33

2 (i) HISTORICAL PROSPECTUS OF PIL

Emergence of Public Interest Litigation has motivated the judicial system

to extend its protection to new social, public and group interest.

An inscription on the wall of Harvard Law School Library which has been

taken from Justivians reads as ‗Institute says honest vivera, honalienum leaders,

scum unique tridure‘ which means that the precepts of the law are those to live

honourably, not to injustice another to understand his due.

The whole congeries of operation cantons against a misleading reduction of

ethical problem involved in reaching judgement of social justice.40

Earlier, back into the horizons of law and justice in the west, the great

Judaieo Christian, Greek and Roman tradition concerned themselves with

theorising and explaining law. But the traditional and the medieval and post

medieval successors were free of such concern. They rather focussed on one or

both of the two very different concerns. One of these concerns which has survived

into modern analytical jurisprudence, has its main point in facilitating on the

vision of the logical coherence of the several prepositions and part of a legal order

and on fixing the definition of forum used and the presuppositions which will

maximize such coherence.

Executive delves into the modern problems of electing the representative,

the right of the citizen, in other words the human right made in a politically

organized society or the integrity of the personality of this organized society or its

political institution.

40

Source justice and Law, from on Law judiciary poul ..

34

The seed of the concept of Public Interest Litigation were initially shown in

India by Krishna Iyer, J. In 1976 (without assigning the terminology) in Mumbai

Kamgar Sabha v/s Abdulbhai,41

he while disposing an industrial dispute in

regard to the payment of bonus, has observed (Para 7 of AIR):

"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 whom 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 part. Where a foul play is absent and fairness is not faulted

latitude is a grace of processional justice. Test litigations, representative action,

pro-bono public 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 by-pass the real issues on the merits by suspect

reliance on peripheral procedural short-comings. Even Article 226, viewed on

wider perspective, may be amenable to ventilation of collective or common

grievances, as distinguished from assertion of individual rights, although the

traditional view, view backed by precedents has opted for the narrower

alternative. 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."42

41

(1976) 3 SCC 832: AIR 1976 SC 1455. 42

Janta Dal v. H.S. Chowdhary, AIR 1993 SC 892 at p. 906, 907, 908 : 1993 Cri LJ 600: 1993

SCC (Cri) 36: (1992) 3 Crimes 199 : (1992) 4 SCC 305 (Del) (S. Ratnavel Pandian and K.

Jayachandra Reddy, JJ.).

35

In Fertilizer Corporation Kamgar Union v/s Union of India,43

the

terminology "public interest litigation" was used. In that decision, Krishna Iyer, J.

Delivering his opinion for Bhagwati, J. (as he was the learned Chief Justice then)

and himself used the expression 'epistolary' jurisdiction. However, this rule on

gaining momentum burgeoned more and more, expanding its branches in the

cosmos of public interest litigation and took its root firmly in the Indian Judiciary

and fully blossomed with fragrant smell in S.P. Gupta v/s Union of India.44

Rule of Law is an integral part of a democratic society, where citizen's

rights are taken care of by an independent and impartial judiciary. 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.

However in recent years the whole adjudicatory system has become pray to

dilatory and expensive process takes a heavy toll on a poor citizen's right of easy

access to justice. In the recent era, there has been a tremendous increase in the

government's power and responsibilities mainly because the Indian State is a

welfare state which entails a host of executive inferences in various walks of

human life and which leaves no corner of an individual's life untouched. Due to

this unprecedented changes in socio-economic and political aspects of the

governance of the country, the judiciary too has kept pace with it and has assumed

several new responsibilities and jurisdictional so for unheard of. The realization

by the judiciary of this new developments executive's increasing inference in to

daily lives, and ever increasing circumscription of people's access to justice have

led them to adopt less formal procedures and circumvent the nuances of

technicalities of the litigation processes. The most significant of them was the

liberalization of the doctrine of locus standi.

43

(1981) 2 SCR 52 : AIR 1981 SC 344. 44

AIR 1982 SC 149.

36

―Injustice anywhere is a threat to justice everywhere.‖ - MARTIN LUTHER

KING. Jr.

The term ―Public Interest Litigation‖ originated in the United States in the

mid 1980s. The phrase ‗public law litigation‘ was first prominently used by

American academic, Abram Chayes, to describe the practice of lawyers or public

spirited individuals who seek to precipitate social change through court ordered

decrees that reform legal rules, enforce existing laws and articulate public

norms.45

Since the nineteenth century, various movements in that country had

contributed to public interest law, which was part of the legal aid movement. The

first legal aid office was established in New York in 1876. In the 1960s the public

interest litigation movement began to receive financial support from the office of

Economic Opportunity. This encouraged lawyers, public spirited persons to take

up cases of the under-privileged fight against dangers to environment and public

health as well exploitation of consumers and the weaker sections.

It should be noted at outset 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, the PIL is concerned at

providing access to justice to all societal constituents. PIL in India has been a part

of the constitutional litigation and not civil litigation.46

Therefore, in order to

appreciate the evolution of Public Interest Litigation in India, it is desirable to

45

Abraham Chaves, ―The Role of the Judge in Public Law Litigation‖, Harvard Law Review,

Vol.89, 1976, p.1281 46

The Indian Code of Civil Procedure though allows for class action: ord.1 r.8 of the Code of

Civil Procedure 1908. Furthermore, s.91 of the Code provides: ‗‗In the case of a public nuisance

or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and

injunction or for such other relief as may be appropriate in the circumstances of the case, may be

instituted . . . with the leave of the Court, by two or more persons, even though no special damage

has been caused to such persons by reason of such public nuisance or other wrongful act.‘‘

37

have a basic understanding of the constitutional framework and the Indian

judiciary47

. After gaining independence from the British rule on August 15, 1947,

the people of India adopted the Constitution in November 1949 with the hope to

establish a ‗‗sovereign, socialist, secular, democratic, republic.‖48

Among others,

the Constitution aims to secure to all its citizens justice (social, economic and

political), liberty (of thought, expression, belief, faith and worship) and equality

(of status and of opportunity)49

. These aims were not merely inspirational because

of the fact that the founding fathers wanted to achieve a social revolution through

the Constitution.50

The main tools employed to achieve such social change were

the provisions on fundamental rights (FRs) and the directive principles of state

policy (DPs), which Austin described as the ‗‗Conscience of the Constitution‘‘.51

In order to ensure that Fundamental Rights did not remain empty

declarations, the founding fathers made various provisions in the Constitution to

establish an independent judiciary. As we will see below, provisions related to

Fundamental Right‘s, Directive Principle‘s and independent judiciary together

provided a firm constitutional foundation for the evolution of Public Interest

Litigation in India. Part III of the Constitution lays down various FRs and also

specifies grounds for limiting these rights. ‗‗As a right without a remedy does not

47

Sheetal B. Shah, ‗‗Illuminating the Possible in the Developing World: Guaranteeing the Human

Right to Health in India‘‘ (1999) 32 Vanderbilt Journal of Transnational Law 435, 463. 48

Constitution of India 1950 Preamble. Although the terms ‗‗socialist‘‘ and ‗‗secular‘‘ were

inserted by the 42nd amendment in 1976, there were no doubts that the Constitution was both

socialist and secular from the very beginning 49

Constitution of India 1950, Preamble.

