Justice Dipankar Datta’s comments attacking the Association for Democratic Reforms in a judgment of the Supreme Court on Friday is the latest instance of a recent trend of constitutional courts casting aspersions on the intentions of public interest litigants.

Such extra-legal attacks make the petitioners a target for harassment by state actors and discourage public interest litigation, legal experts said. They added that judges should stick to the law and the merits of the case they are meant to adjudicate.

Datta was part of a two-judge bench, along with Justice Sanjiv Khanna, that rejected a public interest litigation by the Association for Democratic Reforms seeking the tallying of all Voter Verified Paper Audit Trail slips to verify votes cast through electronic voting machines.

The judgment featured concurring opinions by Khanna and Datta. Khanna’s opinion was co-signed by Datta. This is unusual. The norm is that when an opinion by a judge is co-signed by other judges, they do not give separate opinions. Equally, when there are concurring opinions by different judges in a judgment, they do not co-sign the other opinions.

Datta’s opinion did not differ materially from Khanna’s in terms of the law. What is striking about it is the comments he made in the fifth paragraph of his opinion.

He wrote that he had “serious doubt as regards the bona fides of the petitioning association”. He did not explain why he harboured this doubt.

The Association of Democratic Reforms is a Delhi-based non-profit organisation that has worked on electoral and political reforms since 1999. Its research output is widely considered as a leading resource on electoral candidates and political party finances in India. Its legal advocacy work has also led to judgments that have increased transparency in the political process in India. This was evidenced most recently in the Supreme Court’s landmark electoral bonds judgment, in which it was a petitioner.

Further, even before going into the arguments raised in the case, the issues of law to be adjudicated and the reasoning employed to solve these issues, he called the relief sought “inexplicable” and something that “does not and cannot arise”.

Datta linked the petition to a seemingly larger conspiracy against the country. “[I]n recent years,” he wrote, “a trend has been fast developing of certain vested interest groups endeavouring to undermine the achievements and accomplishments of the nation, earned through the hard work and dedication of its sincere workforce.”

He added: “There seems to be a concerted effort to discredit, diminish, and weaken the progress of this great nation on every possible frontier. Any such effort, or rather attempt, has to be nipped in the bud. No Constitutional court, far less this court, would allow such attempt to succeed.”

Datta did not elaborate on these statements in the rest of his opinion. He did not identify who these vested interest groups are or point out instances of the efforts or attempts to weaken the progress of India.

This mirrors allegations made in an open letter written last month by a group of over 600 lawyers addressed to the chief justice of India that a “vested interest group” was trying to put pressure on the judiciary, undermine public faith in courts and “threaten our democratic fabric”. The letter was shared on social media by Prime Minister Narendra Modi to attack the Indian National Congress.

Part of recent trend

Judges rarely attack petitioners in their judgments, especially when they have not engaged in improper conduct that warrants censure, according to legal experts.

“If they have to say anything personal about the petitioner, the court puts them on notice first,” Senior Advocate Sanjay Hegde told Scroll. In this case, he said, these were suo motu findings made by Datta – that is, an action on his own accord without being prompted by any party in the case – without issuing any notice.

Constitutional courts have at times criticised public interest litigants for engaging in “frivolous” or “motivated” litigation under the guise of public interest litigation. However, in such cases, ordinarily the court dismisses the petitions at the outset without proceeding with hearings and imposes costs on the petitioners.

At the same time, in the recent past, there have been two noteworthy judgments in constitutional challenges to a state action, where notice was issued and arguments were fully heard, in which the Supreme Court caste aspersions on public interest litigation petitioners.

In June 2022, Justice AM Khanwilkar dismissed a petition questioning the clean chit given to Modi with regard to the 2002 Gujarat riots that occurred when he was the state’s chief minister.

In the judgment, Khanwilkar wrote that the petitioners had pursued the case for 16 years “to keep the pot boiling, obviously, for ulterior design”. Accusing them of “abuse of process”, he said that they “need to be in the dock”.

Within two days of the judgment, activist Teesta Setalvad and former police officer RB Sreekumar were arrested by the police on a complaint that cited the judgment. Setalvad was one of the petitioners in the case and Sreekumar had given evidence in favour of the petitioners.

In July 2022, in a judgment dismissing a petition seeking an investigation into the killings of 17 Adivasis in Dantewada, Chhattisgarh allegedly by security forces, a bench of Justice JB Pardiwala and Khanwilkar laid the ground work for legal action against the petitioner, suggesting that the police invoke charges of perjury, criminal conspiracy or “any other offence” against him.

The Supreme Court of India. | PTI

Disincentivises PILs

If this trend continues, it will have ominous implications for public interest litigation, warned legal experts.

“Such comments discredit the petitioner organisations and create public perception against them,” said Advocate on Record Paras Nath Singh. “The state may use them to launch a roving inquiry against the petitioners.” He was referring to events that followed the Supreme Court’s judgment in June 2022.

“Courts should not be seen as shooting the messenger,” said Hegde. “They should only adjudicate on the legal issues before them.”

Singh agreed. “Courts should decide matters purely on merit,” he said. “They must exercise restraint and be conscious of their remarks.”

Said Hegde: “Courts should not scare away petitioners, no matter how misguided they may be. Otherwise, honest petitioners will refrain from approaching courts.”