This article is written by Apoorva Jain, a B.A. LLB. (Hons.) student from Guru Gobind Singh Indraprastha University.
Classically, only an ‘aggrieved’ person could approach the court of law for enforcement of rights under A/32 of the Constitution of India; as identified by the rule of locus standi. This rule has been dimensionally changed with the advent of the concept of Public Interest Litigation (or the P.I.L.) especially after the landmark decision in S.P. Gupta’s case: whereby any “public spirited person” who has (1) sufficient interest and, is approaching the court with (2) bona fide intention, is allowed to file a petition in the ‘interests of general public.’ Unless these essentials are made out a writ petition cannot be regarded as a PIL. The article seeks to analyse the scope and ambit of the power of the Hon’ble Supreme Court of India while dealing with the PILs in matters of religion; also taking into regard those petitions which are filed by parties who do not subscribe to the religion or faith, belief whose practice is in question.
The term locus i.e. short of Latin phrase locus standi is defined by Black’s Law Dictionary as:
“…standing in court. A right of appearance in a court of justice or before a legislative body, on a given question”
The essence of the term can be derived from the above definition i.e. that any person who has a standing in a court of law, like the Hon’ble Apex Court, or before any legislative body, and can obtain an answer for a question at hand is said to have the requisite locus standi or standing.
The classical rule of locus standi states that only a person who is “aggrieved” from a state action has the right to approach the court for the enforcement of his rights and redressal under A/32 of the Constitution of India.
However, a ‘right’ is now generally understood as an ‘interest’ protected by law and cannot be sought to according to the whims and fancies of the ones moving the courts of law.
The point that is to be noted here is that this traditional rule of standing has been done away with the advent of the concept of Public Interest Litigation i.e. P.I.L. in various judicial systems of the world. The Black’s Law Dictionary defines the term ‘public interest’ as:
“something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interests shared by citizens generally in affairs of local, State or national Government…”
The question of what PIL means or is, has been deeply surveyed, explored and explained not only by various judicial pronouncements, but also by eminent judges, jurists, activist lawyers, outstanding lawyers, scholars, journalists and social scientists, etc. with a wide understanding of various spheres of its usage and application. Word ‘public interest’ is also defined in the Oxford English Dictionary, 2nd Edition, Volume XII as “the common well being…also public welfare.”
Thus, even though the persons may not be personally aggrieved, for the larger benefit of a definite class, and in the interest of the public at large, an action is maintainable in form of a PIL.
Essential Ingredients of a PIL
Reference is made to the United States case of U.S. v. Richardson where the concept and the philosophy behind PIL were keenly elaborated. It was also recognised that “since the concept of standing is one designed to assure that only one with a genuine and legitimate interest can participate in a proceeding, there seems to be no reason to exclude those with such an obvious and acute concern as the listening audience; and hence the concept of PIL fits into justice system.”
The Hon’ble Apex Court of India recognised in Subhash v. State of Bihar that the Court is to entertain a writ petition from a public-spirited person or a social action group, acting in good faith and for collective good, seeking the vindication of a fundamental right of a person who belongs to a class or group of persons who are in a disadvantaged position on account of poverty, disability or other social or economic impediment and is unable to enforce these rights.
It is imperative to note that it has been widely recognised that the concept of P.I.L. does away with the strict rules of locus and gives a standing to any member of the public, who is not mere busy body or meddlesome interloper, and has sufficient interest in the proceeding, and is moving the court with bona fide intentions.
Thereby, for a valid PIL to subsist, therefore, the least requisite is the presence of following essentials, namely; (a) sufficient interest, (b) bona fide intention. Absence of these essentials would result into the non-maintainability of a PIL.
The petitioner(s) must have a “sufficient interest” in the subject matter
It is noteworthy that the presence of ‘sufficient interest’ on the part of the petitioner is crucial for maintenance of any kind of PIL.
