Public Interest Litigation- A Tryst with Indian Judiciary: Shubha Sharma

PUBLIC INTEREST LITIGATION: A TRYST WITH INDIAN JUDICIARY

AUTHOR: SHUBHA SHARMA

LC II, UNIVERSITY OF DELHI

ISSN: 2581-8465

ABSTRACT:

Public Interest Litigation in India is a dynamic concept having an activist magnitude; it acts as a wheel for creating and enforcing rights and is critical for the sustenance of democracy with adequate checks and balances. It is a result of Judicial Activism or Judicial Adventurism as against Judicial Restraint, also time and again known as Social Action Litigation. Public Interest Litigation in India is a part of Constitutional litigation, different from class action or group litigation. The origin of Public Interest Litigation can be traced from the American jurisprudence. It is not a form of adversary litigation but an opportunity to make basic rights meaningful to the deprived and vulnerable sections of the society and to assure them social and economic justice. The Supreme Court and High Courts through various judgments have widely enlarged the scope of Public Interest Litigation. The debate over the limits of Judicial Activism in the area of Public Interest Litigation has been vigorous.

-“SALUS POPULI EST SUPREMA LEX- JOHN LOCKE”

In this paper the author will explain the significance of Public Interest Litigation; followed by its evolution over the years; the implementation of the basic rights by expanding the meaning of Fundamental Right to equality, life, and personal liberty, the liberal stance of the courts under Article 32 and 226 of the Constitution of India to help the poor and downtrodden section of the society, and social activism. At the end, the author has critically analyzed the misuse of Public Interest Litigation emphasizing its focus on various landmark judgments of the court which paved the way for these new re-emphasized rights; provide legal resources to activate the courts for their enforcement through Public Interest Litigation.

It is, hereby humbly submitted by the author that the area of Public Interest Litigation is still in an experimental stage.

INTRODUCTION:

The Constitution of India as enacted in the year 1950 is known as a living document is the supreme law of the land. Rule of Law which flows from Article 13 of the Constitution plays an integral part in the Indian legal system. The Rule of Law propagates that ‘All are equal before the Law’ has come to be identified with the concept of rights of the citizen. The International Commission of Jurists in their “Delhi Declaration” 1959[1] accepted the idea of rule of law as a modern form of law of nature. Phrases like ‘No one is above the law’ and ‘Justice for all’ have been used time and again by the Courts in India. Judiciary being the sentinel of constitutional statutory rights has played a special role in the present scheme.

Due to extreme poverty, ignorance, discrimination, and illiteracy, a large section of the society has been denied justice from time immemorial. Some litigants approach the courts by all means and there are those who due to lack of resources and awareness have been unable to enforce their basic rights. It is for these latter litigants the courts in India have propounded the concept of Public Interest Litigation. This concept was pioneered in American jurisprudence in the early 1950s but flourished in India during the 1980s when post-independence, a war was waged between the fundamental rights of the citizens and the governmental policies and actions. There was an absolute need to balance the social and economic reforms and the rights provided by the Constitution. The court had a bigger question to deal with i.e. how to help the underprivileged, disadvantaged, vulnerable, exploited marginalized section of the society which is caught between the two. The court began to expand its traditional approach and developed a novel approach; this shift paved the way for the present concept of Public Interest Litigation.

The liberal approach of the court has been vicariously used by the lawyers and public spirited citizens not only to enforce the basic rights of the citizens but also to question the administrative policies and executive acts of the government exercised arbitrarily allowed outside the realm of the Constitution of India. Supreme Court being the apex court of India has greater responsibility to give meaning to these rights. The term Justice has been expanded to undertrial[2] as well as convicted prisoners, women in protective custody[3], children in juvenile institutions, bonded[4] and migrant labourers, unorganized labourers, untouchables and scheduled tribes, landless agricultural labourers who fall prey to faulty mechanization, women who are bought and sold[5], slum-dwellers and pavement dwellers[6], victims of sexual harassment[7]. Eventually, courts saw that the rule of Locus Standi must be changed to address the difficulties of time and need. Public spirited persons having faith in rule of law is rendering a great social and legal service under the principle of Public Interest Litigation. Therefore, this narrow view has changed into a more liberal view, structurally as well as substantially over the years.

Thereafter, questions were raised on the separation of power between the functionaries of the government, however, it was asserted that this approach of the courts from being a mere passive spectator to being the active judge was initiated to deal with the unusual cases and the same cannot be blatantly used by the courts to force the government to act in a particular way. The litigation is an upshot and product of the court’s deep and intense urge to fulfill its bounded duty and constitutional obligation.[8] There might be a situation where the Public Interest Litigation may influence the privilege of the people not under the watchful eye of the court and subsequently in molding their elevation.

PIL is neither a pill nor a panacea for all wrongs.[9] It was essentially meant to protect basic human rights of the weak and disadvantaged and it is a procedure which innovates where a public-spirited person files a petition in effect on behalf of such persons who on account of poverty, helplessness, or economic and social disabilities could not approach the court for relief. In the words of Martin Luther King Jr., Injustice anywhere is a threat to justice everywhere, thus in every democratic society citizen’s access to justice is the hallmark, and any encroachment on that right mars the spirit of a democratic system of government. In recent times, there have been multiple instances of abuse of this system.

MEANING AND CONCEPT OF ‘PUBLIC INTEREST’ LITIGATION:

In a democratic set up public welfare is the highest law. The three branches of the government work in conformity with each other to achieve an egalitarian society. The term Public Interest has been widely used in Indian statues and the courts to provide access, to restrict, to curtail any act by the citizen or the other party. While it is an abstract term, it is not defined as such in the Constitution or any other statue but the term has been mentioned in Article 302 of the Constitution of India, Evidence Act, 1872, Companies Act, 1956, and other statues. It is often left to the discretion of the court to give meaning to it on the basis of merit of the individual cases.

