25

PUBLIC INTEREST

LITIGATION

SUBJECT: SOCIOLOGY

SUBMITTED TO: Dr. SANGEET

SUBMITTED BY: PIYUSH KUMAR

IstYEAR-2nd SEMESTER

ROLL NO.344

CHANAKYA NATIONAL LAW UNIVERSITY,

PATNA-800001

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TABLE OF CONTENTSPage(s)

1. Acknowledgement-------------------------------------------------------------------------

2. List of Abbreviations----------------------------------------------------------------------

3. Research Methodology--------------------------------------------------------------------

4. Introduction--------------------------------------------------------------------------------

5. Milestone of Public Interest Litigation------------------------------------------------

6. Public Interest Litigation as-------------------------------------------------------------

A boon

A abuse

7. Necessary Steps to be taken--------------------------------------------------------------

8. Social Change and Public interest litigation------------------------------------------

9. Concept of Public interest litigation----------------------------------------------------

10. Aspect of Public interest litigation-----------------------------------------------------

11. Features of Public interest litigation--------------------------------------------------

12. Public interest litigation as instrument of social change-------------------------

13. Conclusion---------------------------------------------------------------------------------

14. Bibliography------------------------------------------------- -----------------------------

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ACKNOWLEDGEMENT

It is my privilege to record my deep sense to perform gratitude to those who helped me in completion of

this project.

In making of this project many people helped me immensely directly or indirectly. First of all I

would like to thank Mr.Sangeet who had given me an idea and encouragement to making this project. I

would like also to thank my friends for being cordial in order to make conducive environment of the

CNLU Hostel.

Piyush Kumar

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LIST OF ABBREVIATIONS

1. AIR-All India Reporter

2. Art. – Article

3. Ch-Chapter

4. Ed. - Edition

5. Ex-Example

6. Govt.-Government

7. I.D-Industrial Dispute

8. MANU-Manupatra

9. Ors-Others

10. O.-Order

11. SC- Supreme Court

12. SCC-Supreme Court Cases

13. Sec.-Section

14. PIL – Public Interest litigation

15. USA-United States of America

16. PGA - People's Guerrilla Army

17. UNDP-United Nations Development Program

18. AICCCR-All India Coordination Committee of Communist Revolutionaries

19. MCC-Maoist Communist Centre

20. SDP- State Domestic Product

21. AOBSZC- Andhra-Orissa Border Special Zonal Committee

22. JBOBSZC- Jharkhand-Bihar-Orissa Special Zonal Committee

23. DSZC- Dandakaranya Special Zonal Committee

24. SAP- State Auxiliary Police

25. MI- Moisture index

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RESEARCH METHODOLOGY

Research Methodology is a systematized investigation to gain new knowledge about the

phenomena or problems. Legal phenomena require their own research methodology. The

research methodology applied here is doctrine method of research. The systematic investigation

of problems and of matters concerned with the topic “Public Interest Litigation” has been done.

The books in the library and materials available on the internet have been used to study the social

and behavioural phenomena of the topic and its verification. The main object of this legal

research is to gain familiarity with legal phenomena and to test and verify old facts to disguise

the weakness or merits of old legal aspects to analyze the facts into new theoretical frameworks.

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INTRODUCTION

Ladies and Gentlemen,

Over the last three decades or so, the device of Public Interest Litigation (PIL) has come

to be recognized as a characteristic feature of the higher judiciary in India. Even though Indian

courts cannot take credit for initiating the concept of ‘public law litigation’, they have in due

course emerged as the site where this device has been repeatedly used to protect the interests of

disadvantaged groups as well as address matters of collective concern. 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.1

However, the evolution of Public Interest Litigation (PIL) in India, or Social Action Litigation –

as Prof. Upendra Baxi chooses to describe it, has accommodated several other distinctive

features.

In this session, I will first summarise the core features of the Public Interest Litigation

(PIL) process and demonstrate how it marks a departure from the common-law understanding of

the judicial process. After that I will present an overview of the circumstances that led to the

introduction of this device which is clearly correlated to the ‘activist’ turn of the higher judiciary

in India. The next component will be devoted to a survey of some prominent decisions given in

Public Interest Litigation (PIL) cases and to conclude I will reflect on some of the strategies

adopted to streamline the institution of cases under this category.

Beginning with the first few instances in the late-1970’s, the category of Public Interest

Litigation (PIL) has come to be associated with its own ‘people-friendly’ procedure. The

foremost change came in the form of the dilution of the requirement of ‘locus standi’ for

initiating proceedings.

Since the intent was to ensure redressal to those who were otherwise too poor to move the courts

or were unaware of their legal entitlements, the Court allowed actions to be brought on their

1 See: Abram Chaves, ‘The role of the judge in Public Law litigation’, 89 Harvard Law Review

1281 (May 1976)

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behalf by social activists and lawyers.2 In numerous instances, the Court took suo moto

cognizance of matters involving the abuse of prisoners, bonded labourers and inmates of mental

institutions, through letters addressed to sitting judges. This practice of initiating proceedings on

the basis of letters has now been streamlined and has come to be described as ‘epistolary

jurisdiction’.

In Public Interest Litigation (PIL), the nature of proceedings itself does not exactly fit

into the accepted common-law framework of adversarial litigation. The courtroom dynamics are

substantially different from ordinary civil or criminal appeals. While an adversarial environment

may prevail in cases where actions are brought to highlight administrative apathy or the

government’s condonation of abusive practices, in most public interest-related litigation, the

judges take on a far more active role in terms of posing questions to the parties as well as

exploring solutions. Especially in actions seeking directions for ensuring governmental

accountability or environmental protection, the orientation of the proceedings is usually more

akin to collective problem-solving rather than an acrimonious contest between the counsels.

Since these matters are filed straightaway at the level of the Supreme Court or the High Court,

the parties do not have a meaningful opportunity to present evidence on record before the start of

the court proceeding. To overcome this problem, our Courts have developed the practice of

appointing ‘fact-finding commissions’ on a case-by-case basis which are deputed to inquire into

the subject-matter of the case and report back to the Court. These commissions usually consist of

experts in the concerned. In matters involving complex legal considerations, the Courts also

seek the services of senior counsels by appointing them as amicus curiae on a case-by-case

basis.3

For purposes of constitutional competence, these actions are characterized as those

coming under the writ jurisdiction of the Supreme Court of India under Article 32 of our

Constitution and the various High Courts, under Article 226. The traditional extent of writ

jurisdiction was of course a colonial inheritance from the British-era and the remedies that could

be invoked were those of habeas corpus, quo warranto, mandamus, prohibition and certiorari. 2 Refer: Susan D. Susman, ‘Distant voices in the Courts of India: Transformation of standing in

Public Interest Litigation’, 13 Wisconsin International Law Journal 57 (Fall 1994)3 See Ashok H. Desai & S. Muralidhar, ‘Public Interest Litigation: Potential and Problems’ in

B.N. Kirpal et. al. (eds.), Supreme but not Infallible (OUP, 2000) 159-192, at p. 164-167

25

However, the Indian Courts have pushed the boundaries of constitutional remedies by evolving

the concept of a ‘continuing mandamus’ which involves the passing of regular directions and the

monitoring of their implementation by executive agencies. In addition to designing remedies for

ensuring that their orders are complied with, the Courts have also resorted to private law

remedies such as injunctions and ‘stay’ orders in Public Interest Litigation (PIL) matters.4 The

Supreme Court of India has been able to shape appropriate remedies for a variety of situations on

account of the wide discretionary powers for granting constitutional remedies that have been

conferred on it as per the language of Article 32 of the Constitution. Furthermore, under Article

141 of the Constitution of India, the Supreme Court’s rulings are considered to be the ‘law of the

land’ and become binding precedents for all courts and tribunals in the country’s legal system.

Hence, the Supreme Court’s decisions in Public Interest Litigation (PIL) matters have

progressively shaped a unique jurisprudence that gives due weightage to the interests of the

underprivileged and backward sections in society. A significant consequence of this is that

creative remedies designed for particular fact-situations come to be widely reported and are

referred to by Courts all over the country. In this way, the rulings given in PIL cases create an

active judicial dialogue within the whole legal system.

The advent of Public Interest Litigation (PIL) is one of the key components of the

approach of ‘judicial activism’ that is attributed to the higher judiciary in India. The Courts’

interventions have played a pivotal role in advancing the protection of civil liberties, the rights of

workers, gender justice, accountability of public institutions, environmental conservation and the

guarantee of socio-economic entitlements such as housing, health and education among others.

This has not only strengthened the position of the judiciary vis-à-vis the other wings of

government, but has also raised its prestige among the general populace. However, this activist

disposition of the Courts also has its critics.

The principled criticism against Public Interest Litigation (PIL) is that it detracts from the

constitutional principle of ‘separation of powers’ by allowing the Courts to arbitrarily interfere

with policy-choices made by the legislature and pass orders that may be difficult for the

executive agencies to implement. In respect of practical considerations, the criticism revolves

around the behaviour of litigants as well as judges. From time to time, it has been urged that the 4 See: T.R. Andhyarujina, Judicial Activism and Constitutional Democracy in India (Bombay:

N.M. Tripathi, 1992)

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dilution of the requirement of ‘locus standi’ has opened up the floodgates for frivolous cases that

either involve the litigants’ private interests or are vehicles for gaining publicity rather than

seeking justice for disadvantaged groups.4 It is argued that in light of the increasing case-load

before the appellate judges, the PIL cases impose an additional ‘gate-keeping’ role and impede

efficiency. From the standpoint of the judges, it is reasoned that quite often there are no checks

against decisions or orders that amount to ‘judicial overreach’ or ‘judicial populism

While all of these criticisms have been offered by acclaimed scholars, senior practitioners

and sitting judges as well, there is a much more compelling case in defence of the use of Public

Interest Litigation (PIL). I would like to take this opportunity to present that defence. The main

rationale for ‘judicial activism’ in India lies in the highly unequal social profile of our

population, where judges must take proactive steps to protect the interests of those who do not

have a voice in the political system and do not have the means or information to move the

Courts. This places the Indian Courts in a very different social role as compared to several

developed nations where directions given by ‘unelected judges’ are often viewed as unjustified

restraints on the will of the majority. It is precisely this countermajoritarian function that needs to

be robustly discharged by an independent and responsible judiciary. At this point I would like to

recall an observation made in the matter of Bihar Legal Support Society v. The Chief Justice of

India & Ors5

“The majority of the people of our country are subjected to this denial of ‘access to

justice’ and overtaken by despair and helplessness, they continue to remain victims of an

exploitative society where economic power is concentrated in the hands of a few and it is used

for perpetuation of domination over large masses of human beings…… The strategy of public

interest litigation has been evolved by this Court with a view to bringing justice within the easy

reach of the poor and disadvantaged sections of the community.”

The ‘activist’ Turn of the Indian Judiciary

5 AIR 1987 SC 38

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Our judicial system is a very visible part of the inheritance from the British Raj. We continue to

rely on a sizeable body of statutory law and precedents from the colonial period, with the

exception of what is repugnant to our constitutional provisions. However, the framers of our

Constitution incorporated influences from several countries and adopted the idea of ‘judicial

review’ as opposed to the British notion of ‘Parliamentary sovereignty’.6 In India, the criteria for

the Courts to review governmental action is threefold – the fundamental rights enshrined in Part

III of the Constitution, the reasonableness of administrative actions and the demarcation of

legislative competence between the Union and the States. 6

However, the scope of this power of ‘judicial review’ was keenly contested throughout

the 1950’ and 1960’s, primarily over the question of the ‘right to property’. During that phase,

governments at both the Union level and most states enacted legislations providing for land

acquisition in order to advance the policy of agrarian land reforms. However, many of the large

landowners who were required to give up their holdings challenged these laws before the Courts

on grounds such as inadequate compensation among others. While the Nehru-led government

passed several Constitutional amendments with the objective of immunizing these land-reforms

measures against ‘judicial review’, the Courts frequently ruled in favour of the property-owners.

By the late 1960’s, this tussle between the Courts and the Congress Party controlled Parliament

turned into one between the idea of ‘judicial review’ on one hand and unqualified ‘parliamentary

sovereignty’ on the other hand.7 The Supreme Court itself was called upon to rule on the scope

6 There is an express provision for ‘judicial review’ in Article 13 of the Constitution of India.

Article 13(1) says that “all laws that were in force in the territory of India immediately before

the adoption of the Constitution, in so far as they are inconsistent with the provisions containing

the fundamental rights, shall, to the extent of such inconsistency, be void.” Article 13(2) further

says that “the states shall not make any law that takes away or abridges any of the fundamental

rights, and any law made in contravention of the aforementioned mandate shall, to the extent of

the contravention, be void.”7 For a brief commentary on the evolution of the doctrine of ‘judicial review’ in India, See: S.P.

Sathe, ‘Judicial Activism: The Indian experience’, 6 Washington University Journal of Law and

Policy 29 (2001)

25

of the Parliament’s power to amend the Constitution, and it evolved the ‘Basic Structure’

doctrine in the much-cited decision in Keshavananda Bharati v. State of Kerala.8 By a narrow

majority of 7-6 it was ruled that Parliament’s power of amendment was not absolute and it could

not amend the ‘Basic structure’ of the Constitution, which in the opinion of the judges consisted

of elements such as democracy, rule of law, secularism, separation of powers and judicial

review.9 The said decision did not curry favour with the Indira Gandhi-led government of the

day and three of the judges who ruled for the majority were superseded in the matter of

appointment to the position of Chief Justice of India in 1973. Nevertheless, the decision had

given a clear signal in defense of judicial independence.

Around the same time, there was an increasing realization on part of the sitting judges in

the Supreme Court that the judiciary was commonly perceived as an elitist body which would

dispense justice only to those who could afford it. Its pro-landowner decisions had also been

portrayed as an impediment to the land reforms programme by the incumbent executive

agencies. Recognising the need to engage with the egalitarian Constitutional philosophy, some

judges took the lead in raising concerns about improving access to justice for the

underprivileged. In a report on legal aid published in 1971, Justice P.N. Bhagwati had observed:

“Even while retaining the adversary system, some changes may be effected whereby the

judge is given a greater participatory role in the trial so as to place the poor, as far as possible,

on a footing of equality with the rich in administration of justice.”

The Committee on Judicare consisting of Justice V.R. Krishna Iyer and Justice Bhagwati

referred to Social Action Litigation as a supplemental tool to grassroots legal services

programmes, in their report published in 1977. Soon after, these two judges took the lead in

promoting the same by taking suo moto cognisance of matters on the basis of letters addressed to

them. However, before describing the use of PIL in some significant instances, it is important to

understand the other limb of the Indian judiciary’s ‘activist’ turn – i.e. a change in the

understanding of constitutional rights.

The most representative right that can be examined to illustrate this change is Article 21

of the Constitution of India. Article 21 reads as follows: “No person shall be deprived of his life

or personal liberty except according to procedure established by law.” The understanding of

Article 21 in the early years of the Supreme Court was that ‘personal liberty’ could be curtailed 8 (1973) 4 SCC 225

25

as long as there was a legal prescription for the same. In A.K. Gopalan’s case,11 the Supreme

Court had ruled that preventive detention by the state was permissible as long as it was provided

for under a governmental measure (e.g. legislation or an ordinance) and the Court could not

inquire into the fairness of such a measure. It was held that the words ‘procedure established by

law’ were different from the substantive ‘due process’ guarantee provided under the Fourteenth

amendment of the US Constitution. The framers of the Indian Constitution had consciously

chosen the expression ‘procedure established by law’ which requires a much lower threshold for

placing restraints on individual liberty. Noted scholar Granville Austin has speculated that this

pro-government orientation may have been prompted by the widespread communal violence that

had taken place around the time of partition. Furthermore, it is a well known fact that Shri B.N.

Rau, one of the principal draftsmen of our constitutional text had been advised about the

complications of incorporating a substantive ‘due process’ clause by none other than Justice

Felix Frankfurter.

This position prevailed for several years until it was changed in Maneka Gandhi’s case. In that

case, it was held that restraints on ‘personal liberty’ protected under Article 21 should also be

tested against the guarantees of non-arbitrariness, reasonableness and fairness that were implicit

in the language of Articles 14, 19 and 21 of the Indian Constitution. Article 14 mandates the

guarantee of ‘equal protection before the law’, while Article 19 enumerates the basic freedoms

available to citizens such as free speech, peaceful assembly, association, movement and pursuit

of livelihood. The Court developed a theory of ‘inter-relationship of rights’ to hold that

governmental action which curtailed either of these rights should meet the designated threshold

for restraints on all of them. In this manner, the Courts incorporated the guarantee of ‘substantive

due process’ into the language of Article 21. Many commentators have opined that this change in

the interpretation of Article 21 was prompted by the experience of the ‘internal emergency’

imposed between June 1975 and March 1977 – a period that was marked by the use of arbitrary

and unjust detention laws against the political opposition as well as thousands of ordinary

citizens.

The decision in Maneka Gandhi’s case9 proved to be a precursor to a series of decisions, wherein

the conceptions of ‘life’ and ‘personal liberty’ came to be interpreted liberally. Primarily through

9 Maneka Gandhi v. Union of India, AIR 1978 SC 597

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the vehicle of Public Interest Litigation, the Supreme Court has continued to expand the ambit of

Article 21 which now includes some guarantees for socio-economic entitlements which had not

been expressly enumerated as part of the fundamental rights in the Constitution. In the words of

Justice Bhagwati:

“we think that the right to life includes the right to live with human dignity and all that goes

along with it, namely the bare necessities of life such as adequate nutrition, clothing and

shelter over the head and facilities for reading, writing and expressing oneself in diverse

forms.” 10

Moreover, through innovative changes to the process for instituting proceedings, ascertaining

facts and granting discretionary remedies, the Indian Courts have stepped beyond their

traditional domain to render justice to women, children, bonded laborers and other oppressed

sections of society. Notably, the Supreme Court has affirmed that both the Fundamental Rights

enumerated in Part III of the Constitution and the Directive Principles enumerated in Part IV,

must be interpreted harmoniously. It was observed in the Kesavananda Bharati decision, that the

directive principles and the fundamental rights supplement each other and aim at the same goal

of bringing about a social revolution and the establishment of a welfare State. Furthermore, in

Unni Krishnan, J.P. v. State of Andhra Pradesh,, Justice Jeevan Reddy had declared:

“The provisions of Parts III and IV are supplementary and complementary to each other and

not exclusionary of each other and that the fundamental rights are but a means to achieve the

goal indicated in Part IV”.

This approach of harmonizing the fundamental rights and directive principles has been

successful to a considerable extent. For example, the Supreme Court has pointed to the

objectives of socio-economic entitlements in order to interpret the right to ‘life and personal

liberty’. For instance, in Olga Tellis v. Bombay Municipal Corporation, a journalist had filed a

petition on behalf of hundreds of pavement-dwellers who were being displaced due to

construction activity by the respondent corporation. The Court recognised the ‘right to livelihood

and housing’ of the pavement-dwellers as an extension of the protection of life and personal

liberty, and issued an injunction to halt their eviction. Similarly, in Parmanand Katara v. Union

of India, the Court articulated a ‘right to health’ when it ruled that no medical authority could 10 Cited from: Ashok Desai & S. Muralidhar, ‘Public Interest Litigation: Potential and Problems’

in B.N. Kirpal et. al. (eds.), Supreme but not infallible (OUP, 2000) 159-192, at p. 161

25

refuse to provide immediate medical attention in emergency cases. In numerous instances where

the Court’s intervention has been sought in environment-related matters, it has also referred to a

‘right to a clean environment’ emanating from Article 21. The Courts have also pointed to

Directive principles in interpreting the constitutional prohibitions against forced labour and child

labour

Milestones of Public Interest Litigation in India One of the earliest cases of public interest litigation was that reported as Hussainara Khatoon (I)

v. State of Bihar. This case was concerned with a series of articles published in a prominent

newspaper - the Indian Express which exposed the plight of undertrial prisoners in the state of

Bihar. A writ petition was filed by an advocate drawing the Court’s attention to the deplorable

plight of these prisoners. Many of them had been in jail for longer periods than the maximum

permissible sentences for the offences they had been charged with. The Supreme Court accepted

the locus standi of the advocate to maintain the writ petition. Thereafter, a series of cases

followed in which the Court gave directions through which the ‘right to speedy trial’ was

deemed to be an integral and an essential part of the protection of life and personal liberty.

Soon thereafter, two noted professors of law filed writ petitions in the Supreme Court

highlighting various abuses of the law, which, they asserted, were a violation of Article 21 of the

Constitution.20 These included inhuman conditions prevailing in protective homes, long

pendency of trials in court, trafficking of women, importation of children for homosexual

purposes, and the non-payment of wages to bonded labourers among others. the Supreme Court

accepted their locus standi to represent the suffering masses and passed guidelines and orders

that greatly ameliorated the conditions of these people.

In another matter, a journalist, Ms. Sheela Barse11, took up the plight of women prisoners

who were confined in the police jails in the city of Bombay. She asserted that they were victims

of custodial violence. The Court took cognizance of the matter and directions were issued to the

Director of College of Social Work, Bombay. He was ordered to visit the Bombay Central Jail

and conduct interviews of various women prisoners in order to ascertain whether they had been

subjected to torture or ill-treatment. He was asked to submit a report to the Court in this regard.

11 Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96

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Based on his findings, the Court issued directions such as the detention of female prisoners only

in designated female lock-ups guarded by female constables and that accused females could be

interrogated only in the presence of a female police official.

Public interest litigation acquired a new dimension – namely that of ‘epistolary

jurisdiction’ with the decision in the case of Sunil Batra v. Delhi Administration,12 It was

initiated by a letter that was written by a prisoner lodged in jail to a Judge of the Supreme Court.

The prisoner complained of a brutal assault committed by a Head Warder on another prisoner.

The Court treated that letter as a writ petition, and, while issuing various directions, opined that:

“…technicalities and legal niceties are no impediment to the court entertaining even an informal

communication as a proceeding for habeas corpus if the basic facts are found”.

In Municipal Council, Ratlam v. Vardichand,13 the Court recognized the locus standi of a

group of citizens who sought directions against the local Municipal Council for removal of open

drains that caused stench as well as diseases. The Court, recognizing the right of the group of

citizens, asserted that if the:

"…centre of gravity of justice is to shift as indeed the Preamble to the Constitution mandates,

from the traditional individualism of locus standi to the community orientation of public interest

litigation, the court must consider the issues as there is need to focus on the ordinary men."

In Parmanand Katara v. Union of India,14 the Supreme Court accepted an application by

an advocate that highlighted a news item titled "Law Helps the Injured to Die" published in a

national daily, The Hindustan Times. The petitioner brought to light the difficulties faced by

persons injured in road and other accidents in availing urgent and life-saving medical treatment,

since many hospitals and doctors refused to treat them unless certain procedural formalities were

completed in these medico-legal cases. The Supreme Court directed medical establishments to

provide instant medical aid to such injured people, notwithstanding the formalities to be followed

under the procedural criminal law.

12 (1978) 4 SCC 49413 (1980) 4 SCC 162

14 (1989) 4 SCC 286

25

In many other instances, the Supreme Court has risen to the changing needs of society

and taken proactive steps to address these needs. It was therefore the extensive liberalization of

the rule of locus standi which gave birth to a flexible public interest litigation system. A

powerful thrust to public interest litigation was given by a 7-judge bench in the case of S.P.

Gupta v. Union of India.15The judgment recognized the locus standi of bar associations to file

writs by way of public interest litigation. In this particular case, it was accepted that they had a

legitimate interest in questioning the executive’s policy of arbitrarily transferring High Court

judges, which threatened the independence of the judiciary. Explaining the liberalization of the

concept of locus standi, the court opined:

“It must now be regarded as well-settled law where a person who has suffered a legal

wrong or a legal injury or whose legal right or legally protected interest is violated, is unable to

approach the court on account of some disability or it is not practicable for him to move the

court for some other sufficient reasons, such as his socially or economically disadvantaged

position, some other person can invoke the assistance of the court for the purpose of providing

judicial redress to the person wronged or injured, so that the legal wrong or injury caused to

such person does not go unredressed and justice is done to him The unique model of public

interest litigation that has evolved in India not only looks at issues like consumer protection,

gender justice, prevention of environmental pollution and ecological destruction, it is also

directed towards finding social and political space for the disadvantaged and other vulnerable

groups in society. The Courts have given decisions in cases pertaining to different kinds of

entitlements and protections such as the availability of food, access to clean air, safe working

conditions, political representation, affirmative action, anti-discrimination measures and the

regulation of prison conditions among others. For instance, in People’s Union for Democratic

Rights v. Union of India,16 a petition was brought against governmental agencies which

questioned the employment of underage labourers and the payment of wages below the

prescribed statutory minimum wage-levels to those involved in the construction of facilities for

the then upcoming Asian Games in New Delhi. The Court took serious exception to these

practices and ruled that they violated constitutional guarantees. The employment of children in

15 (1981) Supp. SCC 8716 AIR 1982 SC 1473

25

construction-related jobs clearly fell foul of the constitutional prohibition on child labour and the

non-payment of minimum wages was equated with the extraction of forced labour. Similarly, in

Bandhua Mukti Morcha v. Union of India,17 the Supreme Court’s attention was drawn to the

widespread incidence of the age-old practice of bonded labour which persists despite the

constitutional prohibition. Among other interventions, one can refer to the Shriram Food &

Fertilizer case18 where the Court issued directions to employers to check the production of

hazardous chemicals and gases that endangered the life and health of workmen. It is also through

the vehicle of PIL, that the Indian Courts have come to adopt the strategy of awarding monetary

compensation for constitutional wrongs such as unlawful detention, custodial torture and extra-

judicial killings by state agencies In the realm of environmental protection, many of the leading

decisions have been given in actions brought by renowned environmentalist M.C. Mehta. He has

been a tireless campaigner in this area and his petitions have resulted in orders placing strict

liability for the leak of Oleum gas from a factory in New Delhi,30 directions to check pollution

in and around the Ganges river,31 the relocation of hazardous industries from the municipal

limits of Delhi,32 directions to state agencies to check pollution in the vicinity of the Taj

Mahal33 and several afforestation measures. A prominent decision was made in a petition that

raised the problem of extensive vehicular air pollution in Delhi. The Court was faced with

considerable statistical evidence of increasing levels of hazardous emissions on account of the

use of diesel as a fuel by commercial vehicles. The Supreme Court decided to make a decisive

intervention in this matter and ordered government-run buses to shift to the use of Compressed

Natural Gas (CNG), an environment-friendly fuel.34 This was followed some time later by

another order that required privately-run ‘autorickshaws’ (three-wheeler vehicles which meet

local transportation needs) to shift to the use of CNG. At the time, this decision was criticized as

an unwarranted intrusion into the functions of the pollution control authorities, but it has now

come to be widely acknowledged that it is only because of this judicial intervention that air

pollution in Delhi has been checked to a substantial extent. Another crucial intervention was

made in Council for Environment Legal Action v. Union of India,19 wherein a registered NGO

had sought directions from the Supreme Court in order to tackle ecological degradation in coastal 17 (1984) 3 SCC 16118 (1986) 2 SCC 17619 (1996) 5 SCC 281

25

areas. In recent years, the Supreme Court has taken on the mantle of monitoring forest

conservation measures all over India, and a special ‘Green bench’ has been constituted to give

directions to the concerned governmental agencies. At present, I am part of this Green bench and

can vouch for the need to maintain judicial supervision in order to protect our forests against

rampant encroachments and administrative apathy.

An important step in the area of gender justice was the decision in Vishaka v. State of

Rajasthan.36 The petition in that case originated from the gang-rape of a grassroots social

worker. In that opinion, the Court invoked the text of the Convention for the Elimination of all

forms of Discrimination Against Women (CEDAW) and framed guidelines for establishing

redressal mechanisms to tackle sexual harassment of women at workplaces. Though the decision

has come under considerable criticism for encroaching into the domain of the legislature, the fact

remains that till date the legislature has not enacted any law on the point. It must be remembered

that meaningful social change, like any sustained transformation, demands a long-term

engagement. Even though a particular petition may fail to secure relief in a wholesome manner

or be slow in its implementation, litigation is nevertheless an important step towards systemic

reforms.

A recent example of this approach was the decision in People’s Union for Civil Liberties

v. Union of India,20 where the Court sought to ensure compliance with the policy of supplying

mid-day meals in government-run primary schools. The mid-day meal scheme had been

launched with much fanfare a few years ago with the multiple objectives of encouraging the

enrolment of children from low-income backgrounds in schools and also ensuring that they

received adequate nutrition. However, there had been widespread reports of problems in the

implementation of this scheme such as the pilferage of foodgrains. As a response to the same, the

Supreme Court issued orders to the concerned governmental authorities in all States and Union

Territories, while giving elaborate directions about the proper publicity and implementation of

the said scheme. Public Interest Litigation popularly known as PIL can be broadly defined as

litigation in the interest of that nebulous entity: the public in general. Prior to 1980s, only the

aggrieved party could personally knock the doors of justice and seek remedy for his grievance

and any other person who was not personally affected could not knock the doors of justice as a

20 (2007) 1 SCC 728

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proxy for the victim or the aggrieved party. As a result, there was hardly any link between the

rights guaranteed by the Constitution of India and the laws made by the legislature on the one

hand and the vast majority of illiterate citizens on the other.

However, this entire scenario gradually changed when the post emergency Supreme Court

tackled the problem of access to justice by people through radical changes and alterations made

in the requirements of locus standi and of party aggrieved. The splendid efforts of Justice P N

Bhagwati and Justice V R Krishna Iyer were instrumental of this juristic revolution of eighties to

convert the apex court of India into a Supreme Court for all Indians. As a result any citizen of

India or any consumer groups or social action groups can approach the apex court of the country

seeking legal remedies in all cases where the interests of general public or a section of public are

at stake. Further, public interest cases could be filed without investment of heavy court fees as

required in private civil litigation.

Till 1960s and seventies, the concept of litigation in India was still in its rudimentary form and

was seen as a private pursuit for the vindication of private vested interests. Litigation in those

days consisted mainly of some action initiated and continued by certain individuals, usually,

addressing their own grievances/problems. Thus, the initiation and continuance of litigation was

the prerogative of the injured person or the aggrieved party. Even this was greatly limited by the

resources available with those individuals. There was very little organized efforts or attempts to

take up wider issues that affected classes of consumers or the general public at large.

However, all these scenario changed during Eighties with the Supreme Court of India led the

concept of public interest litigation (PIL).

The development of Public Interest Litigation (PIL) in the country has, however, very recently

uncovered its own pitfalls and drawbacks. The genuine causes and cases of public interest have

in fact receded to the background and irresponsible PIL activists all over the country have started

to play a major but not a constructive role in the arena of litigation. They try to utilize this

extraordinary remedy, available at a cheaper cost, as a substitute for ordinary ones.

PIL- A Boon:

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1. In Public Interest Litigation (PIL) vigilant citizens of the country can find an inexpensive legal

remedy because there is only a nominal fixed court fee involved in this.

2. Further, through the so-called PIL, the litigants can focus attention on and achieve results

pertaining to larger public issues, especially in the fields of human rights, consumer welfare and

environment.

Abuse of PIL: 

However, the apex court itself has been compelled to lay down certain guidelines to govern the

management and disposal of PILs.

Of late, many of the PIL activists in the country have found the PIL as a handy tool of

harassment since frivolous cases could be filed without investment of heavy court fees as

required in private civil litigation and deals could then be negotiated with the victims of stay

orders obtained in the so-called PILs.

Just as a weapon meant for defense can be used equally effectively for offence, the lowering of

the locus standi requirement has permitted privately motivated interests to pose as public

interests. The abuse of PIL has become more rampant than its use and genuine causes either

receded to the background or began to be viewed with the suspicion generated by spurious

causes mooted by privately motivated interests in the disguise of the so-called public interests.

Necessary Steps to be taken

There may be cases where the PIL may affect the right of persons not before the court, and

therefore in shaping the relief the court must invariably take into account its impact on those

interests and the court must exercise greatest caution and adopt procedure ensuring sufficient

notice to all interests likely to be affected.

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At present, the court can treat a letter as a writ petition and take action upon it. But, it is not

every letter, which may be treated as a writ petition by the court. The court would be justified in

treating the letter as a writ petition only in the following cases:

(i)               It is only where the letter is addressed by an aggrieved person or 

(ii)             A public spirited individual or

(iii)           A social action group for the enforcement of the constitutional or the legal

rights of a person in custody or of a class or group of persons who by reason of

poverty, disability or socially or economically disadvantaged position find it difficult

to approach the court for redress.

Even though it is very much essential to curb the misuse and abuse of PIL, any move by the

government to regulate the PIL results in widespread protests from those who are not aware of its

abuse and equate any form of regulation with erosion of their fundamental rights. Under these

circumstances the Supreme Court Of India is required to step in by incorporating safe guards

provided by the civil procedure code in matters of stay orders /injunctions in the arena of PIL.

Public Interest Litigants, all over the country, have not taken very kindly to such court decisions.

They do fear that this will sound the death-knell of the people friendly concept of PIL. However,

bona fide litigants of India have nothing to fear. Only those PIL activists who prefer to file

frivolous complaints will have to pay compensation to the opposite parties. It is actually a

welcome move because no one in the country can deny that even PIL activists should be

responsible and accountable. It is also notable here that even the Consumers Protection Act, 1986

has been amended to provide compensation to opposite parties in cases of frivolous complaints

made by consumers. In any way, PIL now does require a complete rethink and restructuring. It is

however, obvious that overuse and abuse of PIL can only make it stale and ineffective. Since it is

an extraordinary remedy available at a cheaper cost to all citizens of the country, it ought not to

be used by all litigants as a substitute for ordinary ones or as a means to file frivolous

complaints.

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Social Change and Public Interest Litigation in India

Social change is the necessity of any society. In India it is done through Public Interest Litigation. In this article an attempt was made to assess the impact of PIL over Indian Society. The jurisprudence of PIL is necessary to understand the nature of PIL in India.

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.

Late 1970s marked discernible shift from legal centralism. Legal pluralism was very apparent now. It was realized that social conduct was regulated by the interaction of normative orders, notion of popular justice, community justice, and distributive justice were sought to be institutionalised, though outside the sphere of the formal legal system and in opposition to it.

Public Interest Litigation as exists today

PIL today offers such a paradigm which locates the content of informal justice without the

formal legal system. Non Anglo-Saxon jurisdiction directs courts to transcend the traditional

judicial function of adjudication and provide remedies for social wrongs. PIL had already

molded the state in to the instrument of socio-economic change. Social justice is the byproduct of

this transcends from the formal legal system.

