Public Interest Litigation, Social Action Litigation & Private Attorneys Of Law

By Vasundhara Majithia, Yamini Rajora, National Law University Jodhpur            

Editor’s Note: It is because of a system for Public Interest Litigation that the Indian judiciary has been able to help in cooling down a few controversial policy questions. One could think of the controversy about the reservation of seats for SCs/STs and other backwards classes in employment or educations institutions, the government policies of liberalisation and privatisation and the contested height of the Narmada dam as examples of this kind of contribution. However, it is critical to ensure that PIL does not become a back-door to enter the temple of justice to fulfill private interests, settle political scores or simply to gain easy publicity. While critics have been persuasive when pointing to particular cases, the sheer number of cases, as well as the variation in tendencies over time and among court benches, has made reaching a general conclusion difficult.                                                                                                

Introduction

Public Interest Litigation or PIL is litigation for the protection of public interest. It is litigation introduced in a court of law, not by the aggrieved party but by the court itself or by any other private party. It is not necessary, for the exercise of the court’s jurisdiction, that the person who is the victim of the violation of his or her right should personally approach the court.

PIL, at least as it had developed in India, is different from class action or group litigation. The latter is driven primarily by efficiency considerations, whereas 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.[i]

After gaining independence from the British rule on August 15, 1947, the people of India adopted a Constitution in November 1949 with the hope to establish a ‘‘sovereign socialist secular democratic republic’’.[ii] 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).[iii] These aims were not merely aspirational. The founding fathers wanted to establish an India without any divisions of caste, creed, religion and sex, where everyone had equal rights and opportunities. They wanted to develop India into a perfect egalitarian society where all fundamental rights were secured, free from exploitation and subjugation of the long suppressed people of India.

The main tools employed to achieve such social change were the provisions on fundamental rights (FRs) and the directive principles of state policy (DPSPs), which Austin described as the ‘‘conscience of the Constitution’’.[iv] In order to ensure that FRs did not remain empty declarations, the founding fathers made various provisions in the Constitution to establish an independent judiciary.

The provisions related to FRs, DPs and independent judiciary together provided a firm constitutional foundation to the evolution of PIL in India. The founding fathers envisaged ‘‘the judiciary as a bastion of rights and justice’’.[v] An independent judiciary armed with the power of judicial review was the constitutional device chosen to achieve this objective. The power to enforce the FRs was conferred on both the Supreme Court and the High Courts[vi] 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 only adjudication of disputes but also determination of public policies and establishment of rule of law and constitutionalism.[vii]

The major hurdle to the development of PIL or SAL in India was the locus standi rule. Locus standi is the term for the ability of a party to demonstrate to the court in sufficient connection to and harm from the law or action challenged to support that party’s participation in the case. Otherwise, the court will rule that the plaintiff “lacks standing” to bring the suit and will dismiss the case without considering the merits of the claim.

Modification of the traditional requirement of standing was sine qua non for the evolution of PIL 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. Realising this need, the Court held that any member of public acting bona fide 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.[viii] Once the hurdles posed by locus standi and the procedure to file writ petitions were removed, the judiciary focused its attention to providing a robust basis to pursue a range of issues under PIL. This was achieved by both interpreting existing FRs widely and by creating new Fundamental Rights.

Article 21 proved to be the most fertile provision in the evolution of new Fundamental Rights.[ix] ‘‘Life’’ in this article has been interpreted to mean more than mere physical existence; it ‘‘includes right to live with human dignity and all that goes along with it’’.[x] The 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, unpolluted environment, shelter, clean drinking water, privacy, legal aid, and various rights of under-trials, convicts and prisoners. It is important to note that in a majority of cases the judiciary relied upon DPSPs 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 PIL plaintiffs. The Supreme Court responded by appointing fact-finding commissioners and amicus curiae.[xi]

As PIL in India was born in connection to the evolution of PIL in the United States, it has been argued that PIL in India should be labelled as social action litigation (SAL).[xii] It was contended that whereas PIL in the United States has focused on ‘‘civic participation in governmental decision making’’, the Indian PIL discourse was directed against ‘‘state repression or governmental lawlessness’’ and was focused primarily on the rural poor.[xiii] Also, unlike India, PIL in the United States sought to represent ‘‘interests without groups’’ such as consumerism or environment.[xiv] However, for our purposes, Social Action Litigation (SAL) and Public Interest Litigation (PIL) are synonymous. PIL, however, continues to be the popularly used term.

Public Interest Litigation

Origin and Development of Public Interest Litigation

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 proxy for the victim or the aggrieved party. In other words, only the affected parties had the locus standi (standing required in law) to file a case and continue the litigation and the non affected persons had no locus standi to do so. And as a result, there was hardly any link between the rights guaranteed by the Constitution of Indian Union 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.

In December 1979, a lady advocate of Supreme Court of India had filed a petition regarding the condition of the prisoners detained in the Bihar jail, whose suits were pending in the court. The special thing about this petition was that it was not filed by any single prisoner; rather it was filed by various prisoners of the Bihar jail. The case got filed in the Supreme Court before the bench headed by Justice P. N. Bhagwati. This petition was filed by the name of the prisoner, Hussainara Khatoon, hence the petition came to be known as Hussainara Khatoon v. State of Bihar[xv]. In this case, the Supreme Court upheld that the prisoners should get benefit of free legal aid and fast hearing. Because of this case 40,000 prisoners, whose suits were pending in the court, were released from the jail. There after many cases like this have registered in the Supreme Court.

The concept of Public Interest Litigation (PIL) is in consonance with the principles enshrined in Article 39A of the Constitution of India to protect and deliver prompt social justice with the help of law. Before the 1980s, only the aggrieved party could approach the courts for justice. After the emergency era the high court reached out to the people, devising a means for any person of the public (or an NGO) to approach the court seeking legal remedy in cases where the public interest is at stake. Justice P. N. Bhagwati and Justice V. R. Krishna Iyer were among the first judges to admit PILs in court.  Filing a PIL is not as cumbersome as a usual legal case; there have been instances when letters and telegrams addressed to the court have been taken up as PILs and heard.

The Court entertained a letter from two professors at the University of Delhi seeking enforcement of the constitutional right of inmates at a protective home in Agra who were living in inhuman and degrading conditions. In Miss Veena Sethi v. State of Bihar[xvi], the court treated a letter addressed to a judge of the court by the Free Legal Aid Committee in Hazaribagh, Bihar as a writ petition. In Citizens for Democracy through its President v. State of Assam and Others[xvii], the court entertained a letter from Shri Kuldip Nayar (a journalist, in his capacity as President of Citizens for Democracy) to a judge of the court alleging human-rights violations of Terrorist and Disruptive Activities (Prevention) Act (TADA) detainees; it was treated as a petition under Article 32 of the Constitution of India.

