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Title Public Interest Litigation in India: Its origin and role in the society
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Article by Soumyadeb Sinha
Category Law Students
Content

I

Meaning of Public Interest Litigation with reference to High Court and Supreme Court Judgments.

Such is the disillusionment with the State formal legal system that it is no longer demanded by law to do justice, if justice perchance is done, we congratulate ourselves for being fortunate. In these circumstances one of the best things that have happened in the country in recent years is the process of social reform through Public Interest Litigation or Social Action Litigation. In Indian law, public interest litigation means litigation for the protection of the public interest to advance social justice.

The words ‘Public Interest’ mean “the common well being also public welfare” (Oxford English Dictionary 2nd Edn. Vol. Xll) and the word 'Litigation' means "a legal action including all proceedings therein, initiated in a court of law with the purpose of enforcing a right or seeking a remedy."

According  to  Black's  Law  Dictionary- “Public  Interest  Litigation”  means  a  legal  action initiated  in a court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected."

Thus, the expression ‘Public Interest Litigation' means "some litigation conducted for the benefit of public or for removal of some public grievance." In simple words, public interest litigation means any public spirited citizen can move/approach the court for the public cause (or public interest or public welfare) by filing a petition in the Supreme Court under Art.32 of the Constitution or in the High Court under Art.226 of the Constitution or before the Court of Magistrate under Sec. 133 of the Code of Criminal Procedure, 1973.

The seeds of the concept of public interest litigation were initially sown in India by Krishna Iyer J., in 1976 in Mumbai Kamagar Sabha vs. Abdul Thai (AIR 1976 SC 1455; 1976 (3) SCC 832) and was initiated in Raihvaiy vs, Union of India, wherein an unregistered association of workers was permitted to institute a writ petition under Art.32 of the Constitution for the redress of common grievances. Krishna lyer J., enunciated the reasons for liberalization of the rule of Locus Standi in Fertilizer Corporation Kamgar vs. Union of India (AIR 1981 SC 149; 1981 (2) SCR 52) and the ideal of 'Public Interest Litigation' was blossomed in S.F. Gupta and others vs. Union of India, (AIR 1982 SC 149).

Public Interest Litigation (PIL) as it has developed in recent years marks a significant departure from
traditional judicial proceedings. PIL was not a sudden phenomenon. It was an idea that was in the making for some time before its vigorous growth in the early eighties. It now dominates the public
perception of the Supreme Court. The Court is now seen as an institution not only reaching out to
provide relief to citizens but even venturing into formulating policy which the State must follow.

At the time of Independence, court procedure was drawn from the Anglo-Saxon system of jurisprudence. The bulk of citizens were unaware of their legal rights, and much less in a position to assert them. The guarantees of fundamental rights and the assurances of directive principles, described as the ‘conscience of the Constitution’, would have remained empty promises for the majority of illiterate and indigent citizens under adversarial proceedings. PIL has been a conscious attempt to transform the promise into reality.

The deferential role of the Supreme Court during the emergency contributed significantly to an opposite swing in the judiciary’s view of its own role after the 1977 elections. The emergency witnessed large-scale violations of basic rights of life and liberty. These were facilitated by the enactment of a draconian statute, the Maintenance of Internal Security Act (MISA) and suspension of basic fundamental rights. An overwhelming number of high courts ensured that the state scrupulously followed the terms of the detention law. This obvious approach was however reversed by the Supreme Court in A.D.M. Jabalpur v Shivkant Shukla which granted virtual immunity to any action of the executive affecting the life and liberty of the citizen. The judgment can best be described, in the words of Professor C.K. Allen, as the contribution of the Supreme Court to the emergency. The judgment brought into question the role of the Supreme Court as the guardian of citizens’ liberties. The vigorous growth of PIL was in some measure a reaction to this criticism.

