Public Interest Litigation

Public Interest Litigation

Chapter 1

Genesis of Public Interest Litigation (PIL)

(PIL has become a powerful tool for intervention and for seeking judicial

Assistance for dealing with various issues affecting the pubic.)

“Injustice anywhere is a threat to justice everywhere”

-Martin Luther King, Jr.

Justice without force is impotent;

force without justice is tyranny

-Pascal in Pensees.

There are times when even justice brings harm with it

-Sophocles in Electra.

PIL in broad terms means litigation filed in a court of law for the protection of “Public

Interest” on the wide variety of subjects concerning citizens.

In Indian law, public interest litigation means litigation for the protection of the public

interest. It is litigation introduced in a court of law, not by the aggrieved party but by the

court itself or by any other private party. It is not necessary, for the exercise of the court's

jurisdiction, that the person who is the victim of the violation of his or her right should

personally approach the court. Public interest litigation is the power given to the public by

courts through judicial activism.

Such cases may occur when the victim does not have the necessary resources to commence

litigation or his freedom to move court has been suppressed or encroached upon. The court

can itself take cognisance of the matter and proceed suo motu or cases can commence on the

petition of any public-spirited individual.

1

http://en.wikipedia.org/wiki/Suo_motu

http://en.wikipedia.org/wiki/Judicial_activism

http://en.wikipedia.org/wiki/Court_of_law

http://en.wikipedia.org/wiki/Public_interest

http://en.wikipedia.org/wiki/Public_interest

http://en.wikipedia.org/wiki/Litigation

http://en.wikipedia.org/wiki/Indian_law


Origin of public interest litigation

Prior to the 1980s, only the aggrieved party could approach the courts for justice. However,

post 1980s and after the emergency era, the apex court decided to reach out to the people and

hence it devised an innovative way wherein a person or a civil society group could approach

the supreme court seeking legal remedies in cases where public interest is at stake. Justice P.

N. Bhagwati and Justice V. R. Krishna Iyer were among the first judges to admit PIL's in the

court.1 Filing a PIL is not as cumbersome as any other legal case and there have been

instances when even letters and telegrams addressed to the court have been taken up as PIL's

and heard by the court.

The history of public interest litigation

Public Interest Litigation popularly known as PIL can be broadly defined as litigation in the

interest of that nebulous entity: the public in general. Prior to 1980s, only the aggrieved party

could personally knock the doors of justice and seek remedy for his grievance and any other

person who was not personally affected could not knock the doors of justice as a proxy for

the victim or the aggrieved party. As a result, there was hardly any link between the rights

guaranteed by the Constitution of India and the laws made by the legislature on the one hand

and the vast majority of illiterate citizens on the other.

However, this entire scenario gradually changed when the post emergency Supreme Court

tackled the problem of access to justice by people through radical changes and alterations

made in the requirements of locus standi and of party aggrieved. The splendid efforts of

Justice P N Bhagwati and Justice V R Krishna Iyer were instrumental of this juristic

revolution of eighties to convert the apex court of India into a Supreme Court for all Indians.

As a result any citizen of India or any consumer groups or social action groups can approach

the apex court of the country seeking legal remedies in all cases where the interests of general

public or a section of public are at stake. Further, public interest cases could be filed without

investment of heavy court fees as required in private civil litigation.

1 PIL A Boon Or A Bane

2

http://en.wikipedia.org/wiki/V._R._Krishna_Iyer

http://en.wikipedia.org/wiki/P._N._Bhagwati

http://en.wikipedia.org/wiki/P._N._Bhagwati

http://en.wikipedia.org/wiki/Indian_Emergency_(1975%E2%80%931977)

http://www.legalserviceindia.com/articles/pil.htm


Till 1960s and seventies, the concept of litigation in India was still in its rudimentary form

and was seen as a private pursuit for the vindication of private vested interests. Litigation in

those days consisted mainly of some action initiated and continued by certain individuals,

usually, addressing their own grievances/problems. Thus, the initiation and continuance of

litigation was the prerogative of the injured person or the aggrieved party. Even this was

greatly limited by the resources available with those individuals. There were very little

organized efforts or attempts to take up wider issues that affected classes of consumers or the

general public at large.

However, these entire scenario changed during Eighties with the Supreme Court of India led

the concept of public interest litigation (PIL).

The development of Public Interest Litigation (PIL) in the country has, however, very

recently uncovered its own pitfalls and drawbacks. The genuine causes and cases of public

interest have in fact receded to the background and irresponsible PIL activists all over the

country have started to play a major but not a constructive role in the arena of litigation. They

try to utilize this extraordinary remedy, available at a cheaper cost, as a substitute for

ordinary ones.

PIL- A Boon:

1. In Public Interest Litigation (PIL) vigilant citizens of the country can find an inexpensive

legal remedy because there is only a nominal fixed court fee involved in this.

2. Further, through the so-called PIL, the litigants can focus attention on and achieve results

pertaining to larger public issues, especially in the fields of human rights, consumer welfare

and environment.

Abuse of PIL:

However, the apex court itself has been compelled to lay down certain guidelines to govern

the management and disposal of PILs.

Of late, many of the PIL activists in the country have found the PIL as a handy tool of

harassment since frivolous cases could be filed without investment of heavy court fees as

required in private civil litigation and deals could then be negotiated with the victims of stay

orders obtained in the so-called PILs. Just as a weapon meant for defence can be used equally

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effectively for offence, the lowering of the locus standi requirement has permitted privately

motivated interests to pose as public interests. The abuse of PIL has become more rampant

than its use and genuine causes either receded to the background or began to be viewed with

the suspicion generated by spurious causes mooted by privately motivated interests in the

disguise of the so-called public interests.

Necessary Steps to be taken

There may be cases where the PIL may affect the right of persons not before the court, and

therefore in shaping the relief the court must invariably take into account its impact on those

interests and the court must exercise greatest caution and adopt procedure ensuring sufficient

notice to all interests likely to be affected.

At present, the court can treat a letter as a writ petition and take action upon it. But, it is not

every letter, which may be treated as a writ petition by the court. The court would be

justified in treating the letter as a writ petition only in the following cases:

(i) It is only where the letter is addressed by an aggrieved person or

(ii) A public spirited individual or

(iii) A social action group for the enforcement of the constitutional or the legal

rights of a person in custody or of a class or group of persons who by reason of

poverty, disability or socially or economically disadvantaged position find it

difficult to approach the court for redress.

Even though it is very much essential to curb the misuse and abuse of PIL, any move by the

government to regulate the PIL results in widespread protests from those who are not aware

of its abuse and equate any form of regulation with erosion of their fundamental rights. Under

these circumstances the Supreme Court of India is required to step in by incorporating safe

guards provided by the civil procedure code in matters of stay orders /injunctions in the arena

of PIL.

4


Public Interest Litigants, all over the country, have not taken very kindly to such court

decisions. They do fear that this will sound the death-knell of the people friendly concept of

PIL. However, bona fide litigants of India have nothing to fear. Only those PIL activists who

prefer to file frivolous complaints will have to pay compensation to the opposite parties. It is

actually a welcome move because no one in the country can deny that even PIL activists

should be responsible and accountable. It is also notable here that even the Consumers

Protection Act, 1986 has been amended to provide compensation to opposite parties in cases

of frivolous complaints made by consumers. In any way, PIL now does require a complete

rethink and restructuring. It is however, obvious that overuse and abuse of PIL can only make

it stale and ineffective. Since it is an extraordinary remedy available at a cheaper cost to all

citizens of the country, it ought not to be used by all litigants as a substitute for ordinary ones

or as a means to file frivolous complaints.

5


Chapter 2

What is Public Interest Litigation

Introduction

Though the Constitution of India guarantees equal rights to all citizens, irrespective of race,

gender, religion, and other considerations, and the "directive principles of state policy" as

stated in the Constitution obligate the Government to provide to all citizens a minimum

standard of living, the promise has not been fulfilled. The greater majority of the Indian

people have no assurance of two nutritious meals a day, safety of employment, safe and clean

housing, or such level of education as would make it possible for them to understand their

constitutional rights and obligations. Indian newspapers abound in stories of the exploitation -

by landlords, factory owners, businessmen, and the state's own functionaries, such as police

and revenue officials - of children, women, villagers, the poor, and the working class.

Though India's higher courts and, in particular, the Supreme Court have often been sensitive

to the grim social realities, and have on occasion given relief to the oppressed, the poor do

not have the capacity to represent themselves, or to take advantage of progressive legislation.

In 1982, the Supreme Court conceded that unusual measures were warranted to enable people

the full realization of not merely their civil and political rights, but the enjoyment of

economic, social, and cultural rights, and in its far- reaching decision in the case of PUDR

[People's Union for Democratic Rights] vs. Union of India 2 it recognised that a third party

could directly petition, whether through a letter or other means, the Court and seek its

intervention in a matter where another party's fundamental rights were being violated. In this

case, adverting to the Constitutional prohibition on "begar", or forced labor and traffic in

human beings, PUDR submitted that workers contracted to build the large sports complex at

the Asian Game Village in Delhi were being exploited. PUDR asked the Court to recognize

that "begar" was far more than compelling someone to work against his or her will, and that

work under exploitative and grotesquely humiliating conditions, or work that was not even

compensated by prescribed minimum wages, was violative of fundamental rights. As the

Supreme Court noted, The rule of law does not mean that the protection of the law must be

available only to a fortunate few or that the law should be allowed to be prostituted by the

vested interests for protecting and upholding the status quo under the guise of enforcement of

their civil and political rights. The poor too have civil and political rights and rule of law is 2 1982 (2) S.C.C. 253

6


meant for them also, though today it exists only on paper and not in reality. If the sugar

barons and the alcohol kings have the fundamental right to carry on their business and to

fatten their purses by exploiting the consuming public, have the chamars belonging to the

lowest strata of society no fundamental right to earn an honest living through their sweat and

toil?

Thus the court was willing to acknowledge that it had a mandate to advance the rights of the

disadvantaged and poor, though this might be at the behest of individuals or groups who

themselves claimed no disability. Such litigation, termed Public Interest Litigation or Social

Action Litigation by its foremost advocate, Professor Upendra Baxi, has given the court

"epistolary jurisdiction".

Meaning of Public Interest Litigation

In Black's Law Dictionary : "Public Interest Litigation means a legal action initiated in a

court of law for the enforcement of public interest or general interest in which the public or

class of the community have pecuniary interest or some interest by which their legal rights or

liabilities are affected." Public Interest Litigation's explicit purpose is to alienate the suffering

off all those who have borne the brunt of insensitive treatment at the hands of fellow human

being. Transparency in public life & fair judicial action are the right answer to check

increasing menace of violation of legal rights. Traditional rule was that the right to move the

Supreme Court is only available to those whose fundamental rights are infringed.

But this traditional rule was considerably relaxed by the Supreme Court in its recent rulings:

Peoples Union for Democratic Rights v. Union of India 3-The court now permits Public

Interest Litigation or Social Interest Litigation at the instance of “Public spirited citizens" for

the enforcement of constitutional & legal rights of any person or group of persons who

because of their socially or economically disadvantaged position are unable to approach court

for relief. Public interest litigation is a part of the process of participate justice and standing

in civil litigation of that pattern must have liberal reception at the judicial door steps.

In the Judges Transfer Case - 4 Court held Public Interest Litigation can be filed by any

member of public having sufficient interest for public injury arising from violation of legal

3 A.I.R.. 1982 , S C 1473.4 AIR 1982, SC 149:

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rights so as to get judicial redress. This is absolutely necessary for maintaining Rule of law

and accelerating the balance between law and justice.

It is a settled law that when a person approaches the court of equity in exercise of

extraordinary jurisdiction, he should approach the court not only with clean hands but with

clean mind, heart and with clean objectives.

Shiram Food & Fertilizer case 5- through Public Interest Litigation directed the Co.

