own, ordered that all commercial public transport in Delhi switch to Compressed Natural Gas (CNG).
      • This included buses, taxis and auto-rickshaws – around one lakh vehicles in total!
    • This order was extremely controversial for many reasons, most important among which was the fact that the impact CNG of emissions on the environment was still being debated at the time.
  4. The order was disastrous for transport workers. Buses stopped running and their operators lost their jobs. Auto drivers who couldn’t afford new CNG engines had to take loans or sell their autos. Thus, PILs effectively pushed so many of Delhi’s auto drivers into poverty, converting them from vehicle owners into daily wage workers.
    • As a result of this order, the number of public buses that were running suddenly fell. Transport workers lost their livelihoods and commuters were suddenly forced to find other forms of transport.
    • For auto-rickshaw drivers, the switch from petrol to CNG engines was a big expense – around Rs 30,000. Many of them couldn’t afford it and had to take out informal loans at high interest rates or sell their autos entirely.
    • CNG was also hard to buy in Delhi. Auto drivers would have to wait in queues for hours sometime to buy CNG canisters. This reduced the time they could work and earn money.
    • This wasn’t even the first time the Court had made the lives of auto drivers difficult using PILs. Earlier, they had put a freeze on the issuing of new auto-rickshaw licenses because it felt that there were too many and this was aggravating Delhi’s pollution.
      • This freeze was active from 1997 to 2010. In this period, a black market emerged in auto-rickshaw licenses and a powerful financier mafia took over the ownership of most auto-rickshaws.
    • Before both of these disastrous orders, most auto-rickshaws were owned by drivers. But by 2010, most were owned by the financier mafia and auto drivers had become daily wage workers, earning Rs 250-300 per day.
  5. And though the case was seemingly being conducted in the public interest, the auto drivers whose livelihoods were being ruined were not heard in court.
    • In 2009, the auto-rickshaw union tried to plead to the Supreme Court that since all autos were now run on CNG, there was no reason to freeze new auto-rickshaw licenses. The freeze was ordered because autos were considered to be polluting.
    • But the amicus curiae, Harish Salve, did not allow their plea. He argued that autos led to too much traffic on the roads, which led to cars spending more time stuck in traffic, which in turn meant they generated more pollution.
      • “Amicus curiae” literally means “friends of the court”. Experts are appointed to this role by the courts to play a kind of intermediary role in PILs. And since there is no single petitioner in these cases and judges can change, these experts can wield a lot of power over how the cases progress.
  6. The court had justified the order based on a report submitted by a fact-finding team. However, it acted on the recommendations of the report in a selective manner: the court was quick to impose changes on bus and auto drivers, but ignored the same report’s suggestion of limiting private vehicles, especially highly-polluting diesel ones. Private vehicles started increasing in number rapidly and ultimately became the primary cause of Delhi’s pollution crisis.
    • The fact-finding team had good representation from various parties like environmental NGOs and auto manufacturers and produced a balanced report. But the Court did not treat all of its recommendations equally.
      • The report had recommended a total ban on the sale of new diesel cars. But the automotive industry lobbied against it and eventually the Court decided that it was enough if better engine standards were adopted.
      • The report also recommended that a city like Delhi should have at least 10,000 public buses. While the Court did recommend this, it did not follow up on whether this was implemented at all – and it wasn’t.
    • So while auto-rickshaw numbers plummeted, the number of private vehicles – many with polluting diesel engines – were booming.
      • By 2010, Delhi saw more than 1,000 new private vehicles every day. Experts declared that they were responsible for most of Delhi’s pollution crisis.
    • The way to solve the problem was to create a robust, well-funded public transport system — the exact opposite of what the Court had done.
  7. This case shows how PILs can be made into disastrous policies for the public because of the free reign they allow to judges – and to their upper class bias. One judge’s biased understanding of public interest led to the overhaul of the entire transport system of Delhi. While the working class bore the cost of this in the name of the environment, the worst polluters — owners of private cars — were left untouched.
    • This case made the lives of thousands of informal transport workers much worse. While it didn’t interfere at all with the worst offenders — the owners and manufacturers of private automobiles.
    • The upper class judges and lawyers were trying to be environmentalists and somehow in their worldview, “the poor are bizarrely and conveniently seen as responsible for urban pollution and have to bear disproportionately the costs” of moving to a better system.
    • PILs allow judges to enact policies that reflect their arbitrary and often nonsensical whims and beliefs. The flexibility of these cases allows judges to use them to change society in a way that is fundamentally undemocratic.
    • As Bhuwania writes, “The only time the Indian state could carry out such a draconian measure was perhaps during the Emergency regime.”

Source text: The Case that Felled a City: Examining the Politics of Indian Public Interest Litigation through One Case
Publication: South Asia Multidisciplinary Academic Journal (2018)
Author: Anuj Bhuwania

Since this paper was particularly long and complex, we split it into two parts. Read part 2 here.

Note: This summary reflects an argument put forward by one scholar in one paper that we think would be interesting or useful to discuss. It does not represent academic consensus on the topic, which is always growing and evolving. If you would like to know how other scholars have built on or critiqued the arguments presented in this paper, click here to see some of the works that cite it.