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Presentation

Public Interest Litigation

Introduction: A recent development of great consequence in the Indian law is the sanctioning of public interest litigation by the Supreme Court. Such litigation envisages: a) A court action by an individual or a group of individuals belonging to a community or an indeterminate class against an administrative wrong, remotely or equally affecting the members of that community or class; b) A court action by a public spirited citizen, or a body devoted to the public cause, to vindicate the rights though the person or body undertaking the court action may not have suffered any injury. Till 1960s and seventies, the concept of litigation in India was still in its rudimentary form and was seen as a private pursuit for the vindication of private vested interests. Litigation in those days consisted mainly of some action initiated and continued by certain individuals, usually, addressing their own grievances/problems. Thus, the initiation and continuance of litigation was the prerogative of the injured person or the aggrieved party. Even this was greatly limited by the resources available with those individuals. There were very little organized efforts or attempts to take up wider issues that affected classes of consumers or the general public at large. However, all this changed when the Supreme Court of India led the concept of public interest litigation (PIL).

In 1982, the Supreme Court conceded that unusual measures were warranted to enable people the full realization of not merely their civil and political rights, but the enjoyment of economic, social, and cultural rights, and in its far- reaching decision in the case of People's Union for Democratic Rights v. Union of India1 , it recognized that a third party could directly petition, whether through a letter or other means, the Court and seek its intervention in a matter where another party's fundamental rights were being violated. In this case, adverting to the Constitutional prohibition on "begar", or forced labor and traffic in human beings, PUDR submitted that workers contracted to build the large sports complex at the Asian Game Village in Delhi were being exploited. PUDR asked the Court to recognize that "begar" was far more than compelling someone to work against his or her will, and that work under exploitative and grotesquely humiliating conditions, or work that was not even compensated by prescribed minimum wages, was violative of fundamental rights. There are manifold reasons justifying the public interest litigation: it provides a means to redress public wrongs which remained unremedied under the traditional rules of locus standi even though the individual had the will and capacity to approach the court; the individuals or groups suffering from adverse administrative action may not themselves be in a position to undertake litigation to vindicate their interests because of poverty, ignorance, fear; the interests affected may be so diffused and fragmented that the injury to each person may be very small and there may not be any incentive to one individual to undertake court action to vindicate his own interest or grievance. Examples of such a situation may be the users of road transport, consumer protection, or the community interest in environment, etc. As Justice Bhagwati pointed out: Individual rights and duties are giving place to metaindividual, collective, social rights and duties of classes or groups of persons.2 In such a situation, unless some socially motivated group or individual were to undertake court action to seek redress, the public wrong may go unredressed and the individuals may continue to suffer. Public interest litigation vindicates vital public interests and ensures interest representation in the administrative process and peoples participation in the government.3
1 2

AIR 1982 SC 1473. S.P. Gupta v. Union of India, AIR 1982 SC 149, c.f. Justice G.P. Singh & Alok Aradhe (Ed.), M.P. Jain & S.N. Jain, Principles of Administrative Law (Lexis Nexis Butterworths Wadhwa Nagpur, New Delhi, 5thEdn., Reprint 2008), p. 541. 3 Peter Cane, The Function of Standing Rules in Administrative Law, 1980 Public Law 303, c.f. Justice G.P. Singh & Alok Aradhe (Ed.), M.P. Jain & S.N. Jain, Principles of Administrative Law (Lexis Nexis Butterworths Wadhwa

The concept of Public Interest Litigation can also be justified on the ground that as the power of the bureaucracy is expanding so it is inevitable that corresponding judicial power should also expand. In this kind of litigation, the petitioner seeks to enforce or prevent a breach of general public law. Public Interest Litigation is thus of great social relevance to the modern society. Thus the court was willing to acknowledge that it had a mandate to advance the rights of the disadvantaged and poor, though this might be at the behest of individuals or groups who themselves claimed no disability. Such litigation is termed Public Interest Litigation or Social Action Litigation by its foremost advocate, Professor Upendra Baxi. 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. Meaning and Definition: "Public interest Litigation" in simple words, means, litigation filed in a court of law, for the protection of "Public Interest", such as pollution, Terrorism, Road safety, constructional hazards etc. Public interest litigation is not defined in any statute or in any act. It has been interpreted by judges to consider the intent of public at large. Although, the main and only focus of such litigation is only "Public Interest" there are various areas where a Public interest litigation can be filed. For e.g.: Violation of basic human rights of the poor. Content or conduct of government policy. Compel municipal authorities to perform a public duty. Violation of religious rights or other basic fundamental rights.

