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SUBJECT: jurisprudence II

Project topic:
Public interest litigation

Submitted By
RAJ KIRAN TRIPATHY
Roll no. 1150
3 Year, 6 Semester, B.A.LL.B (Hons.)
th

Submitted to
Dr. manoranjan kumar
Faculty of jurisprudence- II

Chanakya national Law University, Patna


APRIL, 2017

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ACKNOWLEDGEMENT

A major research project like this is never the work of anyone alone. The
contributions of many different people, in their different ways, have made this
possible. I would like to thank God for the wisdom and perseverance that he has
bestowed upon me during this research project, and
Indeed, throughout my life: I can do everything through him who gives me
strength.

I would like to take this opportunity to thank Dr Manoranjan Kumar, without


whose valuable support, guidance and advice this project would not have
existed. He has been a source of determination with his immense knowledge
and command over the subject. I would also like to thank the library staff for
working long hours to facilitate us with required material going a long way in
quenching our thirst for education. I would also like to thank my seniors for
guiding me through tough times they themselves have been through, and lastly I
would like to thank my friends for keeping alive the spirit of competition in me.

-Raj Kiran Tripathy

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CONTENTS

1. INTRODUCTION
2. PUBLIC INTEREST LITIGATION: A JURISPRUDENTIAL BACKGROUND
3. FACETS OF PIL
4. CRITIQUE OF PIL
5. CONCLUSION

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INTRODUCTION

One of the most important developments that took place in the recent years is the process of
social action and social reform through legal action known as Public Interest Litigation (PIL).
Until the emergence of PIL, justice was a remote reality for our illiterate, underprivileged and
exploited masses. This has been largely due to three major difficulties: (i) lack of awareness
amongst people; (ii) lack of assertiveness due to their low socio-economic status; and (iii)
lack of an effective machinery to give them legal aid. It is only when the poor become aware
that the wrong done to them is a legal wrong and that there is a legal remedy available to
them, they will seek a legal redressal. Even if they are aware of their legal rights, the poor do
not have the means nor the will to go for expensive litigation.
And wherever a large number of people are victims of a common injustice or common
exploitation, it is not possible for each one of them to file separate petitions and seek
remedies individually. These are some of the major obstacles the poor face in the pursuit of
justice.
The reinterpretation of the concept of locus standi by the Supreme Court has removed one
of the major hurdles faced by the poor and has paved the way for easy access to courts of
justice. According to the traditional interpretation only a person who had suffered a legal
wrong himself could take recourse to the court of law for relief. The new position is that if a
legal wrong is done to a person or a class of persons who, by reasons of poverty or any other
disability, cannot approach a court of law for justice, it is open to any public-spirited
individual or a social action group to file a petition on his or their behalf. This new approach
to bring justice to the poor and the oppressed, it is hoped, will give meaning to the
constitutional objectives of socioeconomic justice for all.
Public Interest Litigation means a legal action initiated in a court of law for the enforcement
of public interest or general interest in which the public or a class of the community have
pecuniary interest or some interest by which their legal rights or liabilities are affected.
Therefore, PIL is a proceeding in which an individual or group seeks relief in the interest of
general public and not for its own purposes. PIL is a strategic arm of the legal aid movement
and is intended to bring justice within the reach of poor masses. It is a devise to provide
justice to those who individually are not in a position to have access to the courts. It was
initiated for the benefit of a class of people, who were deprived of their constitutional and
legal rights because they were unable to have access to the courts on account of their socio-

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economic disabilities. Today millions of poor particularly those of the oppressed sections of
society are looking at the courts for getting justice and improving their life conditions.
Responding to the demands of the changing times and needs of the people, the courts are
making efforts to become the courts of the poor, courts for the poor and the struggling masses
in this country. Fortunately, this change is gradually taking place and PIL is playing a major
part in bringing this change.

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PUBLIC INTEREST LITIGATION: A JURISPRUDENTIAL BACKGROUND

The term PIL originated in the United States in the mid-1960s. In the nineteenth century,
various movements in that country have contributed to public interest law, which are a part of
the legal aid movement. The first legal aid office was established in New York in 1876. In the
1960s the PIL movement began to receive financial support from the office of economic
opportunity. This encouraged lawyers and public spirited persons to take up cases of the
under-privileged and fight against various issues like--dangers to environment, harms to
public health, exploitation of vulnerable masses, exploitation of consumers and injustice to
the weaker sections. In England PIL made a mark during the years of Lord Denning in the
1970s. He as a petitioner brought several public issues to the court.1

A striking factor of PIL in India is that it is primarily a judicially constructed phenomenon,


and related to active assertion of judicial power. Although there was an explosive assertion of
judicial power following the declaration of political emergency in India (between 1975
and1977), such power had become pronounced even before. The constitutional tension
between the court and Parliament had been pronounced over land reform. 2The property rights
decisions of the Supreme Court during the late 1950s and 1960s appeared to obstruct social
change, since they asserted the right to a fair return of the value of any property acquired by
the state for redistributive purposes.3 In the 1970s, it protected the privileges and pensions of
princes from the government4 and invalidated bank nationalization legislation. 5 The electoral
victory of Mrs. Gandhis Congress in 1971 on issues of economic and social reform appeared
to be a popular invalidation of the courts approach. During years leading up to the 1975-77
state of constitutional emergency, the court was marginalized its pro-property decisions

1 Public Interest Litigation by PD Matthew retrieved from


www.bhojvirtualuniversity.com/slm/bswc2.pdf

2 S.P. Sathe, Judicial activism in India, transgressing borders and enforcing limits [New Delhi: Oxford
University Press, 2002]

3 Sathe, ibid. at 46-50.

4 Madhav Rao Scindia v Union of India, A.I.R. 1971 SC 350

5 R.C. Cooper v Union of India, A.I.R. 1970 SC 564.

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were neutralized by constitutional amendments; there were transfers of uncommitted
judges; and the practice of supersession served to further erode judicial autonomy. Since the
1970s, the right to property was removed from the list of fundamental rights. The courts
failure to assert fundamental rights during the Emergency6 reinforced its negative image and
the 42nd amendment to the constitution tried to eliminate the power of judicial review.
PIL CREATES A RIGHTS JURISPRUDENCE TO ENHANCE FREEDOM

In my view, the Supreme Courts rights jurisprudence in PIL cases have asserted freedoms for
Indian citizens that enhance development as Sen conceives it. According to Sen, the gap
between an exclusive concentration on economic wealth and a broader focus on the capability
to live a good life was a major issue in conceptualizing development. The maximization of
income or wealth could not be treated as an end in itself. Development had to be concerned
with enhancing the lives people led and the freedoms they enjoyed. Sen categorizes five types
of freedoms, including political freedoms, economic freedoms and social opportunities,
which, according to him, helped to advance the general capability of a person and also served
to complement each other.7 If the success of a society in achieving development is to be
evaluated primarily by the substantive freedoms that members of that society enjoy, as Sen
argues, then the Supreme Courts PIL decisions has helped to guarantee such freedoms in the
Indian legal system. Such jurisprudence has developed principally through an expanded
interpretation of the language of Article 21 of the
Indian constitution. Initially, the court adopted a very restricted approach and in Gopalan 8
held that in Article 21 the words personal liberty meant only freedom from arbitrary arrest
and procedure established by law meant procedure prescribed by any statute. The court
further held that Article 19 (describing various political liberties) and Article 21 were
mutually exclusive.9 However, in Kharak Singh v U.P.10 the court gave a wider meaning to

6 A.D.M. Jabalpur v Shiv Kant Shukla, A.I.R. 1976 SC 1207.

7 Public Interest Litigation in India: Implication on Law and Development by Sarbani Sen retrieved
from www.mcrg.ac.in/PP47.pdf

8 A.K. Gopalan v State of Madras, A.I.R. 1950 SC 27

9 Ibid at 7

10 A.I.R. 1963 SC 1295

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the words personal liberty in Article 21 and included within