It is discernible that the strength of a judiciary is proportionate to the weakness of the executive. The Janata Party which came to power in 1977 and subsisted till 1979, was a weak government at a point in time when the judiciary consciously began to develop PIL. How the Court viewed its transformation during this phase is enunciated in a decision given a decade later, where it said:

Article 32 does not merely confer power on this Court to issue a direction, order or writ for enforcement of the fundamental rights but also lays down a constitutional obligation on this Court to protect the fundamental rights of the people and for that purpose this Court has all incidental and ancillary powers including the power to forge new remedies and fashion new strategies designed to enforce the fundamental rights. It is in realization of this constitutional obligation that this Court has in the past innovated new methods and strategies for the purpose of securing enforcement of the fundamental rights, particularly in the case of the poor and disadvantaged who are denied their basic human rights and to whom freedom and liberty have no meaning.

­II

Differences between a Public Interest Litigation and Adversarial type of Litigation.

To point out the differences between a Public Interest Litigation and Adversarial type of Litigation, we first need to understand what we mean by the Adversarial type of Litigation.

The Adversarial type of Litigation

In this type of litigation one party serves the other with legal documents that ask for everything that a court could possibly award. The other party responds with a counter-suit, asking for the same awards from the court. The attorneys then begin the discovery process to find out about the couple’s assets as well as custody and support issues. The attorneys use formal court procedures such as written questions answered under oath (interrogatories), oral questions answered under oath in front of a court reporter (depositions), and subpoenas (use of the court’s power to obtain documents from third parties). A trial does not involve the pursuit of truth by any means. The adversary system is the means  adopted  and  the  judge's  role  in  that  system  is  to  hold  the  balance  between  the contending  parties  without  himself  taking  part  in  their disputations.  It  is  not  an inquisitorial  role  in  which  he  seeks  himself  to  remedy the  deficiencies  of  the  case  on either side.

Both parties, through their attorneys, file their respective documents then wait for a series of court hearings to move the case forward over a period of months or even years. Attorneys contact their clients as necessary, and usually send them voluminous copies of all the documents they file and obtain.

Non-adversarial Litigation

In the words of Supreme Court in People’s Union for Democratic Rights v. Union of India, AIR 1982 S.C. 1473, “We wish to point out with all the emphasis at our command that public interest litigation…is a totally different kind of litigation from the ordinary traditional litigation which is essentially of an adversary character where there is a dispute between two litigating parties, one making claim or seeking relief against the other and that other opposing such claim or resisting such relief”. Non-adversarial litigation has two aspects.

1. Collaborative litigation; and

2. Investigative Litigation

Collaborative Litigation: In collaborative litigation the effort is from all the sides. The claimant, the court and the Government or the public official, all are in collaboration here to see that basic human rights become meaningful for the large masses of the people. PIL helps executive to discharge its constitutional obligations. Court assumes three different functions other than that from traditional determination and issuance of a decree.

(i). Ombudsman- The court receives citizen complaints and brings the most important ones to the attention of responsible government officials.

(ii) Forum – The court provides a forum or place to discuss the public issues at length and providing emergency relief through interim orders.

(iii) Mediator – The court comes up with possible compromises.

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

Procedural Innovations In Non-adversarial Litigation:

The ‘new methods and the tools to meet out justice’ that has been referred to above can be shown by some examples of cases before the courts. The flexibility of PIL procedure can best be illustrated by what is termed as ‘epistolary jurisdiction’. Taking a cue from the American Supreme Court’s decision in Gideon v Wainwright, where a postcard from a prisoner was treated as a petition,  the Court has accepted letters (as in Ram Kumar Misra v State of Bihar (1984) 2 SCC 45, where labourers employed in two ferries were denied minimum wages;) and telegrams (as in Paramjit Kaur v State of Punjab (1996) 7 SCC 20, where the CBI at the instance of the Supreme Court
unearthed the facts of the mass cremation of thousands of persons by the Punjab Police by labeling them
‘unidentified’. The proceedings began with a telegram being sent to the residence of Kuldip Singh J.)   as petitions on the ground that a public-spirited person could move the Court even by writing a letter. Where a letter addressed to the court  showed wide spread  exploitation of migrants’ workman in violation of various welfare laws, the letter was treated as a writ petition under article 32 of  the Constitution of India and direction  was  issued  to  the Labour Commissioner to enquire into and submit a report and to the central government to file an affidavit. After receipt and the affidavit the court found that the assertions in the letter petition were correct and directions were given accordingly. This decision has been held to be an authority for proposition that a public interest litigation is not of adversary character, but one of performance of constitutional duties. This  was  because  a  new  procedure  was  adopted  for  collecting  evidence  from acceptable  sources. Likewise in the Bandhua  Mukti  Morcha  case  on the  plight  of the bounded laborers, the court had evolved new procedure  supplementing the existing procedure to meet the  new  position  and to  render justice in  public interest litigation.  It directed the Commissioner of Labour to investigate into and collect the evidence and submit the report to the court. In the case of a letter in a writ petition to release bounded laborers in the country the Supreme Court felt necessary to depart from adversarial procedure and to evolve a new procedure which would make it possible for the poor and weak to bring the necessary material before the court for the purpose of securing enforcement of their fundamental rights. Similarly, in other PIL to release and rehabilitate the bonded laborers, the court obtained a report from the committee appointed by the court. It accepted the report and then gives direction to implement the committee’s recommendations to the state government for rehabilitation of the bounded labourers.

The justification for departing from adversarial procedure and evolving new procedures to deal with the problems of the bonded laborers specifically and the poor generally was provided by the Supreme Court in the words quoted below:

Where one of the parties to a litigation belongs to a poor and deprived section of the community and does not possess adequate social and material resources, he is bound to be at a disadvantage as a strong and powerful opponent under the adversary system of justice, because of his difficulty in getting competent legal representation and more than anything else, his inability to produce relevant evidence before the court. The problems of poor are qualitatively different from others and they need different kind of lawyering skill and a different kind of judicial approach. Therefore, when the poor come before the court, particularly for enforcement of their fundamental rights, it is necessary to depart from the adversarial procedure and to evolve a new procedure which will make it possible for the poor and the weak to bring the necessary material before the court for the purpose of securing enforcement of their fundamental rights.

A PIL petitioner is provided by the Court as one who draws its attention to a grievance requiring remedial measures and having no personal stake in the matter. It expects her/ him to be conscious of her/ his obligation to the cause being espoused and conduct herself/ himself accordingly. Thus persons bringing PILs to the Court cannot of their free will seek to withdraw the petition. The Court may take over the conduct of the matter if it feels that in the interests of justice that issue should be decided irrespective of the wishes of the petitioner. This is what happened in a case concerning children in jails brought to the Supreme Court by a letter petition from Sheela Barse, a journalist(Sheela Barse v Union of India (1988) 4 SCC 226 at 246).

In the traditional adversarial system, the lawyers of each party are expected to present contending points of view to enable the judge to decide the issue for or against a party. In PIL there are no winners or losers and the mindset of both lawyers and judges can be different from that in ordinary litigation. The Court, the parties and their lawyers are expected to participate in resolution of a given public problem. This was explained by the Court in Dr Upendra Baxi v State of U.P (1986) 4 SCC 106 at 117.

It must be remembered that this is not a litigation of an adversary character undertaken for the purpose of holding the State Government or its officers responsible for making reparation but it is a public interest litigation which involves a collaborative and cooperative effort on the part of the State Government and its officers, the lawyers appearing in the case and the Bench for the purpose of making human rights meaningful for the weaker sections of the community.

 

III

Who can file a PIL?

Discuss the Locus Standi regarding filing of PILs in India.

