Legal Development in Nepal

Few Questions about PIL and SC Judgement

Few days ago, I had reported you a News on fine imposed on a lawyer by Supreme Court of Nepal for filing frivolous Public Interest Litigation (PIL). The judgment as reported in the media is a first of its kind in the legal history of Nepal. Today, in this article, I am trying to sum up what is PIL and how it works and some comments about the reported judgement.

PIL is a new concept in common law countries where the matter could be raised in court by only such person who has locus standi. The term locus standi is a Latin maxim and means “the right of a litigant to act or be heard”. It is a very important principle in the legal procedure and only those people who have been affected by alleged violation of law or right can raise the issue before a court. This is commonly accepted principle all over the world, otherwise, any person starts filing any case which he wishes and the whole process of justice delivery becomes redundant as judiciary, simply, will not be able to hear all such cases.

In developing country like India and Nepal, the concept of PIL has deviated from the old principle of locus standi. The credit to expand this principle mainly goes to Indian Judiciary in the decade of late 70s and 80s. The learned justices of Supreme Court of India felt that there are millions of masses who are uneducated and illiterate in India. These are the people who are simply ignorant of the process of law and justice delivery mechanisms prevalent in the country. In such a situation, they felt, the rigorous and stringent principle of law like concept of locus standi at all times will act as a deterrent of justice. So, they created the new concept of PIL (Public Interest Litigation) where any member of public can raise any issue before a court of law in case the alleged omission or acts of executives violates any fundamental rights of general public.

Justice P.N. Bhagwati of Indian Supreme Court, in the following words in the case of People’s Union for Democratic Rights vs. Union of India held,

Public interest litigation is brought before the court not for the purpose of enforcing the right of one individual against another as happens in the case of ordinary litigation, but it is intended to promote and vindicate [the] public interest which demands that violations of constitutional or legal rights of large number[s] of people who are poor, ignorant or in a socially or economically backward position should not go unnoticed and unredressed. No state has the right to tell its citizens that because a large number of cases of the rich are pending in our courts we will not help the poor to come to the courts for seeking justice until the staggering load of cases of people who can afford rich lawyers is disposed off.

That was a very bold attempt and any member-he can be general public, advocate, NGO, member of civil society, journalist, and legal researcher etc- can take the matter to Supreme Court and High Court acting in pro bono publico. There are plenty of Indian Cases where the weapon of PIL has been used to reform criminal justice, to guarantee fundamental rights, to secure humane living conditions, to reduce violence and sexual harassment etc.

So, PIL is a kind of tool to safeguard the rights of people which has been guaranteed by our constitution and can be used for enforcing the Fundamental Right, even of the common layman.

But, virtue and vices; merits and demerits are part of any system and process, and now, people are using PIL for fulfilling their personal gain, and for advancing their publicity and reputation.

The same situation is prevalent in Nepal as well. Nepalese Judiciary has also liberalized its stance on locus standi and unscrupulous elements are taking advantage of that. These days, the courts have to waste a lot of its precious time by dealing/disposing these frivolous PIL. And that is the reason Supreme Court of Nepal imposed monetary penalty on one of such advocates.

If we see Indian scenario, the trend of imposing penalty on such publicity oriented advocate is not new and time and again, the SC of India has imposed monetary penalty on the person who has filed such frivolous petition. Other Indian High Courts have followed the suit to impose find on petitioner though imprisonment to guilty has not been heard yet.

As reported in this website recently, the Supreme Court of India has tried to crack the whip on rising ‘frivolous’ and ‘bogus’ PIL where the SC said time has come for slapping a penalty of Rs. one lakh (In our Nepalese case, Rs. 5 was the penalty) to deter these litigants. The SC of India observed that these bogus petitions have become a ‘nuisance to the court.’

Let us see some of the observations of the Indian Supreme Court below:

“Litigation by way of PIL has become a “brahmashtra” and on all issues PILs are being filed consuming the judicial time needed for regular matters and the situation warranted a tough decision.”

PIL is no longer public interest litigation but has taken a shape of “private interest litigation, publicity interest litigation or paisa income litigation.”

“Public Interest Litigation (PIL) was for weaker section of society those who do not have money. However, it has become nuisance.”

One of the justices on the Bench, Justice Katju said,

“Time has come to curb the practice by imposing huge cost (Take note of this! Huge Cost) on petitioners for filing frivolous petitions which defeated the purpose for which it was evolved. There is a need for strict action otherwise people will not understand. Unless and until we impose penalty of Rs one lakh people will not stop filing frivolous PILs.”

These abovementioned remarks came during the hearing of a bunch of PILs seeking guidelines on premature release of convicts serving life sentence in various jails across the country.

But, bona fide litigants of our country have nothing to fear as the judgement in Nepal and India tries to deter only those whose motive is otherwise than serving public at large.

Now, let us go back to our Nepalese judgement.

The court said the decision to slap the fine on advocate Dhananjaya Khanal was taken on Wednesday to discourage those lawyers who bring PILs before it just for the sake of publicity. It further said that such litigations were wasting the court’s valuable time.

It is absolutely correct what the court has said. No one shall have any right to take the advantage of law in such a way that results an abuse of process of law. If SC has to spend a lot of its time on hearing these bogus petitions, genuine cases that are pending in SC can not be disposed in time. Our Judiciary is already overburdened and these kinds of petitions add the woe on common public.

Advocate Khanal had moved the court with a PIL seeking a court order on the government to give him all documents and treaties pertaining to bilateral relations between Nepal and India.

According to the court, Khanal did not specify what exactly he wanted when he sought such documents and treaties from the concerned government agencies.

Now, it is the duty of Advocate to prove that he is filing the petition for greater public interest and public at large will be benefited if SC passes the order as asked in the plaint. But, I doubt if that was the real motive of Advocate in the given case to serve the countrymen. I really wonder and get puzzled what greater service to the nation can be there if order was passed in favour of petitioner, i.e. a court order on the government to give him all documents and treaties pertaining to bilateral relations between Nepal and India.

So, it was a very valid case where an erring advocate has been penalized. At the time when Indian Courts are imposing fine to the amount of Lakh, the mere Rs. 5 as fine is of course, less than sufficient but it must have sent a clear signal to all those who were thinking to stifle the normal process of justice.

——————————————————————————————-

And Below mentioned are some of the links of Media which reports about various Supreme Court and High Court Judgements from India where these courts imposed fine on persons filing frivolous and vexatious petitions. One of the news shows that Rs. 5, 000 was the penalty imposed by Karnataka High Court long way back in 2002.

Links:

 

http://www.hinduonnet.com/2002/06/01/stories/2002060103860400.htm

http://www.hinduonnet.com/2004/03/15/stories/2004031502971500.htm

http://www.hinduonnet.com/2005/02/11/stories/2005021115710300.htm

http://www.hindu.com/2006/04/12/stories/2006041225550400.htm

http://www.hinduonnet.com/2004/03/15/stories/2004031502971500.htm

http://www.tribuneindia.com/2007/20071003/nation.htm

 

One Response

Subscribe to comments with RSS.

  1. […] news. It was just a follow up of earlier news. Our blog also highlighted this news and I wrote even an article in this blog supporting the move of Supreme Court. I expressed my displeasure that the fine is so […]


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: