JURISPRUDENCE OF PUBLIC INTEREST LITIGATION

The Indian Context

Injustice anywhere is a threat to

justice everywhere

Shri. Rahul Balaji

Senior advocate, Parasaran

V. Venkata Siva Kumar

Chartered Accountant

Introduction
The Constitution of India recognises the fundamental rights, legal rights of every individual and assures complete protection. The fundamental rights include the right to life, to equality, to the freedom of speech and expression etc which are included in part III of the Indian constitution comprising of articles 12 to 35. Every individual has a right to seek judicial redress before the Supreme Court and 21 High Courts of India for enforcement and protection of these rights. Though the Constitution of India guarantees equal rights to all citizens, irrespective of race, gender, religion, and other considerations, and the "directive principles of state policy" as stated in the Constitution (included in Part IV of the constitution comprising of article 36 to 51). Obligate the Government to provide to all citizens a minimum standard of living. The greater majority of the Indian people have no assurance of two meals a day, safety of employment, safe and clean housing, or such level of education as would make it possible for them to understand their constitutional rights and obligations. The stories of the exploitation - by and the state's own functionaries, such as police and revenue officials - on children, women, villagers, the poor, and the working class and the white collar crimes by politicians, bureaucrats, factory owners, businessmen, landlords damaging the economy, environment creating untold sufferings to the community and the nation as a whole. Officials of public authorities misusing the power and position with impunity for their personal advantage using the veil given under article 12 of the constitution of India. Though India's higher courts and, in particular, the Supreme Court have often been sensitive to the grim social realities, and have on occasion given relief to the oppressed, the poor do not have the capacity to represent themselves, or to take advantage of progressive legislation. In 1982, the Supreme Court conceded that unusual measures were warranted to enable people the full realization of not merely their civil and political rights, but the enjoyment of economic, social, and cultural rights, and in its far- reaching decision in the case of PUDR [People's Union for Democratic Rights] vs. Union of India, it recognised that a third

party could directly petition, whether through a letter or other means, the Court and seek its intervention in a matter where another party's fundamental rights were being violated.

What is public interest litigation?

A Public Interest Litigation is a litigation filed by a third person for the welfare of others. The Supreme Court under Article 32 and the High Courts under Article 226 are empowered to entertain Public Interest Litigation. The Supreme Court noted, The rule, of law does not mean that the protection of the law must be available only to a fortunate few or that the law should be allowed to be prosecuted by the vested interests for protecting and upholding the status quo under the guise of enforcement of their civil and political rights. The poor too have civil and political rights and rule of law is meant for them also, though today it exists only on paper and not in reality. If the sugar barons and the alcohol kings have the fundamental right to carry on their business and to fatten their purses by exploiting the consuming public, have the charmers belonging to the lowest strata of society no fundamental right to earn an honest living through their sweat and toil? Thus the court was willing to acknowledge that it had a mandate to advance the rights of the disadvantaged and poor, though this might be at the behest of individuals or groups who themselves claimed no disability. Such litigation, termed Public Interest Litigation or Social Action Litigation.

Baba Saheb Dr. Ambedkar, the chief architect of our constitution said: If I was asked to name any particular Article in this Constitution as the most important, an Article without which the Constitution would be a nullity, I could not refer to any other Article except this one Article 32. It is the very heart of it. The Article 32 is very important. In fact, the Article 32 is itself a Fundamental Right, inserted in Part-III of the constitution (Fundamental Rights). Its scope is very wide and discretionary. The powers given to the Supreme Court under this Article are much wider and not confined to the issuing of five prerogative writs only. The Article 32 makes the Supreme Court as Protector and Guarantor of Fundamental Rights. It is watchdog of the constitution. The framers of the constitution gave the fundamental rights to every citizen. The right without the legal remedy becomes useless.

THE COUNCIL FOR PUBLIC INTEREST LAW SET UP BY THE FORD FOUNDATION IN U.S.A. REPORTED: Public interest law is the name that has recently been given to efforts to provide legal representation to previously unrepresented groups and interests. Such efforts have been undertaken in recognition that the ordinary market place for legal services fails to provide such services to significant segments of the population and to significant interests. Such groups and interests include the poor, environmentalists, consumers racial and ethnic minorities and others.

While giving judgment in Peoples Union for Democratic Rights vs. Union of India, the Supreme Court observed: ... Where a person or class of persons to whom legal injury is caused or legal wrong is done is by reason of poverty, disability or socially or economically disadvantaged position not able to approach the Court for judicial redress, any member of the public acting bona fide and not of any extraneous motivation may move the Court for judicial redress of legal injury or wrong suffered by such person or class of persons.

S.P. Gupta vs. Union of India (AIR 1982 SC 149)

Brief Facts: This famous case which is also known as JUDGES TRANSFER CASE-I which set the tone for the liberal interpretation for the locus standi. Article 222 empowers the President of India to transfer a Judge from one High Court to another. Union Law Minister issued a circular on 18th March, 1981, which was addressed to all the Chief Ministers requesting them to secure from all Additional Judges in the High Courts of their respective States prior consent to be appointed as permanent Judges in any other High Court for which they were to indicate three High Courts of their choice in order of preference. After issuance of the above circular, the President of India under Article 224 accorded short term extensions for three to six months or one year to sitting Additional Judges whose initial terms were about to expire.