The traditional rules of procedure in the adversarial system of law permit only a person
whose rights are directly affected to approach the Court. It was held in Charanjit Lal v Union of India (1950) SCR 869; D. Nagaraj v State of Karnataka (1977) 2 SCC 148 that under the Common Law, a person claiming the writ of mandamus had to show that he was enforcing his own personal right.

However, when section 166 of the Criminal Procedure  Code, 1973 was being invoked by public-spirited persons to seek redress against an apathetic municipality remiss in providing civic amenities, reacting to this traditional view of locus standi for initiating proceedings in a court, the Supreme Court, in Municipal Council, Ratlam v Shri Vardichan (1980) 4 SCC 162 at 163 , observed:

“The truth is that a few profound issues of procedural 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. If the centre of gravity of justice is to shift, as the preamble of our Constitution mandates, from the traditional individualism of locus standi to the community orientation of public interest litigation, these issues must be considered.”

 

The development of the gradual expanded concept of locus standi in India find evidence in cases such as S.P. Gupta v Union of India 1981 Supp. SCC 87 at 210; and  People’s Union for Democratic Rights Case, supra n. 16; and Forward Construction Co. v Prabhat Mandal (1986) 1 SCC 100; where the Supreme Court said:

“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 legal burden is threatened and such person or determinate class of persons is by reasons of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for any relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Article 26 and in case of breach of any fundamental right of such person or class of persons, in this Court under Article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons.”

The strict rule of locus standi has been relaxed by way of (a) Representative standing, and (b) Citizen standing. In D.C.Wadhwa v. State of Bihar, AIR 1987 SC 579, S.C. held that a petitioner, a professor of political science who had done substantial research and deeply interested in ensuring proper implementation of the constitutional provisions, challenged the practice followed by the state of Bihar in repromulgating a number of ordinances without getting the approval of the legislature. The court held that the petitioner as a member of public has ‘sufficient interest’ to maintain a petition under Article 32.

The rule of locus standi have been relaxed and a person acting bonafide and having sufficient interest in the proceeding of Public Interest Litigation will alone have a locus standi and can approach the court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration…court has to strike balance between two conflicting interests: (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive and the legislature (Ashok Kumar Pandey v. State of W. B., (2004) 3 SCC 349).

IV

The role of PILs regarding protection of Human Rights

Judicial activism in the area of human rights has been facilitated in considerable measure by PIL. This is exemplified by the Court’s active concern with the rights of detained and under-trial persons, police excesses including arbitrary arrests, custodial violence and extra-judicial killings, conditions in prison and other custodial institutions like children’s homes, women’s homes, mental asylums, encounter killings in Punjab, and the rights of victims of crime.

In the early years of PIL, the Court focused on the rights of prisoners and the conditions of prisons. The Court acted upon postcards, letters, articles in newspapers, press reports, and petitions from a wide cross-section of citizens including lawyers and journalists to open the doors of the Courts to the millions of under-trials living in inhuman conditions in the country’s prisons. First, the Court would convert the facts brought before it into a petition under Article 32. It would then issue directions to the state agency concerned to provide information, and if this was not forthcoming, it would appoint a commissioner to elicit the facts. Once convinced that the matter required its intervention, the Court would issue a mandamus to state agencies to carry out its directives within a specified time-frame. This would include release of persons unlawfully detained, ensuring the closure of their cases if found to be pending for an unduly long time, and even directing that the detenus be compen-sated and rehabilitated. The Court also took the opportunity to give directions to state agencies to minimize further violations of human rights.