The Hon’ble Apex Court has also time and again laid down the rule that the courts must be careful in entertaining a PIL, and the applications of the busy bodies should be rejected at the threshold itself. The doors of the courts should not ajar for such vexatious litigants.
In which pronouncing the leading judgment in the case of S.P. Gupta and Ors. v. President of India and Ors. for a seven member bench of the Supreme Court of India, Hon’ble Justice P.N. Bhagwati has firmly stated that “any member of the public having sufficient interest and has not acted with malafide or political motives can approach the Court for enforcing Constitutional or legal rights of other persons and redressal for a common grievance.” Thus, the principle of ‘locus standi’ has been replaced by ‘sufficient interest’.
This goes for the reason that due to the undue practice of busy bodies, meddlesome interlopers, wayfarers or officious interveners who have no public interest except personal gain or private profit for either themselves or as a proxy of others or for any other extraneous motivation or for glare of publicity break, and by wearing the mask of P.I.L., they criminally waste the time of the courts by filing vexatious and frivolous petitions; the queue standing outside the doors of the court never moves which piquant situation creates a frustration in the minds of genuine litigants and resultantly they lose faith in the administration of our judicial system.
The Hon’ble Supreme Court in Jasbhai Motibhai Desai v. Roshan Kumar and Others observed that
“… even though he has no proprietary or even a fiduciary interest in the subject-matter. That apart, in exceptional cases even a stranger or a person who was not a party to the proceedings before the authority, but has a substantial and genuine interest in the subject-matter of the proceedings will be covered by this rule”.
Thereby, various judicial systems around the world, including that of our country imply that the Court shall not grant leave for judicial review “unless it considers that the applicant has a sufficient interest in the matter to which the application relates.”
It is further put forth that “fairness and justice are tests to be applied” when determining if a party has a sufficient interest. A flexible standard followed is that a “direct financial or legal interest is not required” to find sufficient interest; individuals can challenge actions of public officials if they are found to have “sufficient interest”. Thus, it is of utmost importance that those who invoke the jurisdiction of the Apex Court seeking a waiver of the locus standi rule must exercise restraint in moving the court by not plunging in areas wherein they are not well-versed..
And in the case, the petitioners or any subsequent interveners, if any, are a body unaffected or viably-uninterested parties who have approach the Hon’ble Court seeking a direction or relief, and do not claim of having any genuine interest in the subject-matter; it can be seen as the mere aftermath of the advent of a ‘right-based jurisprudence’ that ushers rather anyone to move the courts of law, seeking a redress to a public interest, even if they might not have any interest, whatsoever. In fact, there are cases where those genuinely interested in the subject-matter do not even claim any violation of their fundamental rights, whereas those totally uninterested and stranger to the case approach the Courts for remedies.
Bona fide intention needs to be made out
It won’t be wrong to say that any such writ petition filed by the petitioners in the nature of P.I.L. is tainted with improper motives and is intended to thwart the piousness associated with the religious practices or faith or believes; in case a bona fide intention is not made out in the petition.
That is to say that in case the the writ petition is not presented by the writ petitioner(s) bona fidely and is not likely to serve any public interest, the same cannot be entertained as it does not aim redressal of genuineness of public law or public injury.
As per the Black’s Law Dictionary, the term ‘bona fide’ is defined as:
“in or with good faith; honestly, openly and sincerely; without deceit or fraud”
Thereby, while deciding a PIL, great care has to be taken for the reason that wide jurisdiction should not become a source of abuse of process of law by disgruntled litigant. Such careful exercise ensures that the litigation is genuine, not motivated by extraneous considerations and imposes an obligation upon the litigant to disclose true facts and approach the Court with clean hands. Thus, it is imperative that the petitions, which are bona fide and in public interest alone, be entertained in this category. Abuse of process of law is essentially opposed to any public interest. One who abuses the process of law cannot be said to serve any public interest, much less, a larger public interest.