And 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.

The Supreme Court, through public interest litigation, has found a new historical basis for the legitimation of judicial power and has acquired new credibility with the people. This development has been the result of intense social activism on the part of some of the justices such as Justice P. N. Bhagwati and Justice V. R. Krishna Iyer of the Supreme Court of India. The portals of the Court are thrown open to the poor, the ignorant and the illiterate, and their cases have started coming before the Court through public interest litigation.

Public interest litigation in India is channelled through two avenues. If the complaint is of a ‘legal wrong’ the appropriate forum is the High Court of the state under Article 226 of the Constitution. If a ‘fundamental right’ is alleged to have been violated the remedy may be sought from the High Court or directly from the Supreme Court under Article 32.[xviii]

Krishna Iyer J. explained in Mumbai Kangar Sabhha v. Abdulbhai,[xix]

“Test litigations, representative actions, pro bono publico and like broadened forms of legal proceedings are in keeping with the current accent on justice to the common man and a necessary disincentive to those who wish to bypass the real issues on the merits by suspect reliance on peripheral, procedural shortcomings . . . Public interest is promoted by a spacious construction of locus standi in our socio-economic circumstances and conceptual latitudinarianism permits taking liberties with individualization of the right to invoke the higher courts where the remedy is shared by a considerable number, particularly when they are weaker.”

In S.P. Gupta v. Union of India[xx] Bhagwati C.J. (as he then was) was even more explicit:

“Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons … and such a person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the court for relief, any member of the public can maintain an application for appropriate direction…”

The court justified such extension of standing in order to enforce rule of law and provide justice to disadvantaged sections of society.[xxi] Furthermore, the Supreme Court observed that the term ‘‘appropriate proceedings’’ in Art.32 of the Constitution does not refer to the form but to the purpose of proceeding: so long as the purpose of the proceeding is to enforce a FR, any form will do. This interpretation allowed the Court to develop epistolary jurisdiction by which even letters or telegrams were accepted as writ petitions.[xxii]

The Conceptual Foundations of Public Interest Litigation

Part III of the Indian Constitution enumerates a Bill of Rights within Articles 12 to 32. Article 13 provides that any laws which are inconsistent with the Constitution are void. While Article 13 does not directly speak of the Supreme Court of India having the power to declare the law unconstitutional, this has been taken to be the structural assumption of the Constitution and in particular of Articles 13 and 32. Article 14 enshrines the equal protection of the laws and equality before the law, and later articles set this out in more detail in specific areas. Article 19 is one of the most fundamental articles, safeguarding freedom of speech, association, assembly, the right to move and reside within the territories of India, and to practice any trade or profession.

 The right to life and liberty is enshrined in Article 21, which has been the cornerstone in the establishment and development of PIL in India. The courts have expanded the meaning of this Right to ensure safe and dignified living for the people of India.  Religious freedoms are covered by Articles 25-27, and cultural minorities are protected by Articles 28-30.

It is Article 32 which provides the teeth with which to enforce the preceding provisions. An individual is granted the right to move the Supreme Court to provide a remedy for breach of any of the more particular rights mentioned above. The Supreme Court has a wide range of such remedies at its disposal,[xxiii] and the right guaranteed by Article 32 cannot be suspended except as otherwise provided by the Constitution.[xxiv] The importance of Article 32 was emphasized by Dr Ambedkar, one of the principal architects of the Constitution, who regarded this article as the very soul and heart of the constitutional document.[xxv]

 Whereas Part III of the Constitution is entitled Fundamental Rights, Part IV thereof deals with ‘Directive Principles of State Policy’. Article 37 states explicitly that the principles of Part IV are not enforceable in any Court, but affirms that they are nonetheless fundamental to the governance of the country and the Article imposes an obligation on the State to comply with these principles when making laws. Thus, Article 38 directs the State to reduce inequalities in status and opportunity, and Article 39 mandates that the distribution of society’s resources must be such as to serve the common good. Subsequent articles within Part IV flesh out the socio-economic obligations which the State must pursue within particular areas.

The Conceptual Foundation of Public Interest Litigations is thus derived from the Constitution.

The first theme of the foundation of PIL is the necessary interrelationship between Parts III and IV of the Constitution. Notwithstanding this clear constitutional provision the Court has forged a connection between Parts III and IV in two related ways. On the one hand, it has construed the substantive rights which are protected by Part III as entailing certain minimum social and economic rights which flow from Part IV. Thus Article 21 which enshrines the right to personal life and liberty is read expansively as a protection of human dignity. This reading is imbued with more force by breathing life into the concept of dignity using the Directive Principles of State Policy as the foundation for the minimum social and economic requirements which render dignity possible. On the other hand, the Court has forged a procedural link between Part III and Part IV of the Constitution. Article 32 grants individuals the right to move the Supreme Court for the enforcement of the rights guaranteed by Part III of the Constitution. The expansive interpretation of standing under Article 32 is justified, in part at least, because of the poverty or disability of those who might be directly affected by the state action. Thus relative deprivation in terms of the social and economic benefits contained in Part IV provides the justification for according standing to a member of the public who will vindicate the public interest. It also furnishes the rationale for modification of the normal process of adversarial adjudication. This procedure is altered in order that, for example, evidence can be duly gathered about the plight of those who would 13e incapable of testifying for themselves, or where a broader social survey is required in order to reach a decision in the case. Thus, the Court has consistently emphasized the unity of the provisions of the Constitution.

The second theme which is evident within the leading cases is the emphasis placed upon the respect for legality and the rule of law. This is particularly apparent within cases which do not on their strict facts involve an interrelationship between Parts III and IV of the Constitution, even though certain of the dicta therein are, as seen above, directly relevant to that relationship. Thus even where the Court could locate an applicant’s interest within a specific article of Part III, it often preferred to rationalize the individual’s ability to proceed in more open textured terms.

Part III of the Constitution is taken to accord individuals rights which they can enforce through Article 32. The interests which are contained within Part IV cannot be pleaded directly by an individual applicant; Article 37 precludes such direct reliance. It is; however, clear that the Court will take cognizance of the interests protected by Part IV when deciding upon the scope, value and meaning of the rights contained within Part III. Thus, whereas Part III confers rights directly upon the individual, Part IV becomes of seminal importance in determining the more precise meaning which such rights should have when concrete specification has to be given concerning their enforcement. The judicial approach therefore rejects any rigid division between liberty and the worth of liberty notwithstanding the clear instruction in the Constitution, given by Article 37, that the latter should not be the subject of constitutional adjudication.

