Public Interest Litigation:
Role of Public and Role of Courts
Final year, B.B.A
LL.B, Symbiosis Society's Law College, Pune.
Public Interest Litigation (PIL) is a right given to members of the
public to maintain an action for judicial redressal of public injury; such an
injury may arise from breach of public duty or due to a violation of some
provision of the Constitution. Public
Interest Litigation is basically 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.
PILs in practice are proceedings that may be regarded as having a public element and which evolve remedies traditionally associated with matters of public concern. These proceedings focus generally on the enforcement of rules of constitutional and statute law and supervision of governmental and administrative tribunals, agencies and offices.
In India, the Supreme Court took the lead by allowing
volunteer social activists - lay and legal, to represent the interests of the
poor in judicial proceedings. By
expanding the doctrine of locus standi
in filing the petition and creating epistolary jurisdiction that enabled it to
treat a letter written on behalf of a disadvantaged person as a petition and
examine the merits of the grievances, the judiciary facilitated a public law
practice that draws on, “…. nation’s tradition of volunteerism”[1].
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 India and the laws made by the legislature on the one hand and the vast majority of illiterate citizens on the other.
However, this entire scenario gradually changed when the post emergency Supreme Court tackled the problem of access to justice by people through radical changes and alterations made in the requirements of locus standi and of party aggrieved. The splendid efforts of Justice P. N. Bhagwati and Justice V. R. Krishna Iyer were instrumental of this juristic revolution of eighties to convert the apex court of India into a Supreme Court for all Indians. And as a result any citizen of India or any consumer group or social action group can approach the apex court of the country seeking legal remedies in all cases where the interests of general public or a section of public are at stake.
Public Interest Litigation is a device by which public
participation in judicial review of administrative action is assured, and it also
has the effect of making judicial process little more democratic.
The members of the public by filing a PIL are entitled to and seek
enforcement of public duty and observance of the constitutional law or legal
provisions. Such a litigation
can be initiated only for redressal of a public injury, enforcement of a public
duty or vindicating interest of public nature and 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.
Intervention
of the courts may be sought by way of PIL in cases where the statutory
provisions have arbitrarily and irrationally overlooked the interests of a
significantly affected group that would otherwise suffer in silence. Public interest may demand judicial
intervention in cases where the existing rules and standards are not complied
with due to indifference towards a particular group, unjustly denying them any
legal entitlements or resulting in unfair and hostile treatment. Public
Interest Litigation provides a platform for projecting social values for those
who do not have a formal access or voice in the policy-making processes.
A PIL can be
filed against a State or Central Government, Municipal Authorities, but not any
private party. However, a ‘Private party’ can be included in the PIL as
‘Respondent’, after making concerned state authority, a party.
Matters of Public Interest
The term ‘Public Interest’ is not capable of
precise definition and has not a rigid meaning and is elastic and takes its
colours from the statute in which it occurs, the concept varying with the time
and state for society and its needs. Thus, what is ‘Public Interest’ today may
not be so considered a decade later[2].
However, Public Interest can be said to mean those interest, which concern the public at large. A subject, in which the public or a section of the public is interested, becomes one of public interest. Public Interest is concerned with the welfare and rights of the community or a class thereof.
The matters of public interest generally include:
Ø Bonded labour matters,
Ø Matters of neglected children[3],
Ø Exploitation of casual labourers[4] and non-payment of wages[5] to them (except in individual cases),
Ø Matters of harassment or torture of persons belonging to Scheduled Castes, Scheduled Tribes and Economically Backward Classes, either by co-villagers or by police,
Ø Matters relating to environmental pollution[6], disturbance of ecological balance, drugs, food adulteration, maintenance of heritage and culture, antiques, forests and wild life,
Ø Petitions from riot victims, and
Ø Other matters of public importance.
The question of infringements of public interest can also arise in cases relating to:
Constitutional validity of legislation;
Excess of power by a public body or a quasi- public undertaking;
Breach of statutory provisions enacted for the benefit and protection of the public;
Public nuisance; and
Prevention of criminal offences, enforcement of mandatory public
duties, and such other categories as recognized by law or judicial decisions.
PILs are usually not allowed in criminal matters,
because criminal litigation is exclusively between state and respondent
and nobody has right to interfere by way of PIL as it would hamper course of
justice and cause prejudice to accused denying them a fair trial[7].
Also, PIL are not entertained in service matters[8].
Who can File/Standing: Role of Public
Any public-spirited person can file a PIL. It is not necessary that the
petitioner has suffered some injury of his own or has had personal grievance to
litigate, though only a person acting bonafide and having
sufficient interest in the proceeding of PIL will have locus
standi and can approach the Court[9].