In the first PIL on prisoners’ rights, Hussainara Khatoon v State of Bihar (I to VI), (1980) 1 SCC 81, the attention of the court was drawn to the incredible situation of Bihar undertrials who had been detained pending trial for periods far in excess of the maximum sentence for the offences they were charged with. The Court not only proceeded to make the right to speedy trial the central issue of the case but passed an order of general release of undertrials who had undergone detention beyond such maximum period. Kadra Pahadiya v State of Bihar (1981) 3 SCC 671 was another case that dealt with the issue of speedy trial. The conditions of life convicts in Tihar jail attracted the Court’s concern in a petition sent to it by a prisoner. The Court introduced humaneness into the penitentiary system by requiring exceptional circumstances and adequate precautions for solitary confinement in Sunil Batra v Delhi Admn. (1980) 3 SCC 488. The horrific blinding of prisoners in Bhagalpur Jail in Bihar formed the subject matter of another PIL: Anil Yadav v State of Bihar (1981) 1 SCC 622; Khatri (I) v State of Bihar (1981) 1 SCC 623. In Veena Sethi v State of Bihar (1982) 2 SCC 583 the Court found that prisons were being used to house the mentally ill for thirty and forty years at a stretch. Corrective and preventive steps were put in motion. In Supreme Court Legal Aid Committee representing Undertrial Prisoners v Union of India (1994) 6 SCC 731 the Supreme Court gave directions regarding release on bail of undertrials facing charges under the Narcotic Drugs and Psychiatric Substances Act, 1985. The issue of handcuffing and fettering of undertrials was brought before the Supreme Court by journalist Kuldip Nayyar. The Court reiterated its earlier directions and declared that without the prior permission of the magistrate, the authorities would not force handcuffs or other fetters on a prisoner while lodged in a jail or in transit from one jail to another or to the Court: Citizens for Democracy v State of Assam (1995) 3 SCC 743.

 In a landmark judgement in D.K. Basu v State of West Bengal, the Court acted upon a letter petition in August 1986 by the Chairman of the Legal Aid Services, West Bengal, which drew attention to the repeated instances of custodial deaths in West Bengal. In this case the Court laid down the procedure to be followed by the police on the arrest of a person. It said:

Police is, no doubt, under a legal duty and has a legitimate right to arrest a criminal and to interrogate him during the investigation of an offence but the law does not permit use of third degree  methods or torture of the accused in custody during interrogation and investigation with a view to solve the crime. End cannot justify the means. … No society can permit it.

The Court further mandated that a relative of the arrested must be promptly notified and that police stations must prominently display the basic rights available to a detainee. The Court made it clear that failure to comply with this direction would be punishable as contempt of Court.

The early PILs had witnessed the award of compensation by the Court to victims of human rights violations.71 Later, in a custodial death case, the Court explained the jurisprudential basis for the award of compensation in writ jurisdiction as a remedy for constitutional tort. These principles were authoritatively reiterated in D.K. Basu’s case where the Court declared that:

Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 is a remedy available in public law since the purpose of public law is not only to civilize public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved.

During the troubled years of militancy in the state of Punjab there were several instances of encounter killings, some of which came to be examined in the Supreme Court. In September 1991, it directed the investigation of the encounter killings in Pilibhit by the Central Bureau of Investigation. The killing of lawyers practicing in the Punjab and Haryana High Court during this period formed the subject matter of two PILs and resulted in the Supreme Court directing a CBI investigation and payment of compensation to the families of the victims. In another PIL, on the basis of the CBI report which established that seventeen Punjab police personnel had been responsible for a custodial death, the Court awarded compensation of Rs.2 lakhs to the parents of a victim (Ranjeet Kumar v Secretary, Home, State of Punjab 1996 (2) SCALE SP-51).

The concern of the Court has also extended to the victims of crime. In Delhi Domestic Working Women’s Forum v Union of India  1994 (4) SCALE 608  the Court was concerned with the rape of innocent tribal girls by Army jawans in a moving train between Ranchi and Delhi and ordered an ex-gratia payment of Rs.10,000 to each of the victims. The Court recognised the trauma of the rape victims and set out the parameters for providing legal assistance to
them at various stages.

V

PILs and Environment Problems.