Thus Article 21 which enshrines the right to personal life and liberty is read expansively as a protection of human dignity. This reading is imbued with more force by breathing life into the concept of dignity using the Directive Principles of State Policy as the foundation for the minimum social and economic requirements which render dignity possible. On the other hand, the Court has forged a procedural link between Part III and Part IV of the Constitution. Article 32 grants individuals the right to move the Supreme Court for the enforcement of the rights guaranteed by Part III of the Constitution. The expansive interpretation of standing under Article 32 is justified, in part at least, because of the poverty or disability of those who might be directly affected by the state action. Thus relative deprivation in terms of the social and economic benefits contained in Part IV provides the justification for according standing to a member of the public who will vindicate the public interest. It also furnishes the rationale for modification of the normal process of adversarial adjudication. This procedure is altered in order that, for example, evidence can be duly gathered about the plight of those who would be incapable of testifying for themselves, or where a broader social survey is required in order to reach a decision in the case. Thus, the Court has consistently emphasized the unity of the provisions of the Constitution. Constitutional interpretation is not conducted as a discrete inquiry into a particular article. That article is placed within the broader framework of the Constitution including the Pre- amble, Part III and Part IV. The second theme which is evident within the leading cases is the emphasis placed upon the respect for legality and the rule of law. This is particularly apparent within cases which do not on their strict facts involve an interrelationship between Parts III and IV of the Constitution, even though certain of the dicta therein are, as seen above, directly relevant to that relationship. Thus even where the Court could locate an applicant’s interest within a specific article of Part III, it often preferred to rationalize the individual’s ability to proceed in more open textured terms.

A concern with the principles of constitutional legality emerges from the judgment in the Gupta case. Bhagwati J justified the grant of liberal rules of standing in situations where the state acts in violation of a constitutional or statutory obligation resulting in injury to the public, in part at least because to deny access would leave the observance of the law to the ‘sweet will’ of the authority bound by it. It was this expansive reading of Article 21 which enabled Bhagwati J to develop the argument that the right to live with human dignity derived its ‘life breath’ from Articles 39, 41 and 42, all of which are contained within Part IV of the Constitution. These latter Articles provided the minimum requirements which must exist in order to enable a person to live with dignity.[xxvi]

The existence of a framework of laws which prevent one person from holding another in a condition of servitude, which ensure minimum conditions of health, welfare and pay for workers, can be regarded as collective goods which are integral to the idea of a society which ‘is infused with respect for human beings’.[xxvii]

Collective rights, thus, can be said to possess the following three characteristics:

  1. Such a right exists because an aspect of the interest of human beings justifies holding some person to be subject to a duty.
  2. The interests are interests of individuals as members of a group in a public good, and ‘the right is a right to that public good because it serves their interest as members of that group’.
  3. The interest of no single member of that group in that public good is sufficient by itself to justify holding another person to be subject to a duty.[xxviii]

Thus, these collective rights are enforceable throughout the entire framework of the Constitution. These rights cannot be enforced by a person under Article 32. However, be collective goods which are independent of Part IV, and are not therefore affected by Article 37. The interests in question are interests of individuals as members of a group in a public good, the rule of law, and the right is a right to that public good because it serves their interest as members of that group. The right rests on the cumulative interests of many individuals, in the sense that the interest of no single individual by itself is sufficient to justify holding another to be subject to a duty. Such a collective right can be enforced under Article 32 of the Constitution as there is nothing in Article 32 itself to suggest that collective rights cannot be enforced there under. Any such construction would be difficult to sustain because Article 32(1) grants to individuals the right to move the Supreme Court to protect any of the rights guaranteed in Part III of the Constitution, and it is clear that some of these rights are themselves collective rights. The protection of minority rights contained in Articles 29 and 30 would for example be most accurately characterized as collective rights. On the other hand, an appropriate base for the particular collective right under scrutiny can be found within Part III.

Based on these principles, the Court has stated that PILs are for the several mindless, speechless poor, those who are not aware of their rights and lack the means to knock of the Court’s door to demand justice. It is for the millions of Indians living in abject poverty, illiteracy and complete oblivion of their rights that the locus standi rule has been relaxed by Courts with respect to PILs. PIL is therefore, the voice of the otherwise speechless millions whose interests can now be represented in Courts. It is the sword provided to the common man to fight the injustice of society as well as the Government. It ensures that the Government does not become authoritarian. It curbs the power of the Government, both in implementing unconstitutional laws as well as in the application of fair laws.

The Three Phases of PILs

At the risk of over-simplification and overlap, the PIL discourse in India could be divided, into three broad phases.[xxix] One will notice that these three phases differ from each other in terms of at least the following four variables: who initiated PIL cases; what was the subject matter/focus of PIL; against whom the relief was sought; and how judiciary responded to PIL cases.

In the first phase—which began in the late 1970s and continued through the 1980s—the PIL cases were generally filed by public-spirited persons (lawyers, journalists, social activists or academics).[xxx] 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 FRs 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 PIL 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 PIL 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 institutionalised in that several specialised NGOs and lawyers started bringing matters of public interest to the courts on a much regular basis. The breadth of issues raised in PIL also expanded tremendously—from the protection of 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.[xxxi]

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.[xxxii] The courts enforced FRs against private individuals and granted relief to the petitioner without going into the question of whether the violator of the FR 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[xxxiii] and/or punishing civil servants for contempt for 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 PIL 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 PIL was meant.[xxxiv] The courts, for instance, took resort to judicial legislation when needed, did not hesitate to reach centres of government power,[xxxv] tried to extend the protection of FRs 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 PIL for ulterior purposes.

On the other hand, the third phase—the present phase, which began with the 21st century—is a period in which anyone could file a PIL 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 Australia 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 is unlikely to roll back the expansive scope of PIL, 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 liberalisation in Delhi Science Forum, the judiciary has shown a general support to disinvestment and development policies of the Government.[xxxvi] 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 liberalisation 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 the first phase, issues such as environment, AIDS, corruption and good governance were at the forefront in second phase, and development and free market considerations might dominate the third phase. So, the way courts have reacted to PIL in India is merely a reflection of what people expected from the judiciary at any given point of time. If the judiciary deviates too much from the prevailing social expectations, it might not command the public support that it requires to sustain PIL.

Case Study: A Timeline Of PILs In India And Its Contribution to Constitutional Law

The following is a timeline for some important cases which illustrate the importance of PIL for the development and growth of the enforcement of FRs in India.

