Importance of Public Interest Litigation in India about:reader?url=https://www.lawctopus.com/academike/importance-p...

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By Nikhil Jain, ITMU Law School, Gurgaon

Editors Note: The ever-encompassing and ever-expanding concept of this oft-

heard term Public Interest Litigation has perplexed legal minds for decades.
Various luminaries have tried to capsule the concept into a precise definition.
However, all such efforts have failed. This paper delves into various landmark
judgments delivered by the Supreme Court of India to better understand this
nebulous concept.

By studying the practice of the Courts of India, the concept of PIL in India has
been a marked departure from its American counterpart. In India, it has given
voices to many, especially the poor and underprivileged, and has helped them
establish their Fundamental Rights and various other legal rights governed by the
laws of the country.

By relaxing the requirements of locus standi, and permitting any person who has
sufficient interest in a matter to file a suit, the concept of PIL as developed by the
Supreme Court of India has added breath and life to the Constitution and
transformed it into a living document for Indians. This paper focuses on the
contribution of the Emergency Period which, in fact, helped guarantee a greater
number of rights to Citizens of India in its aftermath when various questions of
law were brought up before the Courts for their interpretation.

WHAT IS PUBLIC INTEREST LITIGATION?

It may be easy to know when such litigation is presented. Yet defining it has taxed
judicial minds. Some say it is a nebulous concept and is beyond definition.
Others try to define it by delineating its characteristic features. A Judge in
Australia identifies it by the public character to which the litigation relates
evidenced by: properly bringing proceedings to advance a public interest; that
proceedings contribute to the proper understanding of the law in question; and

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have involved no private gain. [1]

The effect of this decision is really the crucial determining factor. Whether the
action is brought by a singular individual or an organization or as a class action,
or even where the remedy sought may benefit the applicant directly, the litigation
may yet be in the public interest if the impact of the decision will serve the wider
public interest.

As Lord Diplock said in the English House of Lords:

There would be a grave lacuna in our system of public law if a pressure group,
like the Federation, of even a single public spirited tax-payer, were prevented by
out-dated technical rules of locus standi from bringing the matter to the
attention of the court to vindicate the rule of law and get unlawful conduct
stopped. [2]

This dictum was adopted in Malaysia in the leading public interest litigation case,
Mohamed bin Ismail v Tan Sri Haji Othman Saat in these terms:

if they (public authorities) transgress any law or constitutional directive,

then any public- spirited citizen, even if he has no greater interest than a person
having regard for the due observation of the law, may move the courts and the
courts may grant him the appropriate legal remedy in its discretion [3]

TECHNICAL DEFINITION OF PIL [4]

The term Public Interest Litigation (PIL) is composed of two words; Public
Interest and Litigation.

The words Public Interest mean an expression which indicates something in

which the general public or the community at large has some pecuniary interest,
or some interest by which their legal rights or liabilities are affected. The word
litigation on the other hand means a legal action, including all legal
proceedings initiated in a Court of Law with the purpose of enforcing a right or
seeking a remedy. [5]

Hence, lexically the expression Public Interest Litigation denotes a legal action
initiated in a court of law for the enforcement of public interest where the rights
of an individual or a group have been affected.

PIL IN INDIA

The concept of Public Interest Litigation first emerged in USA. The American
concept of PIL is clarified by a statement made by The Council for Public Interest
Law an organisation setup by the Ford Foundation in USA, Public Interest

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Law is the name that has been given to efforts to provide legal representations
to previously unrepresented groups and interests. Such groups and interest
include the poor, environmentalists, consumers, racial and ethnic minorities,
and others.

However PIL in India substantially differs from that in the USA. Prof: Upendra
Baxi in his published opinion Social Action Litigation in the Supreme Court of
India has pointed out that the prime focus of American PIL was not so much on
state repression or governmental lawlessness as on public participation in
governmental decision making. And since the Indian notion of PIL has assumed
the character of more of a moral and humane process in providing justice to the
victim as in individual or to a group in matters relating to infringement of
fundamental rights or denial of civil privileges on the basis of caste, color or creed,
Prof. Baxi, therefore, insisted that the Indian phenomenon described as PIL
should be termed as Social Action Litigation.

CONCEPT OF PIL

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, 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. [7]

The rules of locus standi have been relaxed and a person acting in a bonafide
manner and having sufficient interest in the proceedings of an Public Interest
Litigation will alone have the requisite locus standi and can approach the Courts
to wipe out any violation of fundamental rights and genuine infraction of
statutory provisions, but not for personal gain, or private profit, or political

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motive, or any oblique consideration. [8]

The Supreme Court of India, in a case has iterated 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. [9]

In Guruvayur Devaswom Managing Commit. And Anr. Vs. C.K. Rajan and Ors,
[J.T. 2003 (7) S.C. 312], the Supreme Court 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 bypass 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.