 In a colloquial manner, the term has been defined as proceedings done in the interest of public welfare and public regard, something done in the interest of masses affecting their rights and liabilities. According to Black’s Law dictionary (sixth ed.), Public Interest is defined as “Public Interest something in which the public, or some interest by which their legal rights or liabilities are affected. It does not mean anything the particular localities, which may be affected by the matters in question. Interest shared by national government…”

In Stroud’s Judicial Dictionary, Volume 4 (IV Edition), ‘Public Interest’ is defined as “a matter of public or general interest does not mean that which is interesting as a gratifying curiosity or a love of information or amusement but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected.”

The expression “Public Interest Litigation” means a legal action initiated in a court for enforcement of public interest. The Kerala High Court has held that the term, “A subject may become one of public interest if the public or a section of the public becomes interested in it”.[10] It is to be asserted that public interest is not capable of precise definition and takes its colours from the statutes. There cannot be any hard and fast rule as to what is public interest today may not be a decade later.

In the Janata Dal case, the court considered the meaning of expression public interest, “The expression ‘litigation’ means a legal action including all proceedings therein initiated in a Court of law for the enforcement of a right or seeking a remedy. Therefore, lexically the expression “PIL” means the legal action initiated in a Court of law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected.[11]

As former Chief Justice Bhagwati has commented “…The proceedings are … intended to vindicate and effectuate the public interest by prevention of violation of the rights, constitutional or statutory, of sizeable segments of society, who, owing to poverty, ignorance, social and economic disadvantages cannot themselves assert, and quite often are not even aware of these rights … The grievance in a public interest action, generally speaking, is about the content and conduct of government action in relation to the constitutional or statutory rights of segments of society …..”[12]

The shift from the traditional approach of adjudication to this novel approach is to address the concerns and interest of those who are unable to approach the court for their redressal or for the enforcement of their rights hence, there came a need to separate the public interest from that of the private interest. The common law is an individual-centric system. In Bandhua Mukti Morcha v Union of India[13], the court held that:

In public interest litigation, the role of judiciary is more assertive than in traditional actions… The rigid character of civil litigation conceived as a contest between two individual parties representing their personal interests has been allowed to expand into a representative proceeding where a person can, with the permission of the Court, represent others also having the same interest although not named in the suit. And the disability, temporary or permanent, of a person whose legal right is violated, enables another to represent his interest in a judicial proceeding”.

In Kesavananda, one of the judges (Justice Diwedi) said, “The constitution is not intended to be the arena of legal quibbling for men with long purses. It is made for the common people[14], further “The Court is not chosen by the people and is not responsible to them in the sense in which the House of the 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”.[15] In the traditional method of dispute resolution, the parties whose right has been inflicted or infringed bring the other party to the court on the basis of a cause of action arose on some premise and dealt within the statues with the method of evidence, witnesses, and precedents where judge act passively. These rules have been relaxed and the person whose right has not been addressed or infringed can now approach the court either by himself or through any other person.

Public Interest Litigation is based on public welfare and public regard hence, the success rate of PIL is based on the interest of en masse covered by such litigation.

EVOLUTION OF PUBLIC INTEREST LITIGATION IN INDIA:

The objective of the Public Interest Litigation as enunciated in State of Himachal Pradesh v A Parent of Student of a Medical College, “This is an innovative strategy which has been evolved by the Supreme Court for the purpose of providing easy access to justice to the weaker sections of Indian humanity and it is a powerful tool in the hands of public spirited individuals and social action groups for combating exploitation and injustice and securing for the under-privileged segments of society their social and economic entitlements. It is a highly effective weapon in the Armour of the law for reaching social justice to the common man.”[16]

India follows an Anglo-Saxon system of jurisprudence, i.e. the traditional method as adopted being the colonial heritage. The courts were focussed on individual grievances and problems and were accessible only to the rich and influential people. The evolution of Public Interest Litigation can be traced through the major phases that it underwent over the years. According to Justice Bhagwati, what prompted such judicial innovations was that:

Anglo Saxon law is transactional, highly individualistic, concerned with an atomistic justice incapable of responding to the claims and demands of collectivity, and resistant to change.”[17]

FIRST PHASE:

Public Interest Litigation as a concept first emerged in the USA, as a result of Judicial Activism. The concept of Judicial Activism was originated in the USA in the case of Marbury v. Madison[18]. With the organized Legal Aid movement for the poor in the 1870s and the establishment of an organization for providing legal assistance in New York, the struggle to enable the participation for the access to justice started. The country shifted from its agricultural, economic, and social base to the urban and industrial form. In 1916 the American Civil Liberties Union[19] (ACLU) began its functioning with its incertitude over Government abuses.

The landmark judicial pronouncements of the American courts in the Brown v. Board of Education[20] aided, to a great extent, the forceful social movement of equality and recognized litigation as one of the strategies of the greater movement of social reform. The American concept of PIL can be understood through a statement made by “The Council for Public Interest Law” an organisation setup by the “Ford Foundation” in USA, “Public Interest Law is the name that has been given to efforts to provide legal representations to previously unrepresented groups and interests. Such groups and interest include the poor, environmentalists, consumers, racial and ethnic minorities, and others.”

The seed of the Public Interest Litigation was laid down in India by Justice Krishna Iyer and Justice P. N. Bhagwati. In India, the judiciary enjoins freedom somewhere between in USA and U.K. The court follows narrow rules of adjudication, In A.K. Gopalan v State of Madras[21] the court observed:

“…But our Constitution, unlike the American Constitution, does not recognise the absolute supremacy of the Court over the legislative authority in all respects, for outside the restricted field of constitutional limitations our Parliament and the State Legislatures are supreme in their respective legislative fields and in that wider field there is no scope for the Court in India to play the role of the Supreme Court of the United States.”

However, this decision of the court in the present case took a different turn following the judgment in Golak Nath[22] case and then in Kesavananda Bharati.[23] After the series of amendments which added articles and schedule within the constitution, the government was in a battle with the judiciary facing the challenge of infringing the fundamental rights under Article 14, 19, and 21 ( the golden triangle). The compensation and right to property were the biggest challenges.