The area in which PIL’s contribution has been significant is environmental law. M.C. Mehta, as a petitioner in person, was a pioneer in bringing a larger number of issues to the Court concerning environmental and eco-logical degradation. These included the issues arising out of the leak of oleum gas from a factory in Delhi, pollution in Delhi,[ M.C. Mehta v Union of India (1987) 1 SCC 395] the danger of the Taj Mahal from the Mathura refinery[Ibid (1997) 8 SCC 770], regulation of traffic in Delhi, [1996 (1) SCALE SP-22] and the degradation of the Ridge area in Delhi in M.C. Mehta v Union of India (1997) 11 SCC 227, 312 and 327.

The Court’s engagement with these matters has resulted in activating the statutory machinery established under various environmental laws. The Court’s activism in this area has, however, also attracted criticism. For instance, when the Court ordered the closure of industries, it neither heard all the industries affected nor their workmen before passing the order. This has resulted in these parties approaching of Court with a series of interlocutory applications, taking up an inordinate amount of the Court’s time, even while leaving the aggrieved parties dissatisfied [Indian Council for Enviro-Legal Action v Union of India (1996) 5 SCC 281].

The Court has also been involved in the protection of the fragile Coastal Regulation Zone in S. Jagannath v Union of India (1997) 2 SCC 87 and regulating the growth of shrimp farms dotting the coastline. The dangers of unchecked industrialization has compelled the Court to come down heavily on industry and develop the ‘polluter pays’ principle. This principle has been applied in the cases concerning shrimp farms in Vellore Citizens’ Welfare Forum v Union of India (1996) 5 SCFC 647 and tanneries in Indian Council for Enviro-Legal Action v Union of India (1996) 3 SCC 212, chemical industries in Rajasthan and Andhra Pradesh, and distillery units in Tamil Nadu, each of which were found discharging untreated effluents into water bodies or the soil. The Court has adopted the practice of keeping these cases on its board to effectively monitor compliance with its directions. By such monitoring, the Court has ensured that a polluting unit is reopened only after it has satisfactorily installed pollution control devices. The Court has also insisted on reparations at the cost of the pollutant and restoration of the damaged environment.

The other principle the Court has evolved is the ‘precautionary principle’ which enjoins the State to anticipate the dangers of the use of hazardous technology. In Vellore Citizens Welfare Forum v Union of India,the Court was dealing with the problem of pollution caused by over 900 tanneries operating in five districts of Tamil Nadu. The Court noticed that the leather industry was a major foreign exchange earner and Tamil Nadu’s export of finished leather accounted for 80 per cent of the country’s export of that commodity. Nevertheless, the Court pointed out that the leather industry ‘has no right to destroy the ecology, degrade the environment and pose a health hazard. It cannot be permitted to expand or even continue with the present production unless it tackles by itself the problem of pollution created by the said industry’. The Court then drew on the concept of sustainable development, balancing ecology and development which had become part of customary international law. Among the essential features of sustainable development are the ‘Precautionary Principle’ and the ‘Polluter Pays Principle’. The Precautionary Principle meant that the environmental measures taken by the state authorities ‘must anticipate, prevent and attack the causes of environmental degradation’. Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a person for postponing measures to prevent environmental degradation. The onus of proof was on the actor or industrialist to show that this action was environmentally sound. The Court pointed out that these principles had been accepted as part of the environmental law of the country. The Court gave extensive directions, including a direction to the central government to constitute an authority under section 3(3) of the Environment (Protection) Act, 1986. Each polluting industry was asked to pay a ‘Pollution Fine’ of Rs.10,000, which was to be kept under a separate ‘Environment Protection Fund’, to be utilised to compensate the affected persons as identified by the authorities and also for restoration of the damaged environment. The units which were shut down by the Court would be permitted to reopen only after they had set up effluent treatment plants to the satisfaction of the

Pollution Control Board after obtaining its consent. The Court further directed that the matter be dealt with by the Madras High Court by a special Bench, to be known as The Green Bench.

