Public interest litigation:- Its origin and meaning
In Indian law, means litigation for the protection of 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.
"Public interest Litigation",
In simple words, means, litigation filed in a court of law, for the protection of "Public Interest", such as pollution, Terrorism, Road safety, constructional hazards etc.
Public interest litigation is not defined in any statute or in any act. It has been interpreted by judges to consider the intent of public at large. Although, the main and only focus of such litigation is only "Public Interest" there are various areas where a Public interest litigation can be filed. For e.g.
- Violation of basic human rights of the poor
- Content or conduct of government policy
- Compel municipal authorities to perform a public duty.
- Violation of religious rights or other basic fundamental rights
In Black’s law Dictionary (Sixth Edition), “Public Interest” is defined as follows:
“Public Interest. –
Something in which the public, the community at large has something pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interest of the particular localities, which may be affected by the matters in question. Interest shared by the citizens generally in affair of local, State or national government...”
Examples of PIL (Public Interest Litigation)
The Bombay High Court on 31 August, 2006 directed the broadcasters to give an undertaking that they will abide by the Cable Television Network Act 1995 as well as the court's orders by tomorrow, in view of larger public interest.
A division bench comprising Justices R M Lodha and S A Bobde were hearing a Public Interest Litigation (PIL) filed by Professor Pratibha Nathani of St Xavier's College alleging that films without certification by the Censor Board for Film Certification (CBFC) allowing 'free public exhibition', were being shown on cable channels, which have a bad impact on children. Hence, such films should not be shown and action be taken against those still running such content on their channels.
The court on 23 August had allowed the cable operators and channels to screen only 'U' and 'U/A' certified films.
However, before that order, the police had taken action against the Multi-system operators and seized their decoders due to which they could not telecast certain channels. Assistant Commissioner of Police Sanjay Apranti told the court that they did not have a problem if the channels provided the cable operators with new decoders.
Also, Zee Television and Star Television networks applied for the declaration in writing that they would abide by the said Act and court orders.
The court also directed seven channels -- Star Movies, Star One, Star Gold, HBO, ZEE Movies, AXN and Sony Max -- to furnish a list of all the films that they were to screen to the police.
Public Interest Litigation – What is?
It was vehemently contended that this would not be regarded as public interest litigation and, the petitioners had no locus standi to file the present petitions. We are unable to agree to this submission. Environment, more than any thing else, is and should be a concern for all. It is one thing which is available free for all the inhabitants of an area and it is essential that this environment is maintained for the purposes of ensuring a healthy life. This issue is no longer res integra. The Supreme Court in Subhash Kumar v State of Bihar,*
“…Right to live is a fundamental right under article 21 of the constitution and it includes the right of enjoyment of pollution - free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has a right to have a recourse to Article 32 of constitution of India for removing the pollution of water or air which may be detrimental to quality of life...”
Judiciary, being the sentinel of constitutional statutory rights of citizens has a special role to play in the constitutional scheme. It can review legislation and administrative actions or decisions on the anvil of constitutional law. For the enforcement of fundamental rights one has to move the Supreme Court or the High Courts directly by invoking Writ Jurisdiction of these courts. But the high cost and complicated procedure involved in litigation, however, makes equal access to jurisdiction in mere slogan in respect of millions of destitute and underprivileged masses stricken by poverty, illiteracy and ignorance. The Supreme Court of India, pioneered the Public Interest Litigation (PIL) thereby throwing upon the portals of courts to the common man.
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 was very little organized efforts or attempts to take up wider issues that affected classes of consumers or the general public at large. However, all these scenario changed during Eighties with the Supreme Court of India led the concept of public interest litigation (PIL). The Supreme Court of India gave all individuals in the country and the newly formed consumer groups or social action groups, an easier access to the law and introduced in their work a broad public interest perspective.
