August 24: It seems that good causes brought up as Public Interest Litigation (PIL) are taking a toll of legal discipline in the apex court. This seems to be the message from the judgments on the issues of prisoners voting rights, children of women sex workers, sexual harassment of women at the work place and environmental issues.

In the Anukul Chandra Pradhan vs Union of India or the prisoners voting rights case, the issue was whether the Representation of People Act, 1951, arbitrarily discriminated by denying all prisoners, except those under preventive detention, the right to vote in election. The court was asked to interpret the word ``otherwise'' in Section 62(5) of the Act which stated that no person in jail after conviction by a court or ``otherwise'' could vote. The court did not do this.

Instead the court did three things to uphold the impugned provision. It declared free and fair elections as part of the basic structure of the Constitution. This means that politicians by a majority vote in Parliament cannot amend the Constitution to take away this right now given by the judiciary. Secondly, it held that no citizen can challenge a law enacted by Parliament for the right to elect or vote, on the ground of violation of his fundamental rights. Both these declarations interpreted the Constitution as one gave an unamendable right to citizens which is nowhere stated in the Constitution and the other took away the unamendable right to judicial review.

Article 145(3) of the Constitution requires that a minimum bench of five judges must sit to decide any substantial question of law requiring interpretation of the Constitution. This was not done. The judgment was given by three judges, and that too on issues which did not arise before them. The contradiction between declaring free and fair elections as an unamendable fundamental right and denying judicial review on the ground of violation of fundamental rights was nowhere noticed while doing the third thing taking judicial notice of the criminalisation of politics. This bench was headed by the Chief Justice of India.

In Gaurav Jain vs Union of India, the prostitutes children case, one judge dissented from another on the wide ranging directions given to the Union of India to tackle prostitution itself while taking judicial notice of how poverty and illiteracy pushes young girls into flesh slavery. But one judge held that Article 145(3) of the Constitution requiring reference to five judges and Article 145(5) requiring a binding judgment by a majority only, did not apply to public interest litigation. The second judge after dissenting also did not direct that the matter be put before the Chief Justice for reference to a bench of five.

In Vishaka vs State of Rajsthan, the sexual harassment at workplace case, four issues of interpretation of the Constitution were involved -- whether the court had power the legislate by way of guidelines pending Parliament acting on its suggestion to enact a law of gender equality, whether this power assumed by the court could be derived from the concept of the independence of the judiciary, whether international conventions could be read into the fundamental rights and whether private employers were subject to fundamental rights in the light of the court's own judgments in the Shri Ram Delhi gas leak case.

A bench of three judges explicitly and implicitly decided these without referring them to five judges as required b Article 145(3) of the Constitution. The bench was headed by the Chief Justice of India which entertained a new species of public interest litigation -- one arising from the rape of a social worker in Rajasthan in which criminal proceedings are already on.

Lastly, in environmental matters the court for a long time adopted the practice of permitting neither the filling of applications nor an effective hearing by counsel for affected industrialists, workers and others. It cut itself off from the only two known legal processes of informing itself -- written and oral pleadings. In some cases this was corrected. But it continued in others like those of forest management and hawala. There is a sense of helpless outrage in the Bar whose senior advocates have such a stake that they will not protest. For others like ordinary citizens while you can seek relief against government or private arbitrariness in courts where do you seek relief against arbitrariness of the apex court in the absence of an effective government or Parliament? Can PIL remain credible without legal discipline? Or is it judicial populism vs legal discipline?

Copyright © 1997 Indian Express Newspapers (Bombay) Ltd.