Manufacturing hazardous & lethal chemical and gases posing danger to life and health of

workmen & to take all necessary safety measures before re-opening the plant.

In the case of M.C Mehta V. Union of India6- In a Public Interest Litigation brought against

Ganga water pollution so as to prevent any further pollution of Ganga water. Supreme Court

held that petitioner although not a riparian owner is entitled to move the court for the

enforcement of statutory provisions, as he is the person interested in protecting the lives of

the people who make use of Ganga water.

Parmanand Katara V. Union of India7- Supreme Court held in the Public Interest Litigation

filed by a human right activist fighting for general public interest that it is a paramount

obligation of every member of medical profession to give medical aid to every injured citizen

as soon as possible without waiting for any procedural formalities.

Council for Environment Legal Action V. Union of India8- Public Interest Litigation filed

by registered voluntary organisation regarding economic degradation in coastal area.

Supreme Court issued appropriate orders and directions for enforcing the laws to protect

ecology.

A report entitled "Treat Prisoners Equally HC" published in THE TRIBUNE, Aug 23 Punjab

& Haryana High Court quashed the provisions of jail manual dividing prisoners into A, B &

C classes after holding that there cannot be any classification of convicts on the basis of their

social status, education or habit of living .This is a remarkable ruling given by High Court by

declaring 576-A paragraph of the manual to be " Unconstitutional".

5 AIR (1986) 2 SCC 176 SC6 1988 1 SCC 4717 AIR 1989, SC 2039 8 (1996)5 SCC281

8


State V. Union Of India9- Public Interest Litigation is a strategic arm of the legal aid

movement which intended to bring justice. Rule of Law does not mean that the Protection of

the law must be available only to a fortunate few or that the law should be allowed to be

abused and misused by the vested interest. In a recent ruling of Supreme Court on "

GROWTH OF SLUMS" in Delhi through Public Interest Litigation initiated by lawyers Mr.

B.L. Wadhera & Mr. Almitra Patel Court held that large area of public land is covered by the

people living in slum area . Departments despite being giving a dig on the slum clearance, it

has been found that more and more slums are coming into existence. Instead of "Slum

Clearance", there is "Slum Creation" in Delhi. As slums tended to increase; the Court directed

the departments to take appropriate action to check the growth of slums and to create an

environment worth for living.

During the last few years, Judicial Activism has opened up a new dimension for the judicial

process and has given a new hope to the millions who starve for their livelihood. There is no

reason why the Court should not adopt activist approach similar to Court in America, so as to

provide remedial amplitude to the citizens of India.

Supreme Court has now realised its proper role in welfare state and it is using its new strategy

for the development of a whole new corpus of law for effective and purposeful

implementation of Public Interest Litigation. One can simply approach to the Court for the

enforcement of fundamental rights by writing a letter or post card to any Judge. That

particular letters based on true facts and concept will be converted to writ petition. When

Court welcome Public Interest Litigation, its attempt is to endure observance of social and

economic programmes frame for the benefits of have-nots and the handicapped. Public

Interest Litigation has proved a boon for the common men. Public Interest Litigation has set

right a number of wrongs committed by an individual or by society. By relaxing the scope of

Public Interest Litigation, Court has brought legal aid at the doorsteps of the teeming millions

of Indians; which the executive has not been able to do despite a lot of money is being spent

on new legal aid schemes operating at the central and state level. Supreme Court's pivotal

role in expanding the scope of Public Interest Litigation as a counter balance to the lethargy

and inefficiency of the executive is commendable.

9 AIR 1996 Cal 181 at 218

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Chapter 3

PUBLIC INTEREST LITIGATION: A MATTER OF JUSTICE AN ASIAN

PERSPECTIVE

10


1. Introduction

1.1 PIL as a component of the justice system

For some time courts in many developing countries faced a challenge of considerable

proportions. Prime amongst this was their image as being in the service of the rich. The

indigent were often dragged through its portals as unwilling suitors, usually as defendants or

accused. This perception gravely undermines access to justice. Where grievances go

undressed for this reason, the proper functioning of the rule of law is in jeopardy.

Public Interest Litigation (PIL) seeks to correct this judicial image in the eyes of its poorer

citizenry and thus restore the rule of law in the justice system. The courts in India and some

Asian countries have generally adopted PIL as an essential component of its justice delivery

system. In some areas the achievements have been quite spectacular. For example, the South

Asian judiciary is said to lead the world as a guarantor of the legal protection of sustainable

development and the environment.10 The courts in these countries have expanded on

substantive rights and removed the constraints of procedural law inhibiting access to the

courts. The judicial approach displays an Social and Environmental Norms’, 4 Asia Pac. J.

Envtl. L. 195, 195 (2000).

Some suggest that today, South Asia leads the world in jurisprudence, not America or

Europe: Werner Menski etal., Public Interest Litigation in Pakistan 109 (2000). See also

Parvez Hassan, In Pakistan, the Judiciary Leads the Way, 15 Envtl. F. 48 (1998). All cited in

Parvez Hassan and Azim Azfar, ‘Securing Environmental Rights through Public Interest

Litigation in South Asia, 22 Va. Envtl. L.J. 215. Ecological understanding and sensitivity

and, as well, a willingness to build bridges whereby all citizens, and not just the strong, may

approach the courts for vindication of their rights.11

1.2 The value of PIL

This paper discusses the values that PIL, properly channeled, advances. The ensuing

discussion elaborates on these critical values. They may be summarized as follows. PIL:

1. Provides effective judicial protection of weaker sections of community.

2. Makes officialdom accountable.12

10 Nicholas A. Robinson, ‘A Common Responsibility: Sustainable Development and Economic,

11 2 All ER 93, at 105.

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3. Makes real the considerations of transparency in decision-making processes.

4. Remedies democracy deficit.

5. Creates structures for change: force the pace.

6. Allows the most effective proponents to bring cases: promotes effectivity in use of judicial

institutions.

7. Allows diffused interests to be represented: air, water, environment, biodiversity, and such

like.13

8. Ensures access to justice.

9. Allows for participative justice.

10. Ensures government acts according to its established duty to abide by and enforce legal

norms.

11. Protects and sustains democratic governance and the rule of law.

1.3 Why PIL makes sense from a justice perspective in Asian countries

Asian countries have in the past few decades been engaged in efforts to ‘develop’

economically. The nature of the development brought in its wake widespread consequences

on a scale hitherto unknown. And on a populace that was more deprived than the rest. For

example, projects to build dams to supply energy involuntarily displace the less privileged

people in a country in numbers that are staggering. The Bakun dam in Malaysia would flood

a near pristine forested area the size of Singapore; and displace its 100,000 native habitants.

The Three Gorges dam in China will flood an area in which live 1.2 million People. In other

situations, fundamental rights that affect the very support system of life are impaired: the

right to housing, and the provision of basic human needs of clean air, water and sanitation.

Generally those affected have little or no means, nor capacity, to have their concerns

addressed. Bureaucracies move on regardless. The ultimate forum for redressing grievance

and seeking justice.14The courts are practically beyond reach as the traditional method of

litigation is expensive and wracked by procedural obstacles. Also the collective nature of the

rights affected are less amenable to redress through an individualistic western model rights

12 ‘The scope for ventilation of matters of legitimate public concern and public declaration in support of accountability is a vital task for the courts and other public entities charged with finding legal resolution for infringement of social rights’: Durbach A, 'Test Case Mediation - Privatising the public interest' (1995) 6 Aust Dispute Resolution J 233 at 238.

13 A.B.S.K. Sangh (Railway) v. Union of India, A.I.R. 1981 S.C. 298, 317.

14 ‘The root principle of law married to justice, is ubi jus ibi remedium (where there is a grievance there is a remedy)’: Shiv Shankar v State of Haryana AIR 1980 SC 1037.

12


based approach which many Asian countries inherited from their colonial predecessors.15This

eschewed group court on behalf of others. The litigant had to show that he was peculiarly and

especially affected by the damage, over and above the rest of the members of the public.16The

classical judicial reasons for this was the fear that the court system would be open to abuse by

busybodies and cranks and the court drowned by the flood of worthless litigation; as well that

people committed to an agenda would needlessly pursue others causing them great

inconvenience and expense. The Attorney General, as the repository of the public interest,

was the only one who had the right to initiate action where there was collective widespread

damage. The Asian judiciary began to reject these arguments as inapplicable quite early on.

In Malaysia it was said that though the gates to litigation to allow standing were opened,

there was no flood.17The apex courts of India and Pakistan said that failure to accord

standing, given the socio-economic and political infrastructure, will amount to an abdication

of judicial authority.18The Indian Supreme Court considered it a ‘mockery of the

Constitution’ if strict adherence to the adversarial procedure led to injustice, especially where

litigants are unevenly balanced in social or economic strength.

2. The legal infrastructure for pil: lessons from, and for, asian countries

2.1 Establishing PIL as a critical component in the justice system

15 A.B.S.K. Sangh (Railway) v. Union of India, A.I.R. 1981 S.C. 298, 317: ‘Our current processual jurisprudence is not of individualistic Anglo-Indian mould. It is broad-based and people-oriented, and envisions access to justice through 'class actions, public interest litigation,' and 'representative proceedings' [sic]. Indeed, little Indians in large numbers seeking remedies in courts through collective proceedings, instead of being driven to an expensive plurality of litigations, is an affirmation of participative justice in our democracy. We have no hesitation in holding that the narrow concept of 'cause of action' and 'person aggrieved' and individual litigation is becoming obsolescent in some jurisdictions’.16‘Where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the interference with the public right’: Boyce v Paddington Borough Council [1903] 1 Ch. 109, per Buckley J.17 Tan Sri Othman Saat v Mohamed bin Ismai [1982] 2 MLJ 177 (SC).18 State v. M.D. Wasa , 2000 C.L.C. 22 (Lahore) 471, 475(HC): ‘The rationale behind public interest litigation in developing countries like Pakistan and India is the social and educational backwardness of its people, the dwarfed development of law of tort, lack of developed institutions to attend to the matters of public concern, the general inefficiency and corruption at various levels. In such a socio- economic and political milieu, the non-intervention by Courts in complaints of matters of public concern will amount to abdication of judicial authority’.

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Public Interest Litigation, which envisages challenge to governmental transgression of

public rights, is a vital concomitant of the justice system. If not permitted, there would be a

grave lacuna in the public law system. Justice, broadly understood, requires rebalancing the

distribution of legal resources, increasing access to justice for the disadvantaged, and imbuing

formal legal guarantees with substantive and positive content.

To advance these critical components, there must be the necessary legal support structures in

place. PIL is an important starting point. But it needs a comprehensive legal architectural

framework to function effectively. This implies, no less, a change in judicial attitudes, the

broadening of constitutional rights and the revision of existing procedural rules. Additionally,

new remedies need to be shaped to achieve effectual and optimal results. Many Asian

countries, while committed to building a strong governance ethos, in particular accountability

and transparency, are handicapped by weak institutional structures and an even weaker

enforcement culture. PIL provides an avenue for change. Indeed without PIL as an

entrenched critical component in the justice system, the proper functioning of the rule of law

is in question. Establishing it in this schema then becomes a sacrosanct democratic task for all

players involved in the justice delivery system: the citizenry working individually or through

civil society organizations, the judiciary, lawyers, members of the bureaucracy and the

government. What does this practically entail? The following discussion focuses on the

essential legal infrastructure that must be constructed for the proper functioning of PIL in

Asian societies.

The discussion is dealt with under two broad heads: first, the effective enforcement of

existing legal norms; and, secondly, the creation of new judicial norms.

