The public is a complex system, one that is defined differently by different individuals. The law has had its own set of conceptions in explaining the public. The PIL mechanism in India attempts to establish such a connection between the law and the public in India through a legal mechanism known as Public Interest Litigations (PILs). Ideally, PILs are litigation for the protection and representation of the public. It is intended to make the law more accessible and provide the people with an avenue to voice their concerns in a legal forum; the Supreme Court can be approached through Article 32 of the Constitution [1] , and the High Court can be approached through Clause 1 of Article 226. [2] However, there are specific technical requirements to raising a PIL, including that it must be a writ petition. A PIL must be from a public-spirited citizen, an aggrieved person, or a social action group to enforce the constitutional or the legal rights of a person in custody or a class or group of persons. [3] Thus, in a formal sense, the law recognises the entity that is the public and allows it some form of action. However, there is a difference in the perception of the public maintained by courts, petitioners, and civil rights organisations. This article seeks to identify this difference in public perceptions with specific reference to prison conditions through the PILs of Ganesh Shankar Pawar v. State of Maharashtra & Yerwada Central Police [4] & G Bhargavi v. State of Andhra Pradesh and Others [5] . The topic of prison conditions provides an avenue to understand an issue that the public often has disparate views upon. That the first of these PILs was accepted, while the second rejected, provides an ideal platform for understanding the differing conceptions of the public through the lens of prison conditions.
Ganesh Shankar Pawar v State of Maharashtra & Yerwada Central Police
In this case, the Centre for Para-Legal Services and Legal Aid and an under-trial prisoner at the Yerwada Central Prison by the name of Ganesh Shankar Pawar, representing his fellow inmates filed a PIL petition. Challenging the rules and conditions imposed upon the prisoners, especially those under trial, concerning their ability to meet family and advocates. In the prison, only five windows out of a measly fifteen were allotted to lawyers, and the timings coincided with the court, making it very difficult for lawyers to meet the inmates. Additionally , specific conditions and formalities that were not a part of the governing prison rules [6] were mandatorily imposed for such meetings to occur.
The arguments of the petitioners bore significant weight as there were substantial precedents towards recognising prisoners’ rights, including the landmark cases of Sunil Batra (II) [7] and Re -Inhuman Conditions in 1382 Prisons [8] , both of which realised that the fundamental right to dignity that all individuals possess could not be taken away from prisoners.
The precedents established through the above mentioned cases were used by the Court to recognise not just the issues brought explicitly by the petitioners but also a cohort of other fundamental problems present in the prison facilities and requested a comprehensive revamping
of the entire prison, with a bi-annual report assessment submitted directly to the Court for reviewal.
G. Bhargavi v State of AP and Others
The petitioner, in this case, was Mrs G. Bhargavi, a social worker and the president of the organisation Gareeb Guide, which focused on promoting human values in India. The petition concerned a denial of conjugal visits for prisoners, and by extension, the chance of having a family. The petitioner argued that given the delays of the legal system, and the increasingly harsh sentences that are awarded, most come out of jail at an age where either they or their spouse are beyond the age of raising a family. [9] Much of the petitioner’s arguments stemmed from the psychological and biological effects it had on the individual. The petitioner claimed that this leads to sexual assault and homosexuality in prisons, basing the argument on statistical reports of the prevalence of HIV/AIDS in jails. Thus, according to the petitioner, regular conjugal visits would significantly mitigate such outcomes.
The Court rejected the PIL, stating that while prisoners have a right to dignity under Article 21 [10] , their liberty could be taken away, which extends to living with his or her spouse and raising a family. Curiously, the court then reasoned that allowing such conjugal visits would lead to jealousy and disrupt the prison environment, leading to new difficulties. The petition was thus dismissed, and such conjugal ‘rights’ continue to be denied to the prisoners.
Perceptions of the Public
Habermas
Jürgen Habermas, in his book The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society, [11] elaborated his conception of what the public entails. He defined the public as a virtual or imaginary community, which does not necessarily exist in any identifiable space, and essentially forms when private individuals come together. This public sphere creates public opinion, the source of legitimacy, power and state policy. Habermas posited that the success of the public sphere is predicated upon rationality. There must be critical discourse, and this discourse must be available and accessible to all for it to be indeed public. Everyone must be treated as an equal participant and allowed to argue for their beliefs and conceptions of what the State requires. This discourse further must be natural and not mediated or presented in a formal, bureaucratic manner. Habermas identified a deformation of the modern public sphere through the development of welfare, economy, cultural industries and privatisation. According to Habermas, a variety of factors resulted in the eventual decay of the public sphere, including the growth of a commercial mass media, which turned the critical public into a passive consumer public, and the welfare state, which merged the state with society so
thoroughly that the public sphere was squeezed out. Related to the public sphere and function of public opinion, as has been clarified by Habermas, are regulations and proceedings which are necessarily present and clearly visible as operational in the public sphere (Publizitätsvorschriften). I contend that PILs are one such example of the same – an act of the State [12] which nevertheless is mandatorily public. These occupy a middle ground, where it is inherently related to public opinion and shaped by it, and is yet a functioning of the State and governmental view.
The first PIL analysed in this article, related to the visitation rights of families and advocates as well as a litany of other conditions of the prisoners, was ruled in favour of the petitioners. In this case, assuming that the prisoners’ rights can be taken as public interest (as shall be elaborated upon in the subsequent section), it appears that the courts are an extension of the public opinion – an enforcement mechanism of the same. The second PIL, related to conjugal visitation rights,
was ruled against. Considering that this issue is far less publicised or dramatic than the first, it could be debated that it is, in fact, not indeed an issue of public concern. Therefore, the Court could still be seen as an extension of public opinion.