The dissent of Hon’ble Justice Indu Malhotra in the leading case of Indian Young Lawyers Association v. State of Kerala, commonly called the ‘Sabarimala Case’, needs to be brought to light, where it has been said and it is quoted that,
“…The present case is a PIL filed by an association of lawyers, who have invoked the writ jurisdiction of this Court to review certain practices being followed by the Sabarimala Temple on the grounds of gender discrimination against women during the age-band of 10 to 50 years…
7.2. The right to move the Supreme Court under Article 32 for violation of Fundamental Rights must be based on a pleading that the Petitioners’ personal rights to worship in this Temple have been violated… To determine the validity of long-standing religious customs and usages of a sect, at the instance of an association/Intervenors who are “involved in social developmental activities especially activities related to upliftment of women and helping them become aware of their rights”, would require this Court to decide religious questions at the behest of persons who do not subscribe to this faith…
7.3. The absence of this bare minimum requirement must not be viewed as a mere technicality, but an essential requirement to maintain a challenge for impugning practices of any religious sect, or denomination. Permitting PILs in religious matters would open the floodgates to interlopers to question religious beliefs and practices, even if the petitioner is not a believer of a particular religion, or a worshipper of a particular shrine. The perils are even graver for religious minorities if such petitions are entertained.
7.4. In matters of religion and religious practices, Article 14 can be invoked only by persons who are similarly situated, that is, persons belonging to the same faith, creed, or sect.”
In cases like the above mentioned where the impugned practice it is not even a blanket ban; and it is out of the devotees’ respect and faith in the religion and its sentiments that they abstain from going against the acceptable code of conduct; the petitioner(s), however stranger to the cause, seize such a religious practice and politicise it with a view to proceed in the court. It can also be said that it seems rather extraneous on the part of the petitioners to claim an entry for the women devotees in that very temple where the faith essentially makes it near impossible for women of a certain-age group to allow entry. All the other temples, even of the Deity in question in the above mentioned case, permit entry to all, males and females, belonging to all age-groups. Targeting the sentiments associated with a certain religion, for instance, and then demanding rights to worship for the others who themselves do not seem to be aggrieved, poses the lack of bona fide intention on the part of the petitioners.
Such are the cases which can be criticised to be, in the garb of P.I.L, motivated to a ‘Publicity Interest Litigation’, which ultimately, in the larger interest of public, seeks protection of rights of no one.
As per the guidelines issued by the Hon’ble Apex Court in State of Uttaranchal v. Balwant Singh Chaufal and Ors. it is very clear that, “The Courts must encourage genuine and bona fide PIL and effectively discourage and curb PIL filed for extraneous considerations…the Courts should also ensure that petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and petitions filed for extraneous considerations.” Thereby, any petition filed without bona fide intention is not maintainable in the form of a PIL.
Moreover, it is a settled proposition of law that the courts must do justice only by promotion of good faith and prevent law from crafty invasions; and maintain social balance by only interfering where necessary for the sake of justice. Where the High Court is already seized of an issue, the Apex Court must not entertain a PIL on the same issue under A/32. Thus, in light of the 1991 Kerala High Court’s Judgment that preceded the celebrated ‘Sabarimala Case’ as mentioned before, the petition under A/32 by petitioners and subsequent interveners who did not even subscribe to the religious practices in question, must not have be allowed in the name of a PIL.
Petition in the matters of religion non-maintainable at the behest of strangers
It is noteworthy that there are numerous cases where the religious practices or matters relating to a religion are questioned in the petition, but the same is primarily attached to academic objections by non-devotees, seeking rights not vested in them; and hence, not maintainable. it can be suggested that the loosening of standing rules [through the institution of PIL] was intended to ensure the representation of those who could not represent themselves, and not to transform the Court into a super-legislature, where any social question might be agitated by any person, even if being a total stranger to the case.
And, thereby, in such cases petitioners, or subsequent interveners, who are totally stranger to the cause cannot maintain the petition under A/32 of the Constitution of India in as much as no right affecting the public at large is involved. The question involved is purely relating to a particular Religion or religious practices. It is also of seminal value to note that such kind of petitions are also not maintainable without impleading a worshipper/ believer/ devotee of the Religion or practice in question; at least in a representative capacity.
