On February 13, the Supreme Court ordered the eviction of over 10 lakh families of forest dwellers whose claims to forestland under the Forest Rights Act of 2006 have been rejected. The court gave the states until July to complete the exercise, making life uncertain for some of India’s most marginalised people.
The justification for the order is simple. The law lays down a procedure for verifying the claims of forest dwellers. Once this process is over, the implementation of the law moves to the next step, which in this case is eviction. In this frame, then, eviction is to be seen not as excluding people but protecting the rights of those whose claims have been upheld. Put simply, the rhetoric of legal versus illegal occupants of the forest is being employed to push the states to implement the demands of the law. This rhetoric about enforcing the law, however, conveniently ignores how the claims process is rife with problems.
Indeed, the eviction order came on a batch of public interest litigation filed in 2008 by the Bombay Natural History Society and the Wildlife First which claimed to represent the interests of wildlife and of nature. They challenged the constitutionality of the Forest Rights Act on the technicality that Parliament did not have the authority to pass such a law. In 2014, the petitioners moved an interlocutory application – a plea seeking interim orders even as the main petitions are pending – asking for the states to identify illegal forest dwellers. The Supreme Court sided with the petitioners, with potentially disastrous consequences.
This case is no aberration, however. As studies have shown, public interest litigation has become a populist tool, with the Supreme Court using it to take ownership of the proceedings and expanding them beyond the scope of the petitions. The seeds of this populism – which has served elitist agendas in some cases – were sowed in the wake of the Emergency, when the Supreme Court, overcome by guilt for capitulating to the Indira Gandhi regime, decided to remodel itself as the “last resort for the oppressed and the bewildered”.
Public interest litigation was supposed to ease access to justice for the marginalised and expedite the enforcement of their rights. Yet, not uncommonly, it has been used against the very people it seeks to protect.
Easing access to justice
Public interest litigation started in the early 1980s. Justice PN Bhagwati’s judgement in SP Gupta vs Union of India liberalised the notion of locus standi, enabling anyone to move the court on behalf of others to establish rights. This laid the foundation of what would become a separate jurisprudence unique to Indian law. “Restrictive rules about standing are in general inimical to a healthy system of administrative law,” the judge reasoned. It was a response to Prime Minister Indira Gandhi’s consistent attack on the perceived lack of access to the higher judiciary.
The ruling opened the floodgates for people to move the Supreme Court for remedies that were delayed or denied because of cumbersome procedures. In this sense, public interest litigation was a tool for democratising access to the higher judiciary. Since socially and economically marginalised groups did not have the means to move the court directly, the petitioner embodied the whole class of people whose rights were violated.
This system did not last long. In Courting the People: Public Interest Litigation in Post-Emergency India, the lawyer Anuj Bhuwania notes how the need for a petitioner or “representative standing” was quickly done away with. The court began to take ownership of the PIL, sometimes appointing a commission and an amicus curiae to take the plea forward even when the petitioner wanted to withdraw it.
Relatedly, Bhuwania points out, the state became the representative of the people or the “surrogate victim”. Instead of hearing individuals whose rights were in jeopardy, the court took the state to be a mirror reflecting the victim, standing for them before the Supreme Court, which assumed the role of an institution alleviating the suffering of the masses. The court was no longer a mere procedural machine applying the law or interpreting it, but an active participant in the social project of alleviating suffering.
This had serious consequences. Take for example the Bhopal gas tragedy case. The central government quickly turned into a representative of the victims’ families and, with the court’s blessing, settled with the Union Carbide for a paltry sum as compensation, making a mockery of the larger question of rights violations.
In this exchange of roles between the state and the victim, the individual turned into an abstract entity. As Bhuwania notes, quoting the scholar Veena Das: “In the judicial discourse every reference to victims and their suffering only served to reify suffering while dissolving the real victims in order that they could be reconstituted into nothing more than verbal objects.”
In 1988, the Supreme Court took notice of the abuse of public interest litigation and put in place guidelines about admitting such petitions. There has not been much introspection about the manner in which the court itself has functioned when it comes to PIL. Bhuwania suggests that the notion of doing complete justice has led to the court undermining procedures by using its extraordinary powers under Article 142 of the Constitution.
The abstracting of the victim did not stop with the Bhopal tragedy case. The state continues to stand in for victim, with damaging consequences.
Need for corrective steps
In the Forest Rights Act case, the central and state governments now represent lakhs of forest dwellers. But as has been the pattern in such cases, the governments have represented the victims poorly. Lawyers did not turn up for hearings and the court was not persuaded to desist from issuing the eviction order that could wreck the lives of many Adivasi families. The state governments, in fact, were sanguine participants in the exercise to identify “illegal occupants” of the forests.
The flaws of the PIL system are too evident to ignore any longer. The Supreme Court decided to take up on priority an interlocutory application rather than first deciding the constitutional validity of the Forest Rights Act, which was the original prayer. The court seems to have decided that the process for vesting rights under the law, which itself is under challenge, is enough natural justice. There seems to be no demand for giving real representation to those whose rights will be affected by the proceedings. This is eerily similar to the Bhopal gas leak case in which the court in 1989 allowed the government to work out a secret settlement on compensation with the Union Carbide, the company responsible for the tragedy that killed thousands of people.
What was supposed to be a tool to protect the rights of the most deprived has come to haunt them. Unless corrective measures are taken, and immediately, in the Forest Rights Act case, the degeneration of public interest litigation as an instrument for doing good will become irreversible.