50 Granville Austin, The Indian Constitution: Cornerstone of a Nation, 1966, Oxford: Clarendon

Press, p.27. ‗‗The social revolution meant, ‗to get (India) out of the medievalism based on birth,

religion, custom, and community and reconstruct her social structure on modern foundations of

law, individual merit, and social education‘.‘‘ (Austin, Cornerstone of a Nation, p.26, quoting K.

Santhanam, a Member of the Constituent Assembly.)

51 Granville Austin, Indian Constitution: Cornerstone of a Nation, p.50

38

have much substance‘‘,52

the remedy to approach the Supreme Court directly for

the enforcement of any of the rights enshrined under part III has also been made a

Fundamental Right.53

The holder of the Fundamental Right‘s cannot waive

them.54

Nor can the fundamental rights be curtailed by an amendment of the

Constitution if such curtailment is against the basic structure of the Constitution.

Some of the Fundamental Right‘s are available only to citizens55

while others are

available to citizens as well as non-citizens56

, including juristic persons. Notably,

some of the Fundamental Right‘s are expressly conferred on groups of people or

community.57

Not all Fundamental Right‘s are guaranteed specifically against the

state and some of them are expressly guaranteed against non-state bodies.58

Even

52

M.P. Jain, ‗‗The Supreme Court and Fundamental Rights‘‘ in S.K. Verma and Kusum (eds),

Fifty Years of the Supreme Court of India—Its Grasp and Reach, 2000, Oxford University Press,

New Delhi, pp.1, 76.

53 Art.32, Constitution of India, 1950.

54 Basheshar Nath v. CIT AIR 1959 SC 149; Nar Singh Pal v. Union of India AIR 2000 SC

1401.

55 For example, Constitution art.15(2) (right of non-discrimination on grounds only of religion,

race, caste, sex, place of birth or any one of them to access and use of public places, etc.); art.15(4)

(special provision for advancement of socially and educationally backward classes of citizens or

the scheduled castes and the scheduled tribes); art.16 (equality of opportunity in matters of public

employment); art.19 (rights regarding six freedoms); art.29 (protection of interests of minorities).

56 For example, Constitution art.14 (right to equality); art.15 (1) (right of non-discrimination on

grounds only of religion, race, caste, sex, place of birth or any one of them); art.20 (protection in

respect of conviction of offences); art.21 (protection of life and personal liberty); art.22 (protection

against arrest and detention); art.25 (freedom of conscience and right to profess, practice and

propagate religion).

57 E.g. Constitution Arts. 26, 29 and 30.

58 Austin cites three provisions, i.e. Constitution arts 15(2), 17 and 23 which have been ‗‗designed

to protect the individual against the action of other private citizen‘‘: Austin, Cornerstone of a

Nation, p.51. However, it is reasonable to suggest that the protection of even arts 24 and 29(1)

39

the ‗‗state‘‘ is liberally defined in Article 12 of the Constitution to include, ‗‗the

Government and Parlaiment of India ,The Government and the legislature of each

of the states and all local or other authorities within the territory of India or under

the control of the Government of India‘‘.

The expression ‗‗other authorities‘‘ has been expansively interpreted, and

any agency or instrumentality of the state will fall within its ambit.59

The

Directive Principles (DPs) find a place in Part IV of the Constitution. Although

the DPs are not justiciable60

, they are, ‗‗nevertheless fundamental in the

governance of the country and it shall be the duty of the state to apply these

principles in making laws‘‘.61

After initial deviation62

, the Supreme Court accepted that Fundamental

Rights (FRs) are not superior to Directive Principless on account of the latter

being non-justiciable: rather FRs and DPs are complementary and the former are a

could be invoked against private individuals. See also Vijayashri Sripati, ‗‗Toward Fifty Years of

Constitutionalism and Fundamental Rights in India: Looking Back to See Ahead (1950–2000)‘‘

(1998) 14 American University International Law Review, 413, 447–448.

59 AjayHasia v. Khalid Mujib AIR 1981 SC 487; Pradeep Kumar v. Indian Institute of

Chemical Biology (2002) 5 S.C.C. 111. In the application of the instrumentality test to a

corporation, it is immaterial whether the corporation is created by or under a statute. Som

Prakash Rekhi v. Union of India AIR 1981SC 212.

60 The FRs are judicially enforceable whereas the DPs are unenforceable in the courts. For the

relevance of this difference, see Mahendra P. Singh, ‗‗The Statics and the Dynamics of the

Fundamental Rights and the Directive Principles—A Human Rights Perspective‘‘ (2003) 5 SCJ 1.

61 Art.37, Constitution of India, 1950.

62 State of Madras v. Champakam Dorairajan AIR 1951 SC 226.

40

means to achieve the goals indicated in the latter.63

The issue was put beyond any

controversy in Minerva Mills Ltd. v/s Union of India64

where the Court held

that the, ‗‗harmony and balance between fundamental rights and directive

principles is an essential feature of the basic structure of the Constitution‘‘.65

Since then the judiciary has employed DPs to derive the contents of various

Fundamental Right‘s.66

The founding fathers envisaged ‗‗the judiciary as a bastion of rights and

justice‘‘.67

An independent judiciary armed with the power of judicial review was

the constitutional device chosen to achieve this objective. The power to enforce

the Fundamental Right‘s was conferred on both, the Supreme Court and the

various High Court‘s68

—the courts that have entertained all the PIL cases. The

judiciary can test not only the validity of laws and executive actions but also of

constitutional amendments. It has the final say on the interpretation of the

Constitution and its orders, supported with the power to punish for contempt, can

reach everyone throughout the territory of the country. Since its inception, the

Supreme Court has delivered judgments of far-reaching importance involving not

63

CB Boarding and Lodging v. State of Mysore AIR 1970 SC 2042; Kesvananda Bharti v.

State of Kelala AIR 1973 SC 1461; Minerva Mills Ltd. v. Union of India AIR 1980 SC 1789;

Unni Krishnan v. State of AP (1993) 1 S.C.C. 645. See also Rajiv Dhavan, ‗‗Republic of India:

The Constitution as the Situs of Struggle: India‘s Constitution Forty Years On‘‘ in Lawrence W.

Beer (ed.), Constitutional Systems in Late Twentieth Century Asia (Seattle: University of

Washington Press, 1992), pp.373, 382–383, 405 and 413–416.

64 AIR 1980 SC 1789, 1806.

65 Ibid.

66 Jain M.P., ‗‗The Supreme Court and Fundamental Rights‘‘ in Verma and Kusum (eds), Fifty

Years of the Supreme Court of India, pp.65–76.

67 Austin, Cornerstone of a Nation, p.175.

68 Arts. 32 and 226, Constitution of India, 1950.

41

only adjudication of disputes but also determination of public policies and

establishment of rule of law and constitutionalism.69

The germination of the PIL was initially shown in India by Justice Krishna

Iyer in 1976 in Mumbai Kamgar Sabha v/s Abdulbhai.70

In that judgment

Justice Iyer did not use the terminology ‗pubic interest litigation‘. But in

Fertilizer Corporation Kamgar Union v/s Union of India71

the terminology

‗pubic interest litigation‘ was used by Justice Iyer. In this judgment he used the

expression „Epistolary jurisdiction‟. The hon‘ble Supreme Court held that the

procedure had to be relaxed to meet the ends of justice.

The public interest litigation is the product of realisation of the

constitutional obligation of the court. All these petitions are filed under the big

banner of the public interest litigation. In view of this matter, it has become

imperative to examine what are the contours of the public interest litigation? What

is the utility and importance of the public interest litigation? Whether similar

jurisdiction exists in other countries or this is an indigenously developed

jurisprudence? Looking to the special conditions prevalent in our country,

whether the public interest litigation should be encouraged or discouraged by the

courts? These are some of the questions which I would endeavour to discuss in

this study. The public interest litigation is an extremely important jurisdiction

exercised by the Supreme Court and the High Courts. The Courts, in a number of

cases, have given important directions and passed orders which have brought

69

See, for an analysis of some of the landmark judgments delivered by the Apex Court during

these years, Gobind Das, ‗‗The Supreme Court: An Overview‘‘ in B.N. Kirpal et al. (eds),

Supreme but not Infallible: Essays in Honour of the Supreme Court of India, 2000, Oxford

University Press, New Delhi, pp.16–47.

70 AIR 1976 SC 1455.

71 Supra 2 at p.344.

42

positive changes in the country. The Courts‘ directions have immensely benefited

marginalized sections of the society in a number of cases. It has also helped in

protection and preservation of ecology, environment, forests, marine life, wildlife

etc. The courts‘ directions to some extent have helped in maintaining probity and

transparency in the public life.

The Supreme Court while exercising its jurisdiction of judicial review

realized that a very large section of the society, because of extreme poverty,

ignorance, discrimination and illiteracy, had been denied justice for time

immemorial and in fact they had no access to justice. Predominantly, to provide

access to justice to the poor, deprived, vulnerable, discriminated and marginalized

sections of the society, this court has initiated, encouraged and propelled the

public interest litigation. The litigation is upshot and product of this courts‘ deep

and intense urge to fulfil its bounded duty and constitutional obligation.

The High Court‘s followed the Supreme Court and exercised similar

jurisdiction under Article 226 of the Constitution of India. The courts expanded

the meaning of right to life and liberty guaranteed under Article 21 of the

Constitution of India. The rule of locus standi was diluted and the traditional

meaning of ‗aggrieved person‘ was broadened to provide access to justice to a

very large section of the society which was otherwise not getting any benefit from

the judicial system. I would like to term this as the first phase or the golden era of

the public interest litigation. I would briefly deal with important cases decided by

Supreme Court in the first phase after showing the expansion to the definition of

‗aggrieved person‘.

The first reported case of public interest litigation in 1979 focused on the

inhuman conditions of prisons and under trial prisoners. The PIL was filed by an

advocate on the basis of the news item published in the Indian Express,

43

highlighting the plight of thousands of under trial prisoners languishing in various

jails in Bihar. These proceeding led to the release of more than 40,000 under trial

prisoners. As a result, right to speedy justice emerged as a basic fundamental right

which had been denied to these prisoners.72

The Supreme Court held in Akhil Bharatiya Soshit Karamchari Sangh

(Railway) (Supra)73

that our current position of jurisprudence is not of

individualistic Anglo Indian mould. It is broad-based and people-oriented, and

envisions access to justice through ‗class actions‘, ‗public interest litigation‘, and

‗representative proceedings‘. Indeed, Indians seeking remedies in large numbers

in courts through collective proceedings, instead of being driven to an expensive

plurality of litigations, is an affirmation of participative justice in our democracy.

We have no hesitation in holding that the narrow concepts of ‗cause of action‘,

‗person aggrieved‘ and individual litigation are becoming obsolescent in some

jurisdictions.

In another case Bandhua Mukti Morcha v. Union of India and

Others,74

the SC entertained a petition even of unregistered Association

espousing the cause of bonded labour of its members observing that the cause of

weaker sections can be espoused by any person having no interest in the matter.

In the said case, this court further held that where a public interest litigation

alleging that certain workmen are living in bondage and under inhuman

conditions is initiated, it is not expected of the Government that it should raise

preliminary objection that no fundamental rights of the petitioners or the

workmen on whose behalf the petition has been filed, have been infringed. On the

72

Hussainara Khatoon v. State of Bihar AIR 1979 SC 1360 73

Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India and Others AIR

1981 SC 317 74

Bandhua Mukti Morcha v. Union of India and Others AIR 1984 SC 802

44

contrary, the Government should welcome an inquiry by the Court, so that if it is

found that there are in fact bonded labourers or even if the worKels are not

bonded in the strict sense of the term, as defined in the Bonded Labour Abolition

Act, 1976 but they are made to provide forced labour or any consigned to a life of

utter deprivation and degradation, such a situation can be set right by the

Government. Public interest litigation is not in the nature of adversary litigation

but it is a challenge and an opportunity to the government and its officers to make

basic human rights meaningful to the deprived and vulnerable sections of the

community and to assure them social and economic justice which is the signature

tune of our Constitution. The Government and its officers must welcome public

interest litigation because it would provide them an occasion to examine whether

the poor and the downtrodden are getting their social and economic entitlements

or whether they are continuing to remain victims of deception and exploitation at

the hands of strong and powerful sections of the community and whether social

and economic justice has become a meaningful reality for them or it has remained

merely a teasing illusion and a promise of unreality, so that in case the complaint

in the public interest litigation is found to be true, they can in discharge of their

constitutional obligation root out exploitation and injustice and ensure to the

weaker sections their rights and entitlements.

Judicial Activism: The expression `Judicial Activism' signifies the

anxiety of courts to find out appropriate remedy for the aggrieved by formulating

a new rule to settle the conflicting questions in the event of lawlessness or

uncertain laws. The Judicial Activism in India can be witnessed in the form of the

review power of the Supreme Court under Article 32 High Court power under

Article 226 of the Constitution particularly in Public Interest Litigation.

45

Earlier, in England there were two kinds of courts namely, the Equity Courts

(Court of Chancery) and Common Law Courts. Equity Courts used to decide

cases by applying the principles of equity, justice and good conscience. Whereas

the common law courts used to decide cases based on common law i.e. the

principles' rules evolved by the judge; during judicial pronouncements. Hence, the

common law is also known as the 'Judge-made-law:' the courts of Equity /

Chancery played significant role in formulating the new piles of tart. The

common law originated in England was spread in British colonies including India.

In India, almost all laws have originated from the fair Common law. In the

absence of existing rules for relief in certain cases and predictive procedure, the

court of equity or chancery took the initiative to draw up new rules. 'The new

rules to settle the conflicting positions that had arisen in certain cases are called

'Judicial Activism'. The equity court and common law courts were merged with

the passing of the Judicature Act, I875.

Judicial Activism in India: The significant feature of Indian Constitution

is partial separation of powers. The doctrine of separation of powers was

propounded by the French Jurist Contesqeu. It is partly adopted in India since the

executive powers are vested in the president, legislative powers in the Parlaiment

and the Judicial Powers in the Supreme Court and subordinate courts. Although

the role of separation of powers in India is simple, it is a unique example all over

the world. The three organs of the Government viz. the Executive, Legislature and

the Judiciary are not independent but inter-dependently independent. (The

executive encroaches upon judicial power, while appointing the judges of

Supreme Court and High Courts. Similarly the Judiciary, by its review power

examines the law passed by ‗file legislature parliament‘ and the legislature also

intervenes in respect of impeachment of the president).

