Public Interest Litigation: Preventing Misuse         

It is the duty of the court to see whether the petitioner who approaches the court has a bonafide intention and not a motive for personal gain, private profit or political or other oblique considerations. The court must ensure that the course of just

Dec. 20, 2010, 5:45 p.m. Published in Magazine Issue: Vol.: 04 No.-13 Dec.17-2010 (Poush 02,2067)

The phenomenal growth of Public Interest Litigation (PIL) in Nepal has given rise to various other litigations in the garb of PIL.  Article 88 of the Constitution of Nepal 1990 and article 107 of the Interim Constitution of Nepal, 2063 have provisions designed to help the development of PIL in Nepal.  Forum for Protection of Public Interest (Pro-Public) is one of the first organizations in Nepal which have been working for public interest with high rate of successful Public Interest Litigations.

Most of the cases approached as Public Interest Litigations are in fact nothing but Publicity Interest Litigations or Politically Interested Litigations. Many people in the name of justice have being taking advantage of the judiciary's desire to render justice to the poor and to those who have not heard of justice. These people engage in litigations for their personal or publicity interest. If the judiciary does not lay down a framework or parameter within which it should entertain PILs, it is certain that the noble cause for which the judiciary has developed this concept is likely to be misused further.

In the last few years, there have been serious concerns about the use and misuse of public interest litigations and these concerns have been expressed at various levels but till now no initiative has been taken to address those. It is time to realize the gravity of these concerns and the need for a serious re-examination of the misuse of public interest litigations.

Initially Public Interest Litigation came as a people friendly tool for ensuring justice as the intent was to ensure redress to those who were otherwise too poor to move the courts or were unaware of their legal entitlements, on behalf of those people any person can bring an action to the court. But irresponsible PIL activists all over the country have started to play a major role in misusing this noble weapon instead of playing any constructive role in the arena of litigation. They try to utilize this extraordinary remedy, available at a cheaper cost, as a substitute for ordinary ones.

The reason behind misuse of PIL is inaction by the Supreme Court of Nepal, because till now the learned judges of Nepal have not come up with the guidelines for entertaining Public Interest Litigation. Whereas in India, judicial pronouncement of the Supreme Court has laid down guidelines for entertaining Public Interest Litigation. In one of the  instances,  the Supreme Court of India fined the petitioner (NGO headed by a former judge) upto one lakh for espousing, as public interest litigation (PIL). Well there have been a number of instances where the court has punished the petitioner for misusing PIL but I haven’t heard of a single incident of this sort in Nepal. Does this mean that there is no misuse of PIL? My answer is no as many of the PIL activists in the country have found the PIL as a handy tool of harassment.

It is the duty of the court to see whether the petitioner who approaches the court has a bonafide intention and not a motive for personal gain, private profit or political or other oblique considerations. The court must ensure that the course of justice is not obstructed by unscrupulous litigants by invoking the extra ordinary jurisdiction of this court for personal matters under the garb of the PIL. Due to political instability in our country, in every other issue there will be political interference, thus the court should not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain political objectives.

With increasing PIL cases coming to court, it is very much necessary to check its misuse and abuse. It may be possible that government might come with norms to regulate PIL results, so there may be people who might not be aware of its abuse, might protest against it. The misuse of public interest litigation will stop only if the courts are vigilant. Under these circumstances the Supreme Court of Nepal is required to take initiative by incorporating safeguards provided by the civil procedure code in matters of stay orders /injunctions in the arena of PIL.

With the amount of fake PILs coming up, if the courts do not restrict the free flow of cases, traditional litigation will suffer a lot and that would be a threat to Nepalese democracy and to the entire judicial process. It is time to come together and take initiative to prevent misuse of PIL. Media and lawyers are two proper organs which can prevent the abuse. In a democracy, the media play an important role in the formation of public opinion, covering celebrated judgments of public issue, highlighting celebrated scams and sting operations, issues regarding children & women rights. Media should not forget to highlight the cases of abuse on PIL, deterrent punishment given to the litigants by court. Media should analyze the impact of abuse of PIL on judicial process.

Public Interest Litigation (PIL) was a social and revolutionary concept initiated with a noble object. Initially the concept of PIL extended its arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go unnoticed, un-represented and unheard but with time its scope has expanded and now public interest litigations are filed for matters pertaining to the healthy environment, including preservation of forests, which has led to dramatic and remarkable improvements in the environment.

In order to make public interest litigations purposeful and effective, there is a need of a proactive and independent judiciary that recognizes its role of serving as a check on governmental power in a constitutional democracy. Given the above scenario, one of the most difficult tasks is to find a lawyer with a vision who is able to see the bigger picture and be prepared to fight for it. 

Public interest litigation is a highly effective weapon for reaching social justice to the civil society or common man which is the aspiration of Nepalese Constitution. Public Interest Litigation means a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected.

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