In Blacks law Dictionary (Sixth Edition), Public Interest is defined as follows: Public Interest Something in which the public, the community at large has something pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interest of the particular localities,

Nagpur, New Delhi, 5thEdn., Reprint 2008), p. 541.

which may be affected by the matters in question. Interest shared by the citizens generally in affair of local, State or national government.. In the case of Peoples Union for Democratic Rights v. Union of India4, it was held that Public Interest Litigation which is a strategic arm of the legal aid movement and which is intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity, is a totally different kind of litigation from the ordinary traditional litigation which is essentially of an adversary character where there is a dispute between two parties, one making a claim or seeing relief against the other and that other opposing such claim or relief. Public interest litigation is brought before the court not for the purpose of enforcing the right of one individual against another as happens in the case of ordinary litigation, but it is intended to promote and vindicate public interest which demands that violations of constitutional or legal rights of large numbers of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and un-redressed. That would be destructive of the Rule of Law which forms one of the essential elements of public interest in any democratic form of government. The Rule of Law does not mean that the protection of the law must be available only to a fortunate few or that the law should be allowed to be prostituted by the vested interests for protecting and upholding the status quo under the guise of enforcement of their civil and political rights. The poor too have civil and political rights and the Rule of Law is meant for them also, though today it exists only on paper and not in reality. Public Interest Litigation Legal History: 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 others5.

4 5

AIR 1982 SC 1473. Mohd. Harish Urmani, Public Interest Litigation, www.legalservieindia.com.

The emergency period (1975-1977) witnessed colonial nature of the Indian legal system. During emergency state repression and governmental lawlessness was widespread. The post emergency period provided an occasion for the judges of the Supreme Court to openly disregard the impediments of Anglo-Saxon procedure in providing access to justice to the poor. Public Interest Litigation popularly known as PIL can be broadly defined as litigation in the interest of that nebulous entity: the public in general. Prior to 1980s, only the aggrieved party could personally knock the doors of justice and seek remedy for his grievance and any other person who was not personally affected could not knock the doors of justice as a proxy for the victim or the aggrieved party. In other words, only the affected parties had the locus standi (standing required in law) to file a case and continue the litigation and the non affected persons had no locus standi to do so. And as a result, there was hardly any link between the rights guaranteed by the Constitution of Indian Union and the laws made by the legislature on the one hand and the vast majority of illiterate citizens on the other. The traditional view in regard to locus standi in Writ jurisdiction has been that only such persons who: a) Has suffered a legal injury by reason of violation of his legal right or legally protected interest; or b) Is likely to suffer a legal injury by reason of violation of his legal right or legally protected interest. Thus before a person acquired locus standi he had to have a personal or individual right which was violated or threatened to be violated. He should have been a person aggrieved in the sense that he had suffered or was likely to suffer from prejudice, pecuniary or otherwise. However, all this gradually changed when the post emergency Supreme Court tackled the problem of access to justice by people through radical changes and alterations made in the requirements of locus standi and of party aggrieved. The splendid efforts of Justice P N Bhagwati and Justice V R Krishna Iyer were instrumental of this juristic revolution of eighties to convert the Apex Court of India into a Supreme Court for all Indians. Justice V. R. Krishna Iyer and P. N. Bhagwati recognised the possibility of providing access to justice to the poor and the exploited people by relaxing the rules of standing. In the post-emergency period when the political situations had changed, investigative journalism also began to expose gory scenes of governmental lawlessness, repression, custodial violence, drawing attention of lawyers, judges, and social activists. PIL emerged as a result of an informal nexus of pro-active judges, media persons and social activists. This trend shows starke difference between the traditional justice delivery system and the modern informal justice system where the judiciary is performing

administrative judicial role. PIL is necessary rejection of laissez faire notions of traditional jurisprudence.6 The Issue of Locus Standi: The major hurdle in the way of such litigation would be the traditional view of locus standi permitting only persons aggrieved to being a court case for redressal of grievances. Despite the flexile approach adopted by the judiciary, the scope and ambit of PIL could not be stretched to such an extent as to permit a person or body having no personal interest (whom the courts would characterize as meddlesome interloper) to agitate the matter before the court seeking redress for the grievances of others. But the Supreme Court of India in a series of recent cases has been able to cross this hurdle. The courts jurisdiction for development of public interest litigation has been as follows: If an administrative action causes no specific legal injury to a person, or to a determinate group or class of persons, but does so only to public interest, then the question is as to who can maintain an action for vindicating the rule of law and setting aside the unlawful action or enforcing the performance of public duty. In the words of Justice Bhagwati (as observed in the famous case of S.P. Gupta v. Union of India7: If no one can maintain an action for redress of such public wrong or public injury, it would be disastrous for the rule of law, for it would be open to the State or a public authority to act with impunity beyond the scope of its power or in breach of a public duty owned by it. The courts cannot countenance such a situation where the observance of the law is left to the sweet will of the authority bound by it, without any redress if the law is contravened. Therefore, he 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
6 7

V.S. Vadivel, Public Interest Litigation: Boon or Bane?, www.legalservieindia.com. AIR 1982 SC 149.

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 court believes that the risk of legal action against the State or public authority by any citizen will include it to act with greater responsibility and care. The following two propositions concerning public interest litigation may be stated in the words of Bhagwati J.: 1) Whenever there is a public wrong or public injury caused by an act or omission of the state or a public authority which is contrary to the Constitution of the State or a public authority which is contrary to the Constitution or the law, any member of the public acting bona fide and having sufficient interest can maintain an action for redressal of such public wrong or public injury.8 2) Where a person or class of persons to whom legal injury is caused or legal wrong is done is by reason of poverty, disability or socially or economically disadvantaged position not able to approach the court for judicial redress, any member of the public acting bona fide and not of any extraneous motivation may move the Court for judicial redress of the legal injury or wrong suffered by such person or class of persons.9 In both the above propositions a significant caveat is that the person approaching the court for redressal of a public wrong or public injury has sufficient interest in the proceeding (eg. Because of his keen interest in the cause) and is acting bona fide and not for personal gain or private profit or political motivation or other oblique considerations. In other words, he is not a mere busy body or a meddlesome interloper. Another rider is that the court would not entertain a writ petition by a third person where the injured person is not interested in his case being taken up, or injury to him to be remedied, for it would be wrong to foist a relief on a person who does not want it.10 The Supreme Court in Indian Banks Association, Bombay and ors v. M/s Devkala Consultancy Service and Ors.11, 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
8 9

S.P. Gupta v. Union of India, AIR 1982 SC 149. Peoples Union for Democratic Rights v. Union of India, AIR 1982 SC 1473. 10 S.P. Gupta v. Union of India, AIR 1982 SC 149. 11 (2004) 11 SCC 1.

of Public Interest may treat it a necessity to enquire into the state of affairs of the subject of litigation in the interest of justice. Thus a private interest case can also be treated as public interest case. In Guruvayur Devaswom Managing Commit. And Anr. v. C.K. Rajan and Ors12 , the Supreme Court held, The Courts exercising their power of judicial review found to its dismay that the poorest of the poor, depraved, the illiterate, the urban and rural unorganized labour sector, women, children, handicapped by 'ignorance, indigence and illiteracy' and other down trodden have either no access to justice or had been denied justice. A new branch of proceedings known as 'Social Interest Litigation' or 'Public Interest Litigation' was evolved with a view to render complete justice to the aforementioned classes of persona. It expanded its wings in course of time. The Courts in pro bono publico granted relief to the inmates of the prisons, provided legal aid, directed speedy trial, maintenance of human dignity and covered several other areas. Representative actions, pro bono publico and test litigations were entertained in keeping with the current accent on justice to the common man and a necessary disincentive to those who wish to by pass the, real issues on the merits by suspect reliance on peripheral procedural shortcomings Pro bono publico constituted a significant state in the present day judicial system. They, however, provided the dockets with much greater responsibility for rendering the concept of justice available to the disadvantaged sections of the society. Public interest litigation has come to stay and its necessity cannot be overemphasized. The courts evolved a jurisprudence of compassion. Procedural propriety was to move over giving place to substantive concerns of the deprivation of rights. The rule of locus standi was diluted. The Court in place of disinterested and dispassionate adjudicator became active participant in the dispensation of justice. Therefore, to sum up, according to the guidelines of the Supreme Court any member of public having sufficient interest may maintain an action or petition by way of PIL provided: 1) There is a personal injury or injury to a disadvantaged section of the population for whom access to legal justice system is difficult,

12

(2003) 7 SCC 546.

2) The person bringing the action has sufficient interest to maintain an action of public injury, 3) The injury must have arisen because of breach of public duty or violation of the Constitution or of the law, 4) It must seek enforcement of such public duty and observance of the constitutional law or legal provisions. Safeguards: There are, however, a few safeguards necessary subject to which alone such a system can function. Only a member of the public acting bona fide and having sufficient interest in the proceeding can be allowed to maintain an action for redressal of public wrong or public injury. It is ultimately for the court to decide whether the petitioner fulfils that qualification. The court will seek to exclude such petitioners as may be motivated by political or selfish motives or seek to delay legitimate administrative action. There is a danger that political pressure groups who could not achieve their arms through the administrative process might try to use the courts to further their arms.13 Apprehensions have also been expressed that public actions strain the judicial function and distort the political process14, or that they transfer the decision making to the court from the administration or the executive which possesses the necessary expertise and equipment to deal with the various problems, particularly those involving making of policy. But the point to note is that the courts only consider legal and justiciable issues in any matter and also that giving a remedy is discretionary with the court. Standing and justiciability are two different concepts. A court is not bound to give relief in every and sundry case that comes before it. A petitioner may be entitled to maintain the case in the court, but whether the dispute raises legal and justiciable issues, and whether or not any relief is to be given, are ultimately questions for the court to decide. The doctrine of justiciability and ultra vires rather than locus standi are better mechanisms for keeping the courts within what is perceived to be their proper constitutional sphere of activity.
13

Andre Rabie and Cor Eckard, Locus Standi: The Administrations Shield and the Environmentalists Shackle, 9 Comp & Intl. L. J. of South Africa 141 (1976), c.f. Justice G.P. Singh & Alok Aradhe (Ed.), M.P. Jain & S.N. Jain, Principles of Administrative Law (Lexis Nexis Butterworths Wadhwa Nagpur, New Delhi, 5thEdn., Reprint 2008), p. 542. 14 Jaffe, Judicial Control of Administrative Action 476 (1965), c.f. Justice G.P. Singh & Alok Aradhe (Ed.), M.P. Jain & S.N. Jain, Principles of Administrative Law (Lexis Nexis Butterworths Wadhwa Nagpur, New Delhi, 5thEdn., Reprint 2008), p. 543.

A good example of jusiticiability is the case of P. Nella Thampy v. UOI15 where the courts did not direct the government to improve the railway services as the petition concerned material resources, priorities and expertise. Contributing Factors: Among the many factors that have contributed to the growth of PIL in India, the following are paramount: The character of the Indian Constitution. Unlike Britain, India has a written constitution which through Part III (Fundamental Rights) and Part IV (Directive Principles of State Policy) provides a framework for regulating relations between the state and its citizens and between citizens inter-se. India has some of the most progressive social legislation to be found anywhere in the world whether it be relating to bonded labor, minimum wages, land ceiling, environmental protection, etc. This has made it easier for the courts to haul up the executive when it is not performing its duties in ensuring the rights of the poor as per the law of the land. The liberal interpretation of locus standi where any person can apply to the court on behalf of those who are economically or physically unable to come before it has helped. Judges themselves have in some cases initiated suo motu action based on newspaper articles or letters received. Although social and economic rights given in the Indian Constitution under Part IV are not legally enforceable, courts have creatively read these into fundamental rights thereby making them judicially enforceable. For instance the "right to life" in Article 21 has been expanded to include right to free legal aid, right to live with dignity, right to education, right to work, freedom from torture, barfetters and hand cuffing in prisons, etc. Sensitive judges have constantly innovated on the side of the poor. For instance, in the Bandhua Mukti Morcha v. Union of India16, the Supreme Court put the burden of proof on the respondent stating it would treat every case of forced labor as a case of bonded labor unless proven otherwise by the employer. Similarly in the Asiad workers judgment
15 16

AIR 1984 SC 74. AIR 1984 SC 802.

case, Justice P.N. Bhagwati held that anyone getting less than the minimum wage can approach the Supreme Court directly without going through the labor commissioner and lower courts. In PIL cases where the petitioner is not in a position to provide all the necessary evidence, either because voluminous or because the parties are weak socially or economically, courts have appointed commissions to collect information on facts and present it before the bench. Subjects under PIL: Public Interest Litigation is meant for enforcement of fundamental and other legal rights of the people who are poor, weak, ignorant of legal redressal system or otherwise in a disadvantageous position, due to their social or economic background. Such litigation can be initiated only for redressal of a public injury, enforcement of a public duty or vindicating interest of public nature. It is necessary that the petition is not filed for personal gain or private motive or for other extraneous consideration and is filed bona fide in public interest. The following are the subjects which may be litigated under the head of Public Interest Litigation17: A. Matters of public interest which include: 1) bonded labour matters 2) matters of neglected children 3) exploitation of casual labourers and non-payment of wages to them (except in individual cases) 4) matters of harassment or torture of persons belonging to Scheduled Castes, Scheduled Tribes and Economically Backward Classes, either by co-villagers or by police 5) matters relating to environmental pollution, disturbance of ecological balance, drugs, food adulteration, maintenance of heritage and culture, antiques, forests and wild life, 6) petitions from riot victims and 7) other matters of public importance.

17

Vishal P. Bhatt, Public Interest Litigation, www.legalservieindia.com.

B. The matters of private nature which include: 1) threat to or harassment of the petitioner by private persons, 2) seeking enquiry by an agency other than local police, 3) seeking police protection, 4) landlord-tenant dispute 5) service matters, 6) admission to medical or engineering colleges, 7) early hearing of matters pending in High Court and subordinate courts and are not considered matters of public interest. C. Letter Petitions: Petitions received by post even though not in public interest can be treated as writ petitions if so directed by the Honble Judge nominated for this purpose. Individual petitions complaining harassment or torture or death in jail or by police, complaints of atrocities on women such as harassment for dowry, bride burning, rape, murder and kidnapping, complaints relating to family pensions and complaints of refusal by police to register the case can be registered as writ petitions, if so approved by the concerned Honble Judge. If deemed expedient, a report from the concerned authority is called before placing the matter before the Honble Judge for directions. If so directed by the Honble Judge, the letter is registered as a writ petition and is thereafter listed before the Court for hearing. 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.18 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. Public Interest Litigation has proved a boon for the common men. By relaxing the scope of Public Interest Litigation, Court
18

Vishal P. Bhatt, Public Interest Litigation, www.legalservieindia.com.

has brought legal aid at the doorsteps of the teeming millions of Indians; which the executive has not been able to do despite a lot of money is being spent on new legal aid schemes operating at the central and state level. Supreme Court's pivotal role in expanding the scope of Public Interest Litigation as a counter balance to the lethargy and inefficiency of the executive is commendable. Main Aspects of PIL: 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, it had changed the procedural nature of the Indian law into dynamic welfare one. Bandhua Mukti Morcha v. Union of India19, Unnikrishnan v. State of A.P.20, etc were the obvious examples of this change in nature of judiciary. 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. 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. Non-adversarial Litigation: In the words of Supreme Court in Peoples Union for Democratic Rights v. Union of India21, 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: 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
19 20

AIR 1984 SC 802. (1993) 1 SCC 2178. 21 AIR 1982 SC 1473.

see that basic human rights become meaningful for the large masses of the people. PIL helps executive to discharge its constitutional obligations. Court assumes three different functions other than that from traditional determination and issuance of a decree. (i). Ombudsman- The court receives citizen complaints and brings the most important ones to the attention of responsible government officials. (ii) Forum The court provides a forum or place to discuss the public issues at length and providing emergency relief through interim orders. (iii) Mediator The court comes up with possible compromises. 2) Investigative Litigation: It is investigative litigation because it works on the reports of the Registrar, District Magistrate, comments of experts, newspapers etc. Crucial Aspects: The flexibility introduced in the adherence to procedural laws. In Rural Litigation and Entitlement Kendra v. State of U.P.22, the Supreme Court rejected the defense of Res Judicta. Court refused to withdraw the PIL and ordered compensation too. To curtail custodial violence, Supreme Court in Sheela Barse v. State of Maharashtra23, 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. 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 Bihar24 , Supreme Court held that a petitioner, a professor of political science who had done substantial research and deeply interested in ensuring proper implementation of the constitutional provisions, challenged the practice followed by the state of Bihar in repromulgating a number of ordinances without getting the approval of the legislature. The court held that the petitioner as a member of public has sufficient interest to maintain a petition under Article 32 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.

22 23

AIR 1985 SC 652. (1986) 3 SCC 596. 24 AIR 1987 SC 579.

Landmark Decisions (Milestones):25 One of the earliest cases of public interest litigation was that reported as Hussainara Khatoon (I) v. State of Bihar26. This case was concerned with a series of articles published in a prominent newspaper - the Indian Express which exposed the plight of undertrial prisoners in the state of Bihar. A writ petition was filed by an advocate drawing the Courts attention to the deplorable plight of these prisoners. Many of them had been in jail for longer periods than the maximum permissible sentences for the offences they had been charged with. The Supreme Court accepted the locus standi of the advocate to maintain the writ petition. Thereafter, a series of cases followed in which the Court gave directions through which the right to speedy trial was deemed to be an integral and an essential part of the protection of life and personal liberty. Soon thereafter, two noted professors of law filed writ petitions in the Supreme Court highlighting various abuses of the law, which, they asserted, were a violation of Article 21 of the Constitution.27 These included inhuman conditions prevailing in protective homes, long pendency of trials in court, trafficking of women, importation of children for homosexual purposes, and the non-payment of wages to bonded labourers among others. The Supreme Court accepted their locus standi to represent the suffering masses and passed guidelines and orders that greatly ameliorated the conditions of these people. In another matter, a journalist, Ms. Sheela Barse28, took up the plight of women prisoners who were confined in the police jails in the city of Bombay. She asserted that they were victims of custodial violence. The Court took cognizance of the matter and directions were issued to the Director of College of Social Work, Bombay. He was ordered to visit the Bombay Central Jail and conduct interviews of various women prisoners in order to
25

Justice K.G. Balakrishnan, Growth of Public Interest Litigation in India, Address at the Singapore Academy of Law, October 8, 2008. 26 (1980) 1 SCC 81; Upendra Baxi, The Supreme Court under trial: Undertrials and the Supreme Court, (1980) Supreme Court Cases (Journal section), at p. 35. 27 Upendra Baxi (Dr) v. State of U.P., (1983) 2 SCC 308. 28 Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96.

ascertain whether they had been subjected to torture or ill-treatment. He was asked to submit a report to the Court in this regard. Based on his findings, the Court issued directions such as the detention of female prisoners only in designated female lock-ups guarded by female constables and that accused females could be interrogated only in the presence of a female police official. Public interest litigation acquired a new dimension namely that of epistolary jurisdiction with the decision in the case of Sunil Batra v. Delhi Administration29. It was initiated by a letter that was written by a prisoner lodged in jail to a Judge of the Supreme Court. The prisoner complained of a brutal assault committed by a Head Warder on another prisoner. The Court treated that letter as a writ petition, and, while issuing various directions, opined that: technicalities and legal niceties are no impediment to the court entertaining even an informal communication as a proceeding for habeas corpus if the basic facts are found. In Municipal Council, Ratlam v. Vardichand30, the Court recognized the locus standi of a group of citizens who sought directions against the local Municipal Council for removal of open drains that caused stench as well as diseases. The Court, recognizing the right of the group of citizens, asserted that if the: "centre of gravity of justice is to shift as indeed the Preamble to the Constitution mandates, from the traditional individualism of locus standi to the community orientation of public interest litigation, the court must consider the issues as there is need to focus on the ordinary men." In Parmanand Katara v. Union of India31,the Supreme Court accepted an application by an advocate that highlighted a news item titled "Law Helps the Injured to Die" published in a national daily, The Hindustan Times. The petitioner brought to light the difficulties faced by persons injured in road and other accidents in availing urgent and life-saving medical treatment, since many hospitals and doctors refused to treat them unless certain procedural formalities were completed in these medico-legal cases. The Supreme Court
29 30

(1978) 4 SCC 494. (1980) 4 SCC 162. 31 (1989) 4 SCC 286.

directed medical establishments to provide instant medical aid to such injured people, notwithstanding the formalities to be followed under the procedural criminal law. In many other instances, the Supreme Court has risen to the changing needs of society and taken proactive steps to address these needs. It was therefore the extensive liberalization of the rule of locus standi which gave birth to a flexible public interest litigation system. A powerful thrust to public interest litigation was given by a 7-judge bench in the case of S.P. Gupta v. Union of India32 The judgment recognized the locus standi of bar associations to file writs by way of public interest litigation. In this particular case, it was accepted that they had a legitimate interest in questioning the executives policy of arbitrarily transferring High Court judges, which threatened the independence of the judiciary. Explaining the liberalization of the concept of locus standi, the court opined: It must now be regarded as well-settled law where a person who has suffered a legal wrong or a legal injury or whose legal right or legally protected interest is violated, is unable to approach the court on account of some disability or it is not practicable for him to move the court for some other sufficient reasons, such as his socially or economically disadvantaged position, some other person can invoke the assistance of the court for the purpose of providing judicial redress to the person wronged or injured, so that the legal wrong or injury caused to such person does not go unredressed and justice is done to him. The unique model of public interest litigation that has evolved in India not only looks at issues like consumer protection, gender justice, prevention of environmental pollution and ecological destruction, it is also directed towards finding social and political space for the disadvantaged and other vulnerable groups in society. The Courts have given decisions in cases pertaining to different kinds of entitlements and protections such as the availability of food, access to clean air, safe working conditions, political representation, affirmative action, anti-discrimination measures and the regulation of prison conditions among others.

