Judicial Process an Instrument of Social Ordering

Introduction
Introduction Judicial Process means any judicial proceeding in connection with the dispensation of justice by any court of competent jurisdiction and Social Ordering means activating the instrument of Judicial Process in setting right the wrong done or eliminating injustice from the society. But here we are mainly concerned with role of the constitutional courts evolving new juristic principles during the course of judicial process for upholding social order keeping in view the need of fast changing society. Therefore, it would be appropriate to examine as to whether Judicial Process , is an instrument of social ordering? Article 32: Instrument of Social Ordering

Article 32 of the Constitution empowers the Supreme Court to issue directions or orders or writs for enforcement of any right conferred under the Constitution for securing social justice. The Supreme Court has granted great relief in cases of social injustice to the affected groups of the society under this provision. Article 32 is an important instrument of judicial process to enforce social ordering. Article 32 of the Constitution of India itself is a fundamental right, which accorded free hand to the Judicial Process enable the Supreme Court to take suitable action for the enforcement of social order. Deprivation of the fundamental rights often results in to social disorder. The Supreme Court is a sentinel of all fundamental rights, and we are satisfied to see that the Apex Court has taken recourse of judicial process effectively in every area of social disorder to set it right and granted relief for each type of evil prevailing in the society. The Supreme Court has played positive role in implementing social order. Now it will be appropriate to examine the areas in which judicial process played a vital role in eliminating social dis-order:Backward Classes of the Society

In "Indra Sawhney v. Union of India", AIR 1993 SUPREME COURT 477, the Apex Court has innovated concept of 'creamy layer test' for securing benefit of social justice to the backward class, needy people, and excluded persons belonging to 'creamy layer .' BIGAMY Bigamy is a social evil which often creates social disorder. The Apex Court has tightened the noose over those avoiding punishment by taking plea of conversion to Islam. In "Lily Thomas v. Union of India", AIR 2000 S C 1650, it was held by the Apex Court that the second marriage of a Hindu husband after conversion to Islam without having his first marriage dissolved under law, would be invalid, the second marriage would be void in terms of the provisions of Section 494, IPC and the apostate-husband would be guilty of the offence punishable under Section 494, IPC. This verdict of the Apex Court would certainly be helpful in eliminating social evil of bigamy.

Bride

Burning

In "Paniben v. State of Gujarat", AIR 1992 S C 1817, the Apex Court held that it would be a travesty of justice if sympathy is shown when cruel act like bride burning is committed. Undue sympathy would be harmful to the cause of justice. The Apex Court directed that in such cases heavy punishment should be awarded. Bonded Labourers

Bandhua Mukti Morcha v. Union of India", AIR 1984 S C 802, is a good example of social ordering by way of judicial process. The Apex Court has tried to eliminate socio-economic evil of bonded labour, including child labour and issued certain guide lines to be followed, so that recurring of such incidents be eliminated. Caste system and Judicial Process

In "Lata Singh v. State of U. P.", AIR 2006 SC 2522, the Apex Court has given protection to the major boy and girl who have solemnized inter-caste or inter-religious marriage. Child Labour

In "M.C. Mehta v. State of T.N.", AIR 1997 S C 699, the Supreme Court has issued direction the State Governments to ensure fulfillment of legislative intention behind the Child Labour (Prohibition and Regulation) Act (61 of 1986). Tackling the seriousness of this socioeconomic problem the Supreme Court has directed the Offending employer to pay compensation, a sum of Rs. 20,000/ for every child employed. Child Prostitution

In Gaurav Jain v. U.O.I. AIR 1997 SC 3021, the Apex court issued directions for rescue and rehabilitation of child prostitutes and children of the prostitutes. Dowry Death

Dowry death is perhaps one of the worst social disorders prevailing in the society, which demands heavy hand of Judicial Process to root-out this social evil. In "Raja Lal Singh v. State of Jharkhand", the Supreme Court has laid down that there is a clear nexus between the death of Gayatri and the dowry related harassment inflicted on her, therefore, even if Gayatri committed suicide, S. 304-B of the I. P. C. can still be attracted. Equality: Man and Woman

In AIR India v. Nargesh Meerza, AIR 1981 SC 1829, the Apex Court declared that the provision of AIR India Service Regulation 46 (i) (c) or on first pregnancy whichever occurs earlier is UN-constitutional, and is violative of Article 14 of the constitution. Female Foeticide and Judicial Process.

Leading to unhindered female infanticide affecting overall sex ratio in various states causing serious disorder in the society. In "Centre for Enquiry into Health and Allied Themes

(CEHAT) v. Union of India", AIR 2001 S C 2007, the Apex Court has held that despite the PNDT Act being enacted by the Parliament five years back, neither the State Governments nor the Central Government has taken appropriate actions for its implementation. Hence, directions are issued by the Court for the proper implementation of the PNDT Act, for eliminating this Social evil. Goal of Judicial Process

Ultimate goal of Judicial Process , undoubtedly, is to ensure social order and to make the society safer for its people. Law cannot be effective and useful without taking recourse of judicial process in maintaining social order. Justice P. N. Bhagwati and Justice V. R. Krishna Iyer, both were of the opinion that law is an instrument of social change, social justice and social ordering. Justice Rangnath Mishra, former C.J.I., has rightly observed that ' Law is a means to an end and justice is the end.' Therefore, undoubtedly we can say that Judicial Process, which operate laws, is an instrument of social ordering. Harassment of Woman

The Apex Court in Vishaka v. State of Rajsthan (AIR 1997 SC 3011) created law of the land holding that the right to be free from sexual harassment is fundamental right guaranteed under Articles 14, 15 and 21 of the Constitution. The Court has issued guidelines to be followed by employer for controlling harassment of woman at her work place. Immoral trafficking

Immoral trafficking has now become a widespread social disorder. This is a deep rooted social evil has to be controlled. The Apec Court is of the opinion that accused persons are to be dealt with heavy hands of the Judicial Process in such cases. In "State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain", AIR 2008 SUPREME COURT 155 , the Court has rejected application for anticipatory bail, in a case where a minor girl was driven to flesh trade by accused persons , comprised of police officers, politicians and all were absconding for long time. Judicial Process and Social Order

It is satisfying to see that achievements of Judicial Process in respect of social ordering has been significant . Judiciary has not shied away from its responsibility of enforcing social order. Looking to the need of hour and demands of the changing society, the Supreme Court has innovated various tools and techniques, for securing social order. One can see how the Supreme Court of India has innovated, case after case, various juristic principles and doctrines, for upgrading social order. Needless to say that , Articles14, 15, 16, 17, 38, 39A and 42 to 47 of the Constitution of India deal with facets of social justice. Courts have played very wide role in interpreting the Connection for achievements of social justice. Maintenance In Mohd. Ahmed Khan v. Shah Bano, AIR 1985 SC 945, the Apex Court , for the first time, granted maintenance to divorced Muslim woman under section 125 Cr. P. C., ignoring her personal law, keeping in view essence of equality before law.

In "Dimple Gupta v. Rajiv Gupta", AIR 2008 S C 239, the Apex Court has granted Maintenance to illegitimate child under S. 125 Cr. P.C. This path breaking judgment has given breath to the innocent children who were victim of no fault of their own. These verdicts are judicial instruments of social ordering. Need of Judicial Process

Noble preamble of our Constitution promises citizens of India to secure Justice, inter alia , social justice, transforming social order. Judicial Process has played a significant role in order to deliver social justice, by eliminating socio-economic imbalance and social injustice from the society. Outraging Modesty of Woman

Outraging the modesty of a woman is a serious social disorder has to be taken seriously by courts during the course of Judicial Process. In "Kanwar Pal S. Gill v. State (Admn. U. T. Chandigarh)", the accused slapped on the posterior of the prosecutrix, Mrs. Rupan Deol Bajaj, an I. A. S. officer , in the presence of other guests. The accused, who was then the D.G.P. of the State of Punjab. The CJM convicted him under Sections 354 and 509 IPC.Appeal filed by the accused was dismissed by the Apex Court. That by itself is setting a model for others and it is a good example in connection to social ordering. Prevention of Atrocity

When members of the S. C. and S. T. assert their rights and demand statutory protection, vested interest try to cow them down. In these circumstances, anticipatory bail is not maintainable to persons who commit such offences, such a denial cannot be considered as violative of Article 14 as held in "State of M.P. v. R. K. Balothia", AIR 1995 S C 1198. Rape In "State of M.P. v. Babulal", AIR 2008 SUPREME COURT 582, the Court has laid down the principle that rape cases need to be dealt with sternly and severely. A socially sensitized Judge is a better armour in cases of crime against women. Once a person is convicted for an offence of rape, he should be treated with a heavy hand and must be imposed adequate sentence. This goes to show that how the Supreme Court is keen in eliminating social disorder by the heavy hands of judicial process. Conclusion Justice V. R. Krishna Iyer, has rightly observed that Law is not a brooding omnipotence in the sky but a pragmatic instrument of social order. Judicial Process is a means of enforcing law. In the light of the above discussion certainly it it would be perfectly right to say that Judicial Process is an instrument of social ordering. The prominent work of Indian Courts today may be seen as prosecuting poor people for petty crime. The main Role of courts continues to be, as in colonial times to (i) enforce law against (mostly poor) citizens; (ii) protect property rights(state and private) and (iii) uphold and protect the authority of state. On the other hand, in the immortal words of Supreme Court in S.P.Gupta Case THE CONSTITUTION has made a revolutionary change in the role of Indian Courts from being an arm of the RAJ to being an instrument of SWARAJ, an arm of social revolution.

TAKING THE EXPERIENCE FROM PUBLIC INTEREST LITIGATION IN INDIA

A. Introduction

Such is the disillusionment with the state formal legal system that it is no longer demanded by law to do justice, if justice perchance is done, we congratulate ourselves for being fortune. In judicial circumstances one of the best things that have happened in the country of India recent years is the process reform through Public Interest Litigation or Social Action Litigation (PIL/SAL). In essence, the PIL develops a new jurisprudence of the accountability of the state for constitutional and legal violations adversely affecting the interest of the weaker elements in the community. The following articles will discuss that whether this mechanism can be a good example to be implemented in other countries.

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.

Investigative Litigation: It is investigative litigation because of it works on the reports of the Registrar, District Magistrate, comments of experts, newspaper, etc.

4. Relaxation of Strict Rule of Locus Standi The rule of locus standi have been relaxed and a person acting bonafide and having sufficient interest in the proceeding of PIL will alone have a locus standi and can approach the court and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration. 5. Epistolary Jurisdiction The Supreme Court of India as well as High Courts can convert a letter from a member of public into a writ petition. The access to judicial redress may be found even without a lawyer or filling formal papers. E. Core Issues

Now we will see that whether Indian PIL is emerging as an effective medium of struggle against domination and victimization. Whether this can be used as effective means of social change and to what extent the victim groups have been liberated. We will also see what has been the response of executive to the judicial intitative. Unlike mainstream law, PIL is not oriented to the individual nor does it deal with a range of single dispute. PIL is invariably group-oriented. It deals with the assertion of group or collective rights, involves question of injustice pertaining to a group or collectivity, or may involve a legal action where an individual is representative of a group. PIL is working as an important instrument of social change. It is working for the welfare of every section of society. It is the sword of every one used only for taking the justice. The innovation of this legitimate instrument proved beneficial for the developing country like India. PIL has been used as a strategy to combat the atrocities prevailing in society. It is an institutional initiative towards the welfare of the needy class of the society. 1. Landmark Cases Mentioning some of the important cases, the following could be considered as landmark judgment in area of PIL.

The Supreme Court accepted the locus standi of an advocate to maintain the writ petition and in a series of cases Hussainara Katoon (I) to Hussainara Khatoon (VI) v. State of Bihar. The issued many meaningful for directions and inter alia held that speedy trial was an integral and an essential part of right to life and liberty contained in Article 21 of the Constitution.

In Nilabati Bahera v State of Orissa on a PIL court evolved the principle of public law doctrine of compensation for violation of human rights according to which liability of the state for violation of human rights is absolute and admits no exception such as sovereign immunity.

In M.C. Mehta v. Union of India the petitioner prayed for directions for giving wide publicity to the messages and directions issued by the Court from time to time to protect the environment and ecology on environmental protection.

In Bandhua Mukti Morcha v. Union of India, Supreme Court ordered for the release of bonded labourers. Public Interest actions focusing on the plight of bonded labourers have to some extent helped in the implementation of The Bonded Labour System (Abolition) Act, 1976.

In a landmark judgement of Delhi Domestic Working Womens Forum v. Union of India (1995, 1 SCC 14). Supreme Court issued guidelines for rehabilitation and compensation for the rape on working women.