In Mumbai Kamgar Sabha v/s Abdulbhai[24], Justice Krishna Iyer while disposing of an industrial dispute in regard to the payment of bonus, has remarked:

Our adjectival branch of jurisprudence, by and large, deals not with sophisticated litigants but the rural poor, the urban lay and the weaker societal segments for which law will be an added terror if technical mis-descriptions and deficiencies in drafting pleadings and setting out the cause-title create a secret weapon to non-suit a party. Where foul play is absent, and fairness is not faulted, latitude is a grace of processional justice. Test litigations, representative actions, pro bono publico and like broadened 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.”

SECOND PHASE:

During the second phase, Public Interest Litigation was in its rudimentary form. The battle of fundamental rights rose to their peak during the emergency. Following the apex court’s decision in Golak Nath[25], R.C. Cooper[26], Privy Purse case[27] and challenge to the Kerala land reform act, Indira Gandhi’s government bought a series of amendments to overpower the decisions of the court which didn’t turn out in its favour, especially constitutional amendment 24th, 25th, and 29th. These constitutional amendments were challenged in Kesavananda Bharati[28] a case which overruled the Golak Nath[29] and went onto hold that the Parliament could not enact constitutional amendments which alter the basic structure doctrine. This decision didn’t sit well with the government and later emergency was declared which saw the flagrant abuse of the fundamental rights of the citizen.

The basic structure doctrine was invoked by the Court during the Emergency Rule regime of Indira Gandhi in the case of Indira Nehru Gandhi v. Shri Raj Narain[30]. Post emergency, the decision of the court in ADM Jabalpur[31] and Maneka Gandhi[32] case which involved due process notion w.r.t. Article 19 and Article 21 of the constitution contributed substantially to the growth of the Public Interest Litigation. These judgments bought into question the role of the Supreme Court as the guardian of the constitution and public liberties.

In Fertilizer Corporation Kamgar Union v. Union of India[33], the terminology “public interest litigation” was used. In People’s Union for Democratic Rights and Others v. Union of India and Others[34] defined Public Interest Litigation and observed that the “Public interest litigation is a cooperative or collaborative effort by the petitioner, the State of public authority and the judiciary to secure observance of constitutional or basic human rights, benefits, and privileges upon poor, downtrodden and vulnerable sections of the society”.

THIRD PHASE:

The third phase broadened the scope of Public Interest Litigation and courts saw the surge in Public Interest Litigation. Judiciary being the protector or right of the citizen restored the faith of the common man during the emergency. “Judicial exercise of authority in the post Emergency phase saw the PIL phenomenon, where the court reinterpreted the provisions of the fundamental rights more liberally to maximize the rights of the people, particularly the disadvantaged sections of society, and facilitated access to the courts by relaxing its technical rules of locus standi, and other procedural/institutional innovations. In the post-emergency period, judicial activism was the court’s response towards retrieving a degree of legitimacy following the Emergency, increasing its political power vis-à-vis the other organs of government and the judicial realization that the narrow construction of constitutional provisions.”[35]

The court involved collective rights to deal with polycentric issues. The issues were no longer involving the individual or a fraction of society rather refers to meta-individual, social, and collective rights and duties of associations, communities, and class.[36] The first reported case of PIL is Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar[37] in 1979 was focused on the inhuman conditions of prisons and undertrial prisoners.

The report of the Committee on Legal Aid[38] presided by Justice Krishna Iyer in Kerala High Court 1973 dealt with the nexus between law and poverty and spoke of PIL in this context. The report also included draft legislation for legal services which led to the enactment of the Legal Services Authority Act, 1987. This concept of legal aid plays a significant role in the administration of justice by virtue of Article 39A which came into force with the 42nd amendment.

In 1981 the case of Anil Yadav v. State of Bihar[39] exposed horrific police brutalities through a news report which revealed that about 33 suspected criminals were blinded by police in Bihar by putting the acid put into their eyes. The court observed that right to free legal aid as a fundamental right of every accused. This case of Anil Yadav signalled the growth of social activism and investigative litigation. Prof. U.P. Baxi observed[40] that “All this enhanced the visibility of the Court and generated new types of claims for accountability for wielding of judicial power. And this deepened the tendency towards judicial populism. Justices of the Supreme Court, notably Justices Krishna Iyer and Bhagwati, began converting much of constitutional litigation into SAL, through a variety of techniques of juristic activism.”

The concept of Public Interest Litigation was seen as a strategic arm of the legal aid movement intended to bring justice within the reach of those who, on account of their indigency, illiteracy, and lack of resources, were unable to reach the courts.

FACETS OF PUBLIC INTEREST LITIGATION:

Public Interest Litigation works on the principle of distributive justice and Pro bono Publico. It attacks repressions and governmental lawlessness. Due to extreme poverty, ignorance, discrimination, and illiteracy, a very large section of the society had been denied justice from time immemorial. Predominantly, to provide access to justice to the poor, deprived, vulnerable, discriminated, and marginalized sections of the society, this court has initiated, propelled the public interest litigation, and relaxed the basic method and procedures of adjudication. “The litigation is upshot and product of this courts deep and intense urge to fulfil its bounded duty and constitutional obligation.”[41]

1. RULE OF LOCUS STANDI:

The traditional rule of Locus Standi in an Anglo-Saxon system that a person whose right has been injured can only approach the court for the suitable remedy has been relaxed by the court. This rule is relaxed by the court through:

  • Representative Standing
  • Citizen Standing

In Municipal Council, Ratlam v Shri Vardhichand & Ors.[42], the court observed that:

The truth is that a few profound issues of processual jurisprudence of great strategic significance to our legal system face us and we must zero-in on them as they involve problems of access to justice for the people beyond the blinkered rules of `standing’ of British Indian vintage.

In D.C. Wadhwa v. State of Bihar[43], the apex court observed that a petitioner, a political science professor, who had once done substantial research and was deeply interested in the proper implementation of certain provision of the Constitution, challenged the practice which was followed by the state of Bihar in re-promulgating a substantial number of ordinances without getting any prior approval of the legislature. The court held that the petitioner was a member of the public and has ‘sufficient interest’ to maintain a writ petition under Article 32. It is to be noted that such a person with adequate interest has to be the person who is acting bona fide and not acting for their personal gain or benefit or some meddlesome busybody or interloper.