46

As stated earlier, the Judicial Activism in India can be witnessed with

reference to the review power of the Supreme Court under Article 32 of the

Constitution, particularly in Public interest litigation cases. The Supreme Court

played crucial role in formulating several principles in public interest litigation

cases. For instance, the principle of "absolute liability" was propounded in Oleum

Gas Leak case, Public Trust Doctrine in Kamalnath Case75

etc.

Further, the Supreme Court gave variety of guidelines in various cases of

public interest litigation. E.g.: Ratlam Municipality Case, Oleum Gas Leak

Case, Ganga Pollution Case etc.

Public Interest Litigation and Judicial Activism: Public interest litigation or

social interest litigation today has great significance and draws the attention of all

concerned. The traditional rule of "Locus Standi" that a person, whose right is

infringed alone can file a petition, has been considerably relaxed by the Supreme

Court in its recent decisions. Now, the court permits public interest litigation at

the instance of public spirited citizens for the enforcement of constitutional or

legal rights. Now, any public spirited citizen can move/approach the court for the

public cause (in the interests of the public or public welfare) by filing a petition

in:

1. Supreme Court under Art.32 of the Con stitution;

2. High Court under Art.226 of the Constitution; and

3. The Court of Magistrate under Sec.133 and 200 Cr . P . C.

75

1998 I SCC 388

47

Justice Krishna Iyer in Fertilizer Corporation Kamgar Union v/s Union of

India76

(1981) enumerated the following reasons for liberalization of the rule of

Locus Standi:-

1. Exercise of State power to eradicate corruption may result in unrelated

interference with individuals' rights.

2. Social justice wants liberal judicial review administrative action.

3. Restrictive rules of standing are antithesis to a healthy system of administrative

action.

4. ―Activism is essential for participative public justice".

Therefore, a public minded citizen must be given an opportunity to move

the court in the interests of the public.

Further, the Supreme Court in S.P. Gupta v/s Union of India77

, popularly

known as ―Judges‘ Transfer Case‖, Bhagwati J. firmly established the validity of

the public interest litigation. Since then, a good number of public interest

litigation petitions were filed.

Judicial moulding of standing, procedure, substance and relief

Two judges of the Supreme Court of India (Bhagwati and Iyer JJ.)78

prepared the groundwork, from mid-1970s to early 1980s, for the birth of Public

Interest Litigation in India. This included modifying the traditional requirements

of locus standi, liberalising the procedure to file writ petitions, creating or

76

1981 AIR 344, 1981 SCR (2) 52 77

AIR 1982 SC 149 78

These two judges headed various committees on legal aid and access of justice during 1970s,

which provided a backdrop to their involvement in the PIL project. See Jeremy Cooper, ‗‗Poverty

and Constitutional Justice: The Indian Experience‘‘ (1993) 44 Mercer Law Review 611, 614–615.

48

expanding fundamental rights, overcoming evidentiary problems, and evolving

innovative remedies.79

Modification of the traditional requirement of standing was sine qua non

for the evolution of Public Interest Litigation and any public participation in

justice administration. The need was more pressing in a country like India where a

great majority of people were either ignorant of their rights or were too poor to

approach the court. Realizing this need, the Court held that any member of public

acting bona fidely and having sufficient interest, has a right to approach the court

for redressal of a legal wrong, especially when the actual plaintiff suffers from

some disability or the violation of collective diffused rights is at stake. Later on,

merging representative standing and citizen standing, the Supreme Court in S.P.

Gupta v Union of India held80

: ‗‗Where a legal wrong or a legal injury is caused

to a person or to a determinate class of persons by reason of violation of any

constitutional or legal right and such person or determinate class of persons is by

reasons of poverty, helplessness, or disability or socially or economically

disadvantaged position, unable to approach the Court for any relief, any member

of the public can maintain an application for an appropriate direction, order or

writ.‘‘

79

See Cooper, ‗‗Poverty and Constitutional Justice‘‘ (1993) 44 Mercer Law Review 611, 616–

632; See Shah, ‗‗Illuminating the Possible in the Developing World‘‘ (1999) 32 Vanderbilt

Journal of Transnational Law 435, 467–473; Vijayashri Sripati, ‗‗Human Rights in India Fifty

Years after Independence‘‘ (1997) Denver Journal of International Law and Policy 93, 118–125.

80 Gupta v Union of India (1981) Supp S.C.C. 87, 210. See also PUDR v Union of India AIR

1982 SC 1473; Bandhua Mukti Morcha v Union of India (1984) 3 S.C.C. 161.

49

The court justified such extension of standing, in order to enforce rule of

law and provide justice to disadvantaged sections of society.81

Furthermore, the

Supreme Court observed that the term ‗‗appropriate proceedings‘‘ in art.32 of the

Constitution82

does not refer to the form but to the purpose of proceeding: so long

as the purpose of the proceeding is to enforce a fundamental right, any form will

do.83

This interpretation allowed the Court to develop epistolary jurisdiction by

which even letters or telegrams were accepted as writ petitions.84

Once the

hurdles posed by locus standi and the procedure to file writ petitions were

removed, the judiciary focused its attention on providing a robust basis for

pursuing a range of issues under Public Interest Litigation. This was achieved by

both interpreting existing fundamental rights widely and by creating new

fundamental rights. Article 21 says that ‗‗no person shall be deprived of his life or

personal liberty except according to the procedure established by law‘‘ proved to

be the most fertile provision to mean more than mere physical existence85

; it

‗‗includes right to live with human dignity and all that goes along with it‘‘.86

81

It is suggested that the way a judge applies the rule of standing corresponds to how she sees her

judicial role in the society. Aharon Barak, ‗‗Foreword: A Judge on Judging: The Role of a

Supreme Court in a Democracy‘‘ (2002) 116 Harvard Law Review 16, 107–108.

82 ‗‗The right to move the Supreme Court by appropriate proceedings for the enforcement of the

rights contained in this Part is guaranteed.‘‘ Constitution of India 1950 Art.32(1).

83 Shukla V.N.,Singh M.P. (ed.), Constitution of India, pp.278–279.

84 For example, Sunil Batra v. Delhi Administration AIR 1980 SC 1579; Dr Upendra Baxi v.

State of UP (1982) 2 S.C.C. 308.