The Indian PIL is the improved version of PIL of U.S.A. According to “Ford Foundation” of U.S.A., “Public interest law is the name that has recently been given to efforts that provide legal representation to previously unrepresented groups and interests. Such efforts have been undertaken in the recognition that ordinary marketplace for legal services fails to provide such services to significant segments of the population and to significant interests. Such groups and interests include the proper environmentalists, consumers, racial and ethnic minorities and others”. The emergency period (1975-1977) witnessed colonial nature of the Indian legal system. During emergency state repression and governmental lawlessness was widespread. Thousands of innocent people including political opponents were sent to jails and there was complete deprivation of civil and political rights. The post emergency period provided an occasion for the judges of the Supreme Court to openly disregard the impediments of Anglo-Saxon procedure in providing access to justice to the poor.
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. In other words, only the affected parties had the locus standi (standing required in law) to file a case and continue the litigation and the non affected persons had no locus standi to do so. 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. The traditional view in regard to locus standi in Writ jurisdiction has been that only such persons who: a) Has suffered a legal injury by reason of violation of his legal right or legally protected interest; or b) Is likely to suffer a legal injury by reason of violation of his legal right or legally protected interest. Thus before a person acquired locus standi he had to have a personal or individual right which was violated or threatened to be violated. He should have been a “person aggrieved” in the sense that he had suffered or was likely to suffer from prejudice, pecuniary or otherwise.
However, all these 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. Justice V. R. Krishna Iyer and P. N. Bhagwati recognised the possibility of providing access to justice to the poor and the exploited people by relaxing the rules of standing. In the post-emergency period when the political situations had changed, investigative journalism also began to expose gory scenes of governmental lawlessness, repression, custodial violence, drawing attention of lawyers, judges, and social activists. PIL emerged as a result of an informal nexus of pro-active judges, media persons and social activists. This trend shows starke difference between the traditional justice delivery system and the modern informal justice system where the judiciary is performing administrative judicial role. PIL is necessary rejection of laissez faire notions of traditional jurisprudence.
The first reported case of PIL in 1979 focused on the inhuman conditions of prisons and under trial prisoners. In Hussainara Khatoon v. State of Bihar, the PIL was filed by an advocate on the basis of the news item published in the Indian Express, highlighting the plight of thousands of undertrial prisoners languishing in various jails in Bihar. These proceeding led to the release of more than 40,000 undertrial prisoners. Right to speedy justice emerged as a basic fundamental right which had been denied to these prisoners. The same set pattern was adopted in subsequent cases.
A new era of the PIL movement was heralded by Justice P.N. Bhagawati in the case of S.P. Gupta v. Union of India. In this case it was held that “any member of the public or social action group acting bonafide” can invoke the Writ Jurisdiction of the High Courts or the Supreme Court seeking redressal against violation of a legal or constitutional rights of persons who due to social or economic or any other disability cannot approach the Court. By this judgment PIL became a potent weapon for the enforcement of “public duties” where executed in action or misdeed resulted in public injury. And as a result any citizen of India or any consumer groups or social action groups can now 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.
In 1981 the case of Anil Yadav v. State of Bihar, exposed the brutalities of the Police. News paper report revealed that about 33 suspected criminals were blinded by the police in Bihar by putting the acid into their eyes. Through interim orders Supreme Court directed the State government to bring the blinded men to Delhi for medical treatment. It also ordered speedy prosecution of the guilty policemen. The court also read right to free legal aid as a fundamental right of every accused. Anil Yadav signalled the growth of social activism and investigative litigation.
In Citizen for Democracy v. State of Assam, the S. C. declared that the handcuffs and other fetters shall not be forced upon a prisoner while lodged in jail or while in transport or transit from one jail to another or to the court or back.
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 development of PIL has also uncovered its pitfalls and drawbacks. As a result, the apex court itself has been compelled to lay down certain guidelines to govern the management and disposal of PILs. And the abuse of PIL is also increasing alongwith its extended and multifaceted use.
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 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.
With the view 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. Political pressure groups who could not achieve their aims through the administrative process or political process may try to use the courts (through the means of PILs) to further their closely vested aims and interests.
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 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.
In the landmark case of Raunaq International Limited v/s IVR Construction Ltd , Justice Sujata V Manohar rightly enunciated that - when a stay order is obtained at the instance of a private party or even at the instance of a body litigating in public interest, any interim order which stops the project from proceeding further must provide for the reimbursement of costs to the public in case ultimately the litigation started by such an individual or body fails. In other words the public must be compensated both for the delay in the implementation of the project and the cost escalation resulting from such delay.