The Apex Court in People’s Union for Democratic Rights v. Union of India[44] remarked:

…but the traditional rule of standing which confines access to the judicial process only to those to whom legal injury is caused or legal wrong is done has now been jettisoned by this Court and the narrow confines within which the rule of standing was imprisoned for long years…new dimension has been given to the rule of locus standi which has revolutionized the whole concept of access to justice in a way not known before to the western system of jurisprudence…it is therefore necessary to evolve a new strategy by relaxing this traditional rule of standing in order that justice may become available to the lowly and the lost.”

In the Fertilizer Corporation Kamgar Union[45] case, Justice Krishna Iyer enumerated the following reasons for liberalization of the rule of Locus Standi:-

  • Exercise of State power to eradicate corruption may result in unrelated interference with individuals’ rights.
  • Social justice wan ants liberal judicial review administrative action.
  • Restrictive rules of standing are an antithesis to a healthy system of administrative action.
  • Activism is essential for participative public justice.

Public interest is promoted by a spacious construction of locus standi in our socio-economic circumstances and conceptual latitudinarianism permits taking liberties with individualisation of the right to invoke the higher courts where the remedy is shared by a considerable number, particularly when they are weaker. Less litigation, consistent with fair process, is the aim of adjective law.”

And subsequently, in the Judge’s transfer case, the relaxed rule of locus standi was firmly established by the court. Any non-political, non-profit, and voluntary organisations with sufficient interest can approach the court for judicial redress.

2. NON-ADVERSARIAL SYSTEM:

Public Interest Litigation is a judge led and judge induced innovation. The modus operandi of an adversarial legal system is that judges play a passive role but this litigation brought the judges in the front seat nothing like in an inquisitorial system. In PUDR[46] case, the court observed that:

We wish to point out with all the emphasis at our command 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 litigating parties, one making claim or seeking relief against the other and that other opposing such claim or resisting such relief.

Non-adversarial litigation in Public Interest can be achieved through two ways-

  • Collaborative Litigation
  • Investigative Litigation

In the Bandhua Mukti Morcha[47] case on the plight of the bounded labourers, the court had evolved a new procedure supplementing the existing procedure to meet the new position and to render justice in public interest litigation. It directed the Labour Commissioner to investigate and collect the evidence and submit the report to the court. However, the court issued caution of words in the present case as “…the court must exercise the greatest caution and adopt procedures ensuring sufficient notice to all interests likely to be affected….whatever the procedure adopted by the Court it must be procedure known to judicial tenets and characteristic of a judicial proceeding.

3. PROCEDURAL REQUIREMENTS:

Public Interest Litigation is a departure from the traditional procedural requirements. The court fashioned new kinds of relief and new ways of fact finding. The form and manner of filing the petition, the appointment of commissions for the fact finding, lawyers as amicus curiae, reporting to the courts, evidentiary procedures all were sought as an innovative method within this litigation.

Procedure is but a handmaiden of justice and the cause of justice can never be allowed to be thwarted by any procedural technicalities[48] At the same time, the court observed that “Technicalities should not come in the way of the court in granting relief in a PIL, but this depends upon the facts and circumstances of each case. When interests can be protected and disputes can be adjudicated by a mechanism created under a particular statue, parties should be relegated to the appropriate forum instead of entertaining the writ petition filed as PIL.[49]

This ‘Epistolary’ jurisdiction evolved when letters written to a court or to an individual judge, or suo motu action taken by the court on the basis of newspaper reports, have been used to institute an action and it derives its force from Article 39A of the Constitution of India. In Fertilizer Kamagar Union case, the court for the first time used the terminology ‘Public Interest Litigation’ and ‘Epistolary Jurisdiction’ taking cue from America’s Supreme Court decision in Gideon v Wainright[50]. It was in Pranatosh Roy v. State of Assam[51], a decision by the Guwahati High Court which was subsequently confirmed by the Supreme Court, guidelines were laid down to keep a check on frivolous letters/petitions which helps in the scrutiny of whether the petitions or letters fall into the category of PIL or not.

The procedural law is not strictly applicable to Public Interest Litigation, as the principle of Res Judicata is not strictly applied. The court came to the rescue of the poor and downtrodden petitioners who due to the lack of resources were burdened to approach the court for their grievances. The court observed that it would be an unfair burden to expect a person acting pro bono to incur expenses from his own pocket in order to prepare a regular petition to be filed before the court. Legal aid was established as a fundamental right and the court often waived fees, awarded costs, and provided other forms of litigation assistance to public interest advocates.

In Sunil Batra v Delhi Administration[52] and Upendra Baxi v State of Uttar Pradesh,[53] the court ruled in favour of prisoners and the inmates of the Protective Home at Agra. The petitioners (one of the prisoners and two law professors respectively) were allowed to move the court by addressing letters that were treated as writ petitions. Similarly, in Olga Tellis,[54] the court entertained a letter addressed by a journalist claiming relief against the demolition of the houses of pavement dwellers by the Municipal Corporation of Bombay. 

4. MONITORING AGENCIES AND COMISSIONS:

The court appointed socio-legal commissions and monitoring agencies which provided the report to the court and enabled the court to exercise its jurisdiction in administration of the government. The court has often assumed the role of a quasi-administrative agency through the designation of special investigatory or monitoring committees. This is often termed as creeping jurisdiction of the court. Court has appointed the National Human Rights Commission or Central Bureau of Investigation (CBI) or experts to inquire into human rights violations, often known as investigative litigation. The court has appointed district judges[55], journalist[56], lawyers as amicus curiae[57], mental health professionals[58], expert bodies[59] and bureaucrats.[60]

In T.N. Godavarman[61] case while dealing with the issue of deforestation, the court designated a high powered committee to serve as an investigative, fact-finding arm of the court and to oversee the implementation of the court’s orders. The court and the committee became intensely involved in the oversight and administration of forests. In Godavarman and other cases, the court also developed the concept of the writ of ‘continuing mandamus’ to keep a matter pending to allow the court and its advisory committees to continue monitoring government agencies. The court, therefore, not only tried to correct the unreasonable conduct of the state but has also tried to lay down norms of reasonable conduct similar to those made by administrative agencies.