2. Response of Government In some cases the response of government has been positive to the initiative taken by the judiciary in various PIL. For example, government has complied the Court orders in Sunil Batra v. Delhi Administartion, M.C. Mehta v. Union of India, Bandhua Mukti Morca v. Union of India. In fact guideless issued in D.K. Basu v. State of West Bengal have been incorporated in criminal procedure (amandement) Act. While in criminal procedure response of government has left a lot of be desired. It has often been said that public interest litigation is a collaborative effort on the part of the petitioner, the Court and the Government or the public official to see that basic human right become meaningful for large masses or people. It merely seeks to draw the attention of the authorities to their constitutional and legal obligations and to enforce then so that the rule of law does not remain confined in its beneficent effects to a fortunate few, but extends to all, irrespective of their power, position or wealth. This approach was considerably diluted opposition to public interest litigation and the Government of India has also come to accept it as an essential part of the judicial process. 3. Limitations of PIL It is hardly surprising, that while Public Interest Litigation may have secured a better life for some individuals, it has not prevented human right violations altogether or remedied it in all cases. PIL activist themselves admit that howsoever well-intentioned for the downtrodden of the world, we secure their right by law, exactly as though they had the some privilege background as we, and then, outside the court room we leave them to their separate ways. However to admit the limitations of PIL is not necessarily to dismiss it. Some have suggested that while PIL is not directly instrumental it can be used to call attention to the pathology of public and dominant group power and those successful results must be considered merely as bargaining endowments in the struggle to improve the lot of the oppressed.

F. Conclusion PIL in India has produced astonishing results which were unthinkable two decades ago. Degraded bonded labourers, tortured under trials and women prisoners, exploited children and many others have been liberated through judicial intervention. The greatest contribution of PIL has been the enhance the accountability of governments towards human rights of underprivileged. Judges alone cannot provide effective responses to governmental lawlessness but they can surely a culture formation where political power becomes increasingly sensitive to human rights. Other developing countries who are still seeking tool for strengthening justice in grass root level of society, particularly Indonesia, should learn from the PIL experiences delivered in Indian Legal System. Since Indonesia is using civil law system; it seems very difficult to adopt this mechanism. Nevertheless the establishment of Constitutional Court posts 1945 Constitution amendment will give a room to implement this mechanism. As the guardian of constitution, the Court should be given another weapon to protect all citizen suffered from the violation of Constitution and Basic Human Rights. Hence the need to study on this area becomes more important for the country who wants to develop their legal system in order to give more protection on human rights under the Constitution. *** Main Reference:

Protection of Human Rights through Public Interest Litigation in India written by Permanand Singh.

Public Interest Litigation and Right of Prisoners written by Yogesh Prasad Kolekar.

Public Interest Litigation written by Sri Ranjan K. Saran.

Public Interest Litigation in Indian Supreme Court: A Study in the Light of American Experience written by Clark D. Cunningham.

Taking Suffering Seriously: Social Action Litigation in the Supreme Cour of India written by Upendra Baxi.

Others.

Public Interest Litigation

Social Change and Public Interest Litigation in India Social change is the necessity of any society. In India it is done through Public Interest Litigation. In this article an attempt was made to assess the impact of PIL over Indian Society. The jurisprudence of PIL is necessary to understand the nature of PIL in India. Such is the disillusionment with the state formal legal system that it is no longer demanded by law to do justice, if justice perchance is done, we congratulate ourselves for being fortunate. In these circumstances one of the best things that have happened in the country in recent years is the process of social reform through Public Interest Litigation or Social Action Litigation. Late 1970s marked discernible shift from legal centralism. Legal pluralism was very apparent now. It was realized that social conduct was regulated by the interaction of normative orders, notion of popular justice, community justice, and distributive justice were sought to be institutionalised, though outside the sphere of the formal legal system and in opposition to it. Necessity of informal justice Necessity of informal justice, whether as an alternative to state law or as to its agent to find its identity in opposition to state law stems from the nature of Anglo-Saxon law prescribing legal formalism and due to the failure of formal legal system to deliver justice that forced informal justice to take on a separate identity from state law. The British rule bequeathed to India a colonial legal heritage. The Anglo-Saxon model of adjudication insisted upon observance of procedural technicalities such as locus standi and adherence to adversarial system of litigation. The result was that the courts were accessible only to the rich and the influential people. The marginalized and disadvantaged groups continued to be exploited and denied basic human rights. Public Interest Litigation as exists today PIL today offers such a paradigm which locates the content of informal justice without the formal legal system. Non Anglo-Saxon jurisdiction directs courts to transcend the traditional judicial function of adjudication and provide remedies for social wrongs. PIL had already molded the state in to the instrument of socio-economic change. Social justice is the byproduct of this transcends from the formal legal system. Evolution of Public Interest Litigation 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. Notably two justices of the Supreme Court, 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, AIR 1979 SC 1360, 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. In 1981 the case of Anil Yadav v. State of Bihar, AIR 1982 SC 1008, 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 S. C. 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, (1995) 3SCC 743), 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. 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, 1981 (Supp) SCC 87, 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 (Ashok Kumar Pandey v. State of W. B., (2004) 3 SCC 349). Supreme Court in Indian Banks Association, Bombay and ors v. M/s Devkala Consultancy Service and Ors., J. T. 2004 (4) SC 587, 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. Vs. C.K. Rajan and Ors, J.T. 2003 (7) S.C. 312, S.C. 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. Aspects of PIL (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. Union of India, Unnikrishnan v. 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 courts 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 S. C. in Peoples Union for Democratic Rights v. Union of India, AIR 1982 S.C. 1473, We wish to point out with all the emphasis at our command that public interest litigationis 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; and 2. Investigative Litigation 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. 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.,(1985) 2 SCC 431, court rejected the defense of Res Judicta. Court refused to withdraw the PIL and ordered compensation too. In R.C. Narain v. State of Bihar, court legislated the rules for the welfare of the persons living in the mental asylum. 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, AIR 1987 SC 579, S.C. 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 considerationcourt 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 (Ashok Kumar Pandey v. State of W. B., (2004) 3 SCC 349). 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 (Ashok Kumar Pandey v. State of W. B., (2004) 3 SCC 349). (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. Features of PIL Through the mechanism of PIL, the courts seek to protect human rights in the following ways: 1) By creating a new regime of human rights by expanding the meaning of fundamental right to equality, life and personal liberty. In this process, the right to speedy trial, free legal aid, dignity, means and livelihood, education, housing, medical care, clean environment, right against torture, sexual harassment, solitary confinement, bondage and servitude, exploitation and so on emerge as human rights. These new reconceptualised rights provide legal resources to activate the courts for their enforcement through PIL. 2) By democratization of access to justice. This is done by relaxing the traditional rule of locus standi. Any public spirited citizen or social action group can approach the court on behalf of the oppressed classes. Courts attention can be drawn even by writing a letter or sending a telegram. This has been called epistolary jurisdiction. 3) By fashioning new kinds of reliefs under the courts writ jurisdiction. For example, the court can award interim compensation to the victims of governmental lawlessness. This stands in sharp contrast to the Anglo-Saxon model of adjudication where interim relief is limited to preserving the status quo pending final decision. The grant of compensation in PIL matters does not preclude the aggrieved person from bringing a civil suit for damages. In PIL cases the court can fashion any relief to the victims. 4) By judicial monitoring of State institutions such as jails, womens protective homes, juvenile homes, mental asylums, and the like. Through judicial invigilation, the court seeks gradual improvement in their management and administration. This has been characterized as

creeping jurisdiction in which the court takes over the administration of these institutions for protecting human rights. 5) By devising new techniques of fact-finding. In most of the cases the court has appointed its own socio-legal commissions of inquiry or has deputed its own official for investigation. Sometimes it has taken the help of National Human Rights Commission or Central Bureau of Investigation (CBI) or experts to inquire into human rights violations. This may be called investigative litigation. PIL as an Instrument of Social Change PIL is working as an important instrument of social change. It is working for the welfare of every section of society. Its the sword of every one used only for taking the justice. The innovation of this legitimate instrument proved beneficial for the developing country like India. PIL has been used as a strategy to combat the atrocities prevailing in society. Its an institutional initiative towards the welfare of the needy class of the society. In Bandhu Mukti Morcha v. Union of India, S.C. ordered for the release of bonded labourers. In Murli S. Dogra v. Union of India, court banned smoking in public places. In a landmark judgement of Delhi Domestic Working Womens Forum v. Union of India, (1995) 1 SCC 14, Supreme Court issued guidelines for rehabilitation and compensation for the rape on working women. In Vishaka v. State of Rajasthan Supreme court has laid down exhaustive guidelines for preventing sexual harassment of working women in place of their work. Conclusion It would be appropriate to conclude by quoting Cunningham, Indian PIL might rather be a Phoenix: a whole new creative arising out of the ashes of the old order. PIL represents the first attempt by a developing common law country to break away from legal imperialism perpetuated for centuries. It contests the assumption that the most western the law, the better it must work for economic and social development such law produced in developing states, including India, was the development of under develop men. The shift from legal centralism to legal pluralism was prompted by the disillusionment with formal legal system. In India, however instead of seeking to evolve justice- dispensing mechanism ousted the formal legal system itself through PIL. The change as we have seen, are both substantial and structural. It has radically altered the traditional judicial role so as to enable the court to bring justice within the reach of the common man. Further, it is humbly submitted that PIL is still is in experimental stage. Many deficiencies in handling the kind of litigation are likely to come on the front. But these deficiencies can be removed by innovating better techniques. In essence, the PIL develops a new jurisprudence of the accountability of the state for constitutional and legal violations adversely affecting the interests of the weaker elements in the community. We may end with the hope once expressed by Justice Krishna Iyer, The judicial activism gets its highest bonus when its orders wipe some tears from some eyes.

Introduction to Public Interest Litigation (from Health Care Case Law in India A Reader by CEHAT and ICHRL - pg. 199-200- edited by Adv. Mihir Deasi and Adv. Kamayani Bali Mahabal) Public Interest Litigation is not defined in any statute or 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 Who can file: Any public-spirited person can file a Public Interest Litigation case (PIL) on behalf of a group of persons, whose rights are affected. It is not necessary, that person filing a case should have a direct interest in this Public Interest Litigation. For example: A person in Mumbai can file a Public Interest Litigation for malnutrition deaths in Orissa. Someone can file a PIL in the Supreme Court for taking action against a cracker factory that's employing child labour. Any person can file a PIL on behalf of a group of affected people. However, it will depend on the facts of the case, whether it should be allowed or not. The Supreme Court (SC), through its successive judgments has relaxed the strict rule of `locus standi' applicable to private litigation. A PIL can be filed when the following conditions are fulfilled: There must be a public injury and public wrong caused by the wrongful act or omission of the state or public authority. It is for the enforcement of basic human rights of weaker sections of the community who are downtrodden, ignorant and whose fundamental and constitutional rights have been infringed. It must not be frivolous litigation by persons having vested interests.

Against Whom : A Public Interest Litigation can be filed only against a State j Central Government, Municipal Authorities, and not any private party. However a "Private party" can be included in the Public Interest Litigation as a "Respondent", after making the concerned State authority a party. For example, in the case of a private factory in Delhi, causing pollution, then people living in its vicinity or any other person can file a PIL against the Government of India, the State Pollution Board and also against the private factory. However, a PIL cannot be filed against the private party alone; the concerned State Government, and State authority has to be made a party Procedure in High Court: A PIL is filed in a High court, and then two copies of the petition have to be filed. 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. In Supreme Court: If a PIL is filed in the Supreme Court, then (four + one) (i.e. five) sets of petition have to be filed. The opposite party is served the copy only when notice is issued Court Fee: A Court fee of Rs. So, per Respondent (i.e. for each number of opposite party, court fees of Rs. So) has to be affixed on the petition. Steps Involved: 1. Proceedings, in the PIL commence and carry on in the same manner, as other cases 2. However, in between the proceedings if the judge feels he may appoint a commissioner, to inspect allegations like pollution being caused, trees being cut, sewer problems, etc 3. After filing of replies, by opposite party, and rejoinder by the petitioner, final hearing takes place, and the judge gives his final decision. How to file a PIL: A PIL may be filed like a write petition. However, in the past the SC has treated even letters addressed to the court as PIL. In People's Democratic Union vs. Union of India, a letter addressed by the petitioner organization seeking a direction against the respondents for ensuring observance of the

provisions of famous labour laws in relation to workmen employed in the construction work of projects connected with the Asian games was entertained as a PIL. The SC has encouraged the filing of PIL for tackling issues related to environment, human rights etc. Can a Letter Explaining Certain Facts to the Chief Justice be treated as a PIL? In early ig9o's have there been instances, where judges have treated a post card containing facts, as a Public Interest Litigation For example a letter alleging the illegal limestone quarrying which devastated the fragile environment in the Himalayan foothills around Mussoorie, was treated as a PIL. Present Scenario: In the past, many people have tried to misuse the privilege of Pill's and thus now the Court generally requires a detailed narration of facts and complaint, & then decides whether to issue notice and call the opposite party. However, as there is no statute laying down rules and regulations for a PIL; the Court can treat a letter as a Public Interest Litigation, The letter should bring the true & clear facts, and if the matter is really an urgent one, the court can treat it is a PIL But still it depends upon facts and circumstances, and court has the entire discretion. Strategies for PIL: 1. The allegations against state and private party should be backed by reliable evidence, for eg in a PIL on malnutrition deaths you need reports indicating it and data of the state regarding child mortality rates from various government surveys. Research based evidence will hold well in a PIL. 2. It will be good to make an NGO working on the issue a party to the petition, if there can be more than one organisation agreeing on an issue it will hold more ground in the court. 3. A good lawyer with an experience in PILS will add advantage for the success of the PIL.