Remedies - Public Interest Litigation (PIL) - Part: 1
We briefly dealt with Public Interest Litigation in the earlier Project on "Knowledge of Law Essential for Public Servants". For your beneift the biref is reproduced hereunder:
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 ths subject, three articles from the web on the subject are reproduced hereunder.
Among the numerous factors that have contributed to the growth of PIL in this country, the following deserve special mention:
# The character of the Indian Constitution. Unlike Britain, India has a written constitution which through Part III (Fundamental Rights) and Part IV (Directive Principles of State Policy) provides a framework for regulating relations between the state and its citizens and between citizens inter-se.
# India has some of the most progressive social legislation to be found anywhere in the world whether it be relating to bonded labor, minimum wages, land ceiling, environmental protection, etc. This has made it easier for the courts to haul up the executive when it is not performing its duties in ensuring the rights of the poor as per the law of the land.
# The liberal interpretation of locus standi where any person can apply to the court on behalf of those who are economically or physically unable to come before it has helped. Judges themselves have in some cases initiated suo moto action based on newspaper articles or letters received
# Although social and economic rights given in the Indian Constitution under Part IV are not legally enforceable, courts have creatively read these into fundamental rights thereby making them judicially enforceable. For instance the "right to life" in Article 21 has been expanded to include right to free legal aid, right to live with dignity, right to education, right to work, freedom from torture, barfetters and hand cuffing in prisons, etc.
# Sensitive judges have constantly innovated on the side of the poor. For instance, in the Bandhua Mukti Morcha case in 1983, the Supreme Court put the burden of proof on the respondent stating it would treat every case of forced labor as a case of bonded labor unless proven otherwise by the employer. Similarly in the Asiad workers judgment case, Justice P.N. Bhagwati held that anyone getting less than the minimum wage can approach the Supreme Court directly without going through the labor commissioner and lower courts
# In PIL cases where the petitioner is not in a position to provide all the necessary evidence, either because voluminous or because the parties are weak socially or economically, courts have appointed commissions to collect information on facts and present it before the bench.
Procedure of Filing 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 and 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.
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.
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 laborers, 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 service, says Ravi Rebba Pragada of the NGO Samata - which works among tribals in the Vishakapatnam 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.
Public Interest Litigation - Part: 2
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, 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 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 and Definition
According to 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."
In the case of People’s Union for Democratic Rights v. Union of India , it was held that “Public Interest Litigation which is a strategic arm of the legal aid movement and which is intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity, is a totally different kind of litigation from the ordinary traditional litigation which is essentially of an adversary character where there is a dispute between two parties, one making a claim or seeing relief against the other and that other opposing such claim or relief. Public interest litigation is brought before the court not for the purpose of enforcing the right of one individual against another as happens in the case of ordinary litigation, but it is intended to promote and vindicate public interest which demands that violations of constitutional or legal rights of large numbers of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and un-redressed.
That would be destructive of the Rule of Law which forms one of the essential elements of public interest in any democratic form of government. 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 the Rule of Law is meant for them also, though today it exists only on paper and not in reality.”
Concept of PIL
According to the jurisprudence of Article 32 of the Constitution of India, “The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this part is guaranteed”. Ordinarily, only the aggrieved party has the right to seek redress under Article 32.
In 1981 Justice P. N. Bhagwati in .S. P. Gupta v. Union of India, articulated the concept of PIL as follows, “Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons by reasons of poverty, helplessness or disability or socially or economically disadvantaged position unable to approach the court for relief, any member of public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case any breach of fundamental rights of such persons or determinate class of persons, in this court under Article 32 seeking judicial redress for the legal wrong or legal injury caused to such person or determinate class of persons.”
The rule of locus standi have been relaxed and a person acting bonafide and having sufficient interest in the proceeding of Public Interest Litigation will alone have a locus standi and can approach the court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration.
The Supreme Court in Indian Banks’ Association, Bombay and ors v. M/s Devkala Consultancy Service and Ors, held that “In an appropriate case, where the petitioner might have moved a court in her private interest and for redressal of the personal grievance, the court in furtherance of Public Interest may treat it a necessity to enquire into the state of affairs of the subject of litigation in the interest of justice. Thus a private interest case can also be treated as public interest case”.