In exercise of the power under Article 222(1), the President of India vide his order dated 19-1-1981 transferred Mr. Justice M.M. Ismail, the then Chief Justice of Madras High Court as Chief Justice of Kerala High Court, and also Mr. Justice K.B.N. Singh Chief Justice of the Patna High Court as Chief Justice of the Madras High Court with effect from the date they assume their respective charges. The Circular of Union Minister, and in pursuance of the transfers of Judges by the President created great consideration and agitation in the legal circles. The Petitioner S. P. Gupta who was a practising Advocate of the Supreme Court challenged the order of transfer of Judges under Article 32. He also prayed to treat his writ petition as PIL. QUESTIONS / ISSUES FRAMED FOR JUDGMENT OF THE SEVEN BENCH JUDGEMENT OF APEX COURT ARE: 1. Independence of judiciary; 2. Public Interest Litigation and locus standi of lawyers; 3. Nature of powers to appoint / transfer High Court Judges and procedure to be followed Consultation with constitutional functionaries; consent of concerned Judges, etc; 4. Validity of transfer of Judges from one High Court to another; 5. Validity of Union Law Ministers circular dated 18-3-1981; 6. Privilege against disclosure of State documents; etc. JUDGMENT : a. A Seven-Judge Bench of the Supreme Court by 4:3 majority held that the circular letter was valid and it did not affect the independence of judiciary. b. By 4:3 majority, the Supreme Court held that consent of the Judge transferred is not necessary under Article 222. The only requirement is Consultation with the Chief Justice of India which must be effective. PRINCIPLES : i. ii. Power of transfer of Judges must be exercised in public interest. Transfers should not be done by way of punishment. Any person can file a writ petition under Article 32 pertaining of public interest issues, which shall be treated as PIL. In such cases, the principle of locus standi should be relaxed by the High Courts and the Supreme Court. By PILs the independence of judiciary is saved, further justice can reach to the needy and poor people.

The Supreme Court observed : The principle of independence of the judiciary is not an abstract conception but it is a living faith which derive its inspiration from the constitutional charter and its nourishment and sustenance from the constitutional values. Our constitution is not a non-aligned national charter. It is a document of social revolution which casts an obligation on every instrumentality including the judiciary, which is a separate but equal branch of the State, to transform the status quo ante into a new human order in which justice, social, economic and political will inform all institutions of national life and there will be equality of status and opportunity for all. The judiciary has therefore a socioeconomic destination and a creative function. It cannot remain content to act merely as an umpire but it must be functionally involved in the goal of socialeconomic justice. Thus The Court in place of disinterested and dispassionate adjudicator became active participant in the dispensation of justice. iii. JUSTICE KRISHNA IYER, THE LEGEND OBSERVED: Independence of the Judiciary is not genuflexion; nor is it opposition to every proposition of Government. It is neither judiciary made to opposition measure nor Governments pleasure.... Their Lordship observed: The concept of independence of the judiciary is a noble concept which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of our democratic polity. If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the rule of law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective. THE JUSTICE P. N. BHAGWATI: The father of PIL.... Whenever there is a public wrong or public injury caused by an act or omission of the State or a public authority which is contrary to the Constitution or the law, any member of the public acting bona fide and having sufficient interest can maintain an action for redressal of such public wrong or public injury. The strict rule of standing which insists that only a person who has suffered a specific legal injury can maintain an action for judicial redress is relaxed and a broad rule is evolved which gives standing to any member of the public who is not a mere busy-body or a middlesome interloper but who has sufficient interest in the proceeding.

Practical issues to be considered by the petitioners our point of view

1. The apex court will be far more liberal and can exercise wide discretion in matters of public importance under article 32. If the petitioner is not from Delhi then moving the matter in the high court under Article 226 will be the other option. 2. The PIL will have to be filed like any other writs; it will depend on the discretion of the chief justice to admit or dismiss the case. It cannot be claimed as a matter of right. When a writ is dismissed under article 226 the petitioner can move the supreme court under article 136 of the constitution by filing an SLP (Special Leave Petition) within 90 days from the date of receiving the order copy so the remedy is still available but it will be cumbersome and costly. 3. The petitioner must convince the court that he is genuinely concerned about the cause and the matter is of grave public interest namely large section of population who are helpless because of poverty, lack of legal knowledge etc. are unable to approach the court for remedy. 4. If one goes through the judgement in S. P. Guptas case the constitutional bench went into the subject matter first namely whether transfer of judges affects the independence of the judiciary which is the basic structure of our constitution and then only they considered the issue of whether the petitioner who is not directly affected because of the transfer can file the litigation. Thus we can observe that their lordships first went into the merits of the case and then considered the locus standi. The inference one can draw is if the subject matter of the PIL is very strong then the locus standi will be given less importance/ gets diluted. 5. The petitioner with regard to locus standi can argue by referring to Article 51 A of fundamental duties: Clause h - to develop the scientific temper, humanism and the spirit of inquiry and reform;

