PIL is just a placebo

There is a misplaced impression that the courts were powerful enough to dispense justice without fear or favour

Just the other day, a two-member bench of the Supreme Court ruled against “judicial overreach” and the tendency of high and lower courts to usurp the power of the executive. Till a larger bench headed by Chief Justice of India G Balakrishnan clarified that the courts would continue to entertain public interest litigations (PIL), it seemed as if curtains were falling on a regime that sustained civil society activists and journalists in the past 20 years to correct the growing infirmities of a failing Indian State.

The concern of the two-member bench about the growing “judicial overreach” was real. Bringing to the fore the sharp differences within the higher echelons of the judiciary towards a tendency among some judges to give precedence to PILs over regular business, the ruling subsumed the institutional experience of how such litigation was handled by the courts as well as the controversial conduct of fellow judges in the recent past. Some of the cases that raised a miasma of doubt over the objectivity and fairness of certain judgments, included the sealing and demolition of illegal buildings in Delhi, along with scores of cases pertaining to granting environmental clearance to big industries. Many judiciary watchers have sounded caution on courts taking up environmental PILs as they have felt that they may not be technically equipped to handle them.

Expectedly, former Chief Justice of India JS Verma who drew all round acclaim in the mid-90s for taking up the Jain hawala diary case that revealed pay-offs to politicians and bureaucrats, tried to put fears to rest of those who have been fighting the absolutist and cruel attitude of the Indian State by using PILs. He quoted from the recent ruling of a two-member Supreme Court bench and said that the PIL would continue to be used. It may be fine for Justice Verma to endorse the efficacy of the PIL in forcing the corruption-ridden executive to act, but it will be illuminating to know how he himself handled the infamous hawala case.

In 1991, I scooped the scandal that involved pay-offs to politicians by a hawala dealer. The story was picked up by some public-minded individuals who thought a thorough investigation into the scandal provided an opportunity to the country to cleanse itself off its corrupt leadership. For a few years, they knocked on all doors. They wrote letters to everyone in the government, but as nearly members of most political parties were involved, no one paid any attention. It was out of desperation that these individuals approached the Supreme Court. Justice Verma, after taking over as CJ, took up the case and forced the investigation agencies to complete the probe. Early days of the probe sent panic waves within the political and bureaucratic establishment. The CBI was on an overdrive filing FIRs and chasing all those who figured in the diary as recipients of pay-offs. Many politicians like LK Advani, VC Shukla, Madhav Rao Scindia and Narain Dutt Tewari were booked. Politics was sent into a tailspin. The Congress split and it proved a major factor behind the defeat of the ruling party in the 1996 elections.

And then things began to change. The high court refused to entertain the pages of the diary as a book of account. Then curious things began to happen. Justice Verma began to assert that he was not guiding the investigation, but only making sure that the agencies do their job. One day he shocked everyone by saying that there was an attempt to pressurise the hawala bench of the Supreme Court. Interestingly, he did not refer the matter to the CBI. Another judge in the bench owned up that he had unwittingly landed up at the residence of one of the prime accused to have tea. Slowly, all the cases against those in the scam were thrown out, even when three of those in the list — the late Rajesh Pilot, Devi Lal and Sharad Yadav — owned up that they had taken bribes.

The case, after influencing the national agenda for a couple of years, ended in a whimper. Handling of the hawala case once again brought to the fore the inadequacy of the PIL to bring erring public servants to book. If there is any substance to pressure being brought on the hawala bench, can it be argued that the courts are not completely immune to pressure from vested interests. If anything, the hawala scam only succeeded in giving an impression that the courts were powerful enough to dispense justice without fear or favour. Such expectations have been belied all these years.