There has been an increase in the number of PILs in the last two decades and the reason for this is closely related to the growth in administrative and judicial review of governmental decisions and to an increase in the number of statutory ‘public rights’. The laws creating public rights, such as those in relation to the environment and consumer protection rely on private enforcement as an integral part of ensuring compliance, and the Courts have in this field developed rules of standing to allow persons other than those whose immediate rights or interests are at stake to bring the matter to the Court.
The Supreme Court has laid down the following principles governing the
question of locus standi of a PIL[10];
any member of public having sufficient interest may maintain an action or
petition provided:
There is an important role for private petitioners in public interest litigation because the enforcement of public rights by any governmental agency is likely to be ‘spasmodic and patchy due to a range of political, financial and bureaucratic factors’. The rules of standing should therefore facilitate access to the legal system to ensure that a party with legitimate cause of action can pursue the action and get tested the validity of governmental decisions and legislation by furnishing adequate information to the courts for reaching its decisions for protecting public rights which have implications beyond the parties to the proceedings.
The law of standing should not be a mechanism for determining the types of matters that may be litigated or for controlling the way in which litigation is conducted. The law concerning justiciability, the rules on imposition of costs, the power of the courts to manage the litigation process and the availability of alternative methods of resolving disputes more appropriately addresses these issues.
In England, for enabling an applicant seeking an
order of ‘judicial review’ the applicant has to satisfy the test of ‘sufficient
interest in the matter to which the application relates’[12].
For satisfying this test an applicant need not have a direct legal or financial
interest but a ‘mere busy body’ will not have sufficient interest[13].
It is, however, not necessary that applicant’s interest should be different
from that of an ordinary member of the public[14]. The
courts have also held in England, that standing should usually be considered
along with the merits of the case and not as a preliminary issue[15].
An applicant having no personal connection with the dispute,
in the traditional sense of locus standi,
may be allowed standing, if in its discretion, the court considers the case to
be of sufficient public importance. Though usually, only a person acting
bonafide and having sufficient interest in the proceeding of PIL will alone
have locus standi and can approach the Court[16].
As for right of third parties to file PIL, unless an aggrieved party is under
some disability recognized by law, it would be unsafe to allow any third party
to question the decision against the third parties[17].
However, Standing would ordinarily not be granted to the
applicant if it can be shown that the same issue will be challenged by the
concerned private litigant, because the main purpose of allowing public
interest standing is to prevent immunization of legislation or public acts from
any challenge.
A PIL can be filed in any High Court or directly in the Supreme Court[18].
The conventional method of moving a Court is by filing a plaint containing a
detailed list of facts that are necessary for deciding the case.
However, now the PIL has jumped over this structural barrier. The
Supreme Court has held that a PIL need not be rejected merely on the fact that
it is not in the structural form of a plaint. The Court can admit a PIL even if
it is not made in the manner of a formal plaint. The Court can initiate a PIL
even on receiving a letter addressed to the Court whether with or without an
affidavit.
Once a PIL has been filed it cannot be subsequently withdrawn. The Court
may also proceed suo motto. This was laid down by the Supreme Court to
ensure that there is no vested interest of the people who initiate proceedings
and that the cause for which the PIL was initiated does not suffer.
The role of the courts has been fundamentally altered by adoption of the constitutional norms in the governance of the country. Numerous constitutional and statutory provisions have established governmental institutions regulating their conduct along with that of commercial enterprises and citizens, in a wide range of subjects such as, social welfare, industrial relations, consumer protection, improvement of environment and protection of forests, industrial health, protection of monuments and places of national importance, welfare of children and women[19].
The fundamental choice that faces the courts in dealing with the new laws and institutions concerned with public rights and interests is of the role that judiciary should play in the governance of the country as an important limb of the State. The question is, should the judiciary’s role be limited to preventing illegal encroachments on the rights of private individuals by examining the extent of infringement of individual rights and the regularity of law and administration only to that limited extent, or does its judicial function include a constitutional duty to confine the legislative and executive organs of the State within their powers in the interest of the public? Lord Denning regarded it as a matter of high constitutional principle that if there is good ground for supposing that a government department or a public authority is transgressing the law, or is about to transgress it in a way which offends or injures thousands of subjects, then anyone of them offended or injured can draw it to the attention of the courts of law and seek to have the law enforced, and the courts in their discretion can grant whatever remedy is appropriate[20].