Introduction The development of Public Interest Litigation (PIL) in the country has 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 utilise this extraordinary remedy, available at a cheaper cost, as a substitute for ordinary ones. This mini article briefly narrates the ill effects of the emerging malady and possible remedies. 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. Injustice anywhere is a threat to justice everywhere -Martin Luther King,Jr. 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 organised 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.

Public Interest Litigation (PIL)-The legal history: 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. 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. And 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. 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. STEPS NECESSARY: 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. Conclusion: 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 then 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. Anyway, 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.

Public Interest Litigation--- It's meaning :- 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 allenate the suffering off all those who have borne the burnt of insentitive 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 infrigned. But this traditional rule was considerably relaxed by the Supreme Court in its recent rulings: Peoples Union for Demcratic Rights v. Union of India ( A.I.R.. 1982 , S C 1473). 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 beacause 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 - AIR 1982, SC 149 : 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 absolutly 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 AIR (1986) 2 SCC 176 SC through Public Interest Litigation directed the Co. Manufacturing hazardous & lethal chemical and gases posing danger to life and health of workmen & to take all neccessary safety measures before re-opening the plant. In the case of M.C Mehta V. Union of India (1988) 1 SCC 471 :- 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 India - AIR 1989, SC 2039 :- 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 India - (1996)5 SCC281 : 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. Union Of India --AIR 1996 Cal 181 at 218 :- 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 havenot's 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 socitey. By relaxing the scope of Public Interest Litigation, Court has brought legal aid at the doorsteps of the teeming millions of Indian ; 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.
Public Interest Litigation in India 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." "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 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. Public Interest Litigation's explicit purpose is to alienate the suffering off all those who have borne the burnt 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.(1) Parmanand Katara v. Union of India (2):- 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. WHEN CAN PUBLIC INTEREST LITIGATION BE FILED? Public Interest Litigation can be filed only in a case where "public interest" at large is effected. Merely because, only one person is effected by state inaction is not a ground for public interest litigation In the Judges Transfer Case (3) -: 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. These are some of the possible areas where public interest litigation can be filed. Where a factory / industrial unit is causing air pollution, and people nearly are getting effected. Where, in an area / street there are no street lights, causing inconvenience to commuters Where some "Banquet Hall" plays a loud music, in night causing noise pollution. Where some construction company is cutting down trees, causing environmental pollution. Where poor people, are affected, because of state government's arbitrary decision to impose heavy "tax". For directing the police / Jail authorities to take appropriate decisions in regards to jail reforms, such as segregation of convicts, delay in trial, production of under trial before the court on remand dates. For abolishing child labour, and bonded labour. Where rights of working women are affected by sexual harassment. For keeping a check on corruption and crime involving holders of high political officer. For removal of Big Hoarding and signboard from the busy road to avoid traffic problem. Recently public interest litigation has been filed, for directing the "Delhi traffic police" to stop the method of sending challans to address by post, as it is being misused. WHO CAN FILE PUBLIC INTEREST LITIGATION? Earlier it was only a person whose interest was directly affected along with others, whereby his fundamental right is affected who used to file such litigation. Now, the trend has changed, and, any Public-spirited person can file a case (Public Interest Litigation) on behalf of a group of person, whose rights are effected. It is not necessary, that person filing a case should have a direct interest in this Public Interest Litigation For e.g. a person in Bombay, can file a Public Interest Litigation for, some labor workers being exploited in Madhya Pradesh or as someone filed a Public Interest Litigation in supreme court for taking action against Cracker factory in Sivakasi Tamil Nadu, for employing child labor or the case where a standing practicing lawyer filed a Public Interest Litigation challenged a government policy to transfer High Court judges and similarly a lawyer filed Public Interest Litigation for release of 80 under trials in a jail, who had spent more number of years in jail, than the period prescribed as punishment for offence, for which they were tried. It is clear that, any person, can file a Public Interest Litigation on behalf of group of affected people. However it will depend on every facts of case, whether it should be allowed or not. Council For Environment Legal Action v. Union Of India (4): Public Interest Litigation filed by registered voluntary organization regarding economic degradation in coastal area. Supreme Court issued appropriate orders and directions for enforcing the laws to protect ecology. AGAINST WHOM PUBLIC INTEREST LITIGATION CAN BE FILED? A Public Interest Litigation can be filed only against a State / Central Govt., Municipal Authorities, and not any private party. However "Private party" can be included in the Public Interest Litigation 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 Public Interest Litigation against: Government of Delhi State Pollution Control Board, and Also against the private factory However, Public Interest Litigation can not be filed against the Private party alone concerned state Govt. /, and state authority has to be made a party. In 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 (5). 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". PROCEDURE TO FILE PUBLIC INTEREST LITIGATION "Public Interest Litigation", is filed in the same manner, as a writ petition is filed. IN HIGH COURT If Public Interest Litigation is filed in a High court, then two (2) copies of the petition have to be filed. Also, an advance copy of the has to be served on the each respondent, i.e. opposite party, and this proof of service has to be affixed on the petition. IN SUPREME COURT If a Public Interest Litigation is filed in the Supreme court, then (4)+(1) (i.e. 5) sets of petition has to be filed opposite party is served, the copy only when notice is issued. COURT FEES A Court fee of RS. 50, per respondent (i.e. for each number of opposite party, court fees of RS. 50) has to be affixed on the petition. PROCEDURE Proceedings, in the PUBLIC INTEREST LITIGATION commence and carry on in the same manner, as other cases. However, in between the proceedings if the judge feels he may appoint a commissioner, to inspect allegations like pollution being caused, trees being cut, sewer problems, etc. After filing of replies, by opposite party, and rejoinder by the petitioner, final hearing takes place, and the judge gives his final decision. State V. Union Of India (6)- 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. CAN A LETTER EXPLAINING CERTAIN FACTS TO CHIEF JUSTICE BE TREATED AS A PUBLIC INTEREST LITIGATION In early 90's there have been instances, where judges have treated a post card containing facts, as Public Interest Litigation some of them are: Letter alleging the illegal limestone quarrying, which devastated the fragile environment in the Himalayan foothills around Mussoorie, was treated as Public Interest Litigation. A journalist complained to the Supreme Court in a letter, that the national coastline was being sullied by unplanned development which violated the central government directive was treated as a Public Interest Litigation. THE PRESENT SCENARIO: In the past, many people have tried to misuse the privilege of Public Interest Litigation and thus now the court generally require a detailed narration of facts and complaint, & then decide whether to issue notice and call the opposite party. However as there is no statute laying down rules and regulations for a Public Interest Litigation. Still the court can treat a letter as Public Interest Litigation. However the letter should bring the true & clear facts, and if the matter is really an urgent one, the court can treat it is Public Interest Litigation. But still it depends upon facts and circumstances, and court has the entire discretion. RELIEFS AVAILABLE BY PUBLIC INTEREST LITIGATION There are many kinds of remedies, which can be given in Public Interest Litigation, to secure the public interest, at large. They are: INTERIM MEASURES The court can afford an early interim measure to protect the public interest till the final order for example: Release of under trial on personal bonds ordering release of all under trial who have been imprisoned for longer time, than the punishment period, free legal aid to the prisoners, imposing an affirmative duty on magistrates to inform under trial prisoners of their right to bail and legal aid. Or Closure of Industrial plant emitting poisonous gas, setting up victim compensation scheme, ordering the plaint reopening subject to extensive directions etc. Or Prohibiting cutting of trees or making provisions for discharge of sewage, till the disposal of final petition. Relief in most of the Public Interest Litigation cases in the Supreme Court is obtained through interim orders. APPOINTING A COMMITTEE

 The court may appoint a committee, or commissioner to look into the matter, and submit its report. Such committee or commissioner may also be given power to take cognizance of grievances and settle it right in the public intent. FINAL ORDERS The court may also give final orders by way of direction to comply within a stipulated time. Shiram Food & Fertilizer case (7) 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. CAN A WRIT PETITION BE TREATED AS PUBLIC INTEREST LITIGATION? Yes, a writ petition filed by the aggrieved person, whether on behalf of group or together with group can be treated as Public Interest Litigation however, The writ petition should involve a question, which affects public at large or group of people, and not a single individual. Only the effected /Aggrieved person can file a writ petition. There should be a specific prayer, asking the court to direct the state Authorities to take note of the complaint /allegation. PUBLIC INTEREST LITIGATION IN HIGH COURT OR SUPREME COURT Both the High court and supreme court have the power to entertain a Public Interest Litigation. Since there are no statutes or rules, there cannot be a specific difference, as to which court will have jurisdiction on the Public Interest Litigation. It will purely and solely depend on the "Nature of the case", if the question involves only a small group of people being effected by action of State authority, the Public Interest Litigation can be filed in high court. For e.g. if there is a sewage problem in a locality effecting 50 families, the Public Interest Litigation can be filed in High court. CONCLUSION Supreme Court has now realized 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 havenots and the handicapped. Public Interest Litigation has proved a boon for the common men. By relaxing the scope of Public Interest Litigation, Court has brought legal aid at the doorsteps of the teeming millions of Indian ; 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.

Abstract: Judicial institutions have a sacrosanct role to play not only for resolving inter se disputes but also to act as a balancing mechanism between the conflicting pulls and pressures operating in a society. The Indian Judiciary has done a commendable service to the vulnerable sections by developing the doctrine of the Public Interest Litigation. This is judicial innovation for protecting the constitutional and legal rights of the poor and the ignorant masses, which is not provided under the Constitution of India. The reasons for these innovative doctrines are due-to lack of legislative thinking, executive indifference and exploitation of the poor masses by the elite class in the democratic system. For the purpose of rescuing from their vulnerability, the judiciary has discarded its conservative method and adopted an innovative strategy called Public Interest Litigation. In a plethora of cases, the judiciary has recognised the Public Interest Litigation in place of traditional rule of locus standi'. For example, cases relating to undertrial prisoners, ameliorating the conditions of children and women in protective homes, releasing and rehabilitating the bonded labourers, preservation and protection of environment and various other constitutional rights. Besides, the doctrine has also been recognised in case relating to speedy trial, right to legal aid, right to livelihood, right to human dignity, right to basic needs and reservation.

The

concept of public interest litigation was evolved by our Courts in the 1980s primarily by relaxing the rule of locus, as under the normal rule only the person aggrieved could approach the court. The primary reason for such relaxation of the rule was that the weaker sections of the society, due to their poverty, ignorance and illiteracy, were not able to assert their rights. Justice Krishna Iyer in Fertiliser Kamgar Union2 made a forceful plea that the law should not be a closed shop, else the system may crumble under the burden of its own insensitivity. Thereafter in S.P.Gupta3 (commonly called the first judges case) and in Bandhua Mukti Morcha4, Justice Bhagwati evolved the concept of public injury and allowed the public spirited citizen to approach the court for redressal of public injury. Thereafter, we all know that the public interest litigation has marched forward by leaps and bounds and has done great public service by protecting our environment, safeguarding human rights, promoting the administration, justice, checking arbitrary action of the executive in different fields affecting general public, monitoring investigation of cases involving persons occupying high public offices etc. The pronouncements made and the orders passed in public interest petition have affected the day-to-day life of almost every citizen of the country and thus it is very important that we must preserve this branch of law with proper form and structure and nourish it with due care and caution. Of late, we have found that the number of public interest petitions which are motivated and lacking in bona fide are out numbering those which are filed to serve public interest or to protect the interest of the downtrodden section of the society for whom this mechanism was enunciated. The question therefore is, how to check the filing of false and frivolous public interest litigation so that the court can pay more attention to the genuine PILs and render justice to the oppressed and deprived section of the society. The primary reason, according to me, is that this field is wholly unregulated; and it is a matter of common knowledge that any field, be it a play ground or an administrative machinery or even judicial proceeding, if left completely unregulated is bound to be misused and abused more than used. The Constitutional courts have been entertaining public interest petition in exercise of their writ jurisdiction. Though for exercise of writ jurisdiction itself there is no codified law; yet, over last five decades/ courts have evolved basic principles on which, writ jurisdiction is exercised. The courts have prescribed self imposed restriction and laid down guidelines to discipline itself. The rules framed by the High Courts and by the Supreme Court contain provisions regarding filing of writ petition by individual litigants for their own cause; but nothing has been laid down as to the filing of PIL.

