Dalveer Bhandari, 63, was a young lawyer practising in the Supreme Court at the start of the public interest litigation (PIL) movement in the late 1970s. At the vanguard were activist judges like V R Krishna Iyer and P N Bhagwati. Having appeared in several PIL cases in the intervening decades, Bhandari has seen the first-hand sweep of several landmark judgements.
Opposition to PILs has come from many quarters: from the government, politicians, corporate bodies and even within the judiciary itself. Indeed, a bench headed by Bhandari invited comment from Prime Minister Manmohan Singh over an order to the government to distribute free to people below the poverty line surplus foodgrain rotting in government godowns.
The order was passed in a PIL moved by the People’s Union for Civil Liberties in 2001. The court had passed several directions in the case over the years. But, it was the bench’s latest fiat that raised the hackles of the executive branch and once again kindled debate over the judiciary’s powers.
Somewhat ironically, it was Bhandari who passed a significant Supreme Court judgement on this point. Delivered in January, the case involving the state of Uttarakhand vs Balwant Singh, traced the history of the PIL movement, dealt with the extent to which they can go and suggested legal devices to control frivolous litigation.
The remedy offered by Bhandari to such cases is to impose exemplary costs. In the Balwant Singh case, the challenge was the appointment of Uttarakhand’s advocate-general. According to the petitioner, no one above 62 can be appointed to the post. Ruling that there was no such bar in the Constitution, the judge imposed costs of '1,00,000 on the petitioner as his plea was regarded as an “abuse of process of the court”.
However, according to one of Bhandari’s ten directions issued in the case, the court should take action on a petition that involves the larger public interest and be given priority over other litigation depending upon the gravity and urgency of the issue. His order on foodgrains was one such instance.
Even so, Bhandari might not find much support among his colleagues on such issues, as there has been a sharp turn against judicial activism in recent months. The chief justice himself has stated in several PILs that the court’s job is not to “run the country” and threatened imposition of costs on some petitioners. When one of them wanted toilets for the poor, he asked, “Are we here to order building toilets?”
Some of Bhandari’s colleagues are even more vocal. One constructionist judge, sitting in an adjacent court room, has been a consistent critic of judicial intervention in administrative matters. Commenting on the court appointing monitoring committees and commissions, such as in the foodgrain case, he remarked: “Judges must understand their limits. I am against outsourcing of judicial work. What is a monitoring committee? Is it the function of the judiciary? Badshahat nahi hai ki jo marji me aaya wo kar de (This is not a monarchy in which judges can do as they want).”
There is clearly a split in the apex judiciary over the extent to which it can step into territory belonging to parliament and the executive. At the moment, Bhandari appears to be in the minority. Nevertheless, it is judges like him that will continue to keep the flame of judicial activism burning.