85 Kharak Singh v. State of UP AIR 1963 SC 1295; Sunil Batra v. Delhi Administration (1978)

4 S.C.C. 494; Olga Tellis v. Bombay Municipal Corp AIR 1986 SC 180; Francis Coralie v.

Union Territory of Delhi AIR 1981 SC 746; Bandhua Mukti Morcha v. Union of India AIR

1984 SC 802; Consumer Education and Research Centre v. Union of India (1995) 3 S.C.C.

42; Bodhisattwa Gautam v. Subhra Chakraborty (1996) 1 S.C.C. 490; Visakha v. State of

50

Ever-widening horizon of article 21 is illustrated by the fact that the court

has read into it, inter alia, the right to health, livelihood, free and compulsory

education up to the age of 14 years, unpolluted environment, shelter, clean

drinking water, privacy, legal aid, speedy trial, and various rights of under-trials,

convicts and prisoners. It is important to note that in a majority of cases the

judiciary relied upon Directive Principles for such extension. The judiciary has

also invoked article 21 to give directions to government on matters affecting lives

of general public or to invalidate state actions or to grant compensation for

violation of fundamental rights. The final challenge before the Indian judiciary

was to overcome evidentiary problems and find suitable remedies for the public

interest litigation plaintiffs. The Supreme Court responded by appointing fact-

finding commissioners and amicus curiae.87

As in most of the PIL cases there

were no immediate or quick solutions, the Court developed ‗‗creeping‘‘

jurisdiction thereby issuing appropriate interim orders and directions.88

The

judiciary also emphasized that public interest litigation is not an adversarial but a

collabourative and cooperative project in which all concerned parties should work

together to realize the human rights of disadvantaged sections of society.89

The Three Phases of Public Interest Litigation

Rajasthan AIR 1997 SC 3011. In some of these cases the Court has relied upon the observation

of Justice Field in Munn v. Illinois 94 US 113.

86 Francis Coralie v. Union Territory of Delhi AIR 1981 SC 746, 753.

87 See Ashok H. Desai and S. Muralidhar, ‗‗Public Interest Litigation: Potential and Problems‘‘ in

Kirpal et al., Supreme but not Infallible, pp.159, 165–167. The Court also held that the power to

appoint commissioners is not constrained by the Code of Civil Procedure or the Supreme Court

Rules.

88 Baxi, ‗‗Taking Suffering Seriously‘‘ (1985) Third World Legal Studies 107, 122

89 Sathe, Judicial Activism in India, pp.207–208, 235–237.

51

At the risk of over-simplification and overlap, the public interest litigation

discourse in India could be divided, in my view, into three broad phases.37

One

will notice that these three phases differ from each other in terms of at least the

following four variables: first, who initiated public interest litigation cases;

second, what was the subject matter/focus of public interest litigation; third,

against whom the relief was sought; and fourth, how judiciary responded to PIL

cases.

In the first phase which began in the late 1970s and continued through the

1980s, the Public Interest Litigation cases were generally filed by public-spirited

persons (lawyers, journalists, social activists or academics). Most of the cases

related to the rights of disadvantaged sections of society such as child labourers,

bonded labourers, prisoners, mentally challenged, pavement dwellers, and

women. The relief was sought against the action or non-action on the part of

executive agencies resulting in violations of fundamental rights under the

Constitution. During this phase, the judiciary responded by recognising the rights

of these people and giving directions to the government to redress the alleged

violations. In short, it is arguable that in the first phase, the Public Interest

Litigation truly became an instrument of the type of social

transformation/revolution that the founding fathers had expected to achieve

through the Constitution.

The second phase of the Public Interest Litigation was in the 1990s during

which several significant changes in the chemistry of PIL took place. In

comparison to the first phase, the filing of PIL cases became more

institutionalized in that several specialized NGOs and lawyers started bringing

matters of public interest to the courts on a much regular basis. The width of

issues raised in PIL also expanded tremendously—from the protection of

52

environment to corruption-free administration, right to education, sexual

harassment at the workplace, relocation of industries, rule of law, good

governance and the general accountability of the Government. It is to be noted

that in this phase, the petitioners sought relief not only against the action/non-

action of the executive but also against private individuals, in relation to policy

matters and regarding something that would clearly fall within the domain of the

legislature. The response of the judiciary during the second phase, was by and

large, much bolder and unconventional than the first phase. For instance, the

courts did not hesitate to come up with detailed guidelines where there were

legislative gaps. The courts enforced fundamental rights against private

individuals and granted relief to the petitioner without going into the question of

whether the violator of the fundamental right was the state. The courts also took

non-compliance with its orders more seriously and in some cases, went to the

extent of monitoring government investigative agencies and/or punishing civil

servants for contempt of failing to abide by their directions. The second phase was

also the period when the misuse of PIL not only began but also reached to a

disturbing level, which occasionally compelled the courts to impose fine on

plaintiffs for misusing public interest litigation for private purposes.

It is thus apparent that in the second phase the PIL discourse broke new

grounds and chartered on previously unknown paths in that it moved much

beyond the declared objective for which public interest litigation was meant. The

courts, for instance, took resort to judicial legislation when needed, did not

hesitate to reach centres of government power, tried to extend the protection of

fundamental rights against non-state actors, moved to protect the interests of the

middle class rather than poor populace, and sought means to control the misuse of

public interest litigation for ulterior purposes.

53

On the other hand, the third phase, the current phase, which began with

the 21st century, is a period in which anyone could file public interest litigation

for almost anything. It seems that there is a further expansion of issues that could

be raised as PIL, e.g. calling back the Indian cricket team from the Australian tour

and preventing an alleged marriage of an actress with trees for astrological

reasons. From the judiciary‘s point of view, one could argue that it is time for

judicial introspection and for reviewing what courts tried to achieve through PIL.

As compared to the second phase, the judiciary has seemingly shown more

restraint in issuing directions to the government. Although the judiciary is

unlikely to roll back the expansive scope of Public Interest Litigation, it is

possible that it might make more measured interventions in the future.

One aspect that stands out in the third phase deserves a special mention. In

continuation of its approval of the government‘s policies of liberalization in Delhi

Science Forum, the judiciary has shown a general support to disinvestment and

development policies of the Government.38

What is more troublesome for

students of the PIL project in India is, however, the fact that this judicial attitude

might be at the cost of the sympathetic response that the rights and interests of

impoverished and vulnerable sections of society (such as slum dwellers and

people displaced by the construction of dams) received in the first phase. The

Supreme Court‘s observations such as the following, also fuel these concerns:

‗‗Socialism might have been a catchword from our history. It may be present in

the Preamble of our Constitution. However, due to the liberalization policy

adopted by the Central Government from the early nineties, this view that the

Indian society is essentially wedded to socialism is definitely withering away.‘‘

It seems that the judicial attitude towards PIL in these three phases is a response,

at least in part, to how it perceived to be the ‗‗issue(s) in vogue‘‘. If rights of

prisoners, pavement dwellers, child/bonded labourers and women were in focus in

54

the first phase, issues such as environment, AIDS, corruption and good

governance were at the forefront in the second phase, and development and free

market considerations might dominate the third phase. So, the way the courts have

reacted to PIL in India is merely a reflection of what people expected from the

judiciary at any given point of time.

2 (ii) EVOLUTION OF PIL IN INDIA

‗Public Interest Litigation‘ (PIL) has a uniquely American development, the use

of term PIL to cover the efforts to provide legal representation to unrepresented

groups and interests, goes back no further then mid 1960s.

The funding by private foundations led to the rapid development of public

interest litigation, during the late 1960s. During 1972-75, the Foundations and

private contributions provided 74% of PIL funding while 22% came from

Government and 1% from fee awards.

If we look back to earlier period, the real genesis of Public Interest

Litigation can be traced to back to the legal aid movement. In United States, an

organized Legal Aid Movement for the poor began in 1876 with the setting up of

an organization for providing Legal Aid for the then fresh arrived immigrants by

the German Society of New York.