According to me, it is high time that suitable format be prescribed in which public interest petitions can be filed. The format should be so modulated as to prevent or at least discourage filing of frivolous and motivated petitions. I have proposed a draft, which has been prepared so as to avoid or minimize the filing of PIL for getting publicity or to serve private or political interest or as a tool of making income and Public Interest Petitions are filed to protect public interest and public interest alone. In the beginning it should be clearly mentioned that the petition is a public interest petition and for this purpose after describing the petition as writ petition, the word PIL must come in bracket. Thereafter the petition must be described as In Re: followed by the particular subject for which the petition is filed, such as In Re: Taj corridor, In Re: Public transport on CNG, In Re: Protection of forest, In Re: Rights of under trial etc. etc. In the judgment and order only the case number and subject matter of the PIL may be indicated instead of cause title which will avert and discourage filing of PIL for getting publicity. In the first para of petition, it should be clearly stated that the petition is being filed by way of Public Interest Litigation and the petitioner has no personal interest in it; and if the petitioner has any personal interest, it must be so stated. The class of person for whose benefit the petition is filed must also be clearly stated. Thereafter, the petitioner must give his/her short background. If the petitioner is an organisation, the names of the office bearers must be furnished. It must also be stated whether the petitioner has filed or has not filed any other public interest petition. If filed, details of such PIL including the case number and the court, status and brief description of the order passed must be given. It must also be stated whether in any of such cases cost has/has not been awarded or imposed for or against the petitioner. These particulars are necessary to know the back-ground of the petitioner and to come to a conclusion whether the petition is being filed pro bono publico. If any court, on any earlier occasion, has appreciated the issue raised by the petitioner and/or awarded any compensation or cost, it may be a positive factor in the favour of the petitioner; whereas if any stricture has been passed or cost has been imposed, court would be more cautious and watchful in entertaining any PIL at the instance of such petitioner. These particulars would, to some extent discourage, if not forbid filing of PIL espousing private or political interest. The petition must contain specific averment that the petitioner is filing on his own and not at the instance of someone else; and that the litigation cost, including the Advocates fee and the travelling expenses of the lawyer, if any, is borne by the petitioner himself. If some one else is contributing funds or assisting in any manner, the petitioner must disclose the same. This would control, to some extent, those category of PIL which comes in the ambit of paisa income litigation. Thereafter, the facts of the case may be narrated in chronological order. If the petition is based on news report, it must be stated as to whether the petitioner has verified the facts by personally visiting the place or talking to the concerned people or has verified from the concerned reporter or editor of the newspaper. Any person, filing a PIL is expected to do some homework before approaching the Court. This will prevent mere busybody from approaching the court just by reading a news report. I do not say that news report cannot be the basis of a PIL; but what is expected is that after reading the news report, the petitioner must make some attempt to verify the correctness of the news report. One more aspect needs consideration. Before filing a PIL, the petitioner must send a representation to the concerned authorities for taking remedial action, akin to what is postulated in section 80 CPC. It may be that the concerned authorities take appropriate action on receiving such notice and the matter may not be required to go to court. Details of such representation and reply, if any, from the concerned authority along with copies thereof must be filed. However, in urgent cases where making of representation and waiting for response would cause irreparable damage, petitions can be allowed to be filed straight away. In such cases, at least the petitioner must give prior notice of filing

of petition to the concerned authorities and/or their standing counsel, if any. This will prevent the petitioner from getting an ex-parte order, may be on the basis of incomplete or incorrect facts. The petitioner must also make a statement that to the best of his/her knowledge, whether any other Public Interest Petition, filed by the petitioner himself or by any one else, raising the same issue is pending before any court. If any such petition is pending to the knowledge of the petitioner, details thereof should be given. The petitioner must also state the grounds with specific mention of violation of constitutional or statutory provision or administrative instruction. Similarly grounds for grant of interim relief and the nature of urgency involved must be mentioned. The prayer clause including prayer for interim relief should be specific and precise. These guidelines, according to me would provide broad framework of a Public Interest Petition. A question may arise, as to why such a detailed format is necessary for filing a PIL when Supreme Court has said that PIL is maintainable even on the basis of a letter written by any person. However, there is a distinction between a PIL based on a letter and a formal PIL. Before entertaining a PIL based on a letter, they are scrutinized by the PIL Cell constituted in all the High Courts as well as in the Supreme Court. Invariably, an Honble Judge of the Court heads such PIL Cell, and it is only after clearance by PIL Cell that a PIL is registered and is listed before the court on judicial side. I would appeal that members of the Bar should also be involved in such PIL Cell and in the decision making process as to whether any such letters be treated and registered as PIL or not. Of late there has been very few instances of letters being treated as PIL because of such scrutiny by the PIL Cell. However when a formal writ petition is filed there is no such scrutiny and as per judgment of Division Bench of Gauhati High Court5 by Honble Justice Brijesh Kumar (as his Lordship then was), such writ petition has to be listed before the court and the PIL Cell cannot scrutinize the same nor it can say that the petition is not a PIL and hence not to be listed before the court. I may not be misunderstood that I am against the public interest petition. According to me, PIL has done a great service to the nation specially in the field of protection of our environment and human rights. But what I feel is that the field needs to be properly regulated so that the system can serve the humanity in a better way and courts have no occasion to say in future that PIL is a publicity interest litigation, private interest litigation, politics interest litigation or paisa income litigation.

Important Public Interest Litigation Cases

This is not an exhaustive list; however, some of the most important cases decided by the Supreme Court of India in the last few decades are listed here. There are cases that have dealt with various issues ranging from politically sensitive ones involving public accountability to human rights issues, and environmental issues. PIL Cases in the 1970s In Mumbai Kamgar Sabha v. Abdul Bhai (1976) 3 SCC 832 court gave a soothing decision in this historic case, introducing the doctrine of Judicial Activism. Justice Krishna Iyer stated: Test Litigation, representative actions, pro bono publico and the like forms of legal proceedings are in keeping with the current accent on justice to the common man and a necessary disincentive to those who wish to bypass the real issues on the merits by suspect reliance on peripheral procedural short-comings. In Sunil Batra v. Delhi Administration [(1978) 4 SCC 494] the Supreme Court dealt with the right to protection against solitary confinement and putting undertrials in fetters for an

unlimited duration of time. It observed that the operation of Articles 14, 19 and 21 may be pared down for a prisoner but not puffed out altogetherSo also, locomotion may be limited by the needs of imprisonment but binding hand and foot, with hoops of steel, every man or women sentenced for a term is doing violence to Part III. PIL Cases in the 1980s Municipal Council, Ratlam v. Vardichan [(1980) 4 SCC 162] is a path-finder in the field of people's involvement in matters of public importance. The court accepted the locus standi of the citizens of a ward to seek directions against the Municipality for taking remedial action under Section 133 of the Code of Criminal Procedure and putting an end to the nuisance caused due to open drains, pits and public excretion in the absence of lavatories. One of the earliest cases in the subject of Public Interest Litigation is the famous Hussainara Khatoon case. There were a series of cases entitled Hussainara Khatoon v. Home Secretary, State of Bihar reported in 1980 (1) SCC 81, 1980 (1) SCC 91, 1980 (1) SCC 93, 1980 (1) SCC 98, 1980 (1) SCC 108 and 1980 (1) SCC 115. These were filed by an advocate in the Supreme Court of India by way of a writ petition, in which the plight of helpless undertrials, who were behind bars for decades, for a period much more than they would have undergone in case of conviction, was brought to the notice of the court. It observed that even under our Constitution, though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Article 21. The Constitution Bench of the Supreme Court of India in S.P. Gupta v. Union of India [1981 Supp SCC 87] upheld the locus standi of lawyers to file a writ petition by way of public interest litigation. Highlighting the change in the courts approach to the concept of locus standi, the court observed: (at page 207, paragraph 16) "It must now be regarded as well-settled law where a person whois 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 reasonssome other person can invoke the assistance of the court for the purpose of providing judicial redress to the person wronged or injured Another famous case, which is significant in the early years of the PIL is Khatri v. State of Bihar 1981 (1) SCC 627, in which the Bhagalpur Central Jail administration was alleged to have gouged out the eyes of thirty-one undertrial prisoners. Advocate Kapila Hingorani filed a writ petition in the Supreme Court contending the violation of fundamental rights of these prisoners under Articles 14, 19 and 21 of the Constitution, and the court came to their rescue. Justice Bhagwati, while considering the relief that could be given by the court, stressed on the need for implementing public interest litigation in very explicit terms: "...Why should the court not be prepared to forge new tools and devise new remedies for the purpose of vindicating the most precious of the precious fundamental right to life and personal liberty". In Upendra Baxi (Dr) v. State of U.P. [(1983) 2 SCC 308], the Supreme Courts attention was drawn to the pathetic condition prevailing in protective homes. The Supreme Court took notice of these conditions on the basis of a letter written by two law professors and issued remedial guidelines to improve the same. Sheela Barse v. State of Maharastra [(1983) 2 SCC 96]: In this case, on receiving a letter from the petitioner, a journalist, the Supreme Court took notice of the complaint of custodial violence to women prisoners in the lock-up in the city of Bombay. The court issued various directions which included the following: Four or five police lock-ups should be selected in

reasonably good localities where only female suspects should be kept and they should be guarded by female constables. In Olga Tellis v Bombay Municipal Corporation (1985) 3 SCC 545, a petition was filed by a journalist challenging the decision of the Municipality to remove huts from pavements, sometimes without even giving a hearing to the slum dwellers. The court held that such an action could be challenged as violative of Article 21 of the Constitution of India and ruled as follows: Trespass is a tortBut, even the law of Torts requires that though a trespasser may be evicted forcibly, the force used must be no greater that what is reasonable and appropriate to the occasion and, what is even more important, the trespasser should be asked and given a reasonable opportunity to depart before force is used to expel him. Rural litigation and Environment Kendra, Dehradun and others v. State of U.P. and others [(1985) 2 SCC 431] was a case involving issues relating to environment and ecological balance with implications to the welfare of the generality of people living in the country. The Supreme Court held that Article 2l covers the right to a clean environment and that the permanent assets of mankind cannot be allowed to be exhausted. In Vincent Panikurlangara v. Union of India [(1987) 2 SCC 165], a letter was entertained by the Supreme Court of India as a public interest litigation. It issued directions to the Central Government to set up Regional Drug Laboratories in addition to the Central Laboratory to keep a check on sale and use of banned or harmful drugs and also to promote research and to coordinate activity in that regard. PIL Cases in the 1990s In Subhash Kumar v. State of Bihar [(1991) 1 SCC 598] the Supreme Court held that the 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 right to have recourse to Article 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life. i) In M C Mehta v. Union of India [(1992) 1 SCC 358] the petitioner prayed for issuing appropriate directions to various sources of mass media to make aware the people of the country about environmental issues and that environment should be made a compulsory subject in schools and colleges. The Supreme Court accepted these prayers and issued various directions in this respect. ii) There have been a series of cases filed by M C Mehta on various aspects of the environment: these include inter alia the Taj Mahal case, the Ganges Pollution case, the Vehicular Pollution case, the re-location of polluting industries case, the Delhi sewage Treatment Plant case, the Child Labour Case, the Aquaculture Case and many others. For more information, please see the link: http://www.mcmef.org/landmark.htm In Vishaka v. State of Rajasthan [(1997) 6 SCC 241], which is the celebrated case laying down guidelines for the prevention of sexual harassment of women in the workplace, the court focused its attention in assisting in finding suitable methods for realisation of the true concept of 'gender equality'; and to prevent sexual harassment of working women in all work places through judicial process, to fill the vacuum in existing legislation.