2.2. Enforcing Existing Legal Norms

(a) A Proactive and Independent Judiciary: Fulfilling the Constitutional

Promise

Courts function within a constitutional democracy founded on the rule of law. There are

values inherent in this political and legal construct. It becomes the duty of the judiciary, in the

exercise of its collective adjudicatory skills in cases before it, to advance these values. This

requires judicial creativity; sometimes, even judicial courage. It may not be a matter of

simply searching for the presence or absence of a particular provision in the constitution. This

is not in itself dispositive of the nature or strength of the right. In any event constitutions were

drafted at a time long gone by. They have to be made relevant to the era of an awakened

14


citizenry. The aphorism that ‘constitutions are alive and for all time’ can only be realized by

judges cognizant of their role to advance the values of justice and the proper functioning of

the rule of law. Case law is replete with examples where the judiciary, in countries lacking

comparable constitutional provisions, has implied constitutional rights even in the absence of

a textual provision. In Asia, the constitutions of India, Pakistan and Bangaldesh have no

provision protecting the environment. Yet the judges developed one of the most advanced

environmental protection jurisprudence in the world. The Supreme Courts in these countries,

in a series of creative steps, responded to the clarion call for justice to be done, by first

recognizing that the traditional system of litigation, highly individualistic and adversarial,

was ill-suited to meet the collective claims of the underprivileged. It relied on the wide power

in the Constitution and other sources (such as the Directive principles, in India) to develop an

appropriate method to advance and protect fundamental rights. It used this power to foster a

Public Interest Litigation system to fulfill the constitutional promise of social and economic

order based on equality. Proactive and enlightened members of the judiciary exercised their

acumen to rebalance the distribution of legal resources, increase access to justice for the

disadvantaged, and imbue formal legal guarantees with substantive and positive content.

Judges dismantled archaic and irrelevant procedural processes where they were barriers to

access to justice. Substantive content was expanded to ensure that the social, political and

economic rights guaranteed to its citizens were not thwarted. Judges devised new remedies

(investigative expert panels) and cooperative styles, antithetical to the adversarial trial

process. Judges delved into areas beyond their traditional fields and searched for sustenance

for their decisions from international ‘soft-law’ declarations and treaties. At centre stage of

all these changes was the judge furthering the democratic charter of justice.

This was pithily captured by a Malaysian judge: This dictum was adopted in Malaysia in a

case reputed to have ushered in public interest litigation:19In a Government so firmly founded

on the principles of justice and the rule of law, the Judiciary cannot idly stand as a silent and

stony pillar of democracy. The court, in its role as a public watch dog, is not expected to turn

a deaf ear to the prevailing public outcry against corruption and abuse of administrative

powers by authorities or their officials, however high in rank.

19 Mohamed bin Ismail v Tan Sri Haji Othman Saat,

15


This then is the overarching role that a judge must commit to in order to fulfil his or her oath

of office in a functioning constitutional democracy based on the rule of law.

(b) Enforcing Implicit Procedural Constitutional Rights;

In Bandhua Mukti Morcha v. Union of India,20the Indian Supreme Court acted on a mere

letter by the petitioners in place of the usual formal writ petition. The

Court justified the alteration in the rules of procedure not as an exception tailored to necessity

but as an affirmative constitutional duty to further the protection of fundamental rights.

Constitutions frequently are the source of the procedural rights necessary for citizen

organizations to pursue their advocacy work. Constitutional provisions on fundamental rights

like freedom of association and speech implicitly include rights to access to information,

public participation, and legal standing.

(c) Broadening Key Constitutional Provisions

i. Giving the constitutional provisions on life and liberty a broad substantive component.

Several Asian apex courts based at least on the common law tradition, pioneered by India,

have given the constitutional provisions on liberty a broad substantive content – to

encompass a wide array of rights ranging from personal dignity to quality of life and right to

a decent livelihood. Any limitations on this expanded concept had to be justified as

necessary. This shifts the burden of proof to the alleged transgressor of the right.

Article 21 of the Indian Constitution provides that, "no person shall be deprived of his life or

personal liberty except according to procedure established by law."

The Supreme Court said that this right to life is meaningless unless accompanied by the

guarantee of certain social rights which make the opportunity to live life with dignity equally

available. In Frances Mullin v. Union Territory of Delhi, the Court interpreted the ‘right to

life’ expansively. It held that the right to life "includes the right to live with human dignity

and all that goes along with it, namely, the bare necessities of life such as adequate nutrition,

clothing and shelter... Every act which offends against or impairs human dignity would

constitute deprivation pro tanto of this right to live...."21In a later case, the Court held that the

right to live with human dignity derives its substance from the Directive Principles provided

in the constitution.22This has been expanded to include the protection of more than the mere

20 AIR 1984 SC 802.

21 [1981] 2 S.C.R. at 529.22 Bandhua Mukti Morcha v. Union of India, A.I.R. 1984 S.C. 802, 811.

16


survival or animal existence.23 The judges held that the right to life includes the right to live

with human dignity, and the provision of minimum sustenance, shelter, and those other rights

and aspects of life which make life meaningful and worth living.24This broadening of the

constitutional conceptual framework provided the impetus for public interest litigation of

major proportions.

On the basis of this expansionary interpretation, the Indian Supreme Court has invalidated

unreasonable restrictions on the right to travel, and upheld the rights of traditionally

powerless persons such as prisoners, bonded labourers, pre-trial detainees, rickshaw

operators, children, migrant labourers, inmates of workhouses, pavement dwellers, rape

victims, inmates of mental institutions, small farmers, workers facing plant closures, and

victims of environmental degradation.

In Pakistan the Supreme Court in Shehla Zia v. WAPDA, held that the right to life guaranteed

by Article 9 of the Constitution of Pakistan included the right to a healthy environment. 25The

Constitution makes no reference to environmental rights. These rights were upheld through

an innovative process of interpretation that regards the wide language of fundamental rights

in the constitution ‘as living tissue from which legal principles can be created in order to meet

the needs of an evolving society’.26This innovative model of rule formulation ushered in a

flourishing of PIL in Pakistan.

In Bangladesh, the Constitution also makes no reference to environmental rights. Yet its apex

Court broadened the ‘right to life’ to incorporate these rights.27

In Malaysia, the Indian Supreme Court decisions on the expanded definition of ‘life’ were

incorporated through case law into its constitutional jurisprudence.28Where there are well-

developed codes of law and systems for policing it, there is less need to rely on broad

constitutional guarantees to provide the substantive basis for protection. The judicial role is

23 Puttappa Honnappa Talavar v. Deputy Commissioner, A.I.R. 1998 Karn. 10, 11; Samatha v. State of Andhra Pradesh, A.I.R. 1997 S.C. 3297, 3302 (the right to life includes social and economic empowerment).24 Samatha v. State of Andhra Pradesh, A.I.R. 1997 S.C. 3297.25 P.L.D 1994 S.C. 693.26 Parvez Hassan and Azim Azfar, ‘Securing Environmental Rights through public interest litigation in South Asia, 22 Va. Envtl. L.J. 215.27 Farooque v. Bangladesh, 1997 B.L.D. 17, P 33.

28 Tan Teck Seng [1996] 1 MLJ 261(CA); Hong Leong Equipment [1996] 1 MLJ 481(CA); Ketua Pengarah Jabatan Alam Sekitar & Ors v Kajing Tubek & Others [1997] 3 MLJ 23 (CA).

17


likely to be more supervisory. In the European environmental law context, for example, this

is the position. The emphasis then has been on access to justice, including public access to

environmental information, and the public's role in the enforcement of environmental laws

designed for their protection. The Aarhus Convention of 1998 deals precisely with these.

Article 9 requires member states to ensure that members of the public with a sufficient

interest have access to a court of law or other 'independent and impartial body established by

law' to challenge 'the substantive and procedural legality of any decision'. The procedures

must 'provide adequate and effective remedies, including injunctive relief as appropriate, and

be fair,equitable, timely and not prohibitively expensive'.29

ii. Recourse to international rights regime

The Asian courts’ expansion of the scope of public interest law was achieved in no less

measure by going beyond the domestic legal regime and embracing universal rights and

values reflected in international regimes. Thus eminently domestic concerns like eviction of

the homeless and the landless were seen in the larger concerns relating to the universal

human right to housing.30This locates the constitutional rights within a larger universal

context and enlarges their ambit.

The Supreme Court of India frequently relies on international treaties and precepts to inject

new life into its Constitution. A famous example was the Vellore Citizens' Welfare

Forum case31in which the court held that principles of 'sustainable development', including

the 'precautionary principle' and the 'polluter pays' principle, were part of Indian law.

The Sri Lankan Supreme Court in Bulankulama v. Ministry of Industrial

Development anchored its decision on significant pronouncements on sustainable

development and the incorporation of international treaties in domestic law.32In the 29 See Handbook on Access to Justice under the Aarhus Convention, published by the Regional Environmental Centre for Central and Eastern Europe ('REC'): includes case studies from 19 countries illustrating the practical problems arising for access to justice under Article 9 such as: the role of NGOs, rules as to standing, financial guarantees for interim relief, delay, and costs. Peter Cicchino, Opening Remarks, First Annual Peter Cicchino Awards for Outstanding Advocacy in the public interest Panel Discussion, 2001, 9 Am. U.J. Gender Soc. Pol'y & L. 15. 30 Peter Cicchino, Opening Remarks, First Annual Peter Cicchino Awards for Outstanding Advocacy in the public interest Panel Discussion, 2001, 9 Am. U.J. Gender Soc. Pol'y & L. 15.

31 AIR 1979 SC 1360.32 7 S. Asian Envtl. L. Rep. 1 (Jun 2002).

18


Eppawela case in 2000, the Sri Lankan Supreme Court found that a Government proposal to

lease a phosphate mine to an American company for 30 years conflicted with principles of

sustainable development and had not been subject to adequate environmental assessment. It

emphasised the importance of public access to environmental information, drawing on the

policies of the European Commission and the Rio Declaration to provide positive content to

the fundamental rights guaranteed by the constitution.

The Pakistan Supreme Court in Shehla Zia v WPDA, cited earlier, said the Rio

Declaration ‘would serve as a great binding force’. It applied the precautionary principle

adopted in the Rio Declaration and as applicable to the needs of a developing country.

The Court said: ‘According to it (the precautionary principle) if there are threats of serious

damage, effective measures should be taken to control it and it should not be postponed

merely on the ground that scientific research and studies are uncertain and not conclusive. It

enshrines the principle that prevention is better than cure. It is a cautious approach to avert a

catastrophe at the earliest stage. Pakistan is a developing country. It cannot afford the

researches and studies made in developed countries on scientific problems particularly the

subject at hand. However, the researches and their conclusions with reference to specific

cases are available, the information and knowledge is at hand and we should take benefit out

of it. In this background if we consider the problem faced by us in this case, it seems

reasonable to take preventive and precautionary measures straightaway instead of

maintaining status quo because there is no conclusive finding on the effect of electromagnetic

fields on human life. One should not wait for conclusive finding as it may take ages to find it

out and, therefore, measures should be taken to avert any possible danger and for that reason

one should not go to scrap the entire scheme but could make such adjustments alterations or

additions which may ensure safety and security or at least minimise the possible hazards’.33

The court also relied on the concept in international environment documents of ‘sustainable

development’. It said that a balance had to be struck between economic progress and

prosperity and minimising possible hazards. Of course this implies that judges must be

familiar with the universal concepts in these international instruments, their relevance and

how they could be adapted to advance the public interest in the case before them. This must

33 PLD 1994 SC 693, 710-711.

19


mean in the long term, the phasing out of the ‘insular’ judge oblivious to the impact of

universal values and international instruments on national adjudication.34

Chapter 4

GROWTH OF PUBLIC INTEREST LITIGATION IN INDIA

34 Gurdial Singh Nijar, ‘The Application of International Norms in National Adjudication of Fundamental Rights’, in Proceedings of the 12th Malaysian Law Conference, Bar Council Malaysia, Kuala Lumpur, 2005, p.52.