The objective behind legal aid is the presumption that in every society

there are individuals who are unable to participate in the legal system. Therefore it

is of cardinal importance for the system of justice and society to provide such

individuals voluntary services of advocates. In its earlier phase the Legal Aid

Movement was virtually tottering but soon the idea of collective social

responsibility started catching on which paved the way for the emergence of

philosophy on the Bars to provide Channel for the underrepresented masses to

55

secure access to Justice Administration. In this regard a lot of credit has to go to

Regnald Heber Smith, an advocate with the Boston Legal Aid Society, who

published the work, ―Justice and the Poor‖ which paved the way for such

landmark developments. This work gave a major thrust in this direction by

shaping the Idea Legal Aid by not merely through a philanthropic drive but rather

with a well organized programme with a distinct objective of affixing the idea of

collective social responsibility of the Bar.

The Second Stage of the development of the Legal Aid Movement was

marked by a fairly organized form of Legal Aid Programme, where completely

independent law firms distinct from an ordinary business motivated law firm,

devoted itself solely towards legal aid programme, where lawyers worked full

time on the problems of the clients. However it was different from a pure

charitable organization, as under this an advocate did not have to treat Public

Interest Service as an uneconomic enterprise rather an otherwise lucrative

commercial practice, which can be surely termed, as a watershed development.

2. (iii) CONSTITUTIONAL HABITAT OF PUBLIC INTEREST

LITIGATION AND ITS DEVELOPMENT

Public Interest Litigation emerged on the landscape of constitutional disputation

in India soon after the emergency (1975-77)90

. India had for centuries, been

governed by feudal structures of polity and social values and a stratified order of

time-endorsed hierarchical systems. Under the British rule, such structures had

become the foundation on which a colonial regime could be developed and

nurtured. Thus when India gained independence and adopted a homegrown

political system, the Constitution gave pride of place to the new philosophy of

90

R. Dhavan, ‗Law as a struggle: Public Interest Law in India‖, 36 JILI 302(1994).

56

human rights91

and to the obligation of the State to provide a social and economic

structure which promised human welfare, happiness and development92

. As the

values of the new order percolated through the Indian society, assertive citizens

and activist groups in the social sphere began raising demands that the Indian

government establishes conditions ensuring an improved quality of life for its

people. With some 800 million (now more than 1.30 billion) people living amidst

perhaps the most formidable diversity of languages, cultures, religions, economic

inequalities, a sea of aspirations, expectations and hopes soon swept over the

country. Not surprisingly, neither the Parlaiment, nor the Executive was able to

respond adequately to those manifold demands. The citizens then turned to the

judiciary and that constituted the beginning of PIL. In India, it can also be traced

to the insistence by the executive throughout the seventies that the judges and the

courts should be committed ‗explained as committed to the Constitution‘ and the

promise of progress and justice within it. Through PIL, judges have shown their

'commitment' to the oath that they take to defend the Constitution though the

executive did not have this kind of 'commitment' in view; at the same time, it

cannot repudiate it publicly.

Tracing the development of PIL in India, Pandian, J. in Janata Dal‘s93

case

observed:

―The seeds of the concept of PIL were initially shown in India by Krishna

Iyer, J. in 1976 while disposing an industrial dispute who observed ―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 to

whom law will be an added terror if technical mis-descriptions and deficiencies in

91

The Constitution in Part 111 incorporates detailed provisions conferring Fundamental Rights on

the people of India. 92

More specifically the Part of the Constitution dealing with Directive Principles of State Policy. 93

Janata Dal v. H.S. Choudhary (1992) 4 SCC 305.

57

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 processual 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 by-pass the real issues on the merits by suspect reliance on

peripheral procedural shortcomings. Even Article 226, viewed on wider

perspective, may be amenable to ventilation of collective or common grievances,

as distinguished from assertion of individual rights.‖94

Later Bhagwati, J. (as he then was) in one of his articles observed,

―The judiciary has to play a vital and important role not only in

preventing and remedying abuse and misuse of power but also in eliminating

exploitation and injustice.... During the last three to five years however Judicial

Activism has opened up a new dimension for the judicial process and has given

new hope to the justice-starved millions of India‖.95

2. (iv) CONSTITUTIONAL HABITAT OF JUDICIAL

ACTIVISM AND PIL

In the Indian Constitutional scheme, provisions are there for the enforcement of

the Fundamental Rights with Article 32 i.e. Right to Constitutional Remedies

itself being a Fundamental Right. This Article reads:

Right to Constitutional Remedies

32. Remedies for enforcement of rights conferred by this Part.-

94

SCALE (PIL) 325 at 328 95

P.N. Bhagwati, ―Social Action Litigation: The Indian Experience‖, Rote of the Judiciary in

Plural Societies, (1987).

58

(1) The right to move the Supreme Court by appropriate proceedings for the

enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs,

including writs in the nature of habeas corpus, mandamus, prohibition, quo

warranto and certiorari whichever may be appropriate, for the enforcement of

any of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clauses

(1) and (2), Parlaiment may by law empower any other court to exercise

within the local limits of its jurisdiction all or any of the powers exercisable

by the Supreme Court under clause (2).

(4) The right guaranteed by this article shall not be suspended except as

otherwise provided for by this Constitution.

Further Article 226 confers power on High Courts to issue writs in the

nature of ‗mandamus, certiorari, prohibition, habeas corpus and quo warranto‘

besides directions or orders for protection and enforcement of fundamental rights

and for any other purpose. The Supreme Court and recently even the various High

Courts have taken the initiative in playing a positive role in espousing the cause of

the poor, indigent, under-trials, prisoners, women, bonded labourers, in protecting

the environment and soon.96

PIL is now firmly rooted in Articles 14 and 21 of the

Constitution. The Supreme Court has given a new dimension to Right to Equality

under Article 14 under which ‗Article 14 does not embody merely the theory of

classification of persons and things‘ but is a ‗dynamic concept having an activist

magnitude‘.97

According to Justice P.N. Bhagwati who propounded the new

96

See infra. 97

Supra 20 at p.30.

59

approach first in E.P. Royappa98

and further developed it in Maneka Gandhi99

,

RD. Shetty100

, Kasturilal Reddy101

and Ajay Hasia102

observed, ―Article 14 strikes

at arbitrariness in state action and ensures fairness and equality of treatment. The

principle of reasonableness, which logically as well as philosophically, is an

essential element of equality or non arbitrariness, pervades Article 14 like a

brooding omnipresence.‖103

And further:

―Wherever there is arbitrariness in State action whether it be of the

legislature or of the executive or of an ―authority‖ under Article 12,

Article 14 immediately springs into action and strikes down such State

action.‖104

The Court has read the requirement of reasonableness in all laws and

actions affecting personal liberty. This has been the result of a ‗reinterpretation‘

of Article 21 of the Constitution that states, ―No person shall be deprived of his

life or personal liberty except according to procedure established by law‖.

Beginning with Maneka Gandhi's case 105

in 1978, the court by a gradual process

of interpretation has for all practical purposes introduced the concept of ‗Due

Process of Law‘ of the American Constitution in the expression ‗Procedure

established by Law‘ in the Article.106

―Life has been given a recondite meaning to

mean ―not merely animal existence or continued drudgery through life but the

98

EP. Royappa v. State of Tamil Nadu AIR 1974 SC 555: (1974)4 SCC 3. 99

Maneka Gandhi v. Union of India AIR 1978 SC 597: (1978) 1 SCC 248. 100

R.D. Shetty v. International Airport Authority AIR 1979 SC 1628: (1979)3 SCC 489. 101

Kasturi Lal. v. State of Jamnu and Kashmir AIR 1980 SC 1992: (1980)4 SCC 1. 102

Ajay Hasia v. Khalid Mujib AIR l98l SC 487: (1981)1 SCC 722. 103

Supra 33 at 624 pg.56. 104

Supra 36, p.741, para16. 105

Supra 33. 106

Admitted candidly in Rajen Dwivedi v. Union of India AIR 1983 SC 624.