The Court undertook a similar exercise in relation to the pollution caused to the soil and ground water in a village in Jodhpur by five chemical industries which had been discharging untreated effluents into the soil. The Court in this case resurrected the rule of strict liability earlier laid down in the Oleum Gas Leak case and declared that once an activity was found to be hazardous, the person engaged in it was liable to make good the loss caused irrespective of whether or not he had taken reasonable care when engaged in it. The Court through a series of orders has also sought to ensure the supply of lead-free petrol through retail outlets in four major cities or deregistering old cars and compelling car manufacturers to switch over to higher internationally approved standards of manufacture.

While the courts have enforced pollution standards and sometimes even improved on them in PILs, their orders have given rise to issues involving worker’s rights. Whenever a polluting industry is shut down the people dependent on the industry, like the workmen and their families, are directly affected and are very often not heard before the closure is ordered. In Delhi alone, this has happened in the closure of the Idgah slaughterhouse,

VI

Misuse of PILs

Public interest litigation (PIL) was a revolutionary concept initiated with a laudable object. In the words of the Supreme Court of India, it was aimed at “fostering and developing the laudable concept of PIL and extending its long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go unnoticed, un-represented and unheard”.

This led to the dismantling of the traditional concept of locus standi. The courts could be approached by persons espousing the case of the underprivileged, who were by themselves not in a position to access the courts. The rules of procedure in technicalities were loosened, justice became flexible and the courts became accessible. As a result, one has seen a surge in public causes being taken up in various the High Courts as well as in the Supreme Court. The use of public interest litigations in matters pertaining to the environment, including clear air and preservation of forests, has led to dramatic and palpable improvements in the environment.

In the last few years, there have been serious concerns about the use and misuse of public interest litigations and these concerns have been expressed at various levels. The time has come for a serious re-examination of the misuse of public interest litigation.

This misuse comes in various forms. The first is what Justice Pasayat in the case of Ashok Kumar Pandey v. State of W.B. described as “busybodies, meddlesome interlopers, wayfarers or officious interveners who approach the court with extraneous motivation or for glare of publicity”. Such litigation is described as “publicity interest litigation” and the courts have been fraught with such litigation. How else would one describe a public interest litigation filed for “reliefs” such as that the higher judiciary would be provided with private planes and special transport? A petition to this effect was filed by a lawyer practicing in U.P. As could be expected, it was summarily rejected, but not before the gentleman had his day in the sun, however momentary it was. Examples of this kind of litigation are innumerable. No sooner has an event of public interest or concern occurred than there is a race to convert the issue into a PIL.

Public Interest or Political

The tragedy is that while on most occasions the court sees through the motivation of such petitioners and such litigants, in several cases it is not so. It would be unfortunate if the reason why petitions are not thrown out is because of the resulting headlines that orders in such petitions generate.

Then, we have the misuse of PILs by political interests. In the case of S.P. Gupta v. Union of India, Justice Bhagwati said;

“…But we must be careful to see that the member of the public, who approaches the court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The court must not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain a political objective. Andre Rabie has warned that ‘political pressure groups who could not achieve their aims through the administrative process’ and we might add, ‘through the political process, may try to use the courts to further their aims’. These are some of the dangers in public interest litigation which the court has to be careful to avoid.”

This was reiterated by Justice Pandian in the case of Janata Dal v. H.S. Chowdhary and Others, as under:


             “It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have a locus standi and can approach the court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly, a vexatious petition under the colour of PIL brought before the court for vindicating any personal grievance, deserves rejection at the threshold.”

 

In a series of judgments, Justice Pasayat has reiterated these principles. This principle was accepted and taken further in Rajiv Ranjan Singh v. Union of India, in which Justice Lakshmanan held that PILs were not meant to advance political gain and settle political scores under the guise of PIL.

Despite the clearest possible statement of law on the point, courts are nevertheless entertaining public interest litigations which are clearly political interest litigations.