Sunil Batra v. Delhi Administration & Others[xxxvii]– The Court departed from the traditional rule of standing by authorizing community litigation. The Court entertained a writ petition from a prisoner, a disinterested party, objecting to the torture of a fellow prisoner. The Court entertained the writ after reasoning that “these ‘martyr’ litigations possess a beneficent potency beyond the individual litigant and their consideration on the wider representative basis strengthens the rule of law.” Significantly, citing “people’s vicarious involvement in our justice system with a broad-based concept of locus standi so necessary in a democracy where the masses are in many senses weak,” the Court permitted a human rights organization to intervene in the case on behalf of the victim. This case pertained to the solitary confinement and torture of Sunil Batra, a prisoner who had been sentenced to death. His appeal was pending. The Court in this case also ruled that the Right to Life includes the right to live with dignity. Life, it said was not just mere animal existence.

Hussainara Khatoon & Others v. Home Secretary, State of Bihar, Patna[xxxviii] -P. N. Bhagwati, J. has observed that “today, unfortunately, in our country the poor are priced out of the judicial system with the result that they are losing faith in the capacity of our legal system to (sic) about changes in their life conditions and to deliver justice to them. The poor in their contact with the legal system have always been on the wrong side of the line. They have always come across ‘law for the poor” rather than law of the poor’. The law is regarded by them as something mysterious and forbidding–always taking something away from them and not as a positive and constructive social device for changing the social economic order and improving their life conditions by conferring rights and benefits on them. The result is that the legal system has lost its credibility for the weaker section of the community.

S.P. Gupta v. President of India & Others[xxxix]In this case, Justice Bhagwati altogether dismissed the traditional rule of standing, and replaced it with a liberalized modern rule. In this case, the Court awarded standing to advocates challenging the transfer of judges during Emergency. Describing the traditional rule as an “ancient vintage” of “an era when private law dominated the legal scene and public law had not been born,” the Court concluded that the traditional rule of standing was obsolete. In its place, the Court prescribed the modern rule on standing:

“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 is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief, any member of the public can maintain an application for an appropriate direction, order or writ, in the High Court under Article 226, and in case of breach of any fundamental right, in this Court under Article 32.”

Bandhua Mukti Morcha v. Union of India & Ors[xl] The court entertained a petition even of unregistered Association espousing the cause of over down- trodden or its members observing that the cause of “little Indians” can be espoused by any person having no interest in the matter. Carpet industries in Uttar Pradesh employed children, under the age of 14, where they were “being treated as slaves” and were “subjected to physical torture.” The Court immediately commissioned a report to determine whether children under the age of 14 were employed in the carpet industry. Subsequently the Court appointed a committee to report (the Report) on the exploitation of children in the carpet industry.

M.C. Mehta v. State of Tamil Nadu & Others [xli]– The Court was dealing with the cases of child labour and the Court found that the child labour emanates from extreme poverty, lack of opportunity for gainful employment and intermittency of income and low standards of living. The Court observed that it is possible to identify child labour in the organized sector, which forms a minuscule of the total child labour, the problem relates mainly to the unorganized sector where utmost attention needs to be paid.

K. Basu v. State of West Bengal [xlii]– This Court observed that the custodial death is perhaps one of the worst crimes in a civilized society governed by the rule of law. The rights inherent in Articles 21 and 22(1) of the Constitution require to be jealously and scrupulously protected. The expression “life or personal liberty” in Article 21 includes the right to live with human dignity and thus it would also include within itself a guarantee against torture and assault by the State or its functionaries. The precious right guaranteed by Article 21 cannot be denied to convicts, undertrials, detenues and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law. The Court gave very significant directions which are mandatory for all concerned to follow.

Vishaka & Ors. v. State of Rajasthan & Ors.[xliii]– This Court gave directions regarding enforcement of the fundamental rights of the working women under Articles 14, 19 and 21 of the Constitution. The Court gave comprehensive guidelines and norms and directed for protection and enforcement of these rights of the women at their workplaces.

M.C. Mehta v. Union of India & Others [xliv]-This case relates to pollution caused by the trade effluents discharged by tanneries into Ganga river in Kanpur. The court called for the report of the Committee of experts and gave directions to save the environment and ecology. It was held that “in Common Law the Municipal Corporation can be restrained by an injunction in an action brought by a riparian owner who has suffered on account of the pollution of the water in a river caused by the Corporation by discharging into the river insufficiently treated sewage from discharging such sewage into the river. But in the present case the petitioner is not a riparian owner. He is a person interested in protecting the lives of the people who make use of the water flowing in the river Ganga and his right to maintain the petition cannot be disputed. The nuisance caused by the pollution of the river Ganga is a public nuisance, which is widespread in range and indiscriminate in its effect and it would not be reasonable to expect any particular person to take proceedings to stop it as distinct from the community at large. The petition has been entertained as a Public Interest Litigation. On the facts and in the circumstances of the case, the petitioner is entitled to move the Supreme Court in order to enforce the statutory provisions which impose duties on the municipal authorities and the Boards constituted under the Water (Prevention and Control of Pollution) Act, 1974.

M.C. Mehta v. Union of India & Others[xlv] In this case, the court observed that in order to preserve and protect the ancient monument Taj Mahal from sulphur dioxide emission by industries near Taj Mahal, the court ordered 299 industries to ban the use of coke/coal. The court further directed them to shift-over to Compressed Natural Gas (CNG) or re-locate them.

C. Mehta v. Union of India & Ors.[xlvi]– A project known as “Taj Heritage Corridor Project” was initiated by the Government of Uttar Pradesh. One of the main purpose for which the same was undertaken was to divert the River Yamuna and to reclaim 75 acres of land between Agra Fort and the Taj Mahal and use the reclaimed land for constructing food plazas, shops and amusement activities. The Court directed for a detailed enquiry which was carried out by the Central Bureau of Investigation (CBI). On the basis of the CBI report, the Court directed registration of FIR and made further investigation in the matter. The court questioned the role played by the concerned Minister for Environment, Government of Uttar Pradesh and the Chief Minister, Government of Uttar Pradesh. By the intervention of the Court, the said project was stalled.

Naz Foundation v. Govt. of NCT of Delhi [xlvii]This case was filed to repeal Section 377 of the Indian penal Code. It was led by the Naz Foundation (India) Trust, a non-governmental organization, which filed a lawsuit in the Delhi High Court in 2001, seeking legalisation of homosexual intercourse between consenting adults In 2003, the Delhi High Court refused to consider a petition regarding the legality of the law, saying that the petitioners had no locus standi in the matter. Naz Foundation appealed to the Supreme Court of India against the decision of the High Court to dismiss the petition on technical grounds. The Supreme Court decided that Naz Foundation had the standing to file a public interest lawsuit in this case, and sent the case back to the Delhi High Court to reconsider it on the merits. The Court located the rights to dignity and privacy within the right to life and liberty guaranteed by Article 21 of the Constitution, and held that criminalization of consensual gay sex violated these rights.