60

finer graces of human civilization that makes life worth living.‖107

It has come to

encompass violation of various Directive Principles of State Policy in the

Constitution, some of which have been read as constituting rights under Article 21

for instance the right to education.108

In Bandhua Mukti Morcha case,109

Bhagwati, J. held that Central Government and State of Haryana could be

obligated by writ petition under Article 32 of the Constitution to ensure

observance of various social welfare and labour laws as inaction on the part of

the state in securing their implementation ―would amount to denial of the right to

live with human dignity enshrined in Article 14.‖110

According to Prof. Sathe, Public Interest Litigation does not mean merely

litigation through writ petitions111

. There has been PIL even in lower courts. An

instance of this is provided by Municipal Corporation, Ratlam v/s

Vardhichand112

. In this case, the residents of a locality within the local limits of

Ratlam Municipality tormented by stench and stink caused by open drains and

public excretion by nearby slum dwellers moved the magistrate under Section 133

of the Criminal Procedure Code, 1973 to motivate the municipality to do its duty

of removing such nuisance which it owed to the public. The magistrate ordered

the municipality to draft a plan for removing the nuisance within six months. The

magistrate‘s order was approved by the Supreme Court. Here the residents were

allowed to move for removal of nuisance, though there was no specific individual

with specific injury to the petitioner. This case recognizes that collective actions

in public interest would be in order.

107

Board of Trustees, Port of Bombay v. D.R. Nadtarni (1983)1 SCC 124. 108

J.P. Unnikrishnan v. State of Andhra Pradesh (1993)1 SCC 645; Infra Chapter III. 109

Bandhua Mukti Morcha v. Union of India AIR 1984 SC 802: (1984)3 5CC 161. 110

Ibid, p.812, para 10. 111

S.P. Sathe, Administrative Law, 381. 112

AIR 1980 SC 1622.

61

Through an expansive interpretation of the provisions of the Constitution,

the courts through Public Interest Litigation have and are continuing to play an

important role in the context of making rights meaningful to the disadvantaged

and weaker sections of the people as well as those cases where no one could be

expected to be directly interested. An important step towards the achievement of

these magnificent results has been the expansion of the category of the

respondents by the application of the Doctrine of State Action. This doctrine has

its origin in USA and originated nearly a century after the adoption of its

Constitution. In interpreting the word ‗State‘ in the ‗due process‘ and ‗equal

protection‘ clauses of the 14th amendment to the American Constitution, the

Supreme Court held that it included all the organs and acts of the State —

legislative, executive and judicial113

and then its ‗agents‘ i.e. persons who acted in

the name of and for the State or is clothed with the powers of the State114

or

endowed with governmental functions.115

The essence of the doctrine is that the

State cannot get rid of constitutional limitations or restraints by simply delegating

its powers or functions to some private individual or group; hence, a person who

acts as the agent or the instrumentality of the State, he must be subject to the same

limitations, such as the Fundamental Rights, that the Constitution imposes on the

State itself. The doctrine would apply not only to an agent of the State, but even a

lessee from the agent, if the involvement or participation of the State (even by

inaction) in the lessee‘s acts, is established.116

In India, the application of this doctrine has been much easier because

most of the Fundamental Rights included in Part III of the Constitution are

113

Strauder v. West Virginia (1879) 100 US 303.

114 Ex parte Virginia (1880) 100 US 339; Home Telephone Co. v. Los Angeles (1913) 227 US

278. 115

Evans v. Newton (1966) 382 US 296. 116

Burton v. W.P.A. (1961)365 US 715.

62

addressed to the ‗State‘. Part III starts with the definition of the word ‗State‘ in

Article 12 which includes ‗other authorities‘. By a liberal interpretation of the

word ‗authority‘, the Court has made the Fundamental Rights enforceable against

numerous bodies, when they might be regarded as ‗agency‘ or ‗instrumentality‘ of

the State, by applying certain tests laid down by the Court where:

a) It is clothed with statutory power.117

b) The Government exercises control over the management and policies of

the private body.118

c) It has been granted monopoly of a business by the State.119

d) It exercises functions which would normally be performed by the State.120

e) The authority has been set up for administering a statute121

or where

statutory duties are imposed on it?122

f) Where the company is owned or substantially given financial assistance by

the Government.123

But a recent Constitutional Bench decision122

has in an obiter held that all

American decisions under the ‗State action‘ doctrine may not be applicable to

India, owing to different social conditions and even where a private corporation

becomes an agency of the State under Article 12, its private activities which have

no social impact may not be subject to the constitutional limitation of fundamental

117

Rajasthan State Electricity Board v. Mohan AIR 1967 SC 1856. 118

Sukhdev v. Bhagatram AIR l975 SC 1331. 119

C.I.W.C. v. Brojo AIR 1986 SC 1371. 120

R.D. Shetty v. I.A.A.I. AIR 1979 SC 1628; Ajay Hasia v. Khalid Mujib AIR 1981 SC 487. 121

S.RT.C. v. Devraj AIR 1976 SC 1027 pr.14; Ujjam Bai v. State of Uttar Pradesh (1963) 1

5CR 778. 122

L.1.C v. Escorts AIR 1986 SC 1370 pr. 100. 123

Workmen v. F.C.I AIR 1986 SC 670 pr. 16, 17.

63

rights. However this observation has in no way whittled down the application of

this doctrine in India.

Public Interest Litigation furthers the rule of law which forms the basic

structure of the Constitution. Rule of law demands equal access to justice for all

and PIL helps in creating a rule of law society. The courts have achieved these

results by various innovations and development of procedural laws to suit the

requirements of this strategy. As observed by Justice Bhagwati, ―it is necessary to

make procedural innovations in order to meet the challenges posed by this new

role of an active and committed judiciary. The committing judiciary in India,

keenly alive to its social responsibility and accountability to the people of the

country, has liberated itself from the shackles of Western thought, made

innovative use of the power of judicial review, forged new tools, devised new

methods and fashioned new strategies for the purpose of bringing justice for

socially and economically disadvantaged groups.‖

2(v) EVOLUTION OF PIL IN OTHER JUDICIAL SYSTEMS

NAMELY, U.S.A. AND U.K

Public Interest Litigation in U.S.A. today has fallen into troubled water

and future prospects of progress are uncertain. The most striking of the

impediments was the inevitable financial crunch caused by runaway inflation and

lukewarm backing of likeke Non-Governmental Organizations societies and other

private support bases.

Further the bleak future prospects of the public interest career has forced

the outstanding lawyers to make their ways out of this mess, as has been dubbed

by most of the people involved in this part of the profession. The government

funded Legal Aid programmes so as to cover other public interest litigation

64

activities as had been anticipated. The compensation, the courts of attorney‘s

awards in Public Interest Litigation cases too were extremely limited in its scope.