 Clause j to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievements. 6. While considering the locus standi the bonafides of the petitioner will become paramount when the subject matter of the litigation does not come clearly under issues like environment, poverty, downtrodden etc. The petitioner should be able to put in extra efforts to convince the court by quoting/interpreting the judgment Peoples Union for Democratic Rights vs. Union of India, the words disadvantaged position and disability may be of some help. 7. For instance, when a wrong is caused to a student because of the errors in the evaluation of the exams even though the student may be economically better of and may have sufficient means to approach the courts but because of the fear that he may be intentionally failed by the public authorities. 8. Generally, the learned judges read the entire affidavit and ask few questions and the petitioner must be fully prepared with convincing answers supported by facts, apex court judgments etc. Three basic requirements which needs through analysis for filing a public interest litigation are 1. Personal Injury, 2. Causation, 3. Redressability a) Injury: - The public or the class or group of public must have suffered or imminently will suffer injury- an invasion of a legally protected interest that is concrete and particularized. The injury must be actual or imminent, distinct and palpable, not abstract. This injury could be economic as well as non-economic. b) Causation: - There must be a casual connection between the injury and the conduct complained of, so that injury is fairly traceable to the challenged action of the defendant who is a public authority and not the result of the independent action of some third party who is not before the court. c) Redressability: - It must be likely, as opposed to merely speculative, that a favourable court decision will redress the injury. 9. Inspite of all this finally it is the learned judges conviction and discretion which will decide the fate of the petition. The case will be dismissed using discretion, if

the learned chief justice is not in favour of PILs. So the affidavit must be clear convincing and self explanatory with proper supportings. 10. The petitioner must be ready with answers for all the possible questions. In other words the case should be looked from the angle of possible dismissal rather than admission based on many strong points because in case of dismissal the same can be challenged in Supreme Court.

Can a private interest be allowed as public interest litigation?

The Supreme Court in Indian Banks Association, Bombay and ors v. M/s Devkala Consultancy Service and Ors., held that In an appropriate case, where the petitioner might have moved a court in her private interest and for redressal of the personal grievance, the court in furtherance of Public Interest may treat it a necessity to enquire into the state of affairs of the subject of litigation in the interest of justice. Thus a private interest case can also be treated as public interest case. In Guruvayur Devaswom Managing Commit. And Anr. v. C.K. Rajan and Ors, the Supreme Court held the same view.

Other Apex Court Judgements for Reference

Any person (Individual) Parmanand Katara V. Union of India - Supreme Court held in the Public Interest Litigation filed by a human right activist fighting for general public interest that it is a paramount obligation of every member of medical profession to give medical aid to every injured citizen as soon as possible without waiting for any procedural formalities. Peoples Union for Democratic Rights v. Union of India - The court now permits Public Interest Litigation or Social Interest Litigation at the instance of "Public spirited citizens" for the enforcement of constitutional & legal rights of any person or group of persons who because of their socially or economically disadvantaged position are unable to approach court for relief. Public interest litigation is a part of the process of participative justice and standing in civil litigation of that pattern must have liberal reception at the judicial door steps. In the Judges Transfer Case - Court held Public Interest Litigation can be filed by any member of public having sufficient interest for public injury arising from violation of legal rights so as to get judicial redress. This is absolutely necessary for

maintaining Rule of law and accelerating the balance between law and justice. It is a settled law that when a person approaches the court of equity in exercise of extraordinary jurisdiction, he should approach the court not only with clean hands but with clean mind, heart and with clean objectives. In the case of M.C Mehta V. Union of India - In a Public Interest Litigation brought against Ganga water pollution so as to prevent any further pollution of Ganga water, the Supreme court held that petitioner although not a riparian owner is entitled to move the court for the enforcement of statutory provisions, as he is the person interested in protecting the lives of the people who make use of Ganga water. Voluntary organisation Council For Environment Legal Action V. Union Of India -: Public Interest Litigation filed by registered voluntary organization regarding economic degradation in coastal area. Supreme Court issued appropriate orders and directions for enforcing the laws to protect ecology. Report of research paper or a newspaper A report entitled "Treat Prisoners Equally HC" published in a newspaper, the Punjab & Haryana High Court quashed the provisions of jail manual dividing prisoners into A, B & C classes after holding that there cannot be any classification of convicts on the basis of their social status, education or habit of living .This is a remarkable ruling given by High Court by declaring 576-A paragraph of the manual to be " Unconstitutional".

Summary
Public Interest Litigation has proved a boon for the common man. Public Interest Litigation has set right, a number of wrongs committed by any public authority, by society or by an individual. By relaxing the scope of Public Interest Litigation, Court has brought legal aid at the doorsteps of the teeming millions of Indians; which the executive has not been able to do despite a lot of money is being spent on new legal aid schemes operating at the central and state level. Supreme Court's pivotal role in expanding the scope of Public Interest Litigation as a counter balance to the lethargy and inefficiency of the executive is commendable.

Law is a means to an end that end is justice..... If law shoots justice, then people will shoot law......
Honorable Supreme Court of India