20


Introduction

Over the last three decades or so, the device of Public Interest Litigation (PIL) has

come to be recognized as a characteristic feature of the higher judiciary in India. Even though

Indian courts cannot take credit for initiating the concept of ‘public law litigation’, they have

in due course emerged as the site where this device has been repeatedly used to protect the

interests of disadvantaged groups as well as address matters of collective concern. The phrase

‘public law litigation’ was first prominently used by American academic Abram Chayes to

describe the practice of lawyers or public spirited individuals who seek to precipitate social

change through court-ordered decrees that reform legal rules, enforce existing laws and

articulate public norms.35 However, the evolution of Public Interest Litigation (PIL) in India,

or Social Action Litigation – as Prof. Upendra Baxi chooses to describe it, has accommodated

several other distinctive features.

I will first summarise the core features of the Public Interest Litigation (PIL) process

and demonstrate how it marks a departure from the common-law understanding of the

judicial process. After that I will present an overview of the circumstances that led to the

introduction of this device which is clearly correlated to the ‘activist’ turn of the higher

judiciary in India. The next component will be devoted to a survey of some prominent

decisions given in Public Interest Litigation (PIL) cases and to conclude I will reflect on

some of the strategies adopted to streamline the institution of cases under this category.

Beginning with the first few instances in the late-1970’s, the category of Public

Interest Litigation (PIL) has come to be associated with its own ‘people-friendly’ procedure.

The foremost change came in the form of the dilution of the requirement of ‘locus standi’ for

initiating proceedings. Since the intent was to ensure redressal to those who were otherwise

too poor to move the courts or were unaware of their legal entitlements, the Court allowed

actions to be brought on their behalf by social activists and lawyers.36 In numerous instances,

the Court took suo moto cognizance of matters involving the abuse of prisoners, bonded

labourers and inmates of mental institutions, through letters addressed to sitting judges. This

35 See: Abram Chaves, ‘The role of the judge in Public Law litigation’, 89 Harvard Law Review 1281 (May 1976)

36 Refer: Susan D. Susman, ‘Distant voices in the Courts of India: Transformation of standing in Public Interest Litigation’, 13 Wisconsin International Law Journal 57 (Fall 1994)

21


practice of initiating proceedings on the basis of letters has now been streamlined and has

come to be described as ‘epistolary jurisdiction’.

In Public Interest Litigation (PIL), the nature of proceedings itself does not exactly fit into the

accepted common-law framework of adversarial litigation. The courtroom dynamics are

substantially different from ordinary civil or criminal appeals. While an adversarial

environment may prevail in cases where actions are brought to highlight administrative

apathy or the government’s condonation of abusive practices, in most public interest-related

litigation, the judges take on a far more active role in terms of posing questions to the parties

as well as exploring solutions. Especially in actions seeking directions for ensuring

governmental accountability or environmental protection, the orientation of the proceedings

is usually more akin to collective problem-solving rather than an acrimonious contest

between the counsels. Since these matters are filed straightaway at the level of the Supreme

Court or the High Court, the parties do not have a meaningful opportunity to present evidence

on record before the start of the court proceeding. To overcome this problem, our Courts have

developed the practice of appointing ‘fact-finding commissions’ on a case-by-case basis

which are deputed to inquire into the subject-matter of the case and report back to the Court.

These commissions usually consist of experts in the concerned fields or practicing lawyers. In

matters involving complex legal considerations, the Courts also seek the services of senior

counsels by appointing them as amicus curiae on a case-by-case basis.37

For purposes of constitutional competence, these actions are characterized as those coming

under the writ jurisdiction of the Supreme Court of India under Article 32 of our Constitution

and the various High Courts, under Article 226. The traditional extent of writ jurisdiction was

of course a colonial inheritance from the British-era and the remedies that could be invoked

were those of habeas corpus, quo warranto, mandamus, prohibition and certiorari.

However, the Indian Courts have pushed the boundaries of constitutional remedies by

evolving the concept of a ‘continuing mandamus’ which involves the passing of regular

directions and the monitoring of their implementation by executive agencies. In addition to

designing remedies for ensuring that their orders are complied with, the Courts have also

resorted to private law remedies such as injunctions and ‘stay’ orders in Public Interest

Litigation (PIL) matters. The Supreme Court of India has been able to shape appropriate

remedies for a variety of situations on account of the wide discretionary powers for granting

37 See Ashok H. Desai & S. Muralidhar, ‘Public Interest Litigation: Potential and Problems’ in B.N. Kirpal et. al. (eds.), Supreme but not Infallible (OUP, 2000) 159-192, at p. 164-167

22


constitutional remedies that have been conferred on it as per the language of Article 32 of the

Constitution. Furthermore, under Article 141 of the Constitution of India, the Supreme

Court’s rulings are considered to be the ‘law of the land’ and become binding precedents for

all courts and tribunals in the country’s legal system. Hence, the Supreme Court’s decisions

in Public Interest Litigation (PIL) matters have progressively shaped a unique jurisprudence

that gives due weightage to the interests of the underprivileged and backward sections in

society. A significant consequence of this is that creative remedies designed for particular

fact-situations come to be widely reported and are referred to by Courts all over the country.

In this way, the rulings given in PIL cases create an active judicial dialogue within the whole

legal system.

The advent of Public Interest Litigation (PIL) is one of the key components of the

approach of ‘judicial activism’ that is attributed to the higher judiciary in India. The Courts’

interventions have played a pivotal role in advancing the protection of civil liberties, the

rights of workers, gender justice, and accountability of public institutions, environmental

conservation and the guarantee of socio-economic entitlements such as housing, health and

education among others. This has not only strengthened the position of the judiciary vis-à-vis

the other wings of government, but has also raised its prestige among the general populace.

However, this activist disposition of the Courts also has its critics.

The principled criticism against Public Interest Litigation (PIL) is that it detracts from the

constitutional principle of ‘separation of powers’ by allowing the Courts to arbitrarily

interfere with policy-choices made by the legislature and pass orders that may be difficult for

the executive agencies to implement. In respect of practical considerations, the criticism

revolves around the behaviour of litigants as well as judges. From time to time, it has been

urged that the dilution of the requirement of ‘locus standi’ has opened up the floodgates for

frivolous cases that either involve the litigants’ private interests or are vehicles for gaining

publicity rather than seeking justice for disadvantaged groups.38 It is argued that in light of

the increasing case-load before the appellate judges, the PIL cases impose an additional ‘gate-

keeping’ role and impede efficiency. From the standpoint of the judges, it is reasoned that

quite often there are no checks against decisions or orders that amount to ‘judicial overreach’

or ‘judicial populism’.

38 See: T.R. Andhyarujina, Judicial Activism and Constitutional Democracy in India (Bombay: N.M. Tripathi, 1992)

23


While all of these criticisms have been offered by acclaimed scholars, senior

practitioners and sitting judges as well, there is a much more compelling case in defence of

the use of Public Interest Litigation (PIL). I would like to take this opportunity to present that

defence. The main rationale for ‘judicial activism’ in India lies in the highly unequal social

profile of our population, where judges must take proactive steps to protect the interests of

those who do not have a voice in the political system and do not have the means or

information to move the Courts. This places the Indian Courts in a very different social role

as compared to several developed nations where directions given by ‘unelected judges’ are

often viewed as unjustified restraints on the will of the majority. It is precisely this

countermajoritarian function that needs to be robustly discharged by an independent and

responsible judiciary. At this point I would like to recall an observation made in the matter of

Bihar Legal Support Society v. The Chief Justice of India & Ors:39

“The majority of the people of our country are subjected to this denial of ‘access to

justice’ and overtaken by despair and helplessness, they continue to remain victims of an

exploitative society where economic power is concentrated in the hands of a few and it is

used for perpetuation of domination over large masses of human beings…… The strategy

of public interest litigation has been evolved by this Court with a view to bringing justice

within the easy reach of the poor and disadvantaged sections of the community.”

The ‘activist’ turn of the Indian judiciary

Our judicial system is a very visible part of the inheritance from the British Raj. We continue

to rely on a sizeable body of statutory law and precedents from the colonial period, with the

exception of what is repugnant to our constitutional provisions. However, the framers of our

Constitution incorporated influences from several countries and adopted the idea of ‘judicial

review’ as opposed to the British notion of ‘Parliamentary sovereignty’.40 In India, the criteria

for the Courts to review governmental action is threefold – the fundamental rights enshrined

39 AIR 1987 SC 38

40 There is an express provision for ‘judicial review’ in Article 13 of the Constitution of India. Article 13(1) says that “all laws that were in force in the territory of India immediately before the adoption of the Constitution, in so far as they are inconsistent with the provisions containing the fundamental rights, shall, to the extent of such inconsistency, be void.” Article 13(2) further says that “the states shall not make any law that takes away or abridges any of the fundamental rights, and any law made in contravention of the aforementioned mandate shall, to the extent of the contravention, be void.”

24


in Part III of the Constitution, the reasonableness of administrative actions and the

demarcation of legislative competence between the Union and the States.

However, the scope of this power of ‘judicial review’ was keenly contested throughout the

1950’ and 1960’s, primarily over the question of the ‘right to property’. During that phase,

governments at both the Union level and most states enacted legislations providing for land

acquisition in order to advance the policy of agrarian land reforms. However, many of the

large landowners who were required to give up their holdings challenged these laws before

the Courts on grounds such as inadequate compensation among others. While the Nehru-led

government passed several Constitutional amendments with the objective of immunizing

these land-reforms measures against ‘judicial review’, the Courts frequently ruled in favour

of the property-owners. By the late 1960’s, this tussle between the Courts and the Congress

Party controlled Parliament turned into one between the idea of ‘judicial review’ on one hand

and unqualified ‘parliamentary sovereignty’ on the other hand.41 The Supreme Court itself

was called upon to rule on the scope of the Parliament’s power to amend the Constitution,

and it evolved the ‘Basic Structure’ doctrine in the much-cited decision in Keshavananda

Bharati v. State of Kerala.42 By a narrow majority of 7-6 it was ruled that Parliament’s

power of amendment was not absolute and it could not amend the ‘Basic structure’ of the

Constitution, which in the opinion of the judges consisted of elements such as democracy,

rule of law, secularism, separation of powers and judicial review.43 The said decision did not

curry favour with the Indira Gandhi-led government of the day and three of the judges who

ruled for the majority were superseded in the matter of appointment to the position of Chief

Justice of India in 1973. Nevertheless, the decision had given a clear signal in defense of

judicial independence.

Around the same time, there was an increasing realization on part of the sitting judges in the

Supreme Court that the judiciary was commonly perceived as an elitist body which would

dispense justice only to those who could afford it. Its pro-landowner decisions had also been

portrayed as an impediment to the land reforms programme by the incumbent executive

agencies. Recognising the need to engage with the egalitarian Constitutional philosophy,

41 For a brief commentary on the evolution of the doctrine of ‘judicial review’ in India, See: S.P. Sathe, ‘Judicial Activism: The Indian experience’, 6 Washington University Journal of Law and Policy 29 (2001) 42 (1973) 4 SCC 225 43 See generally: Raju Ramachandran, ‘The Supreme Court and the Basic Structure Doctrine’ in B.N. Kirpal et. al. (eds.), Supreme but not Infallible (OUP, 2000) at p. 107-133

25


some judges took the lead in raising concerns about improving access to justice for the

underprivileged. In a report on legal aid published in 1971, Justice P.N. Bhagwati had

observed:

“Even while retaining the adversary system, some changes may be effected whereby

the judge is given a greater participatory role in the trial so as to place the poor, as far as

possible, on a footing of equality with the rich in administration of justice.”44

The Committee on Judicare consisting of Justice V.R. Krishna Iyer and Justice Bhagwati

referred to Social Action Litigation as a supplemental tool to grassroots legal services

programmes, in their report published in 1977. Soon after, these two judges took the lead in

promoting the same by taking suo moto cognisance of matters on the basis of letters

addressed to them. However, before describing the use of PIL in some significant instances, it

is important to understand the other limb of the Indian judiciary’s ‘activist’ turn – i.e. a

change in the understanding of constitutional rights.