In Guruvayur Devaswom Managing Commit. And Anr. v. C.K. Rajan and Ors, the Supreme Court held, “The Courts exercising their power of judicial review found to its dismay that the poorest of the poor, depraved, the illiterate, the urban and rural unorganized labour sector, women, children, handicapped by 'ignorance, indigence and illiteracy' and other down trodden have either no access to justice or had been denied justice.
A new branch of proceedings known as 'Social Interest Litigation' or 'Public Interest Litigation' was evolved with a view to render complete justice to the aforementioned classes of persona. It expanded its wings in course of time. The Courts in pro bono publico granted relief to the inmates of the prisons, provided legal aid, directed speedy trial, maintenance of human dignity and covered several other areas. Representative actions, pro bono publico and test litigations were entertained in keeping with the current accent on justice to the common man and a necessary disincentive to those who wish to by pass the, real issues on the merits by suspect reliance on peripheral procedural shortcomings… Pro bono publico constituted a significant state in the present day judicial system.
They, however, provided the dockets with much greater responsibility for rendering the concept of justice available to the disadvantaged sections of the society. Public interest litigation has come to stay and its necessity cannot be overemphasized. The courts evolved a jurisprudence of compassion. Procedural propriety was to move over giving place to substantive concerns of the deprivation of rights. The rule of locus standi was diluted. The Court in place of disinterested and dispassionate adjudicator became active participant in the dispensation of justice”.
Writ Jurisdiction under Articles 32 and 226 of the Constitution of India, 1950
The Writ Jurisdiction of Supreme Court can be invoked under Article 32 of the Constitution for the violation of fundamental rights guaranteed under Part – III of the Constitution. Any provision in any Constitution for Fundamental Rights is meaningless unless there are adequate safeguards to ensure enforcement of such provisions. Since the reality of such rights is tested only through the judiciary, the safeguards assume even more importance. In addition, enforcement also depends upon the degree of independence of the Judiciary and the availability of relevant instruments with the executive authority. Indian Constitution, like most of Western Constitutions, lays down certain provisions to ensure the enforcement of Fundamental Rights.
These are as under:
(a) The Fundamental Rights provided in the Indian Constitution are guaranteed against any executive and legislative actions. Any executive or legislative action, which infringes upon the Fundamental Rights of any person or any group of persons, can be declared as void by the Courts under Article 13 of the Constitution.
(b) In addition, the Judiciary has the power to issue the prerogative writs. These are the extra-ordinary remedies provided to the citizens to get their rights enforced against any authority in the State. These writs are - Habeas corpus, Mandamus, Prohibition, Certiorari and Quo-warranto. Both, High Courts as well as the Supreme Court may issue the writs
(c) The Fundamental Rights provided to the citizens by the Constitution cannot be suspended by the State, except during the period of emergency, as laid down in Article 359 of the Constitution. A Fundamental Right may also be enforced by way of normal legal procedures including a declaratory suit or by way of defence to legal proceedings.
However, Article 32 is referred to as the "Constitutional Remedy" for enforcement of Fundamental Rights. This provision itself has been included in the Fundamental Rights and hence it cannot be denied to any person. Dr. B.R.Ambedkar described Article 32 as the most important one, without which the Constitution would be reduced to nullity. It is also referred to as the heart and soul of the Constitution. By including Article 32 in the Fundamental Rights, the Supreme Court has been made the protector and guarantor of these Rights. An application made under Article 32 of the Constitution before the Supreme Court, cannot be refused on technical grounds. In addition to the prescribed five types of writs, the Supreme Court may pass any other appropriate order. Moreover, only the questions pertaining to the Fundamental Rights can be determined in proceedings against Article 32. Under Article 32, the Supreme Court may issue a Writ against any person or government within the territory of India. Where the infringement of a Fundamental Right has been established, the Supreme Court cannot refuse relief on the ground that the aggrieved person may have remedy before some other court or under the ordinary law.