After Supreme Court‘s decisions in 1975 in Alyeska Pipeline‟s case which

circumscribed the opportunity for obtaining such fees in the Udall Courts as is

required where there is specific statutory authority but later miner relief‘s were

granted. However the decision remains more or less undisturbed.

Trubek has made a very incisive assessment of the development of Public

Interest Litigation in America in the 1960s. It was a period of social fervent in

which challenges to many laws were advanced and reforms were proposed and

tried. Public Interest Litigation was one such reform. Proponents spoke of

―balancing the scales of justice by equalizing the resource available to organized

and unorganized groups.

However, the interest in probono work by Lawyers and Law Firms has

continuously declined. As mentioned earlier the scenario had completely changed

in the USA in the late 1970s and the very conditions, which led to its growth

earlier, no longer existed. The ware has partially recorded, if it has not completely

ebbed.

Tnibek have notable observations in this regard. Courts have issued

numerous orders favouring the public interest lawyer‘s clients. However often

courts orders proved difficult to enforce, as they required continued monitoring of

numerous field level decision. And often the courts in the end, shied away from

direct confrontation with agency decisions. Moreover public interest lawyers

found themselves at a distinct disadvantage in decision making process. While

they were always able to make persuasive arguments for their clients, they lacked

the ability to stay with the issues which required years to resolve, and which

ultimately involve action in a series of areas, ranging from the courts to the

65

legislatures. However valid the idea of advocacy equalization may be the scope of

activities it entails proved to be far beyond the capabilities of most public interest

firms.

From the ongoing discussion it becomes quite clear that the nomenclature

of Public Interest Litigation has been actually given to a conglomeration of

various moments endeavoring to put to great use the law and the legal services.

The major thrust of this movement has been to ensure that citizens whose lives

may be affected by the governmental policies have a right to participate in the

formulations of these policies. The courts and administrative agencies that shape

implement and enforce these policies should be open and accessible to the views

of those citizens who may be affected by such actions and decisions.

However one notable thing about Public Interest Litigation is that it is not

only concerned with obtaining beneficial results for the major chunk of the

society but at the same time it seeks cooperation in carrying out the objectives of

the movement by way of actual participation. However at its peak, the movement

had to reconcile the conflicting aspects of the phenomenon it had created or the

forces it had unleashed. While on one hand, the groups involved in the movement

had to bring as many issue as possible before the courts so as to render maximum

participation of the affected sections of populace, though not necessarily of the

disadvantaged section of the society, it also had to be kept in mind that over

proliferation of Public Interest Litigation cases may be bad as it leads to

overburdening of the traditional adjudicatory system. Therefore the time

nonmusical in each litigation whether successful or not is kept at the lower side.

PIL lawyers in America have their share of successes to boast of but the dark side

of the whole phenomenon is not less pronounced socially in the stage of its

development or so as to say in its post full blooms era. Though, all these losses

are a reflection of the incompetence or at the most, indifference of the concerned

66

lawyers, as in many cases seem especially in a few recent instances. Judicial

attitude too has played its role to the detriment of the cause of the movement

which need not be much emphasized as it is too apparent. We can perceive the

fact that even in cases where the Public Interest Litigation advocates have lost;

they have done an exemplary service to the entire legal system, by at least

attempting to assume that all interests are heard. And finally in cases where they

have come with resounding success, the Public Interest Litigation have casted its,

over bearing influence for all aspects of American life be it social, economic and

political in a positive manner.

a. United.Kingdom.

The use of Public Interest Litigation in United Kingdom (England) has

been comparably limited. The limited development in PIL has occurred by

broadening the rules of standing.

In Re. Reed, Bowen and Co. case,124

in order to facilitate vindication of

public interest, the English judiciary prescribed broad rules of standing. Under the

traditional rule of standing, judicial redress was only available to a ‗person

aggrieved‘ i.e. one ―who has suffered a legal grievance, a man against whom a

decision has been pronounced which has wrongfully deprived him of something

or wrongfully refused him something or wrongfully affected his title to

something.‖ However, the traditional rule no longer governs standing in the

English Courts.

One of the most distinguished and respected English judge Lord Denning

initiated the broadening of standing in the English courts with his suggestion that

124

(1887) 19 QBD 174.

67

the words person aggrieved are of wide import and should not be subjected to a

restrictive interpretation.125

The Blackburn Cases broadened the rule of standing in actions seeking

remedy through prerogative writs brought by individuals against public officials

for breach of a private right. (e.g., mandamus, prohibition and certiorari). Under

the Blackburn standard, ―any person who was adversely affected‖ by the action of

a government official in making a mistaken policy decision was eligible to be

granted standing before the Court for seeking remedy through prerogative

writs.126

In Blackburn II, the Court of Appeal found no defects in Blackburn's

standing to challenge the Government's decision to join a common market.127

In Blackburn III, the Court of Appeal granted standing to Blackburn to

seek a writ of mandamus to compel the Metropolitan Police to enforce laws

against obscene publications.128

English judiciary was hesitant in applying this

broadened rule of standing to actions seeking remedy through relator claims.

Relator claims are remedies brought by the Attorney General to remedy a breach

of a public right (e.g., declaration and injunction). Initially, Lord Denning

extended the broadened rule of standing in actions seeking remedy through

prerogative writs to actions seeking remedy through relator claims. In Attorney

General Exrel. Mc Whirter v/s Independent Broadcasting Authority,129

the

court stipulated that, ―in the last resort, if the Attorney-General refuses leave in a

proper case, or causes unreasonably delays in giving leave, or his machinery

125

Attorney-General of the Gambia v. Pierre Sarr N‟ Jie 1961 AC 617. 126

Regina v. Commissioner of Police of the Metropolis, Ex parte Blackburn (1968) 2 WLR 893

(―Blackburn I‖). 127

Blackburn v. Attorney-General (1971) 1 WLR 1037. 128

Regina v. Commissioner of Police of the Metropolis, Ex parte Blackburn (1973) 4 QB 241. 129

(1973) 3 QB 629

68

works too slowly, then a member of the public who has a sufficient interest can

himself apply to the court.‖ This rule was promptly overturned by the House of

Lords in Gouriet v/s Union of Post Office WorKels.130

In this case, the House of

Lords held that in relator claims, the Attorney General holds absolute discretion in

deciding whether to grant leave to a case. Thus, the English judiciary did not grant

standing to an individual seeking remedy through relator claims.

Finally, an amendment to the rules of the Supreme Court in 1978 through

Order 53, overcame the English judiciary's hesitation in applying a broadened rule

of standing in relation to relator claims. Order 53 applied the broadened rule of

standing to both actions seeking remedy through prerogative writs and actions

seeking remedy through relator claims. Rule 3(5) of Order 53 stipulates that the

Court shall not grant leave for judicial review ―unless it considers that the

applicant has a sufficient interest in the matter to which the applicant relates.‖

In Regina v/s Secretary of State for the Environment, Ex parte Rose

Theatre Trust Co.,131

the court elabourated that ―direct financial or legal interest

is not required to find sufficient interest‖. Thus, under the new rule of standing

embodied in Order 53, individuals can challenge actions of public officials if they

are found to have ―sufficient interest‖, now a flexible standard.

130

1978 AC 435 131

(1990) 1 QB 504