EVOLUTION OF PIL [10]

Prior to the 1980s, only the aggrieved party could approach the courts for justice.
However, post 1980s and after the emergency era, the apex court decided to reach
out to the people and hence it devised an innovative way wherein a person or a
civil society group could approach the Supreme Court seeking legal remedies in
cases where public interest is at stake. And thus Public Interest Litigation was
formed.

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The Indian PIL is an improved version of PIL of USA. 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. [11]

The emergency period (1975-1977) witnessed a somewhat colonial nature of the

Indian legal system. During the period of 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. Krishna Iyer and P. N.
Bhagwati recognized the possibility of providing access to justice to the poor and
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 showed a stark difference between the traditional justice delivery system
and the modern informal justice system where the judiciary is performing an
administrative judicial role. PIL is a 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. Newspaper reports revealed that about 33 suspected
criminals were blinded by the police in Bihar, by putting acid into their eyes.
Through interim orders, the Supreme Court directed the State Government to
bring the blinded men to Delhi for medical treatment. It also ordered speedy

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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 Supreme Court
declared that 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.

Filing a PIL is not as cumbersome as any other legal case and there have been
instances when even letters and telegrams addressed to the court have been taken
up as PILs and heard by the court.

ASPECTS OF PIL

1) Remedial in nature: Remedial nature of PIL departs from the traditional

locus standi requirements. 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, the Indian Judiciary
had changed the procedural nature of the Indian law into a 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.

2) 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 concept. PIL is a modified form of class
action.

3) Citizen Standing: The doctrine of citizen standing thus marks a significant

expansion of the courts rule, from protector of individual rights to guardian of
the rule of law wherever threatened by official lawlessness.

4) Non-Adversarial Litigation: In the words of the SC, in Peoples 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 litigationis 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.

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IMPORTANT FEATURES OF PIL [12]

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 of 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 reliefs under the courts 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, womens

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.

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 CHANGE [13]

PIL is working as an important instrument of social change. It is working for the

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welfare of every section of society. 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. Its an institutional
initiative towards the welfare of the needy class of the society. In Bandhu Mukti
Morcha v. Union of India, SC 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 Womens 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.

CRITICISM OF PIL [14]

The debates over the limits of Judicial Activism in the area of PIL, have been
vigorous. A private members bill entitled Public Interest Litigation (Regulation)
Bill, 1996 was tabled in the Rajya Sabha. The statement of objectives and reasons
stated that PIL was misused in the name of providing justice to the poor sections
of the society and also that PIL cases were given more priority over other cases
which led to pending of several general section cases in the court for years.
However the bill was not passed.

Bearing in mind the power and importance of PIL in making the Constitution a
living reality for every citizen and also the efforts channelled through the medium
of PIL jurisprudence in providing justice to the deprived, the process is positively
succeeding, following the logic of its nature. In a country Characterized by
numerous Variable Ethnicity and religious diversity, working via the pattern
through a comprehensive bureaucracy, a grieved, poor, deprived citizen does find
it hard to seek justice because of economic disability or lack of Know-How or
even due to red-tapism. The only option left before the deprived next to a miracle
is a PIL petition.

CONCLUSION

It 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

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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 an eminent judge The
judicial activism gets its highest bonus when its orders wipe some tears from
some eyes. [15]

Edited by Dhruv Malhotra

[1] Oshlack v Richmond River Council (1997) 152 ALR 83.

[2] IRC v National Federation of Self-Employed and Small Businesses Ltd,

[1981] 2 All ER 93, at 105.

[3] [1982] 2 MLJ 133 at 136, per Wan Yahya J.

[4] www.scribd.com

[5] According to Blacks Law Dictionary/7th Edition states

[6] Public Interest Litigation by Videh Upadhyay

[7] S. P. Gupta v. Union of India, 1981 (Supp) SCC 87

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

[9] Indian Banks Association, Bombay and ors v. M/s Devkala Consultancy
Service and Ors., J. T. 2004 (4) SC 587

[10] www.legalserviceindia.com/article/1273

[11] According to Ford Foundation of U.S.A.

[12] www.wikipedia.com

[13] Constitution of India by M.P. Jain

[14] Public%20Interest%20Litigation-%20scribd.webarchive

[15] Justice Krishna Iyer

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