The relief can also not be denied on the ground that the disputed facts have to be investigated or some evidence has to be collected. Even if an aggrieved person has not asked for a particular Writ, the Supreme Court, after considering the facts and circumstances, may grant the appropriate Writ and may even modify it to suit the exigencies of the case. Normally, only the aggrieved person is allowed to move the Court. But it has been held by the Supreme Court that in social or public interest matters, any one may move the Court. A Public Interest Litigation can be filed before the Supreme Court under Article 32 of the Constitution or before the High Court of a State under Article 226 of the Constitution under their respective Writ Jurisdictions. There are mainly five types of Writs – (i) Writ of Habeaus Corpus, (ii) Writ of Mandamus, (iii) Writ of Quo-Warranto, (iv) Writ of Prohibition, and (v) Writ of Certiorari.
(I) Writ of Habeas Corpus:
It is the most valuable writ for personal liberty. Habeas Corpus means, "Let us have the body." A person, when arrested, can move the Court for the issue of Habeas Corpus. It is an order by a Court to the detaining authority to produce the arrested person before it so that it may examine whether the person has been detained lawfully or otherwise. If the Court is convinced that the person is illegally detained, it can issue orders for his release
(II) The Writ of Mandamus:
Mandamus is a Latin word, which means "We Command". Mandamus is an order from a superior court to a lower court or tribunal or public authority to perform an act, which falls within its duty. It is issued to secure the performance of public duties and to enforce private rights withheld by the public authorities. Simply, it is a writ issued to a public official to do a thing which is a part of his official duty, but, which, he has failed to do, so far. This writ cannot be claimed as a matter of right. It is the discretionary power of a court to issue such writs.
(III) The Writ of Quo-Warranto:
The word Quo-Warranto literally means "by what warrants?" It is a writ issued with a view to restraining a person from acting in a public office to which he is not entitled. The Writ of quo-warranto is used to prevent illegal assumption of any public office or usurpation of any public office by anybody. For example, a person of 62 years has been appointed to fill a public office whereas the retirement age is 60 years. Now, the appropriate High Court has a right to issue a Writ of quo-warranto against the person and declare the office vacant.
(IV) The Writ of Prohibition:
Writ of prohibition means to forbid or to stop and it is popularly known as 'Stay Order'. This Writ is issued when a lower court or a body tries to transgress the limits or powers vested in it. It is a Writ issued by a superior court to lower court or a tribunal forbidding it to perform an act outside its jurisdiction. After the issue of this Writ proceedings in the lower court etc. come to a stop. The Writ of prohibition is issued by any High Court or the Supreme Court to any inferior court, prohibiting the latter to continue proceedings in a particular case, where it has no legal jurisdiction of trial. While the Writ of mandamus commands doing of particular thing, the Writ of prohibition is essentially addressed to a subordinate court commanding inactivity. Writ of prohibition is, thus, not available against a public officer not vested with judicial or quasi-judicial powers. The Supreme Court can issue this Writ only where a fundamental right is affected.
(V) The Writ of Certiorari:
Literally, Certiorari means to be certified. The Writ of Certiorari is issued by the Supreme Court to some inferior court or tribunal to transfer the matter to it or to some other superior authority for proper consideration. The Writ of Certiorari can be issued by the Supreme Court or any High Court for quashing the order already passed by an inferior court. In other words, while the prohibition is available at the earlier stage, Certiorari is available on similar grounds at a later stage. It can also be said that the Writ of prohibition is available during the tendency of proceedings before a sub-ordinate court, Certiorari can be resorted to only after the order or decision has been announced.
There are several conditions necessary for the issue of Writ of Certiorari, which are as under:
(a) There should be court, tribunal or an officer having legal authority to determine the question of deciding fundamental rights with a duty to act judicially.
(b) Such a court, tribunal or officer must have passed an order acting without jurisdiction or in excess of the judicial authority vested by law in such court, tribunal or law. The order could also be against the principle of natural justice or it could contain an error of judgment in appreciating the facts of the case.
Subjects of Public Interest Litigation.