Evolution of Public Interest Litigation

The Indian PIL is the improved version of PIL of U.S.A. According to “Ford Foundation” of

U.S.A., “Public interest law is the name that has recently been given to efforts that provide legal

representation to previously unrepresented groups and interests. Such efforts have been

undertaken in the recognition that ordinary marketplace for legal services fails to provide such

services to significant segments of the population and to significant interests. Such groups and

interests include the proper environmentalists, consumers, racial and ethnic minorities and

others”. The emergency period (1975-1977) witnessed colonial nature of the Indian legal system.

During emergency state repression and governmental lawlessness was widespread. Thousands of

innocent people including political opponents were sent to jails and there was complete

deprivation of civil and political rights. The post emergency period provided an occasion for the

judges of the Supreme Court to openly disregard the impediments of Anglo-Saxon procedure in

providing access to justice to the poor. Notably two justices of the Supreme Court, Justice V. R.

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Krishna Iyer and P. N. Bhagwati recognised the possibility of providing access to justice to the

poor and the exploited people by relaxing the rules of standing. In the post-emergency period

when the political situations had changed, investigative journalism also began to expose gory

scenes of governmental lawlessness, repression, custodial violence, drawing attention of lawyers,

judges, and social activists. PIL emerged as a result of an informal nexus of pro-active judges,

media persons and social activists. This trend shows starke difference between the traditional

justice delivery system and the modern informal justice system where the judiciary is performing

administrative judicial role. PIL is necessary rejection of laissez faire notions of traditional

jurisprudence.

The first reported case of PIL in 1979 focused on the inhuman conditions of prisons and under

trial prisoners. In Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360, the PIL was filed by

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

of thousands of undertrial prisoners languishing in various jails in Bihar. These proceeding led to

the release of more than 40, 000 undertrial prisoners. Right to speedy justice emerged as a basic

fundamental right which had been denied to these prisoners. The same set pattern was adopted in

subsequent cases.

In 1981 the case of Anil Yadav v. State of Bihar, AIR 1982 SC 1008, exposed the brutalities of

the Police. News paper report revealed that about 33 suspected criminals were blinded by the

police in Bihar by putting the acid into their eyes. Through interim orders S. C. directed the State

government to bring the blinded men to Delhi for medical treatment. It also ordered speedy

prosecution of the guilty policemen. The court also read right to free legal aid as a fundamental

right of every accused. Anil Yadav signalled the growth of social activism and investigative

litigation.

In (Citizen for Democracy v. State of Assam, (1995) 3SCC 743), the S. C. declared that the

handcuffs and other fetters shall not be forced upon a prisoner while lodged in jail or while in

transport or transit from one jail to another or to the court or back.

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CONCEPT OF PUBLIC INTEREST LITIGATION

According to the jurisprudence of Article 32 of the Constitution of India, “The right to move the

Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this

part is guaranteed”. Ordinarily, only the aggrieved party has the right to seek redress under

Article 32.

In 1981 Justice P. N. Bhagwati in .S. P. Gupta v. Union of India, 1981 (Supp) SCC 87,

articulated the concept of PIL as follows, “Where a legal wrong or a legal injury is caused to a

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

right or any burden is imposed in contravention of any constitutional or legal provision or

without authority of law or any such legal wrong or legal injury or illegal burden is threatened

and such person or determinate class of persons by reasons of poverty, helplessness or disability

or socially or economically disadvantaged position unable to approach the court for relief, any

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

High Court under Article 226 and in case any breach of fundamental rights of such persons or

determinate class of persons, in this court under Article 32 seeking judicial redress for the legal

wrong or legal injury caused to such person or determinate class of persons.”

The 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 (Ashok Kumar Pandey v. State of W. B., (2004) 3 SCC 349).

Supreme Court in Indian Banks’ Association, Bombay and ors v. M/s Devkala Consultancy

Service and Ors., J. T. 2004 (4) SC 587, held that “In an appropriate case, where the petitioner

might have moved a court in her private interest and for redressal of the personal grievance, the

court in furtherance of Public Interest may treat it a necessity to enquire into the state of affairs

of the subject of litigation in the interest of justice. Thus a private interest case can also be

treated as public interest case”.

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In Guruvayur Devaswom Managing Commit. And Anr. Vs. C.K. Rajan and Ors, J.T. 2003 (7)

S.C. 312, S.C. held, “The Courts exercising their power of judicial review found to its dismay

that the poorest of the poor, depraved, the illiterate, the urban and rural unorganized labour

sector, women, children, handicapped by 'ignorance, indigence and illiteracy' and other down

trodden have either no access to justice or had been denied justice. A new branch of proceedings

known as 'Social Interest Litigation' or 'Public Interest Litigation' was evolved with a view to

render complete justice to the aforementioned classes of persona. It expanded its wings in course

of time. The Courts in pro bono publico granted relief to the inmates of the prisons, provided

legal aid, directed speedy trial, maintenance of human dignity and covered several other areas.

Representative actions, pro bono publico and test litigations were entertained in keeping with the

current accent on justice to the common man and a necessary disincentive to those who wish to

by pass the, real issues on the merits by suspect reliance on peripheral procedural

shortcomings… Pro bono publico constituted a significant state in the present day judicial

system. They, however, provided the dockets with much greater responsibility for rendering the

concept of justice available to the disadvantaged sections of the society. Public interest litigation

has come to stay and its necessity cannot be overemphasized. The courts evolved a jurisprudence

of compassion. Procedural propriety was to move over giving place to substantive concerns of

the deprivation of rights. The rule of locus standi was diluted. The Court in place of disinterested

and dispassionate adjudicator became active participant in the dispensation of justice”.

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Aspects of Public interest Litigation (a) Remedial in Nature

Remedial nature of PIL departs from traditional locus standi rules. It indirectly incorporated the

principles enshrined in the part IV of the Constitution of India into part III of the Constitution.

By riding the aspirations of part IV into part III of the Constitution had changeth the procedural

nature of the Indian law into dynamic welfare one. Bandhu Mukti Morcha v. Union of India,

Unnikrishnan v. State of A.P., etc were the obvious examples of this change in nature of

judiciary.