The most representative right that can be examined to illustrate this change is Article 21 of

the Constitution of India. Article 21 reads as follows: “No person shall be deprived of his

life or personal liberty except according to procedure established by law.” The

understanding of Article 21 in the early years of the Supreme Court was that ‘personal

liberty’ could be curtailed as long as there was a legal prescription for the same. In A.K.

Gopalan’s case,45 the Supreme Court had ruled that preventive detention by the state was

permissible as long as it was provided for under a governmental measure (e.g. legislation or

an ordinance) and the Court could not inquire into the fairness of such a measure. It was held

that the words ‘procedure established by law’ were different from the substantive ‘due

process’ guarantee provided under the Fourteenth amendment of the US Constitution. The

framers of the Indian Constitution had consciously chosen the expression ‘procedure

established by law’ which requires a much lower threshold for placing restraints on

individual liberty. Noted scholar Granville Austin has speculated that this pro-government

orientation may have been prompted by the widespread communal violence that had taken

place around the time of partition. Furthermore, it is a well known fact that Shri B.N. Rau,

one of the principal draftsmen of our constitutional text had been advised about the

44 Cited from: Ashok Desai & S. Muralidhar, ‘Public Interest Litigation: Potential and Problems’ in B.N. Kirpal et. al. (eds.), Supreme but not infallible (OUP, 2000) 159-192, at p. 161

45 A.K. Gopalan v. State of Madras, AIR 1950 SC 27

26


complications of incorporating a substantive ‘due process’ clause by none other than Justice

Felix Frankfurter.46

This position prevailed for several years until it was changed in Maneka Gandhi’s case.47 In

that case, it was held that restraints on ‘personal liberty’ protected under Article 21 should

also be tested against the guarantees of non-arbitrariness, reasonableness and fairness that

were implicit in the language of Articles14, 19 and 21 of the Indian Constitution. Article 14

mandates the guarantee of ‘equal protection before the law’, while Article 19 enumerates the

basic freedoms available to citizens such as free speech, peaceful assembly, association,

movement and pursuit of livelihood. The Court developed a theory of ‘inter-relationship of

rights’ to hold that governmental action which curtailed either of these rights should meet the

designated threshold for restraints on all of them. In this manner, the Courts incorporated the

guarantee of ‘substantive due processes into the language of Article 21. Many commentators

have opined that this change in the interpretation of Article 21 was prompted by the

experience of the ‘internal emergency’ imposed between June 1975 and March 1977 – a

period that was marked by the use of arbitrary and unjust detention laws against the political

opposition as well as thousands of ordinary citizens.

The decision in Maneka Gandhi’s case proved to be a precursor to a series of decisions,

wherein the conceptions of ‘life’ and ‘personal liberty’ came to be interpreted liberally.

Primarily through the vehicle of Public Interest Litigation, the Supreme Court has continued

to expand the ambit of Article 21 which now includes some guarantees for socio-economic

entitlements which had not been expressly enumerated as part of the fundamental rights in the

Constitution. In the words of Justice Bhagwati:48

“we think that the right to life includes the right to live with human dignity and all that

goes along with it, namely the bare necessities of life such as adequate nutrition, clothing

and shelter over the head and facilities for reading, writing and expressing oneself in

diverse forms.”

46 Refer: T.R. Andhyarujina, ‘The Evolution of Due Process of Law by the Supreme Court’ in B.N. Kirpal et. al. (eds.), Supreme but not infallible (OUP, 2000) at p. 193-213

47 Maneka Gandhi v. Union of India, AIR 1978 SC 597

48 Observations in Francis Coralie v. Union Territory of Delhi, (1981) 1 SCC 688

27


Moreover, through innovative changes to the process for instituting proceedings, ascertaining

facts and granting discretionary remedies, the Indian Courts have stepped beyond their

traditional domain to render justice to women, children, bonded labourers and other

oppressed sections of society. Notably, the Supreme Court has affirmed that both the

Fundamental Rights enumerated in Part III of the Constitution and the Directive Principles

enumerated in Part IV, must be interpreted harmoniously. It was observed in the

Kesavananda Bharati decision,49 that the directive principles and the fundamental rights

supplement each other and aim at the same goal of bringing about a social revolution and the

establishment of a welfare State. Furthermore, in Unni Krishnan, J.P. v. State of Andhra

Pradesh,50, Justice Jeevan Reddy had declared:

“The provisions of Parts III and IV are supplementary and complementary to each

other and not exclusionary of each other and that the fundamental rights are but a means

to achieve the goal indicated in Part IV”.

This approach of harmonizing the fundamental rights and directive principles has been

successful to a considerable extent. For example, the Supreme Court has pointed to the

objectives of socio-economic entitlements in order to interpret the right to ‘life and personal

liberty’. For instance, in Olga Tellis v. Bombay Municipal Corporation,51 a journalist had

filed a petition on behalf of hundreds of pavement-dwellers who were being displaced due to

construction activity by the respondent corporation. The Court recognised the ‘right to

livelihood and housing’ of the pavement-dwellers as an extension of the protection of life and

personal liberty, and issued an injunction to halt their eviction. Similarly, in Parmanand

Katara v. Union of India, the Court articulated a ‘right to health’ when it ruled that no

medical authority could refuse to provide immediate medical attention in emergency cases.52

In numerous instances where the Court’s intervention has been sought in environment-related

matters, it has also referred to a ‘right to a clean environment’ emanating from Article 21.

The Courts have also pointed to Directive principles in interpreting the constitutional

prohibitions against forced labour and child labour.

49 (1973) 4 SCC 225

50 (1993) 1 SCC 645; See ‘Chapter 5: Restructuring the Courts: Public Interest Litigation in the Indian Courts’ in Sandra Fredman, Human rights transformed – positive rights and positive duties (Oxford University Press, 2008) at p. 124-149

51 AIR 1985 SC 180

52 AIR 1989 SC 2039

28


Chapter 5

Milestones of Public Interest Litigation in India

One of the earliest cases of public interest litigation was that reported as Hussainara

Khatoon (I) v. State of Bihar.53 This case was concerned with a series of articles published in

a prominent newspaper - the Indian Express which exposed the plight of undertrial prisoners

in the state of Bihar. A writ petition was filed by an advocate drawing the Court’s attention to

the deplorable plight of these prisoners. Many of them had been in jail for longer periods than

the maximum permissible sentences for the offences they had been charged with. The

Supreme Court accepted the locus standi of the advocate to maintain the writ petition.

Thereafter, a series of cases followed in which the Court gave directions through which the

‘right to speedy trial’ was deemed to be an integral and an essential part of the protection of

life and personal liberty.

Soon thereafter, two noted professors of law filed writ petitions in the Supreme Court

highlighting various abuses of the law, which, they asserted, were a violation of Article 21 of

the Constitution.54 These included inhuman conditions prevailing in protective homes, long

pendency of trials in court, trafficking of women, importation of children for homosexual

purposes, and the non-payment of wages to bonded labourers among others. The Supreme

Court accepted their locus standi to represent the suffering masses and passed guidelines and

orders that greatly ameliorated the conditions of these people.

In another matter, a journalist, Ms. Sheela Barse55, took up the plight of women prisoners

who were confined in the police jails in the city of Bombay. She asserted that they were

victims of custodial violence. The Court took cognizance of the matter and directions were

issued to the Director of College of Social Work, Bombay. He was ordered to visit the

Bombay Central Jail and conduct interviews of various women prisoners in order to ascertain

whether they had been subjected to torture or ill-treatment. He was asked to submit a report

to the Court in this regard. Based on his findings, the Court issued directions such as the

detention of female prisoners only in designated female lock-ups guarded by female

53 (1980) 1 SCC 81; See Upendra Baxi, ‘The Supreme Court under trial: Undertrials and the Supreme Court’, (1980) Supreme Court Cases (Journal section), at p. 35

54 Upendra Baxi (Dr) v. State of U.P., (1983) 2 SCC 308

55 Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96

29


constables and that accused females could be interrogated only in the presence of a female

police official.

Public interest litigation acquired a new dimension – namely that of ‘epistolary

jurisdiction’ with the decision in the case of Sunil Batra v. Delhi Administration,56 It was

initiated by a letter that was written by a prisoner lodged in jail to a Judge of the Supreme

Court. The prisoner complained of a brutal assault committed by a Head Warder on another

prisoner. The Court treated that letter as a writ petition, and, while issuing various directions,

opined that:

“…technicalities and legal niceties are no impediment to the court entertaining even an

informal communication as a proceeding for habeas corpus if the basic facts are found”.

In Municipal Council, Ratlam v. Vardichand,57 the Court recognized the locus standi

of a group of citizens who sought directions against the local Municipal Council for removal

of open drains that caused stench as well as diseases. The Court, recognizing the right of the

group of citizens, asserted that if the:

"…centre of gravity of justice is to shift as indeed the Preamble to the Constitution

mandates, from the traditional individualism of locus standi to the community orientation

of public interest litigation, the court must consider the issues as there is need to focus on

the ordinary men."

In Parmanand Katara v. Union of India,58 the Supreme Court accepted an application by an

advocate that highlighted a news item titled "Law Helps the Injured to Die" published in a

national daily, The Hindustan Times. The petitioner brought to light the difficulties faced by

persons injured in road and other accidents in availing urgent and life-saving medical

treatment, since many hospitals and doctors refused to treat them unless certain procedural

formalities were completed in these medico-legal cases. The Supreme Court directed medical

establishments to provide instant medical aid to such injured people, notwithstanding the

formalities to be followed under the procedural criminal law.

In many other instances, the Supreme Court has risen to the changing needs of society

and taken proactive steps to address these needs. It was therefore the extensive liberalization

56 (1978) 4 SCC 494

57 (1980) 4 SCC 162

58 (1989) 4 SCC 286

30


of the rule of locus standi which gave birth to a flexible public interest litigation system. A

powerful thrust to public interest litigation was given by a 7-judge bench in the case of S.P.

Gupta v. Union of India.59 The judgment recognized the locus standi of bar associations to

file writs by way of public interest litigation. In this particular case, it was accepted that they

had a legitimate interest in questioning the executive’s policy of arbitrarily transferring High

Court judges, which threatened the independence of the judiciary. Explaining the

liberalization of the concept of locus standi, the court opined:

“It must now be regarded as well-settled law where a person who has suffered a legal

wrong or a legal injury or whose legal right or legally protected interest is violated, is

unable to approach the court on account of some disability or it is not practicable for him

to move the court for some other sufficient reasons, such as his socially or economically

disadvantaged position, some other person can invoke the assistance of the court for the

purpose of providing judicial redress to the person wronged or injured, so that the legal

wrong or injury caused to such person does not go unredressed and justice is done to him.”

