Third-party litigators and fight for justice

The Supreme Court order on January 8 will remain a bulwark on behalf of society against those forces who bend the law and browbeat the injured alike

While setting aside the Gujarat government’s decision to remit the sentence of the 11 convicted persons in the Bilkis Bano case on January 8, the Supreme Court left open the larger question as to whether Public Interest Litigations (PILs) are maintainable in such a case.

Since the de facto complainant herself filed a writ petition under Article 32 of the Constitution, the court was not necessitated to answer the locus standi of the third-party petitioners. But, it is remarkable that the petitioners in the PILs were allowed to take part in the proceedings by the Supreme Court in the instant case.

Though, initially the bench questioned the need to entertain the PILs by third parties, when the affected party herself filed a separate petition, at no stage did the court feel it necessary to revoke the permission granted. Is it a tacit approval from the part of the apex court for the public-spirited citizens to stand sentinel against travesties of justice by bringing the same to the notice of the justice delivery system?

The state government and the convicts had vociferously opposed the ‘third party strangers’ by calling them interlopers-busybodies, and serious objections were made over the maintainability of the PILs on the ground that allowing third parties to challenge remission orders would set a dangerous precedent opening the floodgates of litigation. But refuting the same, the Supreme Court allowed the public interest litigators to continue in the proceedings by observing that remission is in the administrative realm and the precedents against third-party action in criminal matters may not apply here. This was consequent to the manifold arguments raised by the lawyers for the third parties defending their right to be in the fight for justice.

During the course of the argument, advocate Vrinda Grover relied on Ashok Kumar Alias Golu v Union of India (1991), which held that remission is a part of the executive domain. Advocate Indira Jaising argued that proof of personal or legal injury is not a requirement to approach the Supreme Court in the public interest, as per S P Gupta v President of India (1981). It was further argued that in Anbazhagan v Superintendent of Police (2003), the apex court held that a third party can approach the top court in the public interest, even when such an interested party is a ‘political opponent’, as they are the ‘watchdogs of the government in power’.

Aparna Bhat argued that the Supreme Court entertained PILs from ‘public spirited’ individuals when the nature of the crime requires a public interest. She drew the court’s attention to National Commission for Women (NCW) v Bhaskar Lal Sharma where the court entertained a curative petition by the NCW on behalf of a victim of domestic violence. Nizamuddin Pasha, who appeared for the National Federation of Indian Women, pointed out that ‘public interest’ is put on a ‘lower pedestal’ only if it comes in conflict with the right of the accused to a fair trial in criminal proceedings. Therefore, a third party cannot interfere as it will affect the case of the accused. However, the accused loses this right to a fair trial once an order of conviction is passed leaving only a statutory right to apply for remission.

In this case, the third-party petitioners were the first ones to approach the apex court by filing writ petitions in public interest. The de facto complainant soon joined the fight by filing a separate writ petition. Pertinently, despite being such a high-profile case, Bilkis Bano was not even informed about the release of the convicts. The convicts were way too confident about the fate of their sentence that they did not bother to pay the paltry compensation amount imposed by the Mumbai trial court. They had to pay Rs 34,000, or else to spend 34 years in jail.

Imagine a situation where the complainant opting to remain passive against the remission order on account of ignorance, lack of resources, or even physical threat. The threat was imminent that Bilkis Bano and her family had to flee their native village days before the apex court verdict. The net result would have been the prevailing of an illegal remission order in the absence of a challenge, and the convicts involved in a string of heinous crimes going scot-free.

In the above scenario, the successful stepping in of third-party litigants along with the de facto complainant has wider significance. First, it is an act of standing in solidarity with the survivor. Now, the message is loud and clear that she is not alone in her long-drawn battle for justice. It will remain as a bulwark on behalf of the society against those forces who bend the law and browbeat the injured alike. As argued by Jaising, ‘parties interested’ in law must be given a wide berth.

Let this fight be a harbinger for such a change.

(Ron Bastian is a practising lawyer in High Court of Kerala.)

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.