In P.U.D.R. v India[62], Justice Bhagwati observed:

Public interest litigation, as we conceive it is essentially a cooperative or collaborative effort on the part of the petitioner, the state or public authority and the court to secure observance of the constitutional or legal rights, benefits, and privileges conferred upon the vulnerable sections of the community and to reach social justice to them.

RIGHTS AND ITS IMPLICATION WITH PIL:

Ubi jus ibi remedium- When there is a right, there is a remedy.

Access to justice can be achieved by bringing the social and economic reforms within the framework of rule of law. Fundamental rights with the Directive Principles of State Policy (Part IV of the Constitution) give meaning to the Constitution even though the latter is not enforceable by law. The court has been using an innovative and effective mechanism to provide for effective remedies. India is the signatory of the International Covenant on Civil and Political rights also provide for remedies in case of violation of the fundamental right. Fundamental rights (FRs) and the directive principles of state policy (DPSPs), has been described as the ‘Conscience of the Constitution’ by Austin.[63]

Public Interest Litigation played a major role in expanding the jurisprudence of FR with DPSP’s by creating a new regime of human rights by expanding the meaning of the fundamental right to equality, life, and personal liberty. It includes the right to a speedy trial, free legal aid, right to live and die with dignity, reputation, livelihood, education, housing, medical care, clean environment, delayed execution, illegal detention, right against torture, sexual harassment, solitary confinement, bondage and servitude, exploitation. These new reconceptualised rights provide legal recourse to activate the courts for their enforcement through PIL.

A right that doesn’t have a remedy would not have much meaning in substance. Therefore, to correct such an inherent flaw in judicial procedure, Article 32 and 226 of the constitution of India, 1950 play a significant role. Articles 32 and 226 have been extensively interpreted by the courts.

Article 226 is broader in its action than Article 32. Violation of fundamental right is a sine qua non in Article 32. For violation of fundamental rights or any other purpose Article 226 can be invoked and the court can issue orders, directions, and writs in the form of habeas corpus, mandamus, prohibition, quo warranto, and certiorari. Article 32 is often known as the soul of the constitution. Constitutional guarantees under Articles 226 and 32 provided avenues for PIL reforms since they allowed direct access to high courts and the Supreme Court in case of a ‘legal’ or ‘constitutional’ wrong which could be used by less advantaged groups to assert their interests through the courts.[64]

Public Interest Law is a dynamic concept having an activist attitude. Justice Bhagwati in S.P. Gupta v Union of India[65] emphasised on the Public Interest Litigation:

“…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 or the law, any member of the public acting bona fide and having sufficient interest can maintain an action for redressal of such wrong or legal injury.”

 Bhagwati, J, observed:

“…We, would, therefore hold that any member of the public wrong having sufficient interest can maintain an action for judicial redress for public injury arising from  breach of public duty or from  violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision.”

Emphasising the need for PIL in India, he further observed:

“…If public duties are to be enforced and social collective “diffused” rights and interests are to be protected, you have to utilise the initiative and zeal of the public minded persons and organizations by allowing them to move the court and act for a general or group interest, even though, they may not be directly injured in their own rights.”

Two main types of cases come before the court under PIL-

  • Cases espousing the causes relating to the poor and the downtrodden. 
  • Cases arising socio-economic and administrative problems affecting the public generally such as environment protection, misuse of powers by the ministers, etc.

Article 32(1) provides that one can approach the court only for the violation of fundamental rights but didn’t specify who would have this right or by what proceedings the Supreme Court can be moved. Appropriate proceedings in Article 32 refer to the purpose and not the form. The court observed:

“…Clause (1) of Art. 32 say that the Supreme Court can be moved for enforcement of a fundamental right by any “appropriate” proceeding. There is no limitation in regard to the kind of proceeding envisaged in Clause (1) of Art. 32 except that the proceeding must be ‘appropriate’ and this requirement of appropriateness must be judged in the light of the purpose for which the proceeding is to be taken, namely enforcement of a fundamental right.”[66]

PIL in India has been a part of the constitutional litigation and not civil litigation.[67] It is pertinent to mention that Public Interest Litigation, 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, PIL in India is concerned with providing access to justice to all societal constituents.

SOCIAL ACTION LITIGATION AND JUDICIAL ACTIVISM:

Public Interest Litigation in India has taken its essence from Public Interest Litigation in America. PIL in the USA was initiated to ensure that the citizens whose rights are affected by the government policies do not go unaddressed. In an article, Professor Baxi remarked that “The PIL efflorescence in the United States owed much to substantial resource investment from the government and private foundations; the PIL work was espoused mainly by specialized public interest law firms. The issues within the sway of PIL in the United States concerned not so much state repression or governmental lawlessness but rather civic participation in governmental decision making.”[68] PIL in India has taken up such a stature that a trans-judicial influence can be seen in South Asia.

Social Action Litigation is an indigenous term used by Professor Upendra Baxi. The concept developed in response to the discrimination and injustice suffered by the public. SAL developed as a result of Judicial Activism in India and is directed against the establishment and vested interest. The result of Judicial Activism enabled the shift from merely being the regulating state to the enabling state. The extended meaning provided by this activism such as of Article 14, 19, and 21 contributed significantly. “The strategy of SAL, evolved by the Supreme Court has brought justice within the ken and reach of the common man and it has made the judicial process readily accessible to large segments of the population who were hitherto excluded from claiming justice”.[69]

SAL is a product of social engineering. Justice Bhagwati & C.J. Dias in a paper[70] makes an observation of how SAL is different from PIL in the USA. Though this strategy has often been referred to as public interest litigation, Professor Baxi prefers to call it ‘social action litigation’ because the expression ‘public interest litigation’ has acquired a specific meaning in the United States and is connected with a particular kind of development, which is peculiarly American in nature. The SAL model, which has evolved in India, is both homespun and home-grown. It is fundamentally and profoundly different from the public interest litigation model that is prevalent in the United States. SAL is directed towards finding ‘turn around’ situations in the political economy for the disadvantaged and other vulnerable groups. It is also concerned with other more diffuse and less easily identifiable groups.

In Kesavananda Bharati case, Justice Chandrachud justified the need for social activism then as:

But these landmarks in the development of the law cannot be permitted to be transformed into weapons for defeating the hopes and aspirations of our teeming millions,-half-clad, half-starved, half-educated. These hopes and aspirations representing the will of the people can only become articulate through the voice of their elected representatives. If they fail the people, the nation must face death and destruction. Then, neither the Court nor the Constitution will save the country.”

Public Interest Litigation provides an avenue for the enforcement of collective and diffused rights and works on positive action as noted in sexual harassment[71] case. The individual/activist who moves the court for the enforcement of the rights is often known as Public spirited citizens and the organisations as Social Action Group in the nomenclature provided by Professor Baxi. Some major public spirited citizens or the collective groups who contributed are CFD (Centre for Democracy), PUCL, PUDR, CPIL. This Concept of PIL was considered as the growth of the “democratization of the judicial process”.[72]

SAL changed the role of judges from a mere adjudicator in an adversarial system to taking affirmative action. Courts evolved a jurisprudence of compassion. This contribution of SAL has developed over the years on a different basis. The initial phase started with social reforms for marginalised and underprivileged sections of the society. Later, courts became bolder, issued guidelines, and enforced FR against private individuals. It was in this phase SAL moved from hope for teeming poor millions to that of common man too. Lately, with such liberal interpretation and extensive usage of this concept, courts can be moved for almost anything on the basis of subject matter including even more frivolous PILs.

In Guruvayoor Devaswom Managing Committee & Anr. Vs. C.K. Rajan & Ors.[73] The court held that:

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.”

CRITICISM OF PUBLIC INTEREST LITIGATION:

In the name of securing their basic rights and providing access to justice, the misuse of Public Interest Litigation has been rampant. Just like the sides of a coin, this aspect of PIL needs equal consideration so that those who are in an advantageous position do not take wrongful advantage of others. Public Interest Litigation being in its experimenting form is not as perfect in its implementation as seen on paper. Here are few areas listed below on which Public Interest Litigation is severely criticized:

1. SEPERATION OF POWER:

The doctrine of separation of power is well recognised, essentially the three organs of the government work in conformity with one another but there is no strict demarcation of separation of power. Our constitution does not contemplate the exercise of functions belonging to one organ by another. The power of judicial review cannot be used by the court to ‘usurp or abdicate the powers of other organs’. The courts usually show reluctance to assume the role of an executive or legislative but this line often blurs when courts formulate policy or lay down guidelines.

In Vishaka case[74], court laid the guidelines to be implemented until the legislature enacted a law consistent with the Convention on the Elimination of All Forms of Discrimination against Women.

 In M.C. Mehta v Union of India[75], it was observed that despite the enacted law (Environment (Protection) Act, 1986, and repeated PILs, authorities have not enacted in such urgency as required to be. “Assurances have been held out to the Court through various affidavits filed by the competent officers that effective steps shall be taken in a phased manner within a specified time span. Inspite of the matter having engaged the attention of this Court for a long time and lengthy debates on each hearing, precious little appear to have been done by the State Administration to check and control the vehicular pollution.” And directed the authorities to implement the directive or face the action under contempt of court.

2. PURPOSE:

PILs are carved out for the interest of the public but often the cloak turns out to be a sham. When PILs are filed with other ulterior purposes they act as a handy tool for harassment. It becomes essential that courts do not allow these ‘public interest’ to be substituted with ‘private interest’ in the garb of justice. PIL should not, however, be used by a petitioner as a means to grind a personal axe. The petitioner should not be inspired by malice or design to malign others or be actuated by selfish or personal motives or by political or oblique considerations. He should be acting bona fide and with a view to vindicate the cause of justice.[76]

The grounds on which PIL can be rejected after the admittance are not impleading the necessary parties, infructuous petition, misrepresentation or suppression of facts, malicious petition, Res Judicata. The court may refuse to take cognizance of a public interest litigation petition if there is an undue delay on the part of the petitioner to file the same.[77]

 In Ashok Kumar Pandey v The State of West Bengal and Ors.,[78] the Supreme Court observed:

When there is material to show that a petition styled as public interest litigation is nothing but a camouflage to foster personal disputes, said petition is to be thrown out …Public Interest Litigation which has now come to occupy an important field in the administration of law should not be “publicity interest litigation” or “private interest litigation” or “politics interest litigation” or the latest trend “paise income litigation”. If not properly regulated and abuse averted it becomes also a tool in unscrupulous hands to release vendetta and wreck vengeance, as well.”

Occasionally, PIL petitions are led as obstruction tactics or on utter baseless grounds.[79] The Delhi HC recently remarked that everyone is a champion of bogus PIL petitions and the petitioners must come after doing their homework.

3. JUDICIAL RESOURCES:

With the number of backlogs pending in courts, it is crucial that the resources available to the courts must be judicially and scarcely used and for the actual purpose. The centre notified in the parliament that 5.1 million or more cases are pending in High Courts and 34.47 cases in Subordinate Courts.[80] The analysis of PIL cases shows that they constitute less than 1% of the overall caseload (2009).[81] It was noted in a Supreme Court observer 2019 that the numbers of writ petitions have not increased significantly compared to 1985 but letter petitions have doubled up. The possible explanation of why it has been so difficult to curb the misuse of PIL is because of the relaxed rule of locus standi and procedural requirements. It is not very fruitful for the courts to keep the door open of the courts and at the same time be the busybodies. Prof. Baxi highlighted the most crucial general factor affecting, for weal or woe, the career of SAL is the fluctuating bench-structure.[82]

The amount of time taken by the courts for disposing of PIL is an unduly long time. It has been observed that the courts are trying to bite more than it can chew. When courts give directions, appoint commissions and agencies, continuous mandamus is invoked which takes usually a longer time. This might render “many leading judgment merely of an academic value’’[83].

4. JUDICIAL OVERREACH:

The take of the judiciary on judicial activism has been evident. Justice Katju and Hidyatullah called this overreach as Uncontrollable Frankenstein. Former Chief Justice A.S. Anand cautioned the overuse of PIL and emphasized “Abuse of PIL, misuse of this strategy, hijacking of this versatile process by enemies of the poor and even trivialization of public interest litigation bringing it into contempt are now on the cards, gambling with the court’s mood and using this factotum facility as intimidatory tool. These trends justify a critical study of PIL as a panacea or placebo, as a magic drug or a free formal curial ploy.” Lexically, he referred to it as ‘Judicial Adventurism’.

Katju, J. while setting aside a High Court judgment (which had directed the State to regularize the plaintiff gardener as a truck driver since he had been working in that capacity for the past 10 years) observed that “Obiter observations and discussion of problems not directly involved in any proceeding should be avoided by courts in dealing with all matters brought before them, but this requirement becomes almost compulsive when the Court is dealing with constitutional matters.[84]

Judges are often seen as the crusader of justice and get swayed by the issue is popular in society. The fear of judicial populism is not merely academic and can be seen in the observation of Dwivedi J. in Kesavananda Bharati case.[85] Justice Pathak has also cautioned that while PIL claims to represent an increasing emphasis on social welfare and progressive humanitarianism, the court should not exceed the limits of its own powers and should follow the wordings of statues and established rules of procedure.

5. COMPLIANCES OF ORDER:

The basic reason for the growth of PIL in India is bureaucratic unresponsiveness to public needs. No effective mechanism has been established as yet for the redressal of public grievances against the administration. It often happens when the courts act as a substitute for legislative or executive, they issue orders for the compliance or directives to be followed; however, it takes constant monitoring by the courts to provide justice practically. Occasionally, courts appoint multiple agencies to monitor the implementation and to provide a report to the courts that take over years for implementation as in Vishaka Case[86] and D. K. Basu case[87]. In such cases, PIL can be seen as a failure on the part of the government as well as the court system.

Justice S.P. Bharucha also cautioned against the said fashion of evolving new mechanisms with the least effective compliance. A judicial system can suffer no greater lack of credibility than a perception that its order can be flouted with impunity. It is pertinent to note that PIL has limited access and though it contributes to good governance but acts as a ladder for others.  

6. RESISTANCE OF LEGISLATORS:

PIL is often seen as a transformative principle to those disadvantageous groups but when the courts blur the line between the judiciary, executive, and legislative it is highly criticised. In Suresh Chandra Gautam, the Supreme Court clarified that the judiciary cannot encroach into legislative functions. The court held that courts can neither formulate policy nor can they do anything that amounts to legislations…However, the court may, in certain circumstances, issue direction for framing guidelines or may itself, frame guidelines for sustaining certain rights.[88] This wide discretionary power given to the judiciary is criticised by the legislators. An attempt to curb the misuse of the PIL was made on the part of the Government in 1996, when a private member bill, The Public Interest Litigation Bill (Regulation) Bill, 1996 was introduced in the Rajya Sabha. The Public Interest Litigation (Regulation) Bill had proposed that petitioners filing frivolous PIL cases should be put behind bars and pays the damages. The Bill raised concerns about interfering with judicial independence but didn’t receive enough support and lapsed. The Hon’ble Supreme Court in 1988, 1993, and finally in 2003[89] provided the guidelines to be followed for entertaining letters/petitions received including the categories and how petitions will be screened by the PIL cell. 

CONCLUSION AND RECOMMENDATIONS:

Public Interest Litigation emerged as a potent tool for ensuring transparency in governance and access to social justice. It acts against the governmental lawlessness, provides basic rights to those who do not have access, and prevent exploitation and deprivation of the marginalised section of the society. The court through the Public Interest Litigation acts as a bulwark for the marginalised communities and ensures that the fundamental freedoms do not become a parchment in a glass case. PIL has a positive impact on society; however, it is in an abstract form and is growing with the social changes occurring in the state.

With the relaxation of rules in filing a PIL, this concept is abused rigorously. Therefore, it has been observed that it has become an increasingly attractive option, in the midst of awkward and lengthy legal proceedings than other forms of litigation. The abuse can be minimised by following the guidelines provided by the apex court strictly. The courts are trying to take a context-dependent and ‘experimental approach’ where the reform process could interact with informal norms, values, and traditions of the society arising from political, economic, and other initial conditions as well as long-established legal and institutional traditions. It is pertinent to note that this system is self-critical to address the failures and breakage in the system.

It is suggested that the PIL cell should strictly filter out these frivolous petitions by rejecting the petitions after analysing whether the petitioner is bona fide and whether the PIL is dressed up for private interest or other ulterior purpose and on other grounds with respect to the guidelines issued by the Apex court and courts in various cases. The courts should act stringently by levying the heavy cost on the frivolous petitioners.

Furthermore, courts should show reluctance in stepping up in the domain of other organs. Social and economic are largely the prerogative of other branches of government which is equipped to analyse, formulate, and implement complex policies however, this usurps of the functions have been justified with the present necessity. It is pertinent to note that the courts should only engage and appoint voluntary monitories agencies and commissions and for a limited period of time. Therefore, the courts do not lose the track of the case and the resources could be used judicially.

The orders passed or directions given by the courts should be within the legal framework and the judges shouldn’t ignore the sound principles of statues in the garb of justice. Thereafter, when the orders and directives passed by the court for implementation are disregarded, they must be accompanied with contempt of court order, if the court sense that the administrative or executive is wilfully acting ignorant for their own personal interest or political gain.

Henceforth, it is humbly submitted that this innovative concept of Public interest litigation could be taken to the reach of the disadvantageous section of the society by providing them with the 4A’s- Access, Awareness, Avenues, and Assertiveness.


[1] Delhi Declaration, 1959, https://www.icj.org/wp-content/uploads/1959/05/ICJ-Journal-II-1-1959-eng.pdf accessed on 23.09.2020, 10:23 am.