Hidden Litigants Call the Shots

The third and equally disturbing aspect is the misuse of PIL by hidden litigants. This is happening in all sorts of matters; rival business groups are settling scores by resort to PILs. Persons who describe themselves as “public spirited persons” and others as “social organisations” spring up overnight to canvass these causes. A case in point is the judgment of Chief Justice Sabharwal in TN Godavarman Thirumaulpad v. Union of India. Following the decision in Janata Dal’s case, and Justice Pasayat and Justice Kapadia’s decision in Dattaraj Nathiji Thauvare v. State of Maharashtra, the learned judges observed that howsoever genuine a cause brought before a court by a public interest litigant may be, the court has to decline its examination at the behest of a person whose bona fides and credentials are in doubt.

The misuse of public interest litigation will stop only if the courts are vigilant. In every matter, the first question that the courts must ask themselves is whether the petitioners are bona fide, whether the concern of the petitioner is real or whether there is something more than meets the eye. I am not suggesting that all public interest litigations should be viewed with suspicion; far from it. Justice P B Savant (who retired as a judge of the Supreme Court) once told me that a judge should develop a strong sense of smell. If something stinks, then he must be extra careful. It is the right judicial instinct and the skill of the judiciary which will stop the misuse of public interest litigations and restore it to its pristine and useful character.

VII

Conclusion:

Bearing in mind the power and importance of PIL in making the Constitution a living reality for a large number
of citizens, it is important to view these criticisms as indicators of the safeguards and checks that the Court must now build into its PIL jurisprudence. To allow public perception against PIL to fester would erode its credibility and that of the judiciary itself. In the words of Chief Justice J.S. Verma[Justice J.S. Verma: ‘The Constitutional Obligation of the Judiciary’, R.C. Ghiya Memorial Lecture, (1997)7 SCC (Journal) 1 at 7]:

“The need is to prevent misuse of PIL and not to criticise the process. And this is what the Courts will have to do so that misuse of PIL is prevented and proper use of it has not to be blunted. Every innovation takes time to get into proper shape. Any attempt to curb it would be to throw the baby with the bath water. It is primarily for the Courts who devised this procedure to practice self-restraint and to also devise proper checks and balances to ensure that even persons who want to misuse it are not able to do so.”

PIL is thus a double edged sword:

The power of the Court to entertain any circumstance that may hinder societal growth, or may cause hardship to a class of individuals is not uninhibited. It is carefully regulated with tight reins, and cases of public interest are taken up only after rigorous scrutiny. For instance, in a case wherein a challenge was made to the Government of India's telecommunication policy, the Supreme Court refused to entertain the matter on the ground that it purely concerned a question of policy. Similarly, public interest litigations that have sought to prohibit the sale of liquor or the recognition of a particular language as a national language, or the introduction of a uniform civil code, have been rejected on the ground that these were matters of policy and were beyond the ambit of judicial scrutiny.

At the time of admitting matters in the form of Public Interest Litigation (PIL), the Courts have to carefully consider whether or not they are overstepping their domain. Upon considering the issues at hand, they must then consider whether the orders they intend to pass can be realistically implemented. Judges must also be attuned to the fact that inconsistencies in the observations made by different Courts with respect to the same set of issues, can add to administrative difficulties. There is also a need to keep a watch on the abuse of process by litigants so as to avoid a situation where such cases occupy a disproportionate extent of the Courts' working time. Justice S.P. Barucha has expressed the need for caution in the following words:

"This court must refrain from passing orders that cannot be enforced, whatever the fundamental right may be and however good the cause. It serves no purpose to issue some high profile mandamus or declaration that can remain only on paper. It is counter- productive to have people say ‘The Supreme Court has not been able to do anything' or worse. It is of cardinal importance to the confidence that people have in the Court that its orders are implicitly and promptly obeyed and is, therefore, of cardinal importance that orders that are incapable of obedience and enforcement are not made.”

______________________________________________________________________________________

Soumyadeb Sinha (5th yr.)

Department of Law, Calcutta University (Hazra Campus). 

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