The unique model of public interest litigation that has evolved in India not only looks at

issues like consumer protection, gender justice, prevention of environmental pollution and

ecological destruction, it is also directed towards finding social and political space for the

disadvantaged and other vulnerable groups in society. The Courts have given decisions in

cases pertaining to different kinds of entitlements and protections such as the availability of

food, access to clean air, safe working conditions, political representation, affirmative action,

anti-discrimination measures and the regulation of prison conditions among others. For

instance, in People’s Union for Democratic Rights v. Union of India,60 a petition was

brought against governmental agencies which questioned the employment of underage

labourers and the payment of wages below the prescribed statutory minimum wage-levels to

those involved in the construction of facilities for the then upcoming Asian Games in New

Delhi. The Court took serious exception to these practices and ruled that they violated

constitutional guarantees. The employment of children in construction-related jobs clearly

fell foul of the constitutional prohibition on child labour and the non-payment of minimum

wages was equated with the extraction of forced labour. Similarly, in Bandhua Mukti

59 (1981) Supp. SCC 87

60 AIR 1982 SC 1473

31


Morcha v. Union of India,61 the Supreme Court’s attention was drawn to the widespread

incidence of the age-old practice of bonded labour which persists despite the constitutional

prohibition. Among other interventions, one can refer to the Shriram Food & Fertilizer

case62 where the Court issued directions to employers to check the production of hazardous

chemicals and gases that endangered the life and health of workmen. It is also through the

vehicle of PIL, that the Indian Courts have come to adopt the strategy of awarding monetary

compensation for constitutional wrongs such as unlawful detention, custodial torture and

extra-judicial killings by state agencies.63

In the realm of environmental protection, many of the leading decisions have been given in

actions brought by renowned environmentalist M.C. Mehta. He has been a tireless

campaigner in this area and his petitions have resulted in orders placing strict liability for the

leak of Oleum gas from a factory in New Delhi,64 directions to check pollution in and around

the Ganges river,65 the relocation of hazardous industries from the municipal limits of Delhi,66

directions to state agencies to check pollution in the vicinity of the Taj Mahal67 and several

afforestation measures. A prominent decision was made in a petition that raised the problem

of extensive vehicular air pollution in Delhi. The Court was faced with considerable

statistical evidence of increasing levels of hazardous emissions on account of the use of diesel

as a fuel by commercial vehicles. The Supreme Court decided to make a decisive intervention

in this matter and ordered government-run buses to shift to the use of Compressed Natural

Gas (CNG), an environment-friendly fuel.68 This was followed some time later by another

order that required privately-run ‘auto rickshaws’ (three-wheeler vehicles which meet local

transportation needs) to shift to the use of CNG. At the time, this decision was criticized as an

61 (1984) 3 SCC 161 62 (1986) 2 SCC 176 63 See observations justifying the payment of compensation for human rights violations by state agencies in the following decisions: Bhim Singh v. State of Jammu and Kashmir, (1985) 4 SCC 677; Nilabati Behera v. State of Orissa, (1993) 2 SCC 746; D.K. Basu v. Union of India, (1997) 1 SCC 416; Also see: Lutz Oette, ‘India’s International obligations towards victims of human rights violations: Implementation in domestic law and practice’ in C. Raj Kumar & K. Chockalingam (eds.), Human rights, Justice and Constitutional empowerment (OUP, 2007) at p. 462-485 64 M.C. Mehta v. Union of India, (1987) 1 SCC 395 65 M.C Mehta v. Union of India (1988) 1 SCC 471 66 M.C. Mehta v. Union of India, (1996) 4 SCC 750 67 M.C. Mehta v. Union of India, (1996) 4 SCC 351; Also see Emily R. Atwood, ‘Preserving the Taj Mahal: India’s struggle to salvage cultural icons in the wake of industrialisation’, 11 Penn State Environmental Law Review 101 (Winter 2002) 68 See decision in M.C. Mehta v. Union of India, (1998) 8 SCC 648; Also refer: Armin Rosencranz & Michael Jackson, ‘The Delhi Pollution case: The Supreme Court of India and the limits of judicial power’, 28 Columbia Journal of Environmental Law 223 (2003)

32


unwarranted intrusion into the functions of the pollution control authorities, but it has now

come to be widely acknowledged that it is only because of this judicial intervention that air

pollution in Delhi has been checked to a substantial extent. Another crucial intervention was

made in Council for Environment Legal Action v. Union of India,69 wherein a registered

NGO had sought directions from the Supreme Court in order to tackle ecological degradation

in coastal areas. In recent years, the Supreme Court has taken on the mantle of monitoring

forest conservation measures all over India, and a special ‘Green bench’ has been constituted

to give directions to the concerned governmental agencies. At present, I am part of this Green

bench and can vouch for the need to maintain judicial supervision in order to protect our

forests against rampant encroachments and administrative apathy.

An important step in the area of gender justice was the decision in Vishaka v. State of

Rajasthan.70 The petition in that case originated from the gang-rape of a grassroots social

worker. In that opinion, the Court invoked the text of the Convention for the Elimination of

all forms of Discrimination against Women (CEDAW) and framed guidelines for

establishing redressal mechanisms to tackle sexual harassment of women at workplaces.

Though the decision has come under considerable criticism for encroaching into the domain

of the legislature, the fact remains that till date the legislature has not enacted any law on the

point. It must be remembered that meaningful social change, like any sustained

transformation, demands a long-term engagement. Even though a particular petition may fail

to secure relief in a wholesome manner or be slow in its implementation, litigation is

nevertheless an important step towards systemic reforms. A recent example of this approach

was the decision in People’s Union for Civil Liberties v. Union of India,71 where the Court

sought to ensure compliance with the policy of supplying mid-day meals in government-run

primary schools. The mid-day meal scheme had been launched with much fanfare a few years

ago with the multiple objectives of encouraging the enrolment of children from low-income

backgrounds in schools and also ensuring that they received adequate nutrition. However,

there had been widespread reports of problems in the implementation of this scheme such as

the pilferage of food grains. As a response to the same, the Supreme Court issued orders to

69 (1996) 5 SCC 281

70 (1997) 6 SCC 241; See D.K. Srivastava, ‘Sexual harassment and violence against women in India: Constitutional and legal perspectives’ in C. Raj Kumar & K. Chockalingam (eds.), Human rights, Justice and Constitutional empowerment (OUP, 2007)at p. 486-512

71 (2007) 1 SCC 728

33


the concerned governmental authorities in all States and Union Territories, while giving

elaborate directions about the proper publicity and implementation of the said scheme.

34


Chapter 6

Problems facing Public Interest Litigation in India

At the time of independence, court procedure was drawn from the Anglo-Saxon system of

jurisprudence. The bulk of citizens were unaware of their legal rights and much less in a

position to assert them. And as a result, there was hardly any link between the rights

guaranteed by the Constitution of Indian Union and the laws made by the legislature on the

one hand and the vast majority of illiterate citizens on the other. However, this scenario

gradually changed when the post emergency Supreme Court tackled the problem of access to

justice by people through radical changes and alterations made in the requirements of locus

standi and of party aggrieved. Prior to 1980s, only the aggrieved party could personally

knock the doors of justice and seek remedy for his grievance and any other person who was

not personally affected could not knock the doors of justice as a proxy for the victim or the

aggrieved party. Public Interest Litigation as it has developed in recent years marks a

significant departure from traditional judicial proceedings. The court is now seen as an

institution not only reaching out to provide relief to citizens but even venturing into

formulation policy which the state must follow.

The splendid efforts of Justice P N Bhagwati and Justice V R Krishna Iyer were instrumental

of this juristic revolution of eighties to convert the apex court of India into a Supreme Court

for all Indians.

Public Interest Litigation (PIL) has been an invaluable innovative judicial remedy. It has

translated the rhetoric of fundamental rights into living reality for at least some segments of

our exploited and downtrodden humanity. Under trial prisoners languishing in jails for

inordinately long periods, inmates of asylums and care-homes live in sub-human conditions,

children working in hazardous occupations and similar disadvantaged sections.

But the development of Public Interest Litigation (PIL) in the country has very recently

uncovered its own pitfalls and drawbacks.

1. The genuine causes and cases of public interest have in fact receded to the background and

irresponsible PIL activists all over the country have started to play a major but not a

constructive role in the arena of litigation. In a recent case the court while dismissing an

35


ostensible PIL against the sale of a plot of land through public auction, held that the matter

had not been raised in public interest at all, but to ventilate a private grievance. Of late, many

of the PIL activists in the country have found the PIL as a handy tool of harassment since

frivolous cases could be filed without investment of heavy court fees as required in private

civil litigation and deals could then be negotiated with the victims of stay orders obtained in

the so-called PILs. Just as a weapon meant for defense can be used equally effectively for

offence, the lowering of the locus standi requirement has permitted privately motivated

interests to pose as public interests. The abuse of PIL has become more rampant than its use

and genuine causes either receded to the background or began to be viewed with the

suspicion generated by spurious causes mooted by privately motivated interests in the

disguise of the so-called public interests. Every matter of public interest cannot be the basis

of a PIL, e.g. increase in the price of onions or in railway fares or the dilapidated condition of

railway stations or the Red Fort or trains not running on time. Over the years, PIL

has degenerated into Private Interest Litigation, Political Interest Litigation, and above all,

Publicity Interest Litigation. Weakness for publicity affects judges, lawyers and litigants

alike.

2. The framers of Indian constitution did not incorporate a strict doctrine of separation of

powers but envisaged a system of checks and balances. Policy making and implementation of

policy are conventionally regarding as the exclusive domain of the executive and the

legislature. The power of judicial review cannot be used by the court to usurp or abdicate the

powers of other organs. PIL in practice, however, tends to narrow the divide between the

roles of the various organs of government and has invited controversy principally for this

reason. The court has sometime even obliterated the distinction between law and policy. The

approach of the court in policy matters is to ask whether the implementation or non-

implementation of the policy result in a violation of fundamental rights. In M.N Mehta v

union of India, the court explained how despite the enactment of Environment (protection)

Act, 1986, there had been a considerable decline in the quality of environment. Any further

delay in the performance of duty by the central government cannot, therefore, be permitted.

The court, however, required the central government to indicate what steps it had taken thus

far and also place before it the national policy for the protection of environment. The law and

policy divide was obliterated in Vishaka v State of Rajasthan which was a PIL concerning

sexual harassment of women at work place. A significant feature of this decision was the

courts readiness to step in where the legislature had not. The court declared that till the

36


legislature enacted a law consistent with the convention on the Elimination of All Forms of

Discrimination against Women which India was a signatory, the guidelines set out by the

court would be enforceable. However, in the Delhi Science Forum v Union of India where

the government of India telecommunication policy was challenged by a PIL the court refused

to interfere with the matter on the ground that it concerned a question of policy. PILs that

have sought prohibition on sale of liquor or recognition of a particular language as the

national language or the introduction of a uniform civil code have been rejected on the basis

that these were matters of policy. The court may refuse to entertain a PIL if it finds that the

issues raised are not within the judicial ambit or capacity. Thus, a petition seeking directions

to the central government to preserve and protect the Gyanvapi Masjid and the Vsihwanath

temple at Varanasi as well as the Krishna temple and Idgah at Mathura was rejected. Despite

such observations the court has not adopted a uniform and consistent approach in dealing

with its emerging role as policy maker. While in some cases, the court has expressed its

reluctance to step into the legislative field, in others it has laid down detailed guidelines and

explicitly formulated policy.

3. The flexibility of procedure that is a character of PIL has given rise to another set of

problems. It gives an opportunity to opposite parties to ascertain the precise allegation and

respond specific issues. The PIL relating to depletion of forest cover is a case in pint. The

petition, as originally drafted and presented, pertained to the arbitrary felling of Khair trees in

Jammu and Kashmir. The PIL has now been enlarged by the court to encompass all forests

throughout India. Individual States, therefore, will not be able to respond to the original

pleading as such, since it may not concern them at all. The reports given by court appointed

commissioners raise problems regarding their evidentiary value. No court can found its

decision on facts unless they are proved according to law. This implies the right of an

adversary to test them by cross-examination or at least counter-affidavits. In such instances

the affected parties may have misgivings about the role of the court.

4. In the political arena too, the debate over the limits of judicial activism, particularly in the

field of PIL, has been vigorous. The attempt by the judiciary through PILs to enter the area of

policy making and policy implementation has caused concern in political circles. A private

members bill, entitled Public Interest Litigation (Regulation) Bill, 1996 was tabled in Rajya

Sabha. According to it the PIL was being grossly misused. Moreover, PIL cases were being

given priority over other cases, which had remained pending in the court for years. It was

37


urged that if a PIL petition failed or was shown to be mala fide the petitioner should be put

behind bars and pay the damages. Although the bill lapsed, the debate in parliament revealed

some of the criticism and suspicion that PIL had begun to attract.