In Apparel Export Promotion Council v. A.K. Chopra [(1999) 1 SCC 759], the subject of sexual harassment of women at the work place has further been elaborated upon by the Supreme Court of India. PIL Cases 2000 onwards In Balco Employees Union v. Union of India and Others (2002) 2 SCC 333 dealing with the question of judicial interference in economic policy decisions, the Supreme Court emphasised that in the sphere of economic policy or reforms the court is not the appropriate forum Courts will interfere only if there is a clear violation of constitutional or statutory duties. It also clarified that Public Interest Litigation was intended to mean nothing more than what the words themselves said, namely, "litigation in the interest of the public. In Kapila Hingorani v. State of Bihar, 2003 (6) SCC 1, the Supreme Court noted the plight of the employees of public sector undertakings or the statutory authorities in the State of Bihar. In a letter to the Supreme Court, an Advocate of the Supreme Court, Kapila Hingorani brought to its notice many incidents of death owing to starvation or malnutrition due to nonpayment of salaries of the workers working in these corporations. The court pierced the corporate veil in this case and also held the State of Bihar liable. In Dattaraj Nattuji Thaware v. State of Maharashtra 2005 (1) SCC 590, the Supreme Court of India reiterated the recent trend to the following effect: Public Interest Litigation which has now come to occupy an important field in the administration of law (should not become)'publicity interest litigation' or 'private interest litigation' or 'politics interest litigation' or the latest trend, i.e. 'paise income litigation'. In order to discourage the practice, the court stressed the necessity of imposing exemplary costs on people for bringing frivolous petitions. PILs on Civil Liberties There have been a series of cases dealing with civil liberties making public interest litigation as a medium. These have led to the expansion of the ambit and scope of Article 21. The right to live with human dignity is considered as one of the cardinal fundamental rights available to a person for the "dignity of man supersedes all other considerations". It includes inter alia the following cases: In Charles Sobhraj v. Superintendent, Central Jail [(1978) 4 SCC 104] the court emphasised that imprisonment does not spell farewell to fundamental rights... The principle that free legal services to the poor and the needy was an essential element of any reasonable, fair and just procedure under Article 21 was upheld in M.H. Hoskot v. State of Maharashtra 1978 (3) SCC 544. In T.V. Vatheeswaran v. State of Tamilnadu [(1983) 2 SCC 68] the Supreme Court held a prisoner on death row has a right to move the court for quashing of the sentence in case of unreasonable delay in the carrying out of the sentence. The right against custodial violence was upheld in Nilabati Behera v. State of Orissa, [(1993) 2 SCC 746]. With regard to the question of awarding compensation, the court crystallised the judicial right to compensation and held: The relief of monetary compensation, as exemplary damages, in proceedings under Article 32is a remedy

available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. In Parmanand Katara v. Union of India 1989 (4) SCC 286 the Supreme Court in the context of medico-legal cases, has emphasised the need for rendering immediate medical aid to injured persons to preserve life and the obligations of the State as well as doctors in that regard. In Paschim Banga Khet Mazdoor Samiti v. State of West Bengal [(1996) 4 SCC 37] the Supreme Court observed that Article 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The government hospitals run by the State and the medical officers employed therein are dutybound to extend medical assistance for preserving human life. In Bodhisattwa Gautam v. Subhra Chakraborty [(1996) 1 SCC 490] the Supreme Court suo moto awarded an interim compensation of Rs. 1,000 per month to a victim of rape. At page 500, the court has described the position of women in rather eloquent terms: Unfortunately, a woman, in our country, belongs to a class or group of society who are in a disadvantaged position on account of several social barriers and impediments and have, therefore, been the victims of tyranny, at the hands of men with whom they, under the Constitution, enjoy equal status. The rights of an arrested person are highlighted in D.K. Basu v. State of West Bengal [(1997) 1 SCC 416]. The Supreme Courts observation was as follows: An enforceable right to compensation in cases of torture including mental torture inflicted by the State or its agencies is now a part of the public law regime 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 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 living 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 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 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 atleast 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 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 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 is 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; 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 living 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.

Judicial Activism And Public Interest Litigation In India

Judicial Activism And Public Interest Litigation In India
INTRODUCTION Public Interest Litigation: The words `Public Interest' mean "the common well being also public welfare (Oxford English Dictionary 2nd Edn. Vol.Xll) and the word 'Litigation' means "a legal action including all proceedings therein, initiated in a court of law with the purpose of enforcing a right or seeking a remedy." Thus, the expression `Public Interest Litigation' means "some litigations conducted for the benefit of public or for removal of some public grievance." In simple words, public interest litigation means. any public spirited citizen can move/approach the court for the public cause (or public interest or public welfare) by filing a petition in the Supreme Court under Art.32 of the Constitution or in the High Court under Art.226 of the Constitution or before the Court of Magistrate under Sec. 133 of the Code of Criminal Procedure, 1973. The seeds of the concept of public interest litigation were initially sown in India by Krishna Iyer J., in 1976 in Mumbai Kamagar Sabha vs. Abdul Thai (AIR 1976 SC 1455; 1976 (3) SCC 832) and was initiated in Akhil I3/taratiya Sos/ail Karnuu:hari Sangh (Raihvaiy vs, Union of India, wherein an unregistered association of workers was permitted to institute a writ petition under Art.32 of the Constitution for the redrcssal of common grievances. Krishna lyer J., enunciated the reasons for liberalization of the rule of Locus Standi in Fertilizer Corporation Kamgar vs. Union of India (AIR 1981 SC 149; 1981 (2) SCR 52) and the ideal of 'Public Interest Litigation' was blossomed in S.F. Gupta and others vs. Union of India, (AIR 1982 SC 149).

Judicial Activism: The expression `Judicial Activism' signifies the anxiety of courts to find out appropriate remedy to the aggrieved by formulating a new rule to settle the conflicting questions in the event of lawlessness or uncertain laws. The Judicial Activism in India can he witnessed with reference to the review power of the Supreme Court under Article 32 and I (belt Courts under Article 226 of the Constitution particularly in Public Interest Litigation. Earlier, in England there were two kinds of courts namely. Equity Courts (Court of Chancery) and Common Law Courts. Equity Courts used to decide cases applying the principles of equity i.e. Justice. equity and good conscience. Whereas the common law courts used to decide cases basing on common law i.e. the principles' rules evolved by the Judge; during judicial pronouncements. Hence. the common law is also known as the 'Judge-made-law:' The courts of Equity / Chancery played significant role in formulating the new piles of tart. The common law originated in England was spread in British Colonies including India. In India, almost all laws are originated ham the fairish Common law. In the absence of existing rules for relief in certain cases and predictive procedure, the court' of equity or chancery took the initiative to draw up new rules. 'The new rules to settle the conflicting positions that had arisen in certain cases is called 'Judicial Activism'. The equity court- and common law courts were merged with the passing of the Judicature .Act, I875. Judicial Activism in India: The significant feature of Indian Constitution is partial separation of powers. -The doctrine of separation of powers was propounded by the French Jurist, contesqeu. It is partly adopted tit India since the executive powers are vested in the president, Legislative powers tit the Parliament and the judicial powers in the Supreme Court and subordinate courts. The role of separation of powers in India is simple. The three organs of the Government viz. the Executive. Legislature and the Judiciary are not independently independent but inter-dependently independent. (The executive encroaches upon judicial power, while appointing the judges of Supreme Court and High Courts. Similarly the Judiciary, by its review power examines the law passed by file legislature pat lament and the legislature also ,intervenes in respect of impeachment of the president). As stated earlier, the Judicial Activism tit India can he witnessed with reference to the review power of the Supreme Court under Art. 226 of the Constitution particularly in public interest litigation cases. The Supreme Court played crucial role in formulating several principles in public interest litigation cases. For instance, the principle of "absolute liability" was propounded in Oleum Gas Leak case. Public Trust Doctrine in Kamalnath Case (1998 I SCC .388) etc.

Further, the Supreme Court, gave variety of guidelines in various cases of public interest litigation. Eg.: Ratlam Municipality Case, Oleum Gas Leak Case, Ganga Pollution Case etc. Public Interest Litigation and Judicial Activism: Public interest litigation or social interest litigation today has great significance and drew the attention of all concerned. The traditional rule of "Locus Standi" that a person, whose right is infringed alone can file a petition, has been considerably relaxed by the Supreme Court in its recent decisions. Now, the court permits public interest litigation at the instance of public spirited citizens for the enforcement of constitutional o- legal rights. Now, any public spirited citizen can move/approach the court for the public cause (in the interests of the public or public welfare) by filing a petition: 1. in Supreme Court under Art.32 of the Constitution; 2. in High Court under Art.226 of the Constitution; and 3. in the Court of Magistrate under Sec.133, Cr. P.C. Justice Krishna layer fertilizer Corporation Kamgar Union vs. Union of India, (1981) enumerated the following reasons for liberalization of the rule of Locus Standi:1. Exercise of State power to eradicate corruption may result in unrelated interference with individuals' rights. 2. Social justice wan ants liberal judicial review administrative action. 3. Restrictive rules of standing are antithesis to a healthy system of administrative action. 4. Activism is essential for participative public justice". Therefore, a public minded citizen must be given an opportunity to move the court in the interests of the public. Further, the Supreme Court in S.P. Gupta vs. Union of India. (AIR 1982 SC 149), popularly known as Judges Transfer Case, Bhagwati J . firmly established the validity of the public interest litigation. Since then, a good number of public interest litigation petitions were filed. ORIGIN AND DEVELOPMENT OF PUBLIC INTEREST LITIGATION IN INDIA It should be noted at outset that PIL, at least as it had developed in India, is different from class action or group litigation. Whereas the latter is driven primarily by efficiency considerations, the PIL is concerned at providing access to justice to all societal

constituents. PIL in India has been a part of the constitutional litigation and not civil litigation.1 Therefore, in order to appreciate the evolution of PIL in India, it is desirable to have a basic understanding of the constitutional framework and the Indian judiciary. 2 After gaining independence from the British rule on August 15, 1947, the people of India adopted a Constitution in November 1949 with the hope to establish a sovereign socialist secular democratic republic.3Among others, the Constitution aims to secure to all its citizens justice (social, economic and political), liberty (of thought, expression, belief, faith and worship) and equality (of status and of opportunity).4 These aims were not merely aspirational because the founding fathers wanted to achieve a social revolution through the Constitution.5 The main tools employed to achieve such social change were the provisions on fundamental rights (FRs) and the directive principles of state policy (DPs), which Austin described as the conscience of the Constitution.6 In order to ensure that FRs did not remain empty declarations, the founding fathers made various provisions in the Constitution to establish an independent judiciary. As we will see below, provisions related to FRs, DPs and independent judiciary together provided a firm constitutional foundation to the evolution of PIL in India. Part III of the Constitution lays down various FRs and also specifies grounds for limiting these rights. As a right without a remedy does not have much substance,7 the remedy to approach the Supreme Court directly for the enforcement of any of the Pt III rights has also been made a FR.8 The holder of the FRs cannot waive them.9 Nor can the FRs be curtailed by an amendment of the Constitution if such curtailment is against the basic structure of the Constitution.12 Some of the FRs are available only to citizens10 while others are available to citizens as well as non-citizens,11 including juristic persons. Notably, some of the FRs are expressly conferred on groups of people or community. 12 Not all FRs are guaranteed specifically against the state and some of them are expressly guaranteed against non-state bodies.13 Even the state is liberally defined in art.12 of the Constitution to include, the Government 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. The expression other authorities has been expansively interpreted, and any agency or instrumentality of the state will fall within its ambit.14 The DPs find a place in Pt IV of the Constitution. Although the DPs are not justiciable,15 they are, nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws.16 After initial deviation,17 the Supreme Court accepted that FRs are not superior to DPs on account of the latter being non-justiciable: rather FRs and DPs are complementary and

the former are a means to achieve the goals indicated in the latter.18 The issue was put beyond any controversy in Minerva Mills Ltd v Union of India where the Court held that the, harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution.19 Since then the judiciary has employed DPs to derive the contents of various FRs.20 The founding fathers envisaged the judiciary as a bastion of rights and justice.21 An independent judiciary armed with the power of judicial review was the constitutional device chosen to achieve this objective. The power to enforce the FRs was conferred on both the Supreme Court and the High Courts22 the courts that have entertained all the PIL cases. The judiciary can test not only the validity of laws and executive actions but also of constitutional amendments. It has the final say on the interpretation of the Constitution and its orders, supported with the power to punish for contempt, can reach everyone throughout the territory of the country. Since its inception, the Supreme Court has delivered judgments of far-reaching importance involving not only adjudication of disputes but also determination of public policies and establishment of rule of law and constitutionalism.23 Judicial moulding of standing, procedure, substance and relief Two judges of the Indian Supreme Court (Bhagwati and Iyer JJ.) 24 prepared the groundwork, from mid-1970s to early 1980s, for the birth of PIL in India. This included modifying the traditional requirements of locus standi, liberalising the procedure to file writ petitions, creating or expanding FRs, overcoming evidentiary problems, and evolving innovative remedies.25 Modification of the traditional requirement of standing was sine qua non for the evolution of PIL and any public participation in justice administration. The need was more pressing in a country like India where a great majority of people were either ignorant of their rights or were too poor to approach the court. Realising this need, the Court held that any member of public acting bona fide and having sufficient interest has a right to approach the court for redressal of a legal wrong, especially when the actual plaintiff suffers from some disability or the violation of collective diffused rights is at stake. Later on, merging representative standing and citizen standing, the Supreme Court in S.P. Gupta v Union of India held26: 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 . . . and such person or determinate class of persons is by reasons of poverty, helplessness, or disability or socially or economically disadvantaged position,

