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THE CULTURE OF PUBLIC INTEREST LITIGATION IN INDIA

THE CULTURE OF PUBLIC INTEREST LITIGATION IN INDIA

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Published by Soumyadeep Mitra

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Published by: Soumyadeep Mitra on Feb 16, 2011
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10/01/2011

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THE CULTURE OF PUBLIC INTEREST LITIGATION IN INDIAThe aim of this article is to analyse the cachet and efficaciousness of the instrumentof Public Interest Litigation (PIL) in India. At the same time an attempt is made toevaluate the sociological aspect of the PIL in India. The article further vocalizes thescope and nature of PIL in India. The article assumes significance as the reservationissue is pending before the Hon’ble Supreme Court of India which can declare thereservation policy of the Government as Unconstitutional.I. Introduction
The Constitution of India is not intended to be the arena of legal quibbling for men withlong purses. It is made for the common people. It should generally be so construed as thatthey can understand and appreciate it. The more they understand it the more they love itand the more they prize it. It is really the poor, starved and mindless millions who needthe court’s protection for securing to themselves the enjoyment of Human Rights[1]. TheConstitution precedents cannot be permitted to be transformed into weapons for defeatingthe hopes and aspirations of our teaming millions, half-clad, half-starved, half-educated.These hopes and aspirations representing the will of the people can only becomearticulate through the voice of their elected representatives. If they fail the people, thenation must face the death and destruction. Then, neither the court nor the Constitutionwill save the country[2]. This line of thinking has been now recognised and adopted byvarious social reformers, lawyers, judges and social workers. Even, general public nowknows that the court has constitutional power of intervention, which can be invoked toameliorate their miseries arising from repression, governmental lawlessness andadministrative deviance[3]. The socio-justice tool through which these aspirations of theConstitution and people of India are achieved is known as “Public Interest Litigation”(PIL). Before proceeding further, it would be appropriate to appreciate the meaning of theexpression PIL. A matter of “public interest” does not mean that which is interesting or gratifying curiosity or a love of information or amusement but that in which a class or community have a pecuniary interest or some interest by which their legal rights or liabilities are affected[4]. The expression “public interest” or “probity in governance”cannot be put in a straightjacket. Public interest takes into fold several factors. Therecannot be any hard and fast rule to determine whether government action was taken in public interest or was taken to uphold probity in governance. The role model fogovernance and decision taken thereof should manifest equity, fair play and justice. Thecardinal principle of governance in a civilised society based on rule of law not only has to base on transparency but also must create an impression that the decision-making wasmotivated on the consideration of probity[5]. The expression “litigation” means a legalaction including all proceedings therein, initiated in a court of law with the purpose of enforcing a right or seeking a remedy. Therefore, lexically the expression PIL means alegal action initiated in a court of law for the enforcement of public interest or generalinterest in which the public or a class of the community have pecuniary interest or someinterest by which their legal rights and liabilities are affected[6].1
 