5. The credibility of PIL process is now adversely affected by the criticism that the judiciary

is overstepping the boundaries pf its jurisdiction and that it is unable to supervise the

effective implementation of its orders. It has also been increasingly felt that PIL is being

misused by the people agitating for private grievance in the grab of public interest and

seeking publicity rather than espousing public cause. The judiciary has itself recognized and

articulated these concerns periodically. A further concern is that as the judiciary enters into

the policy making arena it will have to fashion new remedies and mechanisms for ensuring

effective compliance with its orders. A judicial system can suffer no greater lack of

credibility than a perception that its order can be flouted with impunity. This court must

refrain from passing orders that cannot be enforced, whatever the fundamental right may be

and however good the cause. It serves no purpose to issue some high profile mandamus or

declaration that can remain only on paper. Although usually the Supreme Court immediately

passes interim orders for relief, rarely is a final verdict given, and in most of the cases, the

follow-up is poor.

To regulate the abuse of PIL the apex court itself has framed certain guidelines (to govern the

management and disposal of PILs.) The court must be careful to see that the petitioner who

approaches it is acting bona fide and not for personal gain, private profit or political or other

oblique considerations. The court should not allow its process to be abused by politicians and

others to delay legitimate administrative action or to gain political objectives. At present, the

court can treat a letter as a writ petition and take action upon it. But, it is not every letter

which may be treated as a writ petition by the court. The court would be justified in treating

the letter as a writ petition only in the following cases-

(i) It is only where the letter is addressed by an aggrieved person or

(ii) A public spirited individual or

(iii) A social action group for enforcement of the constitutional or the

38


Legal rights of a person in custody or of a class or group of persons who by reason of

poverty, disability or socially or economically disadvantaged position find it difficult to

approach the court for redress. Even though it is very much essential to curb the misuse and

abuse of PIL, any move by the government to regulate the PIL results in widespread protests

from those who are not aware of its abuse and equate any form of regulation with erosion of

their fundamental rights.

In his recent write up, Mr. Soli Sorabji, the former Attorney General while applauding the

liberalization of the rule of locus standi by the Supreme Court of India benefiting under-trial

prisoners languishing in jail for inordinately long periods, inmates of asylums and care homes

living in sub-human conditions, children working in hazardous occupation and similar

disadvantaged persons, has lamented that PIL is being abused with increasing frequency and

that over the years. He made the following suggestions:

i. Reject dubious PIL at the threshold, and in appropriate case with exemplary costs,

ii. In cases where important projects or socio-economic regulations are challenged after gross

delay, such petitions should be thrown out at the very threshold on the ground of latches. Just

because a petition is termed as PIL does not mean that ordinary principles applicable to

litigation will not apply. Latches are one of them. In the U.K., for enabling an applicant

seeking an order of judicial review the applicant has to satisfy the test of sufficient interest in

the matter to which the application relates. For satisfying this test an applicant need not have

a direct legal or financial interest but a mere busy body will not have sufficient interest. It is,

however, not necessary that applicants interest should be different from that of an ordinary

member of the public. An applicant having no personal connection with the dispute, in the

traditional sense of locus standi, may be allowed standing, if in its discretion, the court

considers the case to be of sufficient public importance. The courts have held in the U.K. that

standing should usually be considered along with the merits of the case and not as a

preliminary issue.

The Ontario Law Reform Commission Report on the law of Standing, 1989,

recommended that any person should be able to commence a proceeding unless a party

satisfies the Court that there exist factors against proceeding that outweigh the factors in

favour of the proceedings. The factors to be considered by the court would include:

i. whether the issue is trivial;

39


ii. in case where the applicant does not have a personal, proprietary or pecuniary

interest the number of people affected;

iii. Whether another reasonable and effective method exists to raise the issues that are

sought to be litigated;

iv. Whether another proceeding has been instituted against the same opponent in

which the same issues arise and the interests of the applicant could be met by

intervening in those proceedings and it is reasonable to expect the applicant to do

so;

v. Whether to proceed would be unfair to persons affected.

Public Interest Litigants fear that implementation of these suggestions will sound the death-

knell of the people friendly concept of PIL. However, it cannot be denied that PIL activists

should be responsible and accountable. It is also notable here that even the Consumers

Protection Act, 1986 has been amended to provide compensation to opposite parties in cases

of frivolous complaints made by consumers. PIL requires rethinking and restructuring.

Overuse and abuse of PIL will make it ineffective. PIL has translated the rhetoric of

fundamental rights into living reality for at least some segments of our exploited and

downtrodden humanity. Under trial prisoners languishing in jails for inordinately long

periods, inmates of asylums and care-homes live in sub-human conditions, children working

in hazardous occupations and similar disadvantaged sections. Hence, any change to improve

it further should be encouraged and welcomed

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CHAPTER 7

Remedies - Public Interest Litigation (PIL)

A Public Interest Litigation (PIL) can be filed in any High Court or directly in the Supreme

Court. It is not necessary that the petitioner has suffered some injury of his own or has had

personal grievance to litigate. PIL is a right given to the socially conscious member or a

public spirited NGO to espouse a public cause by seeking judicial for redressal of public

injury. Such injury may arise from breach of public duty or due to a violation of some

provision of the Constitution. Public interest litigation is the device by which public

participation in judicial review of administrative action is assured. It has the effect of making

judicial process little more democratic.

According to the guidelines of the Supreme Court any member of public having

sufficient interest may maintain an action or petition by way of PIL provided: -

» There is a personal injury or injury to a disadvantaged section of the population for whom

access to legal justice system is difficult,

» The person bringing the action has sufficient interest to maintain an action of public injury,

» The injury must have arisen because of breach of public duty or violation of the

Constitution or of the law; It must seek enforcement of such public duty and observance of

the constitutional law or legal provisions.

» This is a powerful safeguard and has provided immense social benefits, where there is

essentially failure on the part of the execute to ameliorate the problems of the oppressed

citizens. Considering the importance of this subject, three articles from the web on the subject

are reproduced hereunder.

Introduction

The Emergency of 1976 marked not just a political watershed in this country, but a judicial

one as well. In the euphoria of the return to democracy and in an attempt to refurbish its

image that had been tarnished by some Emergency decisions, the Supreme Court of India

opened the floodgates to public interest litigation (PIL). Under PIL, courts take up cases that

concern not the rights of the petitioner but of the public at large. In the last two decades, PIL

has emerged as one of the most powerful tools for promoting social justice and for protecting

the rights of the poor.

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When and how to File a PIL

1. Make an informed decision to file a case.

2. Consult all affected interest groups who are possible allies.

3. be careful in filing a case because

I. Litigation can be expensive.

II. Litigation can be time consuming.

III. Litigation can take away decision making capability/strength from communities.

IV. An adverse decision can affect the strength of the movement.

V. Litigation involvement can divert the attention of the community away from the real

issues.

4. If you have taken the decision

i. Collect all the relevant information

ii. Be meticulous in gathering detail for use in the case. If you plan to use photographs, retain

the negatives and take an affidavit from the photographer. Retain bills.

iii. Write to the relevant authorities and be clear about your demands.

iv. Maintain records in an organized fashion.

v. Consult a lawyer on the choice of forum.

vi. Engage a competent lawyer. If you are handling the matter yourself make

Sure you get good legal advice on the drafting.

vii. A PIL can be filed only by a registered organization. If you are unregistered, please file

the PIL in the name of an office bearer/member in his/her personal capacity.

viii. You may have to issue a legal notice to the concerned parties/authorities before filing a

PIL. Filing a suit against the government would require issuing a notice to the concerned

officer department at least two months prior to filing.

Expanding Old Rights & Creating New Ones

There is an urgent need to expand old rights and create new rights. Indeed, the success of

legal advocacy needs to be viewed by the social activist in these terms and not merely in

terms of winning or losing cases. For instance, although Haksar and others, as part of their

work on promoting human rights in Northeastern India, have been unsuccessful in their

decade-long effort to get the Armed Forces Special Power Act repealed, they have succeeded

in getting the provision in the criminal procedure code that women be searched only by

women extended to the army.

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Similarly, it is important to try and create new rights based on a vision of the future. For

instance Article 14 of the Indian Constitution treat both an MNC and a citizen equally despite

the inherent and yawning inequality between the two. Therefore if a citizen's rights are to be

fully protected in the wake of increasing MNC activity in the national economy, one needs to

critique the concept of equality in liberal theory and develop new ideas on equality. The filing

of test cases is one way of developing these new ideas.

The same holds true for individual rights vs. collective rights. The prevailing legal system

recognizes only private property - where the owner has the right against the whole world -

and public property, which belongs to the state. But before the imposition of the British legal

system there existed a whole tradition of common property which now has no recognition in

law. "Ass a result all forms of collective or shared realities whether they are in the realm of

rights, relations, practices or knowledge have no place in the present legal scheme even

though they are vital for human survival. They are not part of the language of legal discourse,

either of the judges or lawyers and mention of these rights as 'collective human rights' is met

with surprise, skepticism and often cynicism," say Pradeep Prabhu of Khastakari Sanghatana.

Prabhu, an advocate by training, has had some recent success in getting the Supreme Court to

accept the validity of oral testimonies of poor tribals as evidence.

Sensitising Lawyers

Given the above scenario, one of the most difficult tasks for a social activist is to find a

lawyer with a vision who is able to see the bigger picture and be prepared to fight for it. This

calls for activists to sensitize lawyers on an ongoing basis and not restrict this activity to the

peculiarities of a specific case. Also there is a need to sensitise law students in order to build

a body of public interest lawyers in this country.

Part of the reason why there are few public interest lawyers in India is due to how poorly it

pays. Public interest lawyers in the US (sometimes derisively called 'ambulance chasers') are

easier to find. They largely operate on a 'no-win, no-fee' basis, given the huge damages that

are awarded by US courts and which are then split between the client and the lawyer. In India

even where free legal aid is provided - as it is to SCs & STs, industrial workers, women,

bonded labourers, etc. - public- spirited lawyers end up paying out of their pocket as the

amounts that are fixed for even photocopying of documents do not cover the cost of the

43


service, says Ravi Rebba Pragada of the NGO Samata - which works among tribals in the

Vishakhapatnam district of Andhra Pradesh - who has accessed free legal aid services.

In the U.K., where courts like those in India don't award massive damages, there has been an

innovation in legal aid with wealthy benefactors pitching in to underwrite legal costs. One

property developer underwrote the legal costs of a large number of arthritis patients who

sued- for compensation for side effects they suffered from the drug Opren. Similarly Sir

James Goldsmith, billionaire financier and father-in-law of Imran Khan, set up the Goldsmith

Libel Fund which provided support to a motley assortment of libel defendants. But it is

debatable if such private initiative would be forthcoming, or indeed welcome, to support PIL

cases involving the poor and the marginalised. Activists, however, need to seriously consider

the issue of getting more public-spirited lawyers to enter the fray.

44


Chapter 8

NATIONAL LITIGATION POLICY

I. Introduction

Whereas at the National Consultation for Strengthening the Judiciary toward

Reducing Pendency and Delays held on the 24th and 25th October, 2009 the Union Minister

for Law and Justice, presented resolutions which were adopted by the entire Conference

unanimously.

And wherein the said Resolution acknowledged the initiative undertaken by the

Government of India to frame a National Litigation Policy with a view to ensure conduct of

responsible litigation by the Central Government and urges every State Government to evolve

similar policies.

The National Litigation Policy is as follows:-

VIII. Specialised litigation

C) Public interest litigations (PILs)

Public Interest Litigations must be approached in a balanced manner.

On the one hand, PILs should not be taken as matters of convenience

to let the courts do what Government finds inconvenient. It is

recognized that the increase in PILs stems from a perception that there

is governmental inaction. This perception must be changed. It must

be recognized that several PILs are filed for collateral reasons

including publicity and at the instance of third parties. Such litigation

must be exposed as being not bonafide.

PILs challenging public contracts must be seriously defended. If

interim orders are passed stopping such projects then appropriate

45


conditions must be insisted upon for the Petitioners to pay

compensation if the PIL is ultimately rejected.