unable to approach the Court for any relief, any member of the public can maintain an application for an appropriate direction, order or writ. The court justified such extension of standing in order to enforce rule of law and provide justice to disadvantaged sections of society.27 Furthermore, the Supreme Court observed that the term appropriate proceedings in art.32 of the Constitution28 does not refer to the form but to the purpose of proceeding: so long as the purpose of the proceeding is to enforce a FR, any form will do.29 This interpretation allowed the Court to develop epistolary jurisdiction by which even letters or telegrams were accepted as writ petitions.30 Once the hurdles posed by locus standi and the procedure to file writ petitions were removed, the judiciary focused its attention to providing a robust basis to pursue a range of issues under PIL. This was achieved by both interpreting existing FRs widely and by creating new FRs. Article 21no person shall be deprived of his life or personal liberty except according to the procedure established by lawproved to be the most fertile provision to mean more than mere physical existence31; it includes right to live with human dignity and all that goes along with it.32 Ever-widening horizon of art.21 is illustrated by the fact that the Court has read into it, inter alia, the right to health, livelihood, free and compulsory education up to the age of 14 years, unpolluted environment, shelter, clean drinking water, privacy, legal aid, speedy trial, and various rights of under-trials, convicts and prisoners. It is important to note that in a majority of cases the judiciary relied upon DPs for such extension. The judiciary has also invoked art.21 to give directions to government on matters affecting lives of general public, or to invalidate state actions, or to grant compensation for violation of FRs. The final challenge before the Indian judiciary was to overcome evidentiary problems and find suitable remedies for the PIL plaintiffs. The Supreme Court responded by appointing fact-finding commissioners and amicus curiae.33 As in most of the PIL cases there were no immediate or quick solutions, the Court developed creeping jurisdiction thereby issuing appropriate interim orders and directions. 34 The judiciary also emphasised that PIL is not an adversarial but a collaborative and cooperative project in which all concerned parties should work together to realise the human rights of disadvantaged sections of society.35 The debate over label: PIL or social action litigation? Given that the birth of PIL in India was connected to the evolution of PIL in the United States, it was natural for scholars to draw comparisons between the US experience and the Indian experience.36 One result of this comparison was that it was argued that PIL in

India should be labeled as social action litigation (SAL). Baxi was the key scholar who mooted for such indigenous labelling of PIL because of its distinctive characteristics. He contended that whereas PIL in the United States has focused on civic participation in governmental decision making, the Indian PIL discourse was directed against state repression or governmental lawlessness and was focused primarily on the rural poor. Writing in the early 1980s, Baxi highlighted another contrast: that unlike India, PIL in the United States sought to represent interests without groups such as consumerism or environment. At least two comments could be made about the desire to designate PIL as SAL. First, the term social action probably implied the role that law could/should play in social engineering. However, considering that in PIL cases judges (rather than the legislature) play a key role and the law is judge-made law, one should not over-estimate what courts could deliver through PIL/SAL in a democracy. No doubt, courts could help in providing an official recognition to the voices of minorities or destitutes that might be ignored otherwise, but it would be unrealistic to expect that they could achieve social transformation on their own. Secondly, as we will note in the next section, the character of the PIL in India has changed a lot in the second phase in that now it is not limited to espousing the interests of disadvantaged sections of society or to redressing state repression and governmental lawlessness. In fact, in the second phase, the focus of PIL in India has shifted from poor to the middle class and from redressing state exploitation of disadvantaged groups to pleas for civic participation in governance. Although there are still differences between how the PIL jurisprudence has unfolded in the United States and India, the distinction as to the subject-matter or the basic objective of the PIL is not that much as it used to be when an argument was made to label PIL as SAL. The three phases of PIL At the risk of over-simplification and overlap, the PIL discourse in India could be divided, in my view, into three broad phases.37 One will notice that these three phases differ from each other in terms of at least the following four variables: who initiated PIL cases; what was the subject matter/focus of PIL; against whom the relief was sought; and how judiciary responded to PIL cases. In the first phasewhich began in the late 1970s and continued through the 1980sthe PIL cases were generally filed by public-spirited persons (lawyers, journalists, social activists or academics). Most of the cases related to the rights of disadvantaged sections

of society such as child labourers, bonded labourers, prisoners, mentally challenged, pavement dwellers, and women. The relief was sought against the action or non-action on the part of executive agencies resulting in violations of FRs under the Constitution. During this phase, the judiciary responded by recognising the rights of these people and giving directions to the government to redress the alleged violations. In short, it is arguable that in the first phase, the PIL truly became an instrument of the type of social transformation/revolution that the founding fathers had expected to achieve through the Constitution. The second phase of the PIL was in the 1990s during which several significant changes in the chemistry of PIL took place. In comparison to the first phase, the filing of PIL cases became more institutionalized in that several specialized NGOs and lawyers started bringing matters of public interest to the courts on a much regular basis. The breadth of issues raised in PIL also expanded tremendouslyfrom the protection of environment to corruption-free administration, right to education, sexual harassment at the workplace, relocation of industries, rule of law, good governance, and the general accountability of the Government. It is to be noted that in this phase, the petitioners sought relief not only against the action/non-action of the executive but also against private individuals, in relation to policy matters and regarding something that would clearly fall within the domain of the legislature. The response of the judiciary during the second phase was by and large much bolder and unconventional than the first phase. For instance, the courts did not hesitate to come up with detailed guidelines where there were legislative gaps. The courts enforced FRs against private individuals and granted relief to the petitioner without going into the question of whether the violator of the FR was the state. The courts also took non-compliance with its orders more seriously and in some cases, went to the extent of monitoring government investigative agencies66 and/or punishing civil servants for contempt for failing to abide by their directions. The second phase was also the period when the misuse of PIL not only began but also reached to a disturbing level, which occasionally compelled the courts to impose fine on plaintiffs for misusing PIL for private purposes. It is thus apparent that in the second phase the PIL discourse broke new grounds and chartered on previously unknown paths in that it moved much beyond the declared objective for which PIL was meant. The courts, for instance, took resort to judicial legislation when needed, did not hesitate to reach centres of government power, tried to extend the protection of FRs against non-state actors, moved to protect the interests of the middle class rather than poor populace, and sought means to control the misuse of PIL for ulterior purposes.

On the other hand, the third phasethe current phase, which began with the 21st centuryis a period in which anyone could file a PIL for almost anything. It seems that there is a further expansion of issues that could be raised as PIL, e.g. calling back the Indian cricket team from the Australia tour and preventing an alleged marriage of an actress with trees for astrological reasons. From the judiciarys point of view, one could argue that it is time for judicial introspection and for reviewing what courts tried to achieve through PIL. As compared to the second phase, the judiciary has seemingly shown more restraint in issuing directions to the government. Although the judiciary is unlikely to roll back the expansive scope of PIL, it is possible that it might make more measured interventions in the future. One aspect that stands out in the third phase deserves a special mention. In continuation of its approval of the governments policies of liberalization in Delhi Science Forum, the judiciary has shown a general support to disinvestment and development policies of the Government.38 What is more troublesome for students of the PIL project in India is, however, the fact that this judicial attitude might be at the cost of the sympathetic response that the rights and interests of impoverished and vulnerable sections of society (such as slum dwellers and people displaced by the construction of dams) received in the first phase. The Supreme Courts observations such as the following also fuel these concerns: Socialism might have been a catchword from our history. It may be present in the Preamble of our Constitution. However, due to the liberalization policy adopted by the Central Government from the early nineties, this view that the Indian society is essentially wedded to socialism is definitely withering away. It seems that the judicial attitude towards PIL in these three phases is a response, at least in part, to how it perceived to be the issue(s) in vogue. If rights of prisoners, pavement dwellers, child/bonded labourers and women were in focus in the first phase, issues such as environment, AIDS, corruption and good governance were at the forefront in second phase, and development and free market considerations might dominate the third phase. So, the way courts have reacted to PIL in India is merely a reflection of what people expected from the judiciary at any given point of time. PROBLEMS REGARDING THE EXERCISE OF JUDICIAL ACTIVISM THROUGH PUBLIC INTEREST LITIGATION It seems that the misuse of PIL in India, which started in the 1990s, has reached to such a stage where it has started undermining the very purpose for which PIL was introduced. In other words, the dark side is slowly moving to overshadow the bright side of the PIL project.

(1) Ulterior purpose: Public in PIL stands substituted by private or publicity. One major rationale why the courts supported PIL was its usefulness in serving the public interest. It is doubtful, however, if PIL is still wedded to that goal. As we have seen above, almost any issue is presented to the courts in the guise of public interest because of the allurements that the PIL jurisprudence offers (e.g. inexpensive, quick response, and high impact). Of course, it is not always easy to differentiate public interest from private interest, but it is arguable that courts have not rigorously enforced the requirement of PILs being aimed at espousing some public interest. Desai and Muralidhar confirm the perception that: PIL is being misused by people agitating for private grievances in the grab of public interest and seeking publicity rather than espousing public causes.122 It is critical that courts do not allow public in PIL to be substituted by private or publicity by doing more vigilant gate-keeping. (2) Inefficient use of limited judicial resources: If properly managed, the PIL has the potential to contribute to an efficient disposal of peoples grievances. But considering that the number of per capita judges in India is much lower than many other countries and given that the Indian Supreme Court as well as High Courts are facing a huge backlog of cases,123 it is puzzling why the courts have not done enough to stop nongenuine PIL cases. In fact, by allowing frivolous PIL plaintiffs to waste the time and energy of the courts, the judiciary might be violating the right to speedy trial of those who are waiting for the vindication of their private interests through conventional adversarial litigation. A related problem is that the courts are taking unduly long time in finally disposing of even PIL cases. This might render many leading judgments merely of an academic value.124 The fact that courts need years to settle cases might also suggest that probably courts were not the most appropriate forum to deal with the issues in hand as PIL. (3) Judicial populism: Judges are human beings, but it would be unfortunate if they admit PIL cases on account of raising an issue that is (or might become) popular in the society. Conversely, the desire to become peoples judges in a democracy should not hinder admitting PIL cases which involve an important public interest but are potentially unpopular. The fear of judicial populism is not merely academic is clear from the following observation of Dwivedi J. in Kesavnanda Bharathi v State of Kerala:The court is not chosen by the people and is not responsible to them in the sense in which the House of People is. However, it will win for itself a permanent place in the hearts of the people and augment its moral authority if it can shift the focus of judicial review from

the numerical concept of minority protection to the humanitarian concept of the protection of the weaker section of the people.125 It is submitted that courts should refrain from perceiving themselves as crusaders constitutionally obliged to redress all failures of democracy. Neither they have this authority nor could they achieve this goal. (4) Symbolic justice: Another major problem with the PIL project in India has been of PIL cases often doing only symbolic justice. Two facets of this problem could be noted here. First, judiciary is often unable to ensure that its guidelines or directions in PIL cases are complied with, for instance, regarding sexual harassment at workplace (Vishaka case) or the procedure of arrest by police (D.K. Basu case). No doubt, more empirical research is needed to investigate the extent of compliance and the difference made by the Supreme Courts guidelines.126 But it seems that the judicial intervention in these cases have made little progress in combating sexual harassment of women and in limiting police atrocities in matters of arrest and detention. The second instance of symbolic justice is provided by the futility of overconversion of DPSPs into FRs and thus making them justiciable. Not much is gained by recognising rights which cannot be enforced or fulfilled. It is arguable that creating rights which cannot be enforced devalues the very notion of rights as trump.127 Singh aptly notes that, a judge may talk of right to life as including right to food, education, health, shelter and a horde of social rights without exactly determining who has the duty and how such duty to provide positive social benefits could be enforced.128 So, the PIL project might dupe disadvantaged sections of society in believing that justice has been done to them, but without making a real difference to their situation. (5) Disturbing the constitutional balance of power: Although the Indian Constitution does not follow any strict separation of powers, it still embodies the doctrine of checks and balances, which even the judiciary should respect. However, the judiciary on several occasions did notexercise self-restraint and moved on to legislate, settle policy questions, take over governance, or monitor executive agencies. Jain cautions against such tendency: PIL is a weapon which must be used with great care and circumspection; the courts need to keep in view that under the guise of redressing a public grievance PIL does not encroach upon the sphere reserved by the Constitution to the executive and the legislature.129