Judicial Activism in Public Interest Litigation

The expression `Judicial Activism’ signifies the anxiety of courts to find out appropriate remedy to 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 with reference to the review power of the Supreme Court under Article 32 and I (belt Courts under Article 226 of the Constitution particularly in Public Interest Litigation.

Public interest litigation in India is primarily judge-led and even to some extent judge-induced; the product of juristic and judicial activism on the Supreme Court. Under the banner of Public Interest (or Social Action) Litigation (PIL) and the enforcement of fundamental rights under the Constitution, the courts have sought to rebalance the distribution of legal resources, increase access to justice for the disadvantaged, and imbue formal legal guarantees with substantive and positive content.

Most constitutionally-based public interest litigation in India is aimed not at challenging the validity of legislative measures, but rather at enforcing existing laws and forcing public agencies to take steps to enhance the welfare of the citizens.

The scope of judicial activism varies with the width of the power conferred on the courts. Where the courts have the power of judicial review, there is greater scope for judicial activism, and this scope increases considerably where the power of judicial review extends not only over executive action.

The decision given by the Supreme Court in Keshavananda Bharati v. State of Kerala[xlviii] was an exercise in judicial activism over constitutional amendments. The limitation put by the Court on the Parliament to amend the Constitution was an example of judicial activism that had been brilliantly illustrated in this case. Justice P.N. Bhagwati emphasised on the fact that judicial activism is an essential feature of the democracy. On further analysis of the judicial function, it can be concluded that judicial activism is an essential part of the judicial process.

·         Legitimation of PILs – Procedural Flexibility

The Supreme Court of India is faced with a legitimation crisis. In a country which has vast differentials, it cannot turn away from the claims and demands of social justice and still honour its claim to be a Court for all the citizens of India. In the case of Bandhua Mukti Morcha v. Union of India[xlix], certain parameters for entertaining the letters addressed to the Court as petitions were laid down by the Court. It has started wielding judicial power in a manner unprecedented in its history of more than thirty years, and through a variety of techniques of juristic activism it has begun converting much of constitutional litigation into public interest litigation, calculated to bring social justice within the reach of the common man.[l]

The Supreme Court has developed the innovative strategy of public interest litigation for the purpose of making basic human rights meaningful for the large masses of people in the country and making it possible for them to realize their social and economic entitlements.

The total unsuitability of the adversarial procedure to public interest litigation is one of the major difficulties that arise when the petition commences. The adversarial procedure can operate fairly and produce just results only if the two contesting parties are evenly matched in strength and resources. Quite often, however, that is not the case. Where one of the parties to litigation is weak and helpless and does not possess adequate social and material resources, he is bound to be at a disadvantage under the adversarial system, not only because of the difficulty in getting competent legal representation, but more than anything else because of the inability to produce relevant evidence before the Court.[li] The problem of proof therefore presents obvious difficulties in public interest litigation.

The practice of appointing socio-legal commissions of inquiry for the purpose of gathering relevant material in public interest litigation has now been institutionalized as a result of the judgment of the Supreme Court in the Bandhua Mukti Morcha[lii] case. However some objections have been raised to the appointment of such socio-legal commissions since the evidence collected by such commissions is ex parte and is immune to cross-examination. But the Court held that “The constitution-makers deliberately did not lay down any particular forms of proceedings for enforcement of fundamental rights nor did they stipulate that such proceedings should conform to any rigid pattern or strait-jacket formula.”[liii]

·         Enforcement of Orders in PILs

The Court had to evolve new remedies as a necessary step for providing relief to the disadvantaged who file the PILs. This action of the Courts to take new remedial measures amounts to judicial activism. The purpose of this is to make justice available to the lowest level in the society.

If the State agencies are not enthusiastic in enforcing the Court orders and do not actively cooperate in that task, the object and purpose of the public interest litigation would remain unfulfilled. The consequence of the failure of the State machinery to secure enforcement of the Court orders would not only be to deny effective justice to the disadvantaged groups on whose behalf the particular public interest litigation is brought, but it also would have a demoralizing effect and people would lose faith in the capacity of public interest litigation to deliver justice.[liv] Therefore, monitoring agencies were appointed to keep a track of the enforcement of orders given in various PILs by the Court.

In a case brought by a journalist for protection of women in police custody, the Supreme Court gave various directives and asked a woman judicial officer to visit the police lock-ups periodically and to report to the High Court whether the directives were being carried out.[lv]

The Supreme Court appointed the Joint-Secretary in the Ministry of Labour to ascertain whether the directions given by the Court had been implemented or not.[lvi]

Public Interest Litigation or Social Action Litigation: The Debate over Label

Typically, PIL sought to represent “interests without groups” such as consumerism or environment.[lvii] Given the nature of state and federal politics, PIL marched with public advocacy outside courts through well established mechanisms like lobbying. The birth of PIL in India was connected to the evolution of PIL in the United States; it was natural for scholars to draw comparisons between the US experience and the Indian experience.[lviii] One result of this comparison was that it was argued that PIL in India should be labelled as social action litigation (SAL).

In brief, the PIL movement in the United States involved innovative uses of the law, lawyers and courts to secure greater fidelity to the parlous notions of legal liberalism and interest group pluralism in an advanced industrial capitalistic society.[lix]

Indian social action groups should know the essence of the American PIL experience, and particularly the structural reasons for its failures and successes. PIL activism has instead of generating pressures for structural changes in law and society ended up servicing the much exposed ideology of interest group pluralism and legal liberalism; indeed, public advocacy programmes have tended to “enhance the legitimacy of processes that may not really change.[lx]

Two observations could be made to designate PILs as SALs:

  1. The term ‘‘social action’’ probably implied the role that law could/should play in social engineering. However, considering that in PIL cases judges (rather than the legislature) play a key role and the law is judge made law, one should not over-estimate what courts could deliver through PIL/SAL in a democracy.[lxi] Courts could help in providing an official recognition to the voices of minorities or destitute that might be ignored otherwise, but it would be unrealistic to expect that they could achieve social transformation on their own.
  2. PILs in India have changed a lot. They are not limited to just espousing the interests of disadvantaged sections of society or to redressing state repression and governmental lawlessness. In fact, the focus of PIL in India has shifted from poor to the middle class and from redressing state exploitation of disadvantaged groups to pleas for civic participation in governance.