32

(1981) Supp. SCC 87.

For instance, in Peoples Union for Democratic Rights v. Union of India33, a petition was brought against governmental agencies which questioned the employment of underage labourers and the payment of wages below the prescribed statutory minimum wage-levels to those involved in the construction of facilities for the then upcoming Asian Games in New Delhi. The Court took serious exception to these practices and ruled that they violated constitutional guarantees. The employment of children in construction-related jobs clearly fell foul of the constitutional prohibition on child labour and the non-payment of minimum wages was equated with the extraction of forced labour. Similarly in case of Labourers Working on Salal Hydro-Project v. State of J&K34, the SC entertained a writ petition filed by the PUDR complaining of infringement of several labour laws. And in Sanjit Roy v. State of Rajasthan35, a petition was entertained dealing with gross violations of minimum wages act. Similarly, in Bandhua Mukti Morcha v. Union of India36, the Supreme Courts attention was drawn to the widespread incidence of the age-old practice of bonded labour which persists despite the constitutional prohibition. In D.S. Nakara v. UOI37, a petition by a non-profit, voluntary organization was entertained regarding the cause of the old pensioners. In the Shriram Food & Fertilizer case38, the Court issued directions to employers to check the production of hazardous chemicals and gases that endangered the life and health of workmen. It is also through the vehicle of PIL, that the Indian Courts have come to adopt the strategy of awarding monetary compensation for constitutional wrongs such as unlawful detention, custodial torture and extra-judicial killings by state agencies.39
33 34

AIR 1982 SC 1473. AIR 1984 SC 177. 35 AIR 1983 SC 328. 36 (1984) 3 SCC 161. 37 AIR 1983 SC 130. 38 (1986) 2 SCC 176. 39 See observations justifying the payment of compensation for human rights violations by state agencies in the following decisions: Bhim Singh v. State of Jammu and Kashmir, (1985) 4 SCC 677; Nilabati Behera v. State of Orissa, (1993) 2 SCC 746; D.K. Basu v. Union of India, (1997) 1 SCC 416; Lutz Oette, Indias International obligations towards victims of human rights violations: Implementation in domestic law and practice in C. Raj

Environment Related: In the realm of environmental protection, many of the leading decisions have been given in actions brought by renowned environmentalist M.C. Mehta. He has been a tireless campaigner in this area and his petitions have resulted in orders placing strict liability for the leak of Oleum gas from a factory in New Delhi,40 directions to check pollution in and around the Ganges river,41 the relocation of hazardous industries from the municipal limits of Delhi,42 directions to state agencies to check pollution in the vicinity of the Taj Mahal43 and several afforestation measures. A prominent decision was made in a petition that raised the problem of extensive vehicular air pollution in Delhi. The Court was faced with considerable statistical evidence of increasing levels of hazardous emissions on account of the use of diesel as a fuel by commercial vehicles. The Supreme Court decided to make a decisive intervention in this matter and ordered government-run buses to shift to the use of Compressed Natural Gas (CNG), an environmentfriendly fuel.44 This was followed some time later by another order that required privately-run autorickshaws (three-wheeler vehicles which meet local transportation needs) to shift to the use of CNG. At the time, this decision was criticized as an unwarranted intrusion into the functions of the pollution control authorities, but it has now come to be widely acknowledged that it is only because of this judicial intervention that air pollution in Delhi has been checked to a substantial extent. Another crucial intervention was made in Council for Environment Legal Action v. Union of India,45 wherein a registered NGO had sought directions from the Supreme Court in order to tackle ecological degradation in coastal areas. In recent years, the Supreme Court has taken on the mantle of monitoring forest conservation measures all over India, and a special Green bench has been constituted to give directions to the concerned governmental agencies.
Kumar & K. Chockalingam (eds.), Human rights, Justice and Constitutional empowerment (OUP, 2007) at p. 462485. 40 M.C. Mehta v. Union of India, (1987) 1 SCC 395. 41 M.C Mehta v. Union of India (1988) 1 SCC 471. 42 M.C. Mehta v. Union of India, (1996) 4 SCC 750. 43 M.C. Mehta v. Union of India, (1996) 4 SCC 351; Emily R. Atwood, Preserving the Taj Mahal: Indias struggle to salvage cultural icons in the wake of industrialisation, 11 Penn State Environmental Law Review 101 (Winter 2002). 44 M.C. Mehta v. Union of India, (1998) 8 SCC 648; Armin Rosencranz & Michael Jackson, The Delhi Pollution case: The Supreme Court of India and the limits of judicial power, 28 Columbia Journal of Environmental Law 223 (2003). 45 (1996) 5 SCC 281.

