First Judicial Activism in Bhutan: Public Interest Litigation

 With the adoption of the Constitution, the separation of power among the legislature, the executive and judiciary clearly defined and thus, these three branches of the government are independent of each other.  The role of judiciary is interpreting the laws enacted by the legislature.  However, judiciary is also one of the sources of laws in the country in the form of judicial precedents, writs or guidelines. This is often described as the judicial activisim. The scope of judicial activism has
been seen expanding in many countries including India. However, we have had no such activism in Bhutan yet.

 The Article 7(1) of the constitution guarantees that every person has the right to life, liberty and security.  Considering numerous interpretations on the constitutional laws certainly states that the right to life does not mean mere existence of a life but it include right to healthy and clean environment. This means every person has right to breath clean air, drink clean water and stay in a conducive and non- hazardous environment.  

Bhutan’s constitution is only the on that lays a clear constitutional mandate on environmental conservation, protection and maintenance. Article 5(1) of the constitution explicitly declares every Bhutanese as trustee of our national resources and mandates a duty to protect and conserve our national resources. Article 5(2) further re-enforces the state to put in national mechanisms to ensure the protection and conserve the natural resources, biodiversity and maintain healthy environment  and  Article 5(3) mandates the state to maintain Bhutan’s forest coverage of at least sixty percent at all times.  We have number of laws and by laws to fulfill these mandates by the state. However, Bhutan as one of the fastest developing countries and with the current pace of development, the negative impacts on the environment, ecological balance and forest are inevitable. Development is inevitable with increase in population and human wants as well as basic necessities including better transport and living standard.Thus, judicial activism plays an important role in negating such negative impacts due to development and promote sustainable development. 

Principle of Locuc Standi 

A legal standing or locus standi is the term for the ability of a party to demonstrate to the court in sufficient connection to and harm from the law or action challenged to support that party's participation in the case.  otherwise the court will rule that the plaintiff or aggrieved "lacks standing or there is no loci standi" to bring the suit and will dismiss the case without considering the merits of the claim. Thus, only parties who are aggrieved by the action of other party have locus standi or legal standing or entitled to seek the remedy from court and not any other person who are not party to the incident. 

In Bhutan, as per Section 116 of Civil and Criminal Procedure (CCPC), only a litigant (Natural or legal person) or his/her jabmi or representative can institute suit or a state in case of criminal offences and no other person is allowed. Article 7(22) of our Constitution allows any person to seek remedy for violation of any of the fundamental rights by petitioning either the High Court or the Supreme Court. 

The Concept of Public Interest Litigation (PIL) 

The concept of Public Interest Litigation is evolved by the Supreme Court of India in the case of S.P. Gupta v. Union of India, AIR (1982) SC 149.  P. N. Bhagwati, J.  articulated the concept of PIL as, “Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons by reasons of poverty, helplessness or disability or socially or economically disadvantaged position unable to approach the court for relief, any member of public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case any breach of fundamental rights of such persons or determinate class of persons, in this court under Article 32 seeking judicial redress for the legal wrong or legal injury caused to such person or determinate class of persons.”

Thus, the general rule or scope of locus standi have been relaxed and a person acting bonafide and having sufficient interest in the proceeding of Public Interest Litigation will alone have a locus standi and can approach the court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration. Since then numerous PILs were filed in Indian courts mainly on environment and people’s rights in India. PIL has seen a huge contribution in helping and addressing hundreds of environmental and basic rights of Indian citizens in India.

Our Supreme Court’s announcement of instituting a Green Bench in the High Court to address environmental issues is yet another testament of Bhutan’s commitment to upholding the Constitution and respect to His Majesty the fourth king’s wise wisdom where Bhutan stands edge over any other nation in the world in terms of environment conservation and protection. It is also sign of expansion of role of judiciary in development of the off the nation. Appreciating its positive impacts, our Supreme Court also seems to adopt this very concept in helping the nation to address any unforeseen environmental degradation and promote and protect our natural resources.  This would also automatically protect and expand the definition of right to life in Bhutan.

With the acceptance of PIL on environment, gradually like other countries, it may also give rise to many other areas such a contesting  a validity of law enacted by a legislature against the constitution or human rights violations etc. For instance, in India, there are also so many PILs filed under various other laws most recent being the Section 66A of the Information Technology Act 2000 of India where Supreme Court declared that section as unconstitutional and invalid.  Therefore, such is definitely possible under the Bhutanese society too. It would also help to enhance and update specially our government lawyers as these PILs would possibly be initiated by private lawyers. With increasing number of lawyers  in the country and limited intake in the government would also might force some lawyers to resort to abuse the PIL principle as it has happened in India on many occasion. In such case, judiciary plays a very important role in curbing any abuse.  With institution of PIL, the role of Judiciary is gradually expanded as in any democratic country .

Some might argue that, Judiciary should have laws to accept such petition. But I feel that since Article 21(10) empowers the High Court and Supreme Court to issue writs, declarations or directions as the case may be and Article 7(23) and 21(18) empower any person in Bhutan to seek judicial redressal of such violation from the   the High Court and Supreme Court. Applying the basic elements, the suits may also be filed if there is a cause of legal injury to a group of person or class of determinates by reasons of poverty, helplessness or disability or socially or economically disadvantaged position unable to approach the court for relief and such petition or PILs would be maintainable under the law. 

We hope that as Supreme Court would also come up with a comprehensive guidelines on PIL to ensure easy access for genuine cases while adequate mechanism to prevent any false or vested interest PILs.