Moreover, there has been a lack of consistency as well in that in some cases, the Supreme Court did not hesitate to intrude on policy questions but in other cases it hid behind the shield of policy questions.130 Just to illustrate, the judiciary intervened to tackle sexual harassment as well as custodial torture and to regulate the adoption of children by foreigners, but it did not intervene to introduce a uniform civil code, to combat ragging in educational institutions, to adjust the height of the Narmada dam and to provide a humane face to liberalization-disinvestment polices. No clear or sound theoretical basis for such selective intervention is discernable from judicial decisions.131 It is also suspect if the judiciary has been (or would be) able to enhance the accountability of the other two wings of the government through PIL. In fact, the reverse might be true: the judicial usurpation of executive and legislative functions might make these institutions more unaccountable, for they know that judiciary is always there to step in should they fail to act. (6) Overuse-induced non-seriousness: PIL should not be the first step in redressing all kinds of grievances even if they involve public interest. In order to remain effective, PIL should not be allowed to become a routine affair which is not taken seriously by the Bench, the Bar, and most importantly by the masses: The overuse of PIL for every conceivable public interest might dilute the original commitment to use this remedy only for enforcing human rights of the victimized and the disadvantaged groups.132 If civil society and disadvantaged groups lose faith in the efficacy of PIL, that would sound a death knell for it. SUGGESTIONS TO CORRECT AN OVER-ACTIVIST JUDICIARY Major steps need to be taken in order to prevent an over-activist judiciary from transgressing its limits. Some of these can be explained as follows: Public interest litigation, or PIL as it is conveniently called, has become a major and prominent segment of the jurisdiction of the Supreme Court and 21 High Courts in India. Whilst its necessity and utility in upholding the rule of law is undoubted, its extravagant and unprincipled use at times by courts has brought PIL into controversy. (1) Relaxation Must Be Procedural Much of the misapplication of the PIL jurisdiction can be avoided, if it is remembered that PIL is basically the application of the well settled principles of judicial review by courts of actions of government and public authorities, with the modification of courts allowing the petitioner(s) applicant to approach the court on behalf of other persons, who themselves are unable to come to the court because of ignorance of their rights or

the difficulty and cost of litigation. In such cases, the court relaxes the strict rule of locus standi of the applicant and also relaxes procedural formalities. It may even entertain a letter addressed to the court by a complainant. PIL was devised as a means for redressing the basic rights of generally the poor and marginalized sections of the society, who were unable to get judicial help on their own. It must also be borne in mind that public interest litigation is not something unique to India. Other jurisdictions such as South Africa, Canada and USA also have public interest litigation, though it is not described as such. It is, therefore, important to note that except for procedural relaxations, the PIL jurisdiction should not exceed the permissible limits and parameters of judicial review by the court over the actions or omissions of government, legislatures or public bodies, or transcend the basic separation of powers underlying the Constitution. Judicial review in a democratic constitution must also not supplant the normal processes of representative self-government, in which the representatives of the people make choices and policies which may not be ideal or correct, but which can be set right by the people themselves. What is not within the bounds of judicial review by courts cannot be within their reach because it comes under the description of public interest litigation before it. PIL jurisdiction is, therefore, not a unique jurisdiction by which courts can transcend their limitations to act as a body to set right actions of the government, which are believed to be wrong or could be improved. Once this basic foundation of PIL is kept in mind, the parameters of intervention in PIL are easily grasped and its misapplication can be seen and avoided. (2) Judicial Activism Not PIL Another misconception is equating PIL with judicial activism in India. Judicial activism is not PIL. A court can be judicially active or inactive irrespective of PIL. Judicial activism is a word of many shades. No person today subscribes to Bacon's view that judges must only declare the law and do not make law. Such a view was rightly described as a fairy tale by a distinguished English judge Lord Reid. Judges do and must make law but not in the manner of legislatures. There is much scope for creative judicial activism in the interpretative functions of judges, on the choices inherent in their function and in the gaps in legal rules, as has been done by superior courts in several countries for many years. The Indian Supreme Court's own creative jurisprudence of the inviolability of the basic structure of the Constitution in 1973 and the importation of non-arbitrariness in the fundamental Right of Equality, and of due process of law in the right to personal liberty in Maneka Gandhi case in 1978, are stellar examples of how judicial function can be creative. Regrettably, this kind of creative judicial activism in Indian courts seems to have become dormant and displaced by a poor substitute of routine judicial correction and monitoring of governmental functions by courts in PIL. Judicial activism is equated

with PIL mainly because it is a most convenient vehicle for bringing public grievances before courts and because the courts' orders in PIL are far-reaching and some times sensational. Once these fundamentals of judicial review are borne in mind by courts in exercising PIL jurisdiction, it can be a useful judicial process for the benefit of the public, particularly of the poor, the indigent and marginalized sections of society, whose fundamental rights are to be protected by court orders. It is the historic and constitutional duty of courts to safeguard and enforce the basic liberties and rights of individuals. A court is strongest and least vulnerable, when it grounds its interventions in enforcing the basic rights of individuals against authority. No question of the court breaching the separation of powers can arise, as it carries out its constitutional function of protecting the basic rights of individual in such cases. (3) Judicial Activism Not Judicial Adventurism The origins of PIL were in such unexceptional interventions in 1970, as when the court ordered the release of bonded labourers and stopped inhuman working conditions in stone quarries and in mental asylums etc. Correctly, this jurisdiction should have been named SAL or Social Action Litigation to gather its true import. It is also the court's legitimate function to enforce the law, not of each and every infraction, but in those cases where its disregard has grave consequences to the public. No question of the court overreaching its powers can arise in such cases. In matters relating to environment, where irreversible damage may be done unless the actions of the authorities are immediately corrected, the court may take prompt corrective measures, but not take over the administration itself or supplant the law. However, over the years, the true objective of PIL as originally conceived has been lost sight of, and it believed to be general jurisdiction for correcting government action or inaction, regardless of constraints of established principles of judicial review. As the court cannot disregard the law in judicial review or disregard the fundamental separation of powers underlying the Constitution to appropriate executive or legislative powers, PIL orders cannot disregard law; take over the administration by government or by public authorities, in the name of improving governance or preventing misuse of power. It is this aspect of misplaced judicial activism, which a bench of two judges of the Supreme Court in Aravali Golf Club case 2008 1 SCC 683 recently criticized in rather strong words of reprimand. The judgment was timely and has brought misplaced judicial activism into focus, but in the process it did not advert to the permissible scope of judicial intervention. (4) Displacing Government Administration It is true that there is a misconception not only in the public but also in courts about the function of judiciary under the Constitution, particularly when PIL is employed. It appears that the public has developed a syndrome of routine recourse to the courts for

every perceived failure of government and the courts on their part have come to believe that it is their judicial duty to intervene in such failures by making orders for correcting or improving the government. There is a vast catalogue of such micro-managing orders made by the Supreme Court itself, which cannot be justified by any principle of judicial review. They include orders for making roads in hilly areas, wearing of helmets and seat belts to avoid accidents in cities, cleanliness in housing colonies, disposal of garbage, control of traffic, control of unmanned railway crossings, prevention of pollution of rivers, action plans to control and prevent menace of monkeys in cities, control of breeding of animals in zoos, measures to prevent ragging of students, collection and storage of blood in blood banks, control of noise and banning of fire crackers. At times, committees set up and empowered by courts have effectively displaced government's administration in those areas. Such PIL petitions are filed in the Supreme Court in its original jurisdiction under the Article 32 of the Constitution. Article 32 is for enforcing fundamental rights. It is hard to find any genuine enforcement of any fundamental right in such PIL petitions. The petitions make a formal invocation of Article 14 in its liberal interpretation of non-arbitrariness or of Article 21 in its vast expanse of a right to life. Article 32 seems to have lost its meaning for all practical purposes. At times, matters beyond the judicial sphere and competence of the court have been entertained. In 1993, the Supreme Court even ordered that provision of food of 1200 calorific value should be supplied to hostages in an ongoing military operation in Kashmir. The court has professed to monitor a highly technical engineering scheme of interlinking of rivers in India and of genetic modified foods. In the field of higher education, the court's interventions have created a maze of complex regulations by successive cases, familiar only to lawyers, and baffling to educationists, parents and students. The court's scheme for admissions in private medical colleges in the Unnikrishnan case in 1993, which was in distinguishable from legislation, prevailed for nine years before it suffered an inglorious end, when the court itself struck it down as "unconstitutional" in T.M.A. Pai's case in 2002, causing considerable confusion in admissions in professional colleges. Following upon the Aravali Golf Club case, a larger Bench of the Supreme Court is shortly to consider the parameters of PIL. This is not new. Way back in 1983, a Bench of the court had made reference to a larger Bench, but nothing came of it. If the fundamental premise of public interest litigation (or more appropriately, social action litigation), coupled with the premise that PIL cannot go beyond the limitations of judicial review and must give due recognition to the separation of powers under the Constitution, is borne in mind, a formulation of the instances where PIL may or may not used, seems unnecessary. It may even be counterproductive, as it is never good to distill judicial

power by enumeration. For such matters, Justice Oliver Wendell Holmes once said, "We need to have education in the obvious". Apart from the above, some important points need to be kept in mind by the people approaching the Courts, as well as the lawyers and judges who are involved in Public Interest Litigations. These are: (1) Petitioners and the persons representing them as public-spirited individuals should approach the Court, keeping very clear objectives in mind, and not just raise any issue or claim any kind of relief, that may be irrelevant in the context of the particular case. (2) Lawyers, by exercising their legal acumen and knowledge, should find out the exact types of petitions which might be within the jurisdiction of the particular Court from where they want to claim relief. This will, in turn ensure that the Courts do not transgress the boundaries within which they are required to restrict themselves. (3) Judges should verify the credentials of the applicant(s) and the authenticity of the information furnished by them. Even though there has been a liberalization of the Locus Standi rule, the Courts must ensure that the applicant is a public spirited person whose objective is to fight for the cause of the underprivileged and deprived classes and has been doing that consistently, over a period of time. (4) Courts should not allow reckless allegations and frivolous petitions which may amount to public mischief, questioning the proper and legally justifiable executive, administrative or legislative actions. (5) Judges should have enough knowledge of the Constitution as well as other laws to ascertain the exact boundaries between judicial activism and judicial overreach. They should mainly stick to the principles and parameters of Judicial Review, from which the concept of activism actually emanates. (6) Adhering to the basics of Judicial Review only, gives ample opportunity to the Judiciary to adopt an activist approach. Laying down policies is not their concern, but applying a judicial mind to check the validity of the laws and policies laid down by the executive and legislature, is a valid action, as per the basic tenets of the Constitution. (7) Proper guidelines should be laid down by the apex Court from time to time, to be followed by the other Courts, pertaining to the kind of cases that the Courts are capable of entertaining under the broad umbrella of Public Interest Litigations. This will help to

uphold the objectives behind the separation of powers, followed by the Indian Constitution and polity. BIBLIOGRAPHY (1) Khan Kamaluddin, Public Interest Litigation and Judicial Activism, available at www.twocircles.net (2)Andhyarujina T.R., Judicial Activism in Public Interest Litigation, available at www.lexisnexisindia.com (3) Gupta Gulab J., Judicial Activism - A National Necessity, Journal of the Indian Law Institute, Vol. III, 1999 (4)Austin Granville, The lndian Constitution: Cornerstone of a Nation, Oxford, OUP, 1 st edition, New Delhi, 1997 (5)Bhatia K.L., Judicial Review and Judicial Activism, Journal of Constitutional and Parliamentary Studies, Vol. II, 1997 (6)Deva Surya, Public Interest Litigation in India: A Critical Review, Civil Justice Quarterly, Vol.28, No.1, 2009 (7) Choudhury Ram Kishore & Choudhury Tapash Gan, Judicial reflections of Justice Bhagwati, Eastern Law House(P) Ltd., 1st edn., New Delhi, 2008 (8) Sathe S.P., Judicial Activism in India, Oxford University Press (OUP), 1 st edn., New Delhi, 2002 (9) Mahendra P. Singh, The Statics and the Dynamics of the Fundamental Rights and the Directive PrinciplesA Human Rights Perspective, (2003) 5 SCJ 1. (10) Baxi Upendra, Taking Suffering Seriously, Journal of Third World Legal Studies, 1985

What is Public Interest Litigation?

Public interest litigation, or PIL, is defined as the use of litigation, or legal action, which seeks to advance the cause of minority or disadvantaged groups or individuals, or which raises issues of broad public concern.

It is a way of using the law strategically to effect social change. Despite the range of equality and human rights protections available in Northern Ireland, the reality is that not everyone has equal access to those rights. Not everyone has the resources or capacity to challenge an abuse of their rights through the courts.

By taking cases that can benefit disadvantaged groups or minorities rather than just one person, PIL can be used to provide access to justice to those who are most in need of it and yet who find themselves furthest from it.

What can PIL do?