The Judiciary, on the basis of the doctrine of checks and balances, has a major part to play in curbing excesses of power by the legislature and by the executive. The question for consideration by the court would be whether the action challenged is unlawful being outside the ambit of the power conferred on the relevant state authority, or whether the prescribed mandatory procedures have not been followed in the exercise of power, or that an error of law is involved or that the principles of natural justice have not been followed.
On the other hand, there are obvious limits to judicial expertise and to the information upon which judges have to decide cases. The common law adjudicatory process is not always the best way of tackling difficult issues of law and administration, and the costs, delays, and possible injustices to others inherent in expanding the role in the administrative process may more than outweigh any countervailing benefits[21]. Also, Court-ordered commissions of inquiry have often been adopted as means of finding out the relevant facts, and the relief granted sometimes takes the form of a series of quasi-legislative directives, ordering governmental agencies to carry out remedial programmes and establishing monitoring procedures whereby the Court may review progress[22].
Many statutes allow courts to grant specific remedies in a wide variety of circumstances. While many of these remedies are similar to those available in the general law, such as, injunction and declaratory relief, some statutes have created new forms of reliefs, for example the environment protection laws.
In proceedings relating to a matter arising under the Constitution or involving its interpretation or arising under an enactment or are against the government or other public authority, relief in PIL would be in the nature of a statutory remedy similar to a remedy available on judicial review and prerogative writs, and by way of a declaration or an injunction.
Litigation will only fall in the category of PIL if the remedies sought are in ‘public’ in nature such as the high prerogative writs. The petitioners may seek in a PIL a declaration that a particular statue is unconstitutional or that a rule or regulation is invalid. They may seek an injunction to restrain a public authority from acting in excess of its statutory powers. In some cases, the court may appoint a committee, or commissioner to look into the matter or it may also give final orders by way of direction to comply within a stipulated time.
Writs of prohibition and certiorari lie on behalf of any person who is a ‘person aggrieved’ and that includes any person whose interest may be prejudicially affected by what is taking place. It does not include a mere busy body that is interfering in things, which do not concern him; but it includes any person who has a genuine grievance because something has been done which affects him.
The writ of mandamus is a judicial command compelling the respondent to perform its duty. The order, however, cannot direct the manner in which the duty will be performed, although the reasons given for the order will usually guide the concerned official. When any order/direction in nature of judicial command is sought in a PIL, it is important for the court to consider the nature of the duty and the persons to whom it is owed.
The writ of habeas corpus is a means of safeguarding individual liberty and it is a remedy to secure release of a person wrongfully detained. It has always been accepted that, anyone may seek the remedy when a person is held incommunicado.
The writ of quo warranto can be issued in PIL involving determination of the validity of appointments to offices of a public nature and may be used, for instance, to test which of the two rival claimants is the lawful appointee.
When a private individual wishes to bring an action for an injunction or declaration to enforce public rights, the relief may be granted only if right of a class to which that person belongs has been simultaneously interfered with.
Abuse
The courts are not places for those who wish to meddle in things that are no concern of theirs, just for the pleasure of interfering, or of proclaiming some favourite doctrine of theirs, or of indulging a taste for forensic display.
The two important weapons, other than the law of standing, with which unmeritorious claims may be stayed off are; the Court’s power to strike out vexatious or frivolous claims or pleadings on the basis that they constitute ‘abuse of the process’ of the court and, the power to declare that an individual is a vexatious litigant who may not be allowed to initiate further proceedings without the leave of the court[23].
Mr. Soli Sorabji, the former Attorney General of India while applauding the liberalization of the rule of locus standi by the Supreme Court of India benefiting under-trial prisoners[24] languishing in jail for inordinately long periods, inmates of asylums and care homes living in sub-human conditions, children working in hazardous occupation and similar disadvantaged persons, has lamented that PIL is being abused with increasing frequency. According to him, over the years, ‘PIL has degenerated into Private Interest Litigation, Political Interest Litigation, and above all Publicity Interest Litigation’.
Litigation which attempts to attribute the provisions an irrational meaning or an interpretation contrary to the settled position cannot pass on as a ‘test case’ of a contentious legal question, and will not, in the real sense of the term, be in public interest. Similarly, the posing of a question for judicial determination that hinges upon the manifestly clear words of the statue, which the public authority is not called upon to implement before moving the court will not constitute public interest litigation.
Prevention
of Abuse
To prevent abuse of the process of resorting to PIL the courts should provide procedural guidelines in their rules. These should specify persons who may be eligible to file public interest litigation. The legal practioners, public institutions, NGO’s registered as non-profit organizations, Legal Aid clinics, may be considered as eligible to apply. There should be a culture of pro bono services among the PIL practioners in the field of human rights and pro-poor law.
