Activists in India cry foul over new rules regarding public interest litigation

By Rama Lakshmi
Monday, July 26, 2010; A07

MALGUND, INDIA -- Vivek Bhide is a mango grower in this lush, sleepy coastal region of fruit and cashew trees. Four years ago, he also took on the role of environmental crusader for his community when a company began building a thermal power plant nearby.

Fearing that the plant's fumes would reduce crop yields, Bhide wrote countless letters to officials, met with politicians and organized protests calling for the project to be scrapped. When those efforts failed, he and his friends turned to one of the most powerful legal tools available to Indian citizens: They filed a public interest litigation, forcing the project's delay.

"I am an ordinary citizen. How do I resist decisions that are made at the top?" asked Bhide, 47. "The court is my only battleground."

In the past two decades, tens of thousands of public interest litigations have been filed against the Indian government and corporations on grounds that such mega-projects threaten livelihoods, land or the environment. These suits have led to landmark rulings on education, the environment and human rights in India.

But the number of cases has risen dramatically in recent years, straining India's already backlogged courts and holding up power stations, mining ventures, airport upgrades and other projects desperately needed to sustain the country's economic expansion, government officials say.

Frivolous cases abound. Petitions have been filed against premarital sex, the Indian cricket team's tour in Australia and even the American actor Richard Gere -- for kissing an Indian actress in public.

"Who are these self-appointed representatives of public interest? Half of the litigations are triggered by business rivalry or an individual's perspective. It has nothing to do with public interest," said Kamal Nath, India's road transport minister.

The government announced a policy in June that seeks to reduce the caseload by requiring higher standards of proof and by imposing fines on the petitioner if a project was held up by a public interest litigation that is later dismissed. In announcing the rules, India's law and justice minister, M. Veerappa Moily, said "bogus" cases must be exposed.

But many activists say the new rules are a setback for a movement that has allowed citizens to challenge state apathy, corruption and corporate highhandedness.

"The very idea of making the petitioner pay for the project delays is reprehensible. This is an ominous sign and will discourage public-spirited citizens from challenging projects. They will think a thousand times before filing because the court may saddle them" with hefty fines, said retired judge Ajit Prakash Shah, who has ruled on many public interest litigations, including a case that decriminalized homosexuality in New Delhi.

Public interest litigations were born in the 1980s, when India's Supreme Court lowered the standard requirement of locus standi, or the burden to prove that the petitioner is an aggrieved party. The judges, inspired by the late U.S. Chief Justice Earl Warren, sought to expand the rights of marginalized citizens who could not go to court because they were poor or illiterate or had disabilities.

"We are witnessing an unfortunate rollback of the earlier judicial gains. The government is trying to create an impression as if all PILs are filed by people with vested interests. This sends a signal to all the high court judges to treat PILs with suspicion," said Prashant Bhushan, a civil liberties lawyer in New Delhi. "Who the petitioner is, who he is inspired by is irrelevant. What is important is the issue that a PIL raises."

Shah, who was the judge in Bhide's case, said that South Africa's constitution has made Indian-style public interest litigation a fundamental right and that courts in Pakistan, Nepal and Bangladesh have cited Indian cases in recent decisions.

The mango growers ultimately filed two petitions, in 2006 and 2008, against JSW Energy's $130 million power plant project. In September 2009, the Delhi High Court told India's Environment Ministry to "re-examine" the approval given to the thermal plant and ordered the factory to delay operating until the process was complete. But in June, an environment committee gave the plant the go-ahead. A company spokesman said the project follows all environmental guidelines but declined to comment on Bhide's petitions.

Bhide said he is preparing a petition asking the government to assess the environmental impact of several thermal power stations planned in the area.

"They say that India needs these power projects to reach heaven," he said. "But what about the hell it will bring upon our environment?"

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