[2] Sunil Batra v. Delhi Administration A.I.R. 1980 SC 1579, Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar (1980) 1 SCC 108, the case was finally disposed of in August 1995.

[3] Sheela barse v state of Maharashtra, (1983) 2 SCC 96.

[4] Bandhua Mukti Morcha v Union of India, 1984 (2) SCR 67.

[5] Baxi, Upendra (1985) “Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India,” Third World Legal Studies: Vol. 4, Article 6.

[6] Olga Tellis v State of Bombay, A.I.R. 1986 SC 180.

[7]  Vishaka and Ors. v. State of Rajasthan (1997) 6 SCC 241.

[8] State of Uttranchal v. Balwant Singh Chaufal and Ors., (2010) 3 SCC 402.

[9] All India Anna Dravida Munnetra Kazhagam v. Union Of India, 2008 MHC 2032.

[10] A.M. Kuttysankaran Naik Alias Chinnakuttan Nair v. P.V. Kumaran Nair and Others, AIR 1965 Ker 161: 1965 CriLJ 699.

[11] Janata Dal v H. S. Chowdhary, (1992) 4 SCC 305 at 52.

[12] Justice P.N. Bhagwati. See P.N. Bhagwati, ‘Judicial activism and public interest litigation’ (Address delivered at Columbia University School of Law, 3 October 1984, unpublished). [P.N. Bhagwati, ‘Judicial activism’]. Page 576.

[13] Supra 4.

[14] Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 at 1947.

[15] Ibid para 1952.                                                                                                                                                                        

[16] AIR 1985 SC 910: (1985) 3 SCC 169.

[17] Supra 12.

[18] 5 U.S. 137 (1803).

[19] Robin: “Lawyeering for Social Change: Perspectives on Public Interest Law”, Stan Law Review, pp. 20714 (1976).

[20] 347 US 483 (1954).

[21] (1950) SCR 88 at 286, 287: AIR 1950 SC 27.

[22] Golak Nath v State of Punjab, (1976) 2 SCR 762: AIR 1967 SC 1643.

[23] Supra 14.

[24] (1976) 3 SCC 832: AIR 1976 SC 1455.

[25] Supra 22.

[26] R.C. Cooper v. Union of India, AIR 1970 SC at 564, 608.

[27] Madhav Rao Scindia v. India, AIR 1971 SC at 530, 658.

[28] Supra 14.

[29] Supra 22.

[30] (1975) 2 SCC 159.

[31] ADM Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521.

[32] Maneka Gandhi v UOI, (1978) 2 SCC 248.

[33] (1981) 2 SCR 52 : AIR 1981 SC 344.

[34] (1982) 3 SCC 235.

[35] Sarbari Sen, PIL in India: Implications for law and development, Practices and Policies, 2012.

[36] P.N. Bhagwati & C.J. Dias, The Judiciary in India:  A hunger and thirst for Justice, NUJS Law Review 2012.

[37] Supra 2.

[38] Report of the expert committee on Legal Aid Processual Justice to the People, May 1973.

[39] AIR 1982 SC 1008.

[40] Supra 5 at 115.

[41] Supra 8.

[42] 1980 AIR 1622, 1981 SCR (1) 97.

[43] AIR 1987 SC 579.

[44] AIR 1982 SC 1473.

[45] Supra 33.

[46] Supra 44.

[47] Supra 4.

[48] S.P Gupta v. Union of India, AIR 1982 SC 189.

[49] Jaipur Sahar Hindu Vikas Samiti v State of Rajasthan, (2014) 5 SCC 530: 2014 (4) SCJ 288.

[50] (1963) 372 U.S. 335.

[51] AIR 2000 Gau 33.

[52] Supra 2.

[53] Supra 5.

[54] Supra 6.

[55] Kamaldevi Chattopadhya v State of Punjab, (1985) 1 SCC 41.

[56] Gulshan v Zila Parishad, (1987) Supp SCC 619.

[57] Gaurav Jain v Union of India, (1990) Supp SCC 709.

[58] Supra 3.

[59] Ibid.

[60] Supra 13.

[61] T.N. Godavarman Thirumulkpad v Union of India & Ors., (2008) 8 SCR at 152, 154.

[62] Supra 34.

[63] Granville Austin, Indian Constitution: Cornerstone of a Nation, 1996.

[64] Supra 35.

[65] Supra 48.

[66] M.P. Jain, Indian Constitutional Law, Eighth Edition.

[67] Section 91 and Order I, Rule 8 of the Code of Civil Procedure, 1908.

[68] Supra 40.

[69] Supra 36.

[70] Ibid.

[71] Supra 7.

[72] S. P. Sathe, Judicial Activism in India, Oxford India Paper backs, 2003 at 202.

[73] JT 2003 (7) SC 312.

[74] Supra 7.

[75] (1998) 6 SCC 63.

[76] Supra 66 at 1431.

[77] Narmada Bachao Andolan v UOI, (2000) 10 SCC 664.

[78] (2004) 3 SCC 349: (2011) 1 SCC (Cri) 865.

[79] PIL: Not always in the public interest, https://www.hindustantimes.com/editorials/not-always-in-the-public-interest/story-cE2uL0GHKZLWjHwxEdacJN.html, accessed on 26.09.2020, 03:18 am.

[80] https://www.barandbench.com/news/5-million-cases-pending-before-high-courts-3447-million-cases-subordinate-courts-centre accessed on 23.09.2020, 06:52 am.

[81] Varun Gauri, Public Interest Litigation in India Overreaching or Underachieving? 2009, Policy Research Working Paper 5109.

[82] Supra 40.

[83] Singh, ‘‘Protecting the Rights of the Disadvantaged Groups through Public Interest Litigation’’ in Singh, Goerlich and von Hauff (eds), Human Rights and Basic Need, 2008 at 326.

[84] Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683.

[85] Supra 15.

[86] Supra 7.

[87] (1997) 1 SCC 416.

[88] Supra 66 at 1432.

[89] https://main.sci.gov.in/pdf/Guidelines/pilguidelines.pdf accessed on 11.09.2020, 03:17 AM.

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