Chapter 9

SUPREME COURT OF INDIA

COMPILATION OF GUIDELINES TO BE FOLLOWED FOR ENTERTAINING

LETTERS/PETITIONS RECEIVED IN THIS COURT AS PULIC INTEREST

LITIGATION

(Based on full Court decision dated 1.12.1988 and subsequent modifications).

No petition involving individual/ personal matter shall be entertained as a PIL matter except

as indicated hereinafter.

Letter-petitions falling under the following categories alone will ordinarily be entertained as

Public Interest Litigation:-

1. Bonded Labour matters.

2. Neglected Children.

3. Non-payment of minimum wages to workers and exploitation of casual workers and

complaints of violation of Labour Laws (except in individual cases).

4. Petitions from jails complaining of harassment, for (pre-mature release)* and seeking

release after having completed 14 years in jail, death in jail, transfer, release on personal

bond, speedy trial as a fundamental right.

* 72Petitions for premature release, parole etc. are not matters which deserve to be

treated as petitions u/Article 32 as they can effectively be dealt with by the concerned

High Court. To save time Registry may

Simultaneously call for remarks of the jail Superintendent and ask him to forward the

same to High Court. The main petition may be forwarded to the concerned High Court

for disposal in accordance With law. Even in regard to petitions containing allegations

against Jail Authorities there are no reason why it cannot be dealt with by the High

Court. But petitions complaining of torture, custody death and the like may be

entertained by this Court directly if the allegations are of a serious nature.

72 Added based on Order dated 19.8.1993 of the then Chief Justice of India.

46


(5) Petitions against police for refusing to register a case, harassment by police and death in

police custody.

(6) Petitions against atrocities on women, in particular harassment of bride, bride- burning,

rape, murder, kidnapping etc.

In such cases where office calls for police report if letter petitioner asks for copy the

same may be supplied, only after obtaining permission of the Hon'ble Judge nominated

by the Hon'ble Chief Justice of India for PIL matters.73

(7) Petitions complaining of harassment or torture of villagers by co- villagers or by police

from persons belonging to Scheduled Caste and Scheduled Tribes and economically

backward classes.

(8) Petitions pertaining to environmental pollution, disturbance of ecological balance, drugs,

food adulteration, maintenance of heritage and culture, antiques, forest and wild life and other

matters of public importance.

(9) Petitions from riot -victims.

(10) Family Pension. All letter-petitions received in the PIL Cell will first be screened in the

Cell and

only such petitions as are covered by the above mentioned categories will be placed before a

Judge to be nominated by Hon'ble the Chief Justice of India for directions after which the

case will be listed before the Bench concerned.

If a letter-petition is to be lodged, the orders to that effect should be passed by Registrar

(Judicial) (or any Registrar nominated by the Hon'ble Chief Justice of India), instead of

Additional Registrar, or any junior officer. To begin with only one Hon'ble Judge may be

assigned this work and number increased to two or three later depending on the workload.

*74Submission Notes be put up before an Hon'ble Judge nominated for such periods as

may be decided by the Hon'ble Chief Justice of India from time to time.

**75If on scrutiny of a letter petition, it is found that the same is not covered under the

PIL guidelines and no public interest is involved, then the same may be lodged only

after the approval from the Registrar nominated by the Hon'ble the Chief Justice of

India.

**It may be worthwhile to require an affidavit to be filed in support of the

73 Added as per Order dated 29.8.2003 of the Hon'ble Chief Justice of India.74 * As per Order dated 29.8.2003 of the Hon'ble the Chief Justice of India.75 ** Modified keeping in view the directions dated 29.8.2003 of the Hon'ble Chief Justice of India

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Statements contained in the petition whenever it is not too onerous a requirement.

**The matters which can be dealt with by the High Court or any other authority may

be sent to them without any comment whatsoever instead of all such matters being

heard judicially in this Court only.

Cases falling under the following categories will not be entertained as public interest

litigation and these may be returned to the petitioners or filed in the PIL Cell, as the case may

be:

(1) Landlord-Tenant matters.

(2) Service matter and those pertaining to Pension and Gratuity.

(3) Complaints against Central/ State Government Departments and Local Bodies except

those relating to item Nos. (1) to (10) above.

(4) Admission to medical and other educational institution.

(5) Petitions for early hearing of cases pending in High Courts and Subordinate Courts. In

regard to the petitions concerning maintenance of wife, children and parents, the petitioners

may be asked to file a Petition under sec. 125 of Cr. P.C. Or a Suit in the Court of competent

jurisdiction and for that purpose to approach the nearest Legal Aid Committee for legal aid

and advice.

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Chapter 10

Amend constitution for public interest litigation

District courts should be empowered to initiate suo moto PILs in public interest.

A public interest litigation (PIL) can be filed in any high court or directly in the supreme

court. It is not necessary that the petitioner has suffered some injury on his own or has had

personal grievance to litigate. The PIL is a right given to the socially conscious member or a

public spirited NGO to espouse a public cause by seeking judicial means for redressal of

public injury. Such injury may arise from breach of public duty or due to a violation of some

provision of the constitution. The PIL is the device by which public participation in judicial

review of administrative action is assured. It has the effect of making the judicial process

little more democratic.

The Bombay High Court created history by initiating a PIL case suo moto on the basis of a

series of newsletters exposing corruption in the Maharashtra government’s transport

department. High courts in other states are also expected to take note of such issues of public

interest and suo moto initiate PILs.

A constitutional amendment is necessary so that even district courts are allowed to conduct

cases under PILs. This is because most of the national newspapers have spread over regions

and districts with their editions and more public grievances are reported by way of news and

investigative newsletters. When the constitutional provision was made at the initial stage,

most of the national newspapers were based in state capitals and it was quite reasonable that

high courts were expected to consider cases for PIL only on the basis of news reports

published in them.

Newspaper network

But during the subsequent period newspapers’ network is so widespread that almost every

district has its own newspaper and that too equipped with new modern machinery and

expertise so much so that they are almost competing with regional and national newspapers.

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Most of the national newspapers are published in English or Hindi while regional newspapers

are published in the respective regional languages. Even national and regional newspapers

have been publishing their regional and district editions and are covering various issues with

in-depth analysis and investigative penetration. These editions are almost equal to the state

capital-based dailies and periodicals and are now gaining the same status which they have in

state capitals. Even original district newspapers have geared up to compete with the new

editions of the state-based dailies. District newspapers and editions are concentrating on

major issues which are in public interest.

Delay and corruption in administration, injustice done to people in general and neglected

families in particular, economic crimes which harass people and dupe them, irregularities in

nationalised and co-operative banking sector, farmers plight and hoarding of essential

commodities by middlemen, failure of decentralised panchayat raj system due to non-

cooperative attitude of the bureaucracy and similar variety of issues are periodically covered

in these newspapers. It is therefore necessary that district courts should be empowered to

initiate suo moto PILs in public interest.

While district courts are competent enough to hear PIL cases, advocates or members of the

district bar associations are also well-equipped with legal acumen and knowledge so much so

that they will conduct the argumentative aspect of such cases with expertise and ease which is

seen in high courts. It is therefore high time that necessary amendments are made in the

constitution for empowering the district courts to hear PIL either initiated by citizens or by

courts by way of suo moto action.

For an amendment, both the Union and state governments should take the lead and MLAs

and MPs of all political parties should take initiative in the matter. State assemblies may

demand amendment by resolution while parliament will respond to the demand and pass the

amendment unanimously. This is because this amendment is not based on any controversial

issue or it may not trigger any controversy as this is purely in public interest.

Once district courts are empowered to hear PILs, it will create an atmosphere conducive to

legal remedies for various issues which are brought on surface by news reports in district

newspapers which are on par and in some respect even better as compared to regional and

national newspapers whose editions are also brought out at district places.

Even some exposures having nationwide significance go to the credit of such district editions

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and if district and sessions courts are given the power to proceed with suo moto cases against

the erring and corrupt administration; justice under the PIL will be available to the aggrieved

people in small cities and adjacent rural areas of a vast country like India.

Chapter 11

Concluding remarks: Balancing a double-edged Sword

The power of the Court to entertain any circumstance that may hinder societal growth, or may

cause hardship to a class of individuals is not uninhibited. It is carefully regulated with tight

reins, and cases of public interest are taken up only after rigorous scrutiny. For instance, in a

case wherein a challenge was made to the Government of India’s telecommunication policy,

the Supreme Court refused to entertain the matter on the ground that it purely concerned a

question of policy. Similarly, public interest litigations that have sought to prohibit the sale of

liquor or the recognition of a particular language as a national language, or the introduction of

a uniform civil code, have been rejected on the ground that these were matters of policy and

were beyond the ambit of judicial scrutiny. The need for deference to the other wings of

government in respect of questions of policy was clearly expressed by Justice R.S. Pathak in

the following words:

“Where the Court embarks upon affirmative action in the attempt to remedy a

constitutional imbalance within the social order, few critics will find fault with it so long as

it confines itself to the scope of its legitimate authority. But there is always the possibility in

public interest litigation, of succumbing to the temptation of crossing into territory which

properly pertains to the legislature or to the executive government… In the process of

correcting executive error or removing legislative omission the Court can so easily find

itself involved in policy making of a quality and to a degree characteristic of political

authority, and indeed run the risk of being mistaken for one.”76

The Court has refused to entertain cases that are ‘private interest’ litigations disguised

as ‘public interest’ litigations. It has also refused to interfere with convictions in criminal

76 Cited from (1984) 3 SCC 161, at p. 232

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cases. In a case where directions were sought from the Supreme Court to the Central

Government to preserve and protect certain temples, the said request was rejected. The Court

stated: “The matter is eminently one for appropriate evaluation and action by the executive,

and may not have an adjudicative disposition or judicially manageable standards as the

pleadings now stand.”’

At the time of admitting matters in the form of Public Interest Litigation (PIL), the

Courts have to carefully consider whether or not they are overstepping their domain. Upon

considering the issues at hand, they must then consider whether the orders they intend to pass

can be realistically implemented. Judges must also be attuned to the fact that inconsistencies

in the observations made by different Courts with respect to the same set of issues, can add to

administrative difficulties. There is also a need to keep a watch on the abuse of process by

litigants so as to avoid a situation where such cases occupy a disproportionate extent of the

Courts’ working time. Justice S.P. Barucha has expressed the need for caution in the

following words:

“This court must refrain from passing orders that cannot be enforced, whatever the

fundamental right may be and however good the cause. It serves no purpose to issue some

high profile mandamus or declaration that can remain only on paper. It is

counterproductive to have people say ‘The Supreme Court has not been able to do

anything’ or worse. It is of cardinal importance to the confidence that people have in the

Court that its orders are implicitly and promptly obeyed and is, therefore, of cardinal

importance that orders that are incapable of obedience and enforcement are not made.” 77

In Raunaq International Ltd. v. I.V.R. Construction Ltd.78 the following

observations were made with the objective of streamlining the institution of PILs:

“When a petition is filed as a public litigation … the Court must satisfy itself that

the party which has brought the litigation is litigating bona fide for public good. The public

interest litigation should not be merely a cloak for attaining private ends of a third party or

of the party bringing the petition … Even when a public interest litigation is entertained,

the Court must be careful to weigh conflicting public interest before intervening.”

It is evident that some instances require courts to draw a balance between the

competing interests of different sections, each of whom may articulate their claims as those

77 Cited from: Ashok Desai & S. Muralidhar, ‘Public Interest Litigation: Potential and Problems’ in B.N. Kirpal et. al. (eds.), Supreme but not infallible (OUP, 2000) 159-192, at p. 182 78 (1999) 1 SCC 492

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grounded in public interest. It is in this regard that the Courts engage in a process that seeks

to build a consensus among these sections. The device of Public Interest Litigation may have

its detractors, but it has played an invaluable role in advancing our constitutional philosophy

of social transformation and improving access to justice.

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Public Interest Litigation

Documents

litigation public

litigation origin of

litigation pil pil

cases of public

concept of public

concept of litigation

protection of public

genesis of public