An important step in the area of gender justice was the decision in Vishaka v. State of Rajasthan.46 The petition in that case originated from the gang-rape of a grassroots social worker. In that opinion, the Court invoked the text of the Convention for the Elimination of all forms of Discrimination Against Women (CEDAW) and framed guidelines for establishing redressal mechanisms to tackle sexual harassment of women at workplaces. Though the decision has come under considerable criticism for encroaching into the domain of the legislature, the fact remains that till date the legislature has not enacted any law on the point. It must be remembered that meaningful social change, like any sustained transformation, demands a long-term engagement. Even though a particular petition may fail to secure relief in a wholesome manner or be slow in its implementation, litigation is nevertheless an important step towards systemic reforms. A recent example of this approach was the decision in Peoples Union for Civil Liberties v. Union of India,47 where the Court sought to ensure compliance with the policy of supplying mid-day meals in government-run primary schools. The mid-day meal scheme had been launched with much fanfare a few years ago with the multiple objectives of encouraging the enrolment of children from low-income backgrounds in schools and also ensuring that they received adequate nutrition. However, there had been widespread reports of problems in the implementation of this scheme such as the pilferage of foodgrains. As a response to the same, the Supreme Court issued orders to the concerned governmental authorities in all States and Union Territories, while giving elaborate directions about the proper publicity and implementation of the said scheme. The case of Anil Yadav v. State of Bihar48 exposed the brutalities of the Police. News paper report revealed that about 33 suspected criminals were blinded by the police in Bihar by putting the acid into their eyes. Through interim orders Supreme Court directed the State government to bring the blinded men to Delhi for medical treatment. It also
46

(1997) 6 SCC 241; D.K. Srivastava, Sexual harassment and violence against women in India: Constitutional and legal perspectives in C. Raj Kumar & K. Chockalingam (eds.), Human rights, Justice and Constitutional empowerment (OUP, 2007)at p. 486-512. 47 (2007) 1 SCC 728. 48 AIR 1982 SC 1008.

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 Assam49 , 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. 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.50 PIL has been recognized as an instrumental tool in enforcing and safeguarding the interests of consumers by entertaining petitions by consumer groups.51 Mechanism for protection of Human Rights through PIL: 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 re-conceptualised 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
49 50

AIR 1996 SC 2193. Mohd. Harish Urmani, Public Interest Litigation, www.legalservieindia.com. 51 P. Nalla Thampy Thera v. UOI, AIR 1984 SC 74.

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. Emerging Problems: It was said by Pascal in Pensees that Justice without force is impotent; force without justice is tyranny.52 And Sophocles in Electra observed, There are times when even justice brings harm with it.53 And in the words of Martin Luther King, Injustice anywhere is a threat to justice everywhere.54 The development of Public Interest Litigation (PIL) in the country has very recently uncovered its own pitfalls and drawbacks:55

52 53

V.S. Vadivel, Public Interest Litigation: Boon or Bane?, www.legalservieindia.com. Ibid. 54 Ibid. 55 Geetanjali Jha, Problems facing Public Interest Litigation in India, www.legalserviceindia.com.

1) Rampant Misuse: 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) Separation of Powers: 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.C Mehta v. Union of India56, 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 Rajasthan57 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 India58 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) Lenient Procedure: 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 to 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
56 57

(2003) 10 SCC 561. AIR 1997 SC 3011. 58 AIR 1996 SC 1356.

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) Political Arena: 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) Overstepping Judicial Boundaries: The credibility of PIL process is now adversely affected by the criticism that the judiciary is overstepping the boundaries of 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. The 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. Remedies taken:

1) 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. 2) 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. 3) 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 casesi. 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. 4) 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 safeguards 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.