(A) Provide access to justice Many people are simply not in a position to take legal action themselves. This may be due to personal, financial or time issues, they may not be aware of their rights or who to take their complaint to, or they may not have the capacity to advocate for themselves. A strategic public interest case can benefit, for example, children, minority groups, mental health patients or older people. PIL is a way of achieving justice and protecting the rights of such people, without having every individual affected having to engage in litigation themselves. (B) Reform the Law Public interest litigation can affect law reform by challenging laws that violate equality or human rights standards, seeking clarification on an untested point of law, identifying gaps in the law or challenging the existing interpretation or enforcement of a law. (C) Hold government to account PIL can be used to challenge government policies and procedures that violate human rights or equality standards and to provoke the political system into responding to a problem it has hitherto ignored. In doing so it can help provide a check on government, statutory and public bodies, bringing them to account for failures to uphold domestic and international human rights and equality standards to which they are bound. It can also ensure that they respond to the needs of the public they represent, particularly disadvantaged and minority groups. (D) Raise awareness As well as providing legal redress, PIL is a useful way of raising awareness of issues. A high profile case can prompt public debate and bring about pressure for social and legislative change outside the court room.

PIL can also bring novel or untested issues of public interest to the attention of the courts and legal profession to raise awareness of the legal, social, economic and cultural factors that may be involved. This can help to make the courts more receptive to similar challenges in the future.
(E) Empower the disadvantaged By offering marginalised and disadvantaged groups a voice PIL can empower and mobilise civil society. It can offer an opportunity for people to challenge the disadvantages and injustices that they face.

Mobilising civil society is one of the key aims of the PILS Project Stakeholder Forum. As well as sharing developments and supporting public interest cases, members of the Forum will play a key role in building support for ongoing cases within their own constituencies. They will also have a role in monitoring the impact of court decisions to ensure that court judgments result in practical change on the ground.

(F) Save costs Cost is a major factor for most people considering litigation. By taking strategic cases PIL can create a positive impact for a wide group of people without each of them having to go before the courts themselves, thus saving time and money for both victims and the courts.

Barriers to effective PIL (A) Costs

While PIL itself is an efficient and cost effective use of resources, taking one case can still run up huge costs. This could include the fees needed to cover the development of a case, fees for legal representation and particularly the potential costs that may attach to an unsuccessful litigant (since traditionally the losing side is liable for the other sides costs as well as their own). Costs for a Judicial Review for example, can range anywhere from a few thousand to a hundred thousand pounds.

Most potential litigants do not have such money at their disposal and may not necessarily meet the legal aid test to obtain assistance. In Northern Ireland the Human Rights Commission, the Equality Commission and the Office of the Commissioner for Children and Young People all have funding available to support cases within their remit. All three commissions give preference to public interest cases but their funding is relatively limited.

The PILS Project was established in part to address the issue of costs. By offering funding for public interest cases that raise human rights or equality issues, where other funding is not available, the Project can provide access to the court for strategically important cases that are hindered by financial obstacles.

The Project also hopes to overcome the issue of costs in a number of other ways, for example through encouraging applications for Protective Costs Orders (PCOs). These orders can be granted by the judge in a case that raises public interest issues, to guarantee that the litigant is not liable for the other sides costs if they lose the case or to cap the amount of money which the litigant will have to pay if the litigation is unsuccessful.

While PCOs are undoubtedly helpful in pursuing public interest litigation, there has only been one similar type of Order granted in Northern Ireland in a case taken by the Ulster Architectural Society.[1]

The PILS Project also aims to work with the legal profession in Northern Ireland to increase the level of pro bono work that is done. It is hoped that in doing so, it will reduce the burden of high legal fees in public interest cases and promote access to justice.

(B) Standing and Victim Status under the HRA

Standing is the term used for someone who has the right to appear and be heard before a court. In order to commence legal proceedings the litigant must show sufficient interest in the issue to be litigated upon. An individual directly impacted by the decision of a public body, for example, could have standing to take a judicial review against that public body.

There may also be circumstances in which an organisation, rather than an individual, may wish to initiate a judicial review. The Committee on the Administration of Justice (CAJ),[2] the Family Planning Association of Northern Ireland[3] and Friends of the Earth[4] are examples of organisations that have initiated judicial review proceedings in the Northern Ireland courts. NGO-led litigation can be particularly valuable in public issues cases since it utilises their expertise, experience and knowledge of a particular human rights issue on behalf of vulnerable or disadvantaged people who may be unable or without the capacity and resources to advocate for themselves.

A key difficulty for NGOs litigating on human rights issues, however, is that the Human Rights Act requires the litigant to be a victim of a violation of the Act. This requirement has been interpreted narrowly by the Northern Ireland and wider UK courts to effectively exclude the possibility of an organisation, such as CAJ or Friends of the Earth, from taking a public interest case in their own name on a point of law under the HRA.

(C) The best case

Public interest litigation often tests an unclear point of law, or challenges an existing interpretation of the law, and as a result it can be referred to as taking test cases. Test cases, by their very nature of steering into uncharted legal territory, can create important precedents for the future application and interpretation of such laws. Unlike traditional litigation, which reacts to the facts of an individual case, public interest litigation must take cognisance of the wider public effects, both positive and negative, of any judgment.

Factors that need to be taken into account when considering whether to pursue a public interest case include, among others, the merits of the case, the likelihood of success, whether other avenues of redress have been exhausted, whether litigation is the right tool to address the issue in question, whether it is strategically the right time to take the case, and the wider political and social context of the issue the case seeks to address is also relevant. In this context it is important to find the best case, i.e. one that satisfies all or most of the criteria.

(D) Litigation alone is insufficient

PIL alone cannot achieve social change. It must be done in tandem with wider social and political campaigns and advocacy in order to raise awareness and build public support for an

issue, to bolster the public interest arguments in the case and to communicate the practical effects of the judgment to those it affects.

It is hoped that the PILS Project Stakeholder Forum can play a key role in building social awareness and support for public interest cases in Northern Ireland.

(E) Settling
A large proportion of cases taken by an individual to challenge a law or decision of a public authority may settle out of court before a judgement is made. On the one side public authorities may be reluctant to engage in lengthy and costly litigation, and may also want to avoid a judgment being made against them. On the other side many individuals are understandably reluctant to continue to pursue litigation when the offer of a settlement is presented to them since it offers a quick resolution to their issue and sometimes monetary compensation. Settlement can lead to a satisfactory resolution of the issue for the applicant which can be highlighted to others through media attention and can be used to lobby for legislative change if it is needed. However settlement is often viewed as a barrier to PIL because it means no judicial precedent is set that can be relied on in the future to safeguard similar rights.

(F) Implementation
The measurement of success in PIL is not simply the judgment in a case, but how it materially improves the position of those it affects. The effective implementation of a judgment is therefore as important as the judgment itself.

England and Wales

Challenge to the Stop and Search Powers of the Police[1]
Under sections 44-47 of the Terrorism Act 2000 a senior police officer can, within a defined geographical area, stop and search any person and anything they are carrying if they consider it expedient for the prevention of acts of terrorism. In September 2003 two people, Gillan and Quinton, were stopped by police under sections 44-47 of the Act on their way to a demonstration outside an arms fair in London. They were detained for approximately 5 minutes and 20 minutes respectively and despite Gillan, who is a journalist, showing the police her press card she was ordered to stop filming. Both argued that the use of the section 44 powers breached their rights under Articles 5, 8, 10 and 11 of the Human Rights Act 1998 (HRA). In January 2010, after an unsuccessful judicial review and subsequent appeal to the Court of Appeal and the House of Lords, Gillan and Quinton received a positive judgment from the European Court of Human Rights. The Court found a clear interference with the Article 8 right to private and family life and concluded that the interference was not in accordance with law. It was judged that the wide discretion conferred on police, both in the authorisation of the power and its application, had not been curbed by adequate safeguards so as to offer the individual adequate protection against arbitrary interference.[2]

Cases such as this demonstrate the far-reaching impact of public interest litigation and the essential role that it can play in providing a check on the Government to ensure that they are upholding their human rights obligations. It has proved to be a valuable tool in challenging the barrage of counter-terrorist measures and legislation that have been introduced over the last ten years.

The Pretty and Purdy Cases on Assisted Suicide[3]

The following two cases demonstrate the value and significance of strategic public interest litigation in testing previously unclear points of law; in this case the highly sensitive issue of assisted suicide. Dianne Pretty was suffering from progressive terminal motor neurone disease. She wanted to take steps to end her own life but was physically unable to do so unaided. An application was made to the Director of Public Prosecutions (DPP) for an assurance that Diannes husband would not be prosecuted under the Suicide Act if he helped her take her own life. The application was refused and the DPPs decision was upheld by the High Court in October 2001 and the European Court of Human Rights the following year. While Diannes case was unsuccessful it prompted a nation-wide public debate on the issue of assisted suicide that set the scene for another case on assisted suicide seven years later. Debbie Purdy suffers from progressive Multiple Sclerosis and when her illness becomes unbearable she intends to end her life but expects that she will be unable to do this without her husbands assistance. In 2008 she took a case against the DPP, not seeking an assurance that her husband would be immune from prosecution like in the Pretty case, but seeking clarification on the circumstances in which the DPP would prosecute someone for assisted suicide. Ms Purdy argued that the failure of the DPP to provide clear guidelines on the issue breached her right to private and family life under Article 8 of the Human Rights Act 1998. The Court agreed and ordered the Director of Public Prosecutions in England and Wales to publish a set of guidelines on prosecutions for assisted suicide. The guidelines were published in February 2010. [4]

South Africa
South Africa is particularly significant in the context of public interest litigation in that its Constitution legally enshrines social, economic and cultural rights. As a result its Courts have produced a number of progressive and informative decisions which demonstrate how these rights can be adjudicated upon and enforced in practice. Two of the most prominent cases in this regard are the Grootboom and Treatment Action Campaign cases.

The Grootboom Case [5]

Irene Grootboom and about 900 others had been moved and evicted from place to place, living in informal squatter settlements in deplorable conditions without basic services such as water, sewage or refuse removal. They had been left with literally nowhere to go. Mrs Grootboom and the others asked the court to enforce their right to housing under S.26 of the South African Constitution, by ordering the government to make provision for them. The government argued that they already had a housing programme and that the community should put their name on the waiting list. There was a substantial waiting time for people on the list and the court found that it is unreasonable to ask people who have nothing to simply wait their turn; to live on the streets until the government can provide a house. The Court argued that while Section 26 does not provide an immediate right to housing, it does oblige the State to devise and implement a coherent, co-ordinated programme in order to progressively realise the right. It found the current programme inadequate in this regard and made a declaratory order requiring the state to act to meet this obligation by devising, funding, implementing and supervising measures to provide relief to those in desperate need.

The Treatment Action Campaign (TAC) Case

[6]

This case challenged the decision of the South African Government to provide restrictive access to Neviropine, an anti-retroviral drug, to expectant mothers with HIV/AIDS in order to stop the disease being transmitted to their unborn children. The TAC successfully argued that the Governments decision was unconstitutional. The Court found that the Government were constitutionally obliged to plan and implement an effective, comprehensive and progressive programme for the prevention of mother-to-child transmission of HIV throughout the country in order to progressively realise the right of access to healthcare for pregnant women and their newborn children. This was stipulated to include the immediate removal of restrictions on the availability of Neviropine to pregnant women at public hospitals. The case provides a particularly inspiring model for integrating political and legal action. The TAC built alliances across classes, with churches, media and the unions and 5,000 people marched to the court in Johannesburg at the opening of the hearing. The case was as effectively won outside the courts as it was inside and demonstrated how social activism can be used alongside legal action to provoke change.

India

Right to Food Case

[7]
In 2001 mass deaths had occurred in the Rajasthan state of India due to starvation, despite excess grain being kept by the government for official times of famine and the existence of an (unfunctioning) food distribution scheme. The Peoples Union of Civil Liberties (PUCL) petitioned the Indian Supreme Court to enforce both the food scheme and the Famine Code, which permitted the release of stocks in times of famine. They argued that the governments inaction violated the right to food, considered part of the right to life under the Indian Constitution. Over the next two years various interim orders were made by the Court with little effect but in 2003 a strong judgment declaring that the right to life had been imperilled was issued. The Court declared that what is of utmost importance is to see that food is provided to the aged, infirm, disabled, destitute women, destitute men who are in danger of starvation, pregnant and lactating women and destitute children. The Government were ordered to implement the Famine Code for three months, double the grain allocation for the Food for Work scheme, increase financial support for the scheme, grant a ration card for free grain to all individuals without means of support (older persons, widows, disabled adults) and progressively implement the existing mid-day meal scheme in schools. Shops that were licensed to provide the grain were ordered to stay open and provide the grain at a set price and it was also ordered that the rights of families below the poverty line be publicised.

Public Interest Litigation (PIL)

(PIL has become a powerful tool for intervention and for seeking judicial assistance for dealing with various issues affecting the public. We present here a brief Write up about it.)

Injustice anywhere is a threat to justice everywhere -Martin Luther King, Jr.

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.

The history:
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. 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 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 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. 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 petition only in the following cases: (i) (ii) (iii) It is only where the letter is addressed by an aggrieved person or A public spirited individual or 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. 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 court would be justified in treating the letter as a writ

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.