(b) Representative Standing

Representative standing can be seen as a creative expansion of the well-accepted standing

exception which allows a third party to file a habeas corpus petition on the ground that the

injured party cannot approach the court himself. And in this regard the Indian concept of PIL is

much broader in relation to the American. PIL is a modified form of class action.

(c) Citizen standing

The doctrine of citizen standing thus marks a significant expansion of the court’s rule, from

protector of individual rights to guardian of the rule of law wherever threatened by official

lawlessness.

(d) Non-adversarial Litigation

In the words of S. C. 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

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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.

(e) Crucial Aspects

The flexibility introduced in the adherence to procedural laws. In Rural Litigation and

Entitlement Kendra v. State of U.P.,(1985) 2 SCC 431, court rejected the defense of Res Judicta.

Court refused to withdraw the PIL and ordered compensation too. In R.C. Narain v. State of

Bihar, court legislated the rules for the welfare of the persons living in the mental asylum. To

curtail custodial violence, Supreme Court in Sheela Barse v. State of Maharashtra, issued certain

guidelines. Supreme Court has broadened the meaning of Right to live with human dignity

available under the Article 21 of the Constitution of India to a greatest extent possible.

(f) Relaxation of strict rule of Locus Standi

The strict rule of locus standi has been relaxed by way of (a) Representative standing, and (b)

Citizen standing. In D.C.Wadhwa v. State of 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.

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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).

It is depressing to note that on account of trumpery proceedings initiated before the courts,

innumerable days are wasted, which time otherwise could have been spent for the disposal of

cases of genuine litigants. Though the Supreme Court spares no efforts in fostering and

developing the laudable concept of PIL and extending its ling arm of sympathy to the poor,

ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and

whose grievances go unnoticed, unrepresented and unheard (Ashok Kumar Pandey v. State of W.

B., (2004) 3 SCC 349).

(g) Epistolary Jurisdiction

The judicial activism gets its highest bonus when its orders wipe some tears from some eyes.

This jurisdiction is somehow different from collective action. Number of PIL cells was open all

over India for providing the footing or at least platform to the needy class of the society.

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Features of Public interest litigation Through the mechanism of PIL, the courts seek to protect human rights in the following ways:

1) By creating a new regime of human rights by expanding the meaning of fundamental right

to equality, life and personal liberty. In this process, the right to speedy trial, free legal aid,

dignity, means and livelihood, education, housing, medical care, clean environment, right against

torture, sexual harassment, solitary confinement, bondage and servitude, exploitation and so on

emerge as human rights. These new reconceptualised rights provide legal resources to activate

the courts for their enforcement through PIL

.

2) By democratization of access to justice. This is done by relaxing the traditional rule of locus

standi. Any public spirited citizen or social action group can approach the court on behalf of the

oppressed classes. Courts attention can be drawn even by writing a letter or sending a telegram.

This has been called epistolary jurisdiction.

3) By fashioning new kinds of relief’s under the court’s writ jurisdiction. For example, the

court can award interim compensation to the victims of governmental lawlessness. This stands in

sharp contrast to the Anglo-Saxon model of adjudication where interim relief is limited to

preserving the status quo pending final decision. The grant of compensation in PIL matters does

not preclude the aggrieved person from bringing a civil suit for damages. In PIL cases the court

can fashion any relief to the victims.

4) By judicial monitoring of State institutions such as jails, women’s protective homes,

juvenile homes, mental asylums, and the like. Through judicial invigilation, the court seeks

gradual improvement in their management and administration. This has been characterized as

creeping jurisdiction in which the court takes over the administration of these institutions for

protecting human rights.

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5) By devising new techniques of fact-finding. In most of the cases the court has appointed its

own socio-legal commissions of inquiry or has deputed its own official for investigation.

Sometimes it has taken the help of National Human Rights Commission or Central Bureau of

Investigation (CBI) or experts to inquire into human rights violations. This may be called

investigative litigation.

PIL as an Instrument of Social ChangePIL is working as an important instrument of social change. It is working for the welfare of every

section of society. It’s the sword of every one used only for taking the justice. The innovation of

this legitimate instrument proved beneficial for the developing country like India. PIL has been

used as a strategy to combat the atrocities prevailing in society. It’s an institutional initiative

towards the welfare of the needy class of the society. In Bandhu Mukti Morcha v. Union of

India, S.C. ordered for the release of bonded labourers. In Murli S. Dogra v. Union of India,

court banned smoking in public places. In a landmark judgement of Delhi Domestic Working

Women’s Forum v. Union of India, (1995) 1 SCC 14, Supreme Court issued guidelines for

rehabilitation and compensation for the rape on working women. In Vishaka v. State of

Rajasthan Supreme court has laid down exhaustive guidelines for preventing sexual harassment

of working women in place of their work.

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ConclusionIt would be appropriate to conclude by quoting Cunningham, “Indian PIL might rather be a

Phoenix: a whole new creative arising out of the ashes of the old order.”

PIL represents the first attempt by a developing common law country to break away from legal

imperialism perpetuated for centuries. It contests the assumption that the most western the law,

the better it must work for economic and social development such law produced in developing

states, including India, was the development of under develop men.

The shift from legal centralism to legal pluralism was prompted by the disillusionment with

formal legal system. In India, however instead of seeking to evolve justice- dispensing

mechanism ousted the formal legal system itself through PIL. The change as we have seen, are

both substantial and structural. It has radically altered the traditional judicial role so as to enable

the court to bring justice within the reach of the common man.

Further, it is humbly submitted that PIL is still is in experimental stage. Many deficiencies in

handling the kind of litigation are likely to come on the front. But these deficiencies can be

removed by innovating better techniques. In essence, the PIL develops a new jurisprudence of

the accountability of the state for constitutional and legal violations adversely affecting the

interests of the weaker elements in the community. We may end with the hope once expressed by

Justice Krishna Iyer, “The judicial activism gets its highest bonus when its orders wipe some

tears from some eyes”.

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