The applicant must set out in detail the anticipated impact of the matter on the advancement of constitutionalism and/or the development of human rights or public interest law. If the anticipated impact affects and/or advances the rights of a group or community, this should also be set out. The applicant should explain very precisely what rights will be advanced through the proposed litigation. The applicant should also state what alternatives to litigation have been considered and explain why these have not been pursued. Before issuance of notice on a PIL, the court should specifically direct itself to the nature of dispute that is sought to be raised and identified by the petitioner, and then tentatively decide whether it should initiate the proceedings.
To curb the perils of abuse of PIL, Mr. Soli
Sorabji made the following suggestions:
Public interest litigation must also be screened in some way to prevent floodgates of litigation. The court should punish with costs persons who might bring unnecessary actions. High costs are a strong disincentive to litigation, even where there is no barrier in the form of a requirement of standing.
Conclusion
Public Interest Litigants, all over the country, have not taken very
kindly to some of the courts views talking about preventing unnecessary PILs by
imposition of high costs and compensation. It is feared that this will sound
the death-knell of the people friendly concept of PIL. However, bona fide
litigants of India have nothing to fear. Only those PIL activists who prefer to
file frivolous complaints will have to pay compensation to then opposite
parties. It is actually a welcome move because no one in the country can deny
that even PIL activists should be responsible and accountable. Since it is an
extraordinary remedy available at a cheaper cost to all citizens of the
country, it ought not to be used by all litigants as a substitute for ordinary
ones or as a means to file frivolous complaints.
However, now Public Interest Litigation does require a complete rethink and restructuring as the overuse and abuse of PIL can only make it stale and ineffective. There is a need for some strong measures to promote and protect the actual purpose for which the PIL came into being, i.e., the 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 o economic background.
[1] Cottrell, Courts and
Accountability: Public Interest Litigation in the Indian High Courts, Third
World Legal Studies - 1992
[2] State of Bihar v. Kameswar Singh, AIR 1952 SC 252
[3] Gaurav Jain v. Union of India and others, AIR1997SC3021
[4] M.C. Mehta v. State
of Tamil Nadu and Ors., MANU/SC/0169/1997
[5] Kapila Hingorani v.
State of Bihar, (2003) 6 SCC 1
[6] M.C. Mehta v. Union
of India (UOI) and Ors, (2004) 6 SCC 588; Indian Council for Enviro-Legal
Action and Ors. v. Union of India and Ors., MANU/SC/0371/1996
[7] Rajiv Ranjan Singh 'Lalan' and Anr. v. Union of
India (UOI) and Ors, (2006) 6 SCC 613
[8] Gurpal Singh v. State of Punjab and Ors., AIR 2005 SC 2755
[9] Kansing Kalusing Thakore and Ors. v. Rabari
Maganbhai Vashrambhai and Ors., 2006 (12) SCALE 414
[10] S.P. Anand and Anr.
v. Union of India and Anr., AIR 2002 MP 51; D.K.Basu Vs State of West Bengal,
1997 (1) SCC 416
[11] S.P. Gupta v. Union
of India and Anr., 1981 Supp. SCC 87; Janata Dal v. H.S. Chowdhary and Ors.,
MANU/SC/0532/1992
[12] Sec. 31(37) of Supreme Court
Act 1981(England)
[13] IRC [1982] AC 617
[14]R.
v. Secretary of State for Foreign & Commonwealth Affairs; Ex parte Ree-Mogg
[1989] 1 All E.R. 1047; R v. Her Majesty Treasury; Ex parte Smedley [1985] 1
All E.R. 589
[15] R. v. IRC; Ex parte National
Federation of Self-Employed and Small Business Ltd. [1981] 2 All ER 19
[16]Kansing Kalusing Thakore and Ors. v. Rabari
Maganbhai Vashrambhai and Ors., 2006 (12) SCALE 414
[17] Ashok Kumar Pandey v. The State of West Bengal
and Ors., AIR 2004 SC 280
[18] Dr. Subramanian
Swamy v. The Election Commission of India and Ors., MANU/UP/0002/2007
[19] Vishaka
and others v. State of Rajasthan and others, AIR 1997 SC 3011
[20] R. v.
London Council, ex parte Blackburn, [1976] 1WLR 550, 556
[21] de Smith’s Judicial
Review of Administrative Action, Evan’s ed., 48
[22] Bandhua Mukti Morcha v. U.O.I.
AIR 1989 SC 802, 834-7
[23] Chairman and M.D.,
B.P.L. Ltd. v. S.P. Gururaja and Ors., AIR 2003 SC 4536
[24] Hussainara Khatoon v. Home Secretary, AIR 1979 SC
1360