PILs in India and the United States: A Comparative Analysis

Public interest litigations in the modern sense originated in the United States in the 1960s, when, amid challenges to many social systems in the wake of drastic social changes such as the Civil Rights Movement and the Vietnam War, many public interest groups were formed, which, represented by lawyers avid for social reforms, worked to protect the environment and safeguard rights of consumers, women, the coloured people and minors, as well as many other public interests, and called for new and fairer social systems. The litigations submitted for these objectives were called public interest litigations.[lxii]

The model of public interest litigation that has evolved in the United States has distinctive characteristics peculiar to its social context and environment. It is not a model that can be transplanted to developing countries like India. Thus, viewed as a reform of the traditional model, PIL in India can be seen as an improvement on the American doctrine of standing which has muddled together two distinct issues; (i) whether the petitioner is sufficiently motivated to present a good case to the court and (ii) whether there is an injury that requires judicial redress. [lxiii]

American law assumes that only a person with a personal stake can meet the first requirement of motivation. The Indian Supreme Court has rejected this presumption by allowing any member of the public to seek judicial redress for a legal wrong caused to “a person or to a determinate class or persons who, by reason of poverty, helplessness or disability or socially or economically disadvantaged position is unable to approach the Court directly.”[lxiv] This modification of the traditional locus standi rule could be termed ‘representative standing’ by assuming that the petitioner is accorded standing as the representative of another person or group of persons.

On the other hand, the American system has what is called Private attorney general is an informal term usually used today in the United States to refer to a private party who brings a lawsuit considered to be in the public interest, i.e., benefiting the general public and not just the plaintiff.[lxv] The person considered “private attorney general” is entitled to recover attorney’s fees if he or she prevails. The rationale behind this principle is to provide extra incentive to private citizens to pursue suits that may be of benefit to society at large.

The U.S. Congress codified the private attorney general principle into law.[lxvi] The Senate Committee on the Judiciary wanted to level the playing field so that private citizens, who might have little or no money, could still serve as “private attorneys general” and afford to bring actions, even against state or local bodies, to enforce the civil rights laws. The Committee acknowledged that, if private citizens are to be able to assert their civil rights, and if those who violate the Nation’s fundamental laws are not to proceed with impunity, then citizens must have the opportunity to recover what it costs them to vindicate these rights in court.” Where a plaintiff wins his or her lawsuit and is considered the “prevailing party,” acts to shift fees, including expert witness fees, and to make those who acted as private attorneys general whole again, thus encouraging the enforcement of the civil rights laws. The Senate reported that it intended fee awards to be “adequate to attract competent counsel” to represent client with civil rights grievances.[lxvii] The U.S. Supreme Court has interpreted the act to provide for the payment of a “reasonable attorney’s fee” based on the fair market value of the legal services.

The Indian Supreme Court, thus took what seemed to be merely a dismal social problem- lack of access to justice by the poor and oppressed- and used that problem as the springboard for an ingenious answer to build upon the strong Indian tradition of voluntary social action by empowering volunteer representatives to approach the Court on behalf of the poor and the oppressed.

The thrust of PIL in USA has been to lure that citizens whose lives may be affected by governmental policies have a right to participate in the formulation of those policies by making courts and administrative agencies open and accessible to the views of citizens. The handful of PIL centres in operation handled issues relating to civil rights, civil liberties and problems of the POD.  Later, the spectrum of issues expanded to include consumer protection, environmental protection, tax reform, health care, media access, corporate responsibility, education reform, employment benefits and manpower training.[lxviii] However, the scenario in USA has undergone a complete change as the very factors which led to the growth of PIL face several impediments.

There are thus, two themes on which the Indian and American systems of PIL differ. The first is the strategy for giving the poor and oppressed meaningful access to justice is not, as in the United States, to provide funds so that they may participate in the traditional system on an equal economic footing. Instead the strategy is to change the system.[lxix] As Justice Pathak said, “The goal is the creation of a system which promises legal relief without cumbersome formality and heavy expenditure.”[lxx]

The second theme is the continuing judicial willingness to depart from the fundamental principles of the traditional Anglo-American legal system- that plaintiffs must have personal stake, that judges are passive arbiters of facts produced by parties, that remedies must be derived from rights when confronted with social and political injustice.[lxxi] The willingness of the Court to relax the locus standi rule, its initiative to appoint fact-finders and take suo moto action and the creation of new fundamental rights to provide full and complete justice are just some examples of the impetus provided by the Indian judiciary in the development of PIL.

Thus, the public interest litigation model in India cannot be based on the U.S. model because of large-scale poverty and ignorance and the lack of adequate resources. Moreover, the issues taken up by public interest litigation in the United States are very different from the issues espoused by public interest litigation in India. The United States model is concerned more with civic participation in governmental decision-making, and it seeks to represent “interests without groups,” such as consumerism or environmentalism. These, no doubt, form the issues of public interest litigation in India also, but the primary focus is on State repression, governmental lawlessness, administrative deviance, and exploitation of disadvantaged groups and denial to them of their rights and entitlements. The public interest litigation model which has evolved in India is directed towards “finding turn-around situations” in the political economy for the disadvantaged and other vulnerable groups. It is concerned with the immediate as well as long term resolution of problems of the disadvantaged. It also seeks to ensure that the activities of the State fulfil the obligations of the law under which they exist and function.[lxxii]

The substance of public interest litigation in India is thus much wider than that of public interest litigation in the United States.

Public Interest litigation: A Boon or a Bane?

·         PIL: Advantages

By taking up the issues affecting the people, PIL truly became a vehicle to bring social revolution through constitutional means, something that the founding fathers had hoped.

PIL became an instrument to promote rule of law, demand fairness and transparency, fight corruption in administration, and enhance the overall accountability of the government agencies. The underlying justification for these public demands and the judicial intervention was to strengthen constitutionalism—a constant desire of the civil society to keep government powers under check. This resulted in the judiciary giving directions to the government to follow its constitutional obligations.[lxxiii]

The Indian judiciary, courtesy of PIL, has helped in cooling down a few controversial policy questions on which the society was sharply divided. One could think of the controversy about the reservation of seats for SCs/STs and other backwards classes in employment or educations institutions, the government policies of liberalisation and privatisation, and the contested height of the Narmada dam as examples of this kind of contribution.

The Indian PIL jurisprudence has also contributed to the trans-judicial influence—especially in South Asia—in that courts in Pakistan, Sri Lanka, Bangladesh and Nepal have cited Indian PIL cases to develop their own PIL jurisprudence.[lxxiv] In a few cases, even Hong Kong courts have cited Indian PIL cases, in particular cases dealing with environmental issues. Given that the civil society that is following the development of PIL in China is familiar with the Indian PIL jurisprudence,[lxxv] it is possible that Indian PIL cases might be cited even before the Chinese courts in the future.

The two ways in which PILs have helped the general public are:

  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.