Public Interest Litigation is meant for enforcement of fundamental and other legal rights of the people who are poor, weak, ignorant of legal redressal system or otherwise in a disadvantageous position, due to their social or economic background. Such litigation can be initiated only for redressal of a public injury, enforcement of a public duty or vindicating interest of public nature. It is necessary that the petition is not filed for personal gain or private motive or for other extraneous consideration and is filed bona fide in public interest. The following are the subjects which may be litigated under the head of Public Interest Litigation:
(I) The matters of public interest: Generally they include
(i) bonded labour matters
(ii) matters of neglected children
(iii) exploitation of casual labourers and non-payment of wages to them (except in individual cases)
(iv) matters of harassment or torture of persons belonging to Scheduled Castes, Scheduled Tribes and Economically Backward Classes, either by co-villagers or by police
(v) matters relating to environmental pollution, disturbance of ecological balance, drugs, food adulteration, maintenance of heritage and culture, antiques, forests and wild life,
(vi) petitions from riot victims and
(vii) other matters of public importance.
(II) The matters of private nature: They include:
i) threat to or harassment of the petitioner by private persons,
ii) seeking enquiry by an agency other than local police,
iii) seeking police protection,
iv) land lordtenant dispute
v) service matters,
vi) admission to medical or engineering colleges,
vii) early hearing of matters pending in High Court and subordinate courts and are not considered matters of public interest.
(IV) Letter Petitions: Petitions received by post even though not in public interest can be treated as writ petitions if so directed by the Hon’ble Judge nominated for this purpose. Individual petitions complaining harassment or torture or death in jail or by police, complaints of atrocities on women such as harassment for dowry, bride burning, rape, murder and kidnapping, complaints relating to family pensions and complaints of refusal by police to register the case can be registered as writ petitions, if so approved by the concerned Hon’ble Judge. If deemed expedient, a report from the concerned authority is called before placing the matter before the Hon’ble Judge for directions. If so directed by the Hon’ble Judge, the letter is registered as a writ petition and is thereafter listed before the Court for hearing.
But this traditional rule was considerably relaxed by the Supreme Court in its recent rulings:
Peoples Union for Democratic Rights v. Union of India . 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 - Court held Public Interest Litigation can be filed by any member of public having sufficient interest for public injury arising from violation of legal 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 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/s Union of India - 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/s Union of India - 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/s Union of India -: 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".
State v/s Union of India -: 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.
Procedure for Filing Public Interest Litigation
Public Interest Litigation petition is filed in the same manner, as a writ petition is filed. If a PIL is filed in a High Court, then two (2) copies of the petition have to be filed (for Supreme Court, then (4)+(1)(i.e.5) sets) Also, an advance copy of the petition has to be served on the each respondent, i.e. opposite party, and this proof of service has to be affixed on the petition.
(b) The Procedure
A Court fee of Rs. 50 , per respondent (i.e. for each number of party, court fees of Rs 50) have to be affixed on the petition. Proceedings, in the PIL commence and carry on in the same manner, as other cases. However, in between the proceedings if the Judge feels that he may appoint the commissioner, to inspect allegations like pollution being caused, trees being cut, sewer problems, etc. After filing of replies, by opposite party, or rejoinder by the petitioner, final hearing takes place, and the judge gives his final decision.
Against whom Public Interest Litigation can be filed
A Public Interest Litigation can be filed against a State/ Central Govt., Municipal Authorities, and not any private party. The definition of State is the same as given under Article 12 of the Constitution and this includes the Governmental and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. According to Art.12, the term “State” includes the Government and Parliament of India and the Government and the Legislatures of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.
Thus the authorities and instrumentalities specified under Art.12 are –
• The Government and Parliament of India
• The Government and Legislature of each of the States
• All local authorities
• Other authorities within the territory of India or under the Government of India.
In Electricity Board, Rajasthan v/s Mohan Lal, the Supreme Court held that “other authorities would include all authorities created by the Constitution of India or Statute on whom powers are conferred by law”.
However, “Private party” can be included in the PIL as “Respondent”, after making concerned state authority, a party. For example- if there is a Private factory in Delhi, which is causing pollution, then people living nearly, or any other person can file a PIL against the Government of Delhi, Pollution Control Board, and against the private factory. However, a PIL cannot be filed against the Private party alone.
