--- prakash <mindware@xxxxxxxxxx> wrote:
>
http://www.tribuneindia.com/2004/20041218/nation.htm#13
>
> PIL- a tool to make money?
---
The Hindu has a more detailed report:
http://www.hindu.com/2004/12/22/stories/2004122202951200.htm
Basically, Supreme Court, dismissing an appeal against
a judgment against an advocate caught taking "black
mail" money in PIL, has reportedly asked High Courts
to be careful while entertaining PIL and for copy of
the order to be sent to Bar Council and Supreme Court
Bar Association to help them take measures to expose
the guilty.
>From my experience of PIL (mainly by association with
cases of clients synergizing on Master Plan
Implementation Support Group on which I am Planner) I
fear, on at least three counts, that this might help
frivolous dismissals.
One, in saying "the judiciary has to be extremely
careful to see whether behind the beautiful veil of
public interest an ugly private malice, vested
interest or publicity seeking is not lurking", the
Court has disregarded the absence of parameters for
carefulness and the great deal of subjectivity (even
prejudice) about vested interest that tend to favour
certain types of PIL, not all genuine. Two, in
describing the matter as "black spot on the noble
profession" the Court has elevated to "noble" standing
a profession at best associated with skill with law
(not justice) and at worst called liars' profession
and also suggested that lawyer-PIL is not central to
but aberration in abuse of PIL, which leaves scope for
privileging lawyer-PIL over others. Three, in saying
"the concept of PIL was devised to help the judiciary
in extending its long arm of sympathy to the poor,
ignorant, oppressed and the needy", the court has
(besides disregarding the rampant misuse of PIL
against those whom it was to help) left room to favour
PIL that finds resonance with the courts' subjective
sympathy over PIL that seeks from them wholesome
consideration of facts and law for justice.
Even as it is expected and accepted that "culprits"
will get away with less than deserved "punishment" and
"exemplary punishment" will serve as deterrent just as
much as it will serve as challenge to
do-it-without-getting-caught, the court has
highlighted only these, in vein of everyday
"corruption" exposures that mainly / only increase
tolerance thresholds. Even if the Bar lives up to the
expectation that a copy of this order will help it
expose the guilty in the occasional case, the fact
remains that issues arising from "meddling with the
judicial process" are not reducible to black sheep in
Bar or Bench and go as far as undermining law itself,
ie, nothing short of threat to sovereignty. This is
beyond the ken of the Bar alone to deal with.
About PIL on development planning issues I can say
with confidence that simplistic (mis) interpretations
relying on deeply flawed understanding of development
law as some sort of penal code have left the PIL route
wide open for any one wanting to subvert statutory
solutions and entitlements to sustain problems and
dis-empower citizens. I posit that such PIL will
remain abuse prone as long as it remains "private"
between Bench and Bar and, further, that this is
contrary to development planning law on at least two
counts. Firstly, the purpose of planning law is
balanced development and the Master Plan balances all
interests, whereas PIL relying on it is usually from a
single perspective and marginalizes / is at cost of
others' Plan entitlements, ie, contrary to the
conflict-resolution purpose of the Plan. Secondly,
such PIL seeks to modify Plan provisions or at least
Plan implementation priorities and, since development
law requires for Plan modification a process inclusive
of mandatory Public Notice for objections and
suggestions, curtails others' right to participate in
development decisions.
As such, PIL on development issues can be abuse-free
only if it is: (a) primarily for enforcement of
statutory Plan provisions for solutions /
entitlements; (b) against Plan violations with
specificity about the violations as well as about
solutions / entitlements jeopardized / infringed; (c)
inclusive enough to ensure all affected are adequately
represented; (d) based on sufficient prior effort for
clarity about the foregoing; and (e) complementary to,
not conflicting with, the statutory Public Notice
process.
These parameters have guided all judicial engagements
of MPISG (part of the comprehensive engagements since
1999-2000 on Delhi Master Plan revision and in public
domain on the web). The MPISG matters cover all key
aspects of the Plan - ridge, riverbed, heritage,
housing, commerce, facilities, infrastructure, work,
regional context - and the processes for its
modification. On all these Plan issues there are also
lawyer/NGO PIL and MPISG matters provide opportunity
for comparison between two very different approaches
to PIL on development issues. It is noteworthy that
all MPISG matters have been "resisted" by respondents
with adversarial, diversionary and dilatory tactics,
non-compliance of orders, etc, and have found no space
in politics or media, nor any exceptional sympathy
from "judicial activism". Other PIL on the same issues
have progressed well and returned orders (with MPISG
matters sub-judice) that have led either to compliance
or to policy / legislation in conflict with Master
Plan / Delhi Development Act - to progressively build
a fait-accompli for legitimising a wholly unlawful
Plan revision.
The course of Delhi Master Plan 2021 was charted, in
consonance not with sovereign law but with global
paradigm for city development strategy, in high-level
"recommendations" of 1999, legitimised in 2000 through
so-called study for infrastructure and environmental
imperatives for Delhi 2021, funded by World Bank. In
March 2003 CBI exposed the DDA scam, implicating also
a sitting High Court judge (incidentally, in a matter
also central to MPISG cases filed in August 2002). In
June 2003 13th Lok Sabha Standing Committee for Urban
Development invited views on DDA and received
responses with requests for hearing on full range of
Plan issues. In July 2003, NDA Urban Development
Minister issued (with no basis in law)
"recommendations" of 1999 as DMP-2021 "guidelines".
The deal to host Commonwealth Games in Delhi in 2010
was also struck and has been used since to black-mail
the city to distort development priorities. In May
2004 the UPA government came into power with support
of the Left and adopted a National Common Minimum
Programme. MPISG identified areas of convergence
between DMP and NCMP to seek support for lawful
planned development in name of NCMP, to no avail,
while NGOs seeking in name of NCMP continuation of
policies floated with their support by the NDA have
been successful. Parliamentary Standing Committee
continues not to respond to requests for hearing of
views it had invited in 2003. And on 22.12.2004, after
a Consultative Committee meeting, UPA Urban
Development Minister has announced finalizing in a
month of draft DMP 2021 - in line, it can safely be
bet, with "guidelines" decreed in 1999 and "issued" by
hand of his NDA predecessor in 2003.
Delhi Master Plan 2021 is poised to become text-book
case of how "meddling with the judicial process" by
abuse of PIL can lead to "meddling with the statutory
planning process" by orders of the courts. The
five-year long chronicle of its revision reveals, most
of all, sure state of anomie, abetted by all,
including quite significantly the courts. Pecuniary
gains being made out of sweeping disregard of law seem
trivial in comparison to its debilitating impact on
polity. The crisis owes to drift from all mandates and
seems driven by incompetence more than by opportunism,
making for atrophy in institutions and, thereby,
potential irrevocability of anomie.
In this perspective the Apex Court's remarks about PIL
are disappointing, but its order does open a window of
opportunity that will hopefully be used.
Gita Dewan Verma | Planner | 23.12.2004
-----
(I want to a write a paper / series about this and
solicit co-authors and options to publish in
professional media for planners and lawyers in India)
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