PIL has helped the Indian judiciary to gain public confidence and establish legitimacy in the society. The role of an independent judiciary in a democracy is of course important. But given that judges are neither elected by public nor are they accountable to public or their representatives ordinarily, the judiciary in a democracy is susceptible to public criticism for representing the elite or being undemocratic and anti-majoritarian. Therefore, it becomes critical for the judiciary to be seen by the public to be not only independent but also in touch with social realities.

·         PIL: Disadvantages

In recent years, PILs have been brought not only for the violation of Fundamental rights but also for a various other issues. The judiciary, for instance, has addressed issues such as: the constitutionality of the Government’s privatisation and disinvestment policies, defacing of rocks by painted advertisements, the danger to the Taj Mahal from a refinery, pollution of rivers, relocation of industries out of Delhi, lack of access to food, deaths due to starvation, use of environment-friendly fuel in Delhi buses and regulation of traffic, out of turn allotment of government accommodation, prohibition of smoking in public places, arbitrary allotment of petrol outlets, investigation of alleged bribe taking, employment of children in hazardous industries, rights of children and bonded labours, extent of the right to strike, right to health, right to education, sexual harassment in the workplace, and female foeticide and infanticide through modern technology.

 The Supreme Court had dismissed these cases not on their validity as PILs but on the logical conclusion given by the judges. A PIL was also filed in the Supreme Court to seek ban on the publication of allegedly obscene and nude photographs in newspapers.[lxxvi] Some so-called public-spirited lawyers knocked at the door of the courts against: (i) Richard Gere’s public kissing of an Indian actress, Ms. Shilpa Shetty; (ii) an alleged indecent live stage show on New Year’s Eve; and (iii) the marriage of former Miss World, Ms. Aishwarya Rai, with a tree to overcome certain astrological obstacles in her marriage.[lxxvii]

Public Interest or Private Interest

Over the past years, it has been difficult to distinguish that whether the PILs are for public interest or private interest of the individual who files them. Courts supported PIL because of its usefulness in serving the public interest. It is doubtful, however, if PIL is still wedded to that goal.

Almost any issue is presented to the courts in the guise of public interest because of the allurements that the PIL jurisprudence offers (e.g. inexpensive, quick response and high impact) because courts have not rigorously enforced the requirement of PILs being aimed at espousing some public interest. PIL is being misused by people agitating for private grievances in the grab of public interest and seeking publicity rather than espousing public causes.[lxxviii]

Abuse of Judicial Resources

If properly managed, the PIL has the potential to contribute to an efficient disposal of people’s grievances. But considering that the number of per capita judges in India is much lower than many other countries and given that the Indian Supreme Court as well as High Courts is facing a huge backlog of cases[lxxix], it is puzzling why the courts have not done enough to stop faulty PIL cases. In fact, by allowing frivolous PIL plaintiffs to waste the time and energy of the courts, the judiciary might be violating the right to speedy trial of those who are waiting for the vindication of their private interests through conventional adversarial litigation.

A related problem is that the courts are taking unduly long time in finally disposing of even PIL cases. This might render ‘‘many leading judgments merely of an academic value’’.[lxxx] The fact that courts need years to settle cases might also suggest that probably courts were not the most appropriate forum to deal with the issues in hand as PIL.

In order to preserve the purity and sanctity of the PIL, it has become imperative to issue the following directions[lxxxi]

  1. The courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations.
  2. Instead of every individual judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the Rules prepared by the High Court is sent to the Secretary General of this court immediately thereafter.
  3. The courts should prima facie verify the credentials of the petitioner before entertaining a PIL.
  4. The court should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL.
  5. The court should be fully satisfied that substantial public interest is involved before entertaining the petition.
  6. The court should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions.
  7. The courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation.
  8. The court should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations.

Conclusion

PIL has an important role to play in the civil justice system in that it affords a ladder to justice to disadvantaged sections of society, some of which might not even be well-informed about their rights. Furthermore, it provides an avenue to enforce diffused rights for which either it is difficult to identify an aggrieved person or where aggrieved persons have no incentives to knock at the doors of the courts. PIL could also contribute to good governance by keeping the government accountable. Last but not least, PIL enables civil society to play an active role in spreading social awareness about human rights, in providing voice to the marginalised sections of society, and in allowing their participation in government decision making.

Indian PIL experience also shows that it is critical to ensure that PIL does not become a back-door to enter the temple of justice to fulfil private interests, settle political scores or simply to gain easy publicity. Courts should also not use PIL as a device to run the country on a day-to-day basis or enter the legitimate domain of the executive and legislature.

The analysis of PIL “cases” shows that they appear to consume a significant share of the resources of the Supreme Court resulting in its abuse. The subject matter of PIL cases and orders remains difficult to discern because most of them are classified as “other,” which is problematic from the point of view of judicial transparency.

A number of criticisms of PIL have been voiced in recent years, including concerns related to separation of powers, judicial capacity, and inequality. While critics have been persuasive when pointing to particular cases, the sheer number of cases, as well as the variation in tendencies over time and among court benches, has made reaching a general conclusion difficult.

Prof. M. P. Jain cautions against the tendency of the public to use PILs frivolously:

‘‘PIL is a weapon which  must be used with great care and circumspection; the courts need to keep in view that under the  guise of redressing a public grievance PIL does not encroach upon the sphere reserved by the Constitution to the executive and the legislature.’’

Edited by Kanchi Kaushik 

[i] Surya Deva, Public Interest Litigation in India: A Critical Review, 28 Civil Justice Quarterly 1 (2009)

[ii]  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.

[iii] Preamble, the Constitution of India                                                                                                                                                               

[iv] Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford: Clarendon Press, 1966)

[v] Austin, Cornerstone of a Nation, p.175.

[vi] Article 32 and 226, the Constitution of India

[vii] B.N. Kirpal et al. (eds), Supreme but not Infallible: Essays in Honour of the Supreme Court of India (New Delhi: OUP, 2000), pp.16–47.

[viii] Supra note 1

[ix] Sripati, ‘‘Human Rights in India Fifty Years after Independence’’ (1997) Denver Journal of International Law and Policy 93, 108–122.

[x] Sunil Batra v Delhi Administration (1978) 4 S.C.C. 494; Francis Coralie v Union Territory of Delhi AIR 1981 SC 746

[xi] Supra note 7

[xii] Clark D. Cunningham, Public Interest Litigation in Indian Supreme Court, 29 Journal of Indian Law Institute 494 (1987)

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

[xiv] Ibid.

[xv] AIR 1979 SC 1360

[xvi] Miss Veena Sethi v. State of Bihar, AIR 1983 SC 339

[xvii] Citizens for Democracy through its President v. State of Assam and Others, AIR 1996 SC 2193

[xviii] Article 32(1) “The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights guaranteed by this Part is guaranteed.”