Thus, the court must take all of this into regard while deciding on religious questions at the behest of association/interveners who are “involved in social developmental activities, especially activities related to the upliftment of women and helping them become aware of their rights”, and who do not actually subscribe to the faith, as the same does not satisfy the condition to move the Supreme Court under Article 32 even if the same might be glossed as being a PIL aimed at serving the larger public good.
While A/14 permits a reasonable classification having a rational nexus to the objective sought to be achieved, it does not permit the power to pick and choose arbitrarily out of several persons falling in the same category. The right to equality under A/14 in matters of religion and religious beliefs has to be viewed differently. It has to be adjudged amongst the worshippers of a particular religion or shrine, who are aggrieved by certain practices which are found to be oppressive or pernicious; and can be invoked only by persons who are similarly situated, that is, persons belonging to the same faith, creed, or sect.
Furthermore, any petitioner that challenges a religious tradition must establish locus standi in a personal context so as to balance the rights of those that have a personal stake in tradition against others that do not; else, by permitting PILs in religious matters at the behest of non-practitioners, the Supreme Court will be allowing interlopers to question religious beliefs and practices. A person concerned with the private or personal rights of the other would lack the locus standi to file PIL.
The right to religion and right to worship must be based on the affirmation of a belief in the particular manifestation of the deity; and since, the matters of conscience, religious belief, and religious practice, are among the deepest and most personal issues for the individual, there seems to be something rather strange in one person agitating for the religious rights of a completely diﬀerent person.
Moreover, it is essential to note that, in matters of religion, a PIL at the hands of strangers cannot subsist for the very fact that they do not verify the “sufficient interest test”; and thereby, in these cases, only those who are actually aggrieved by the state action can file the petition, either in private or in representative manner.
Thus, in the cases where the devotees of faith, belief or Religion have not challenged the practices followed therein, based on the essential characteristics of the Religious practice or even the Deity; it is not for the courts to normally delve into issues of religious practices, especially in the absence of an aggrieved person from that particular religious faith, or sect.
Thereby, the petitioners would not have the locus standi to file a writ-petition clothed as a P.I.L., in case they are neither the aggrieved devotees, nor any scholars in the Religion. The same should be the fate of a petition where neither any necessary party is impleaded, nor does the petition disclose any cause of action. In this regard, they must appear to be mere busy bodies or meddlesome interlopers.
The whole proposition of Public Interest Litigation is adopted to serve those causes where those aggrieved cannot approach the justice system, and a “public spirited person” is allowed to help achieve such ends by seeking remedy or directions from the Hon’ble Apex Court and the High Courts at States. The essentials underlying along with a maintainable PIL are the very basis of this philosophy. These essentials play the pivotal role in preventing any frivolous litigation from being initiated by any busybodies, or meddle-some interlopers which are simply coloured as PIL, but actually seek a private interest.
Arguendo, if it is taken to be a valid PIL, it is based on a question of religion. In matters of religion, the litigation must not be initiated at the behest of third parties who do not subscribe to the religion; else it will lead to hearing a matter of faith where the actual devotees have no grievance. In case the petitioners do not claim to be the devotees, or the religious scholars in the religion concerned; such writ petitions per se appear to be filed by busybodies or meddlesome interlopers and discloses no cause of action.
Hence, in a pluralistic society, like that of India, comprising of people with diverse faiths, beliefs and traditions, to entertain petitions in form of PILs that aim at challenging religious practices followed by any group, sect or denomination, could cause serious damage to the Constitutional and Secular fabric of this country as enshrined in the Constitution. Such a writ petition must not be maintainable as prima-facie it would also violate the principles of natural justice as the entire community of the devotees of the Religion, belief, faith or sect would been condemned without being heard; at the hands of those who do not qualify to file the petition in first case.