Making Public Interest Litigation More Public

Sudhir Krishnaswamy and Rajgopal Saikumar had this interesting
piece in the Hindu this weekend cautioning the judiciary against Public
Interest Litigation that is used by groups already well represented in the
political process who may be pressing their own partisan agenda (I think there
is a John Hart Ely-like undertone to their argument that deserves lengthier
exploration). The Court clearly has its job cut out for it to sort valid
petitions from the many others that can often be pressing narrow interests,
sometimes on the basis of outright misinformation.
Today, I had this piece in the Indian Express, also on
Public Interest Litigation, where I advocate a fairly straightforward reform
requiring all PIL (and eventually all cases before the Court) to have their
filings made public and oral argument recorded. I personally think this reform
makes sense for all types of litigation before the Court – with perhaps a few
exceptions – but certainly for PIL. In PIL the Supreme Court is clearly making
public policy decisions and it’s important for the public and interested
observers to know who is moving the Court, the basis for their arguments, and
how the Court is reasoning throughout the decision-making process. As I mention
in the op-ed, Parliament makes public the legislative process. Ministries and
regulatory agencies are increasingly making public the rule-making process. Why
shouldn’t the Court make public the PIL process? In PIL litigants are often
claiming they are acting on behalf of thousands – or millions – of people who
cannot come to Court themselves. These people though have no way of knowing
what these litigants are arguing or how they are representing their interests.
This seems dangerous and unfair.
Making filings and oral argument public won’t solve all
representation problems with PIL, but it is the sort of simple small step that
should open up the process more to outside scrutiny from the media, other
activists, academics, and the public more generally, helping mitigate against some
of the types of problems described in Krishnaswamy and Saikumar’s op-ed.

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