However, in a Habermasian understanding, PILs, while being related to public opinion, are not themselves a part of the public as they are not an informal representation or critique of the State and its actions – in this case the treatment of prisoners. When representing the same concerns, the petitioners must mean the same as members of a constitutional order subject to legal constraints. This representation is not a reflection of public opinion and merely a relation to the functioning of the same.
The Supreme Court’s responses to the PILs also show an apparent decline of the public sphere as Habermas predicted – a cause and effect of the commercialisation of the media. This media portrayal of only the abysmal conditions of the prisons in and of itself is a symbol of the decline of the public sphere, according to Habermas, as there is no focus on the entirety of the issues at hand and, therefore, a lack of representation of the actual public opinion and only that of what provides sensationalism. The Court was influenced by media reports, leading to a ruling in favour of what was seen as “a complete deprivation of human rights” in the first PIL while
judging against it in the second, where fundamental sexual rights were not seen as a part of the rights of an individual, primarily because it was not portrayed as a fundamental right.
The Law and The Court
The law and the courts provide a different perspective from the petitioners and the traditional Habermasian conception of the public and each other. The law provides a formalistic idea of the public and its collective conscience – in ideal terms, it is the precept that guides and is guided by the public in terms of their morality. On the other hand, the Court provides a realist perspectivento the law, representing the people in their evaluation and understanding of the rules. While the two are different, they must be understood in the immediate context of each other to have a complete account of either.
However, the law is not as symbolic of the people as it aspires to be and therefore perceives the public differently from their true sense of morality and ideals. The law on sedition [13] is a regressive autocratic law against the public’s perception of free speech. There still exists a decree for the restitution of conjugal rights, [14] even in the wake of the massive growth of feminism and equality in India. Most tangibly about prison conditions, the Prisons Act, 1894 (a colonial law) remains in force The law was drafted as a manner of deterrence and thus intended to keep prison conditions at an abysmal low. [15] At this juncture, the law can no longer remain a representation of the public, and its perception of the people is far removed from the commoner’s public, leading to PILs such as the ones mentioned in this article being filed to correct these aberrations.
In the PILs, the reaction of both the law and the courts perceived the public differently from how the petitioner does. The law is antiquated and archaic, and has not evolved to the level required to address current public sentiments and concerns. In the first case, the Court passed such an order only due to the reaction of the press and the severity of the conditions present leading to grave human rights violations of the prisoners. The Court did not recognise the public interests in the second scenario. The public’s perceptions remain distant, with a distinct lack of cognisance of the issues suffered by the people – such as raising a family. The law and the courts allowed for an inexplicable logic in the second PIL – demonstrating the failure of the courts and the law in perceiving or representing the public.
Conclusion
The public remains a multifaceted organism, perceived differently by many, never understood as one. What may be the public to the petitioner is very different from how the law perceives the same, which in turn is different from the perceptions of the Court. This is reflected in the decisions taken by each, which leads to other impacts on society in terms of direct tangible and sociological results.
Prison conditions, in particular, are a widely debated issue, with numerous, often conflicting viewpoints. The question is not whether people care for the conditions of the prisoners, but rather, how to motivate the ‘public’, whether understood legally or in commonsensical terms, to act to protect the prisoners. Public Interest Litigations serve as a medium through which the people’s problems may be addressed formally in a court of law and gain state action. However, there is growing concern
about frivolity in such litigations, as the system is abused in the interests of private individuals. [16] There is a need for recognition, if not conformity, on what public interests are. This requires a coalescence of ideologies – a meeting of minds and communities, something the law and its agents have never wanted to do. The interests of the prisoners must be protected, and in doing so, the interests of the public as well. The dissonance across multiple perceptions should not be a makeshift to safeguard the people’s interests, and this dissonance must be corrected by all involved.
[1] INDIA CONST. art. 32.
[2] INDIA CONST. art 226 cl. 1.
[3] The Supreme Court of India, Compilation of Guidelines to be Followed for Entertaining Letters/Petitions Received.
[4] Ganesh Shankar Pawar v State of Maharashtra & Yerwada Central Police, (2017) SCC OnLine Bom 239.
[5] G Bhargavi v State of AP and Others, (2012) SCC OnLine AP 635.
[6] The Maharashtra Prisons (Facilities to the Prisoners) Rules, 1962.
[7] Sunil Batra v Delhi Administration, AIR 1980 SC 1579.
[8] Inhuman Conditions in 1382 Prisons, In Re, 4 (2016) 3 SCC 700.
[9] The petitioner made the further argument that the fact of imprisonment was a ground for divorce as well, leading to even lower chances of having a family, however both the court and the petitioner did not pursue this strand of argumentation very far, and thus it is not of great relevance.
[10 The right to dignity remains a tenacious legal argument due to the questionable status as to what dignity entails. Having its backing in the French case of Manuel Wackenheim v France (2002), it was stated that no person should be subjected to inhumane or degrading treatment. In India, while it has never been defined, certain treatment, such as custodial torture has been recognised as against dignity, which is considered a basic right in India. [11] Jurgen Habermas, The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society (1962). [12] While the courts and the state are not explicitly the same, the court is essentially an extension of the state authority. It is an executor of political public opinion and not truly a part of it – Courts also gain their legitimacy from the public opinion and therefore cannot be termed as public themselves.
[13] Pen. Code. § 124A.
[14] Hindu Marriage Act, 25 of 1955, Acts of Parliament, 1955 § 9.
[15] Amarendra Mohanty, Indian Prison Systems, 1990.
[16] V.R. Krishna Iyer, A Case for Judicial Activism, The Hindu (Oct. 9, 2001). http://www.thehindu.com/2001/10/09/stories/13090177.htm (last accessed on 25-03-2022.
Arjun Kapur
2nd Year Student, MNLU Mumbai.