[xix] Mumbai Kangar Sabhha v. Abdulbhai, AIR 1976 SC 1455

[xx] S.P. Gupta v. Union of India, AIR 1982 SC 149

[xxi] Aharon Barak, Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy (2002) 116 Harvard Law Review 16, 107–108

[xxii] Supra note 10

[xxiii] Article 32(2), the Constitution of India

[xxiv] Article 32(4), the Constitution of India

[xxv] P. P. Craig and S. L. Deshpande, “Rights, Autonomy and Process: Public Interest Litigation”, Oxford Journal of Legal Studies, Vol. 9, No. 3 (Autumn, 1989), pp. 356-373

[xxvi] Supra note 25

[xxvii] Raz, The Morality of Freedom (1986).

[xxviii] Ibid, p. 208

[xxix] Shubhankar Dam, Lawmaking Beyond Lawmakers: Understanding the Little Right and the Great Wrong (Analyzing The Legitimacy of the Nature of Judicial Lawmaking in India’s Constitutional Dynamic) (200) 13 Tulane Journal of International and Comparative Law 109, 115–116.

[xxx] Supra note 13

[xxxi] Delhi Science Forum v. Union of India (1996) 2 SCC 405; Sarla Mudgal v. Union of India (1995) 3 SCC 635

[xxxii] Vishaka v. State of Rajasthan AIR 1997 SC 3011; Basu v. State of West Bengal AIR 1997 SC 610

[xxxiii] Sathe, Judicial Activism in India, pp.221–222

[xxxiv] Supreme Court of India: Practice and Procedure—A Handbook of Information (New Delhi: Supreme Court of India, 2007), p.41.

[xxxv] Anil Divan, ‘‘The Supreme Court and Tort Litigation’’ in Kirpal et al., Supreme but not Infallible, pp.404, 426–430.

[xxxvi] Prashant Bhushan, ‘‘Has the Philosophy of the Supreme Court on Public Interest Litigation Changed in the Era of Liberalisation?’’, available at http://www.judicialreforms.org/files/2%20Philosophy%20of%20SC%20on%20PIL%20%20Prashant%20Bhushan.pdf

[xxxvii] Supra note 10

[xxxviii] Supra note 15

[xxxix] Supra note 20

[xl] AIR 1984 SC 802

[xli] (1996) 6 SCC 756

[xlii] (1997) 1 SCC 416

[xliii] (1997) 6 SCC 241

[xliv] (1988) 1 SCC 471

[xlv] AIR 1997 SC 734

[xlvi] (2007) 1 SCC 110

[xlvii] WP(C) No.7455/2001 (2 July 2009)

[xlviii] Keshavananda Bharati v. State of Kerala, (1973) 4 SCC 225

[xlix] Supra note 40

[l] P. N. Bhagwati, Judicial Activism and Public Interest Litigation, 23 Columbia Journal of Transnational Law 561 (1984-1985)

[li] Supra note 12

[lii] Supra note 40

[liii] Ibid.

[liv] Jamie Cassels, “Judicial Activism and Public Interest Litigation in India: Attempting the Impossible?”, The American Journal of Comparative Law, Vol. 37, No. 3 (1989), pp. 495-519

[lv] Sheela Barse v. State of Maharashtra, AIR 1983 SC 378

[lvi] Supra note 40

[lvii] L.G. Trubek & D.M. Trubek, Civic Justice Through Civil Justice: New Approach to Public Interest Advocacy in the United States in ACCESS TO JUSTICE & THE WELFARE STATE 119 (M. Cappelletti ed. 1981)

[lviii] Supra note 13

[lix] Supra note 18

[lx] Supra note 13

[lxi] Singh, Protecting the Rights of the Disadvantaged Groups through Public Interest Litigation, in Singh, Goerlich and von Hauff (eds), Human Rights and Basic Need, pp.327–328.

[lxii] Zhang Wanhong & Ding Peng, “Public Interest Litigation and the Development of Human Rights” 2009, available at http://www.china.org.cn/china/human_rights/2009-10/29/content_18792628.htm, visited September 30th, 2013.

[lxiii] Baker v. Carr , 369 U.S. 186

[lxiv] Supra note 20

[lxv]  Associated Industries of New York State, Inc. v. Ickes, 134 F.2d 694 (2d Cir. 1943).

[lxvi] Civil Rights Attorney’s Fees Award Act of 1976

[lxvii] S. Rep. No. 94-1011, p. 6 (1976).

[lxviii]  Intellectual Engagement and Reflection on Values of Service and Commitment, available at www.law.duke.edu/publicinterest, visited 1st October 2013.

[lxix] Supra note 12

[lxx] Supra note 40

[lxxi] Supra note 9

[lxxii] Supra note 50

[lxxiii] Mohini Jain v. State of Karnataka (1992) 3 SCC 666 and Unni Krishnan v. State of Andhra Pradesh (1993) 1 SCC 645

[lxxiv] Jona Razzaque, ‘‘Linking Human Rights, Development, and Environment: Experiences from Litigation in South Asia’’ (2007) 18 Fordham Environmental Law Review 587

[lxxv] China Labour Bulletin, Public Interest Litigation in China: A New Force for Social Justice (Research Reports, October 10, 2007).

[lxxvi] “Apex Court Dismisses PIL Seeking Ban on Obscenity in Papers’’ in The Indian Express, December 13, 2006

[lxxvii] ‘‘Chased by the Moral Brigade’’ in Rediff News, October 3, 2007

[lxxviii] Desai and Muralidhar in Kirpal et al., Supreme but not Infallible, p.181.

[lxxix] Marc Galanter and Jayanth K. Krishnan, Bread for the Poor: Access to Justice and the Rights of the Needy in India (2004) 55 Hastings Law Journal 789, 790 (fn.2).

[lxxx]Supra note 22

[lxxxi] Public Interest Litigation: Definition Origin, Evolution: Supreme Court, available at http://www.legalblog.in/2011/02/public-interest-litigation-definition.html visited on 3rd October, 2013

3 Replies to “Public Interest Litigation, Social Action Litigation & Private Attorneys Of Law”

  1. A COPY PASTE ARTICLE FROM https://pdfs.semanticscholar.org/8530/2cf2447c26d50a78a322b03f1af93a5e9fdd.pdf , Public Interest Litigation in India: A Critical Review
    By
    Surya Deva, Assistant Professor, School of Law, City University of Hong Kong, Hong Kong
    Reprinted from
    Civil Justice Quarterly
    Issue 1, 2009.
    Given that you have given your description as a student of NLU Jodhpur, you’re bringing disgrace to the institution by such stunts!
    I want this to be taken notice of by LAWOCTOPUS!

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