II. Evolution of PIL
The legal movement, which has resulted in the shaping of PIL in India, has beeninfluenced stalwartly by the benign movement in U.S.A. The “Council for Public InterestLaw” set up by the “Ford Foundation” in the U.S.A defined public interest law asfollows: “Public interest law is the name that has recently been given to efforts to providelegal representation to previously non-represented groups and interests. Such efforts have been undertaken in the recognition that the ordinary market place for legal services failsto provide such services to significant segments of the population and to significantinterests. Such groups and interests include the poor, environmentalists, consumers, racialand ethnic minorities and others. It was born out of the need of a large number of peoplewho individually lacked the economic resources or operational capacity to vindicateimportant social values and their own specific interest through court”. In India, the courtsexercising their power of judicial review found to its dismay that the poorest of the poor,depraved, the illiterate, women, children and other downtrodden have either no to justiceor had been denied justice. A new branch of litigation known as PIL was evolved with aview to render complete justice to the aforesaid classes of persons. It expanded its wingsin course of time. The courts granted relief to the inmates of the prisons, provided legalaid, directed speedy trial, maintenance of human dignity and covered several other areas.The court has intervened when there had been callous neglect as a policy of the State, alack of probity in public life, abuse of power in control and destruction of environment.The court interferes and gives appropriate directions when there has been an element of violation of Art1cle 21 or of Human Rights or where the litigation has been initiated for the benefit of the poor and the underprivileged that are unable to come to the court due tosome disadvantage[7].The evolution of PIL in India has an interesting background. In the famous case of 
Kesavananda Bharati v State of Kerala
[8] the Supreme Court ultimately put a brake onthe arbitrary and unreasonable power of legislature to destroy the “Basic features” of theConstitution. Thus, the seeds of PIL could never have been planted had the SupremeCourt not brought justness and fairness in the “Indian Legal System” in the year1973, byformulating the
“Doctrine of Basic Structure”
. J
ustice Krishna Iyer 
sowed the seeds of the new dispensation in
Mumbai Kamgar Sabha v Abdulbhai Faizullabhai
[9] andused the expression PIL and epistolary jurisdiction” in
Fertilizer CorporationKamgar Union v U.O.I
[10]. In between, the Supreme Court interpreted the expression“procedure established by law” as a procedure which must be just, fair and reasonable inthe year 1978[11]. This led to the testing of any “law” on the touchstone of Articles 14,19 and 21 collectively and thus brought justness and fairness in the State’s dealing withthe general public. The Supreme Court in the year 1993 declared “independence of  judiciary” a “basic feature” and acquired autonomy in the selection and appointment of  judges[12]. This made the interference of “Executive” in the appointment of judges aforgotten practice and made the judges more free and impartial to render justice. In theyear 1993 the Supreme Court held that judicial review U/A 32 and 226 is a basic featureof the Constitution, which is beyond the pale of amendability[13]. Thus, the discretion toentertain a dispute or petition was reserved exclusively with the judiciary. This was alandmark judgment since all the PILs are either filed U/A 226 or U/A 32. This means that2
 
the discretion to entertain a PIL itself can be considered to be a part of basic feature andthe only limitation could be the self-imposed restriction by the court itself. To supplementall this, the collective powers of Articles 32, 136, 141 and 142 made the Indian SupremeCourt one of the most powerful court of the world.The courts in India found that the oppression of the weaker and disadvantaged groupswas considerably greater in India as compared to U.S.A. The political and legislativesensitivity was also missing. The Supreme Court was left with no choice but to assume amuch more concerned guardian and protector of Fundamental Rights. The resources inIndia were always claimed to be limited, hence the financing of legal aid programme for giving a boost to PIL was ignored by the government as much as possible. This led to therelaxing of the requirement of “procedures” and “locus standi” by the Supreme Court.The court treated even a simple letter as a PIL. Since the coffers of the State were not burdened by this practice, the “Executive” did not object to the growth of PIL as ameasure for emancipation of the poor and the weaker sections. Even the public at largesupported the PIL drive. It is interesting to note that the tool of PIL proved to be a grandsuccess in India as compared to its counterpart in U.S.A. This may be because thestrategy for giving the poor and oppressed meaningful access to justice is not, as in theU.S.A, to provide funds so that they may participate in the traditional system on an equaleconomic footing. Instead the strategy is to change the system. Thus, volunteer socialactivists are allowed standing; a simple letter can be accepted as a writ petition, the courtitself will shoulder much of the burden of establishing the facts through the commissions,and whenever possible the case will move swiftly to the issue of remedy, by-passing thetime-consuming and costly process. The substantial accomplishments of Indian PILsurely prove that it is a development worthy of the most serious consideration by jurists,lawyers and judges from all societies, and particularly from the United States where the parallel and contrasts are so striking[14].
III. Scope of PIL in India
The scope of PIL, reflecting its sociology, is very wide which is clear from the following principles:(1) The court in exercise of powers U/A 32 or 226 of the Constitution of India canentertain a petition filed by any interested person in the welfare of the people who are in adisadvantaged position and, thus, not in a position to knock the doors of the court. Thecourt is constitutionally bound to protect the Fundamental Rights of such disadvantaged people so as to direct the state to fulfill its constitutional promises.(2) Issues of public enforcement, enforcement of fundamental rights of large number of  public vis-a-vis the constitutional duties and functions of the state, if raised, the courttreat a letter or a telegram as a PIL upon relaxing the procedural laws as also the lawrelating pleadings.(3) Whenever injustice is meted out to a large number of people, the court will nothesitate to step in. Articles 14 and 21 of the Constitution of India as well as theInternational Convention on Human Rights provide for a reasonable and fair trial.3

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