Justice Who Gave Life Saving PIL For Judiciary

Justice Bhagawati was one of the conscience keepers of the nation. He is known as father of Public Interest Litigation and also Right to Information Act. His passing away is a great loss to Indian judiciary.
Justice Who Gave Life Saving PIL For Judiciary

Madabhshi Sridhar
Central Information Commissioner

Justice Prafullachandra Natwarlal Bhagawati (95) brought back the credibility to judicial institutions. He administered life saving PIL into this Constitutional Institution. The inactive, lethargic and corrupt executive is being scrutinized and checked because of this judicial activism. The RTI has its roots in Bhagwati’s pill of PIL.

It is the constitutional obligation of executive and judiciary to advance the objective of the judicial activism, and public interest litigation for Rule of Law and realization of fundamental rights. Transparency is an empowering addition to this concept. The bureaucracy’s red-tapism and inaction coupled with inefficiency and corruption is denying governance and rights to the people. Judiciary used to be the only recourse available to the common man to question inaction of the public office, but it is already burdened with 3 crore plus cases. This coupled with escalating cost of litigation deter away the aggrieved persons from claiming their fundamental rights. Though we are proud to claim that our Constitution alone provided a fundamental right to remedy under Article 32 and Article 226, the prohibitive cost of travel and lawyer made these two great articles less resorted to. The new unhealthy trend is that the face value alone works and not case value. All those who cannot afford gave up their rights until the advent of RTI Act.  The RTI application is working like a mini PIL against grievance, inaction and small corruption widespread in millions of small public offices in villages small towns and of course urban conglomerations.

In the darkness of secrecy, sinister interest and evil in every shape have full swing. The security of securities is the publicity, according to Philosopher Jeremy Bentham in Scott v Scott, a 19th century case. Approving this Justice Bhagwati, observed in First Judges case SP Gupta v Union of India AIR 1982 SC 149: “The citizens’ right to know the facts, the true facts, about the administration of the country is thus one of the pillars of a democratic State. And that is why the demand for openness in the government is increasingly growing in different parts of the world.” This was approved by five judges. He further observed, “Now, if the secrecy were to be observed in the functioning of government and the processes of government were to be kept hidden from public scrutiny, it would tend to promote and encourage oppression, corruption and misuse or abuse of authority, for it would all be shrouded in the veil of secrecy without any public accountability….We believe in an open government and openness in government does not mean openness merely in the functioning of the executive arms of the state. The same openness must characterize the functioning of the judicial apparatus including judicial appointments and transfers.” This remains an open truth for all times to come.

Regrets his Emergency judgment

Justice Bhagwati has guts to express regret for being a member of five-member-Bench, which ruled that citizen was not entitled to fundamental right to life and liberty during Emergency.  Justice Hans Raj Khanna gave a historic dissent in that case saying emergency cannot take away the right to life or liberty. Justice Bhagwati has rightly regretted it. Now HR Khanna’s rule is the law as the Constitution was later amended during Janata Government. HR Khanna represented the voice of the people. Emergency does not mean the end of the fundamental rights of citizen.

Reforming the locus standi Rule

Locus standi is a rigid rule which all not allow anybody except the victim to agitate for rights. This Rule was a paradise of litigation.  The public interest, which was confined to class-rooms was brought into court rooms.  If judiciary is active today, entertaining public interest issues, in spite of aberrations of misuse, it is because of creative legal intelligence of Justice Bhagwati. Justice was in fact in the trap of injustice until it was liberated by this Justice. In country like India, where illiteracy and corruption compete, locus standi helps criminals to escape and corrupt all systems including judiciary.

His concept of public interest and judicial activism is foundation for right to information. He opened the secret process of judicial appointments in his wonderful landmark precedent in SP Gupta case. It was the seed that grew into a big tree of RTI today. His concept of public interest kicked up not only the judicial activism but also the citizen activism that transformed into the RTI law.

The RTI Act has been rightly incorporated with ‘public interest exception’ to locus standi. The entire scheme of RTI act is to encourage any citizen whether victim or not, to access to information hidden behind executive iron curtains. Any citizen can complain. Any person can question. But through some provisions of the RTI Act, the demon of locus standi was brought back clandestinely. That is the ‘third party’ defence. This defence was meant for securing privacy of public servant. But like locus standi, third party exception is being misused profusely.

A citizen can ask for information about his or another’s grievance, without being a party to litigation.  RTI gives authority to a citizen to know about prosecution or investigation, FIR or charge sheet also, subject to limitations prescribed in RTI Act and Criminal Procedure Code.

He never expires. As father of PIL and also RTI, who transformed judicial approach and opening up of executive files, he lives forever. The 17th CJI Justice Bhagwati will be remembered for his concept of Public Interest Litigation and transparency. Every vibrant citizen has to salute the sacred judicious soul of Justice Bhagwati for empowering him.

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