Aspects of Public Interest Litigation
(a) Remedial in Nature: Remedial nature of PIL departs from traditional locus standi rules. It indirectly incorporated the principles enshrined in the part IV of the Constitution of India into part III of the Constitution. By riding the aspirations of part IV into part III of the Constitution had changeth the procedural nature of the Indian law into dynamic welfare one. Bandhu Mukti Morcha v/s Union of India, Unnikrishnan v/s State of A.P., etc were the obvious examples of this change in nature of judiciary.
(b) Representative Standing: Representative standing can be seen as a creative expansion of the well-accepted standing exception which allows a third party to file a habeas corpus petition on the ground that the injured party cannot approach the court himself. And in this regard the Indian concept of PIL is much broader in relation to the American. PIL is a modified form of class action.
(c) Citizen standing: The doctrine of citizen standing thus marks a significant expansion of the court’s rule, from protector of individual rights to guardian of the rule of law wherever threatened by official lawlessness.
(d) Non-adversarial Litigation: In the words of Supreme Court in People’s Union for Democratic Rights v. Union of India, “We wish to point out with all the emphasis at our command that public interest litigation…is a totally different kind of litigation from the ordinary traditional litigation which is essentially of an adversary character where there is a dispute between two litigating parties, one making claim or seeking relief against the other and that other opposing such claim or resisting such relief”.
Non-adversarial litigation has two aspects:
1. Collaborative litigation:
In collaborative litigation the effort is from all the sides. The claimant, the court and the Government or the public official, all are in collaboration here to see that basic human rights become meaningful for the large masses of the people. PIL helps executive to discharge its constitutional obligations. Court assumes three different functions other than that from traditional determination and issuance of a decree. (i). Ombudsman- The court receives citizen complaints and brings the most important ones to the attention of responsible government officials. (ii) Forum – The court provides a forum or place to discuss the public issues at length and providing emergency relief through interim orders. (iii) Mediator – The court comes up with possible compromises.
2. Investigative Litigation:
It is investigative litigation because it works on the reports of the Registrar, District Magistrate, comments of experts, newspapers etc.
(e) Crucial Aspects: The flexibility introduced in the adherence to procedural laws. In Rural Litigation and Entitlement Kendra v. State of U.P., Supreme Court rejected the defense of Res Judicta. Court refused to withdraw the PIL and ordered compensation too. To curtail custodial violence, Supreme Court in Sheela Barse v. State of Maharashtra, issued certain guidelines. Supreme Court has broadened the meaning of Right to live with human dignity available under the Article 21 of the Constitution of India to a greatest extent possible.
(f) Relaxation of strict rule of Locus Standi: The strict rule of locus standi has been relaxed by way of (a) Representative standing, and (b) Citizen standing. In D.C.Wadhwa v. State of Bihar, Supreme Court held that a petitioner, a professor of political science who had done substantial research and deeply interested in ensuring proper implementation of the constitutional provisions, challenged the practice followed by the state of Bihar in repromulgating a number of ordinances without getting the approval of the legislature. The court held that the petitioner as a member of public has ‘sufficient interest’ to maintain a petition under Article 32.
The rule of locus standi have been relaxed and a person acting bonafide and having sufficient interest in the proceeding of Public Interest Litigation will alone have a locus standi and can approach the court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration…court has to strike balance between two conflicting interests:
(i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and
(ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive and the legislature. It is depressing to note that on account of trumpery proceedings initiated before the courts, innumerable days are wasted, which time otherwise could have been spent for the disposal of cases of genuine litigants. Though the Supreme Court spares no efforts in fostering and developing the laudable concept of PIL and extending its ling arm of sympathy to the poor, ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go unnoticed, unrepresented and unheard.
(g) Epistolary Jurisdiction: The judicial activism gets its highest bonus when its orders wipe some tears from some eyes. This jurisdiction is somehow different from collective action. Number of PIL cells was open all over India for providing the footing or at least platform to the needy class of the society.
Factors that have contributed to growth of PIL
Among, the numerous factors that have contributed to the growth of PIL in this country, the following deserve special mention:
• The character of the Indian Constitution. Unlike Britain, India has a written constitution which through Part III (Fundamental Rights) and Part IV (Directive Principles of State Policy) provides a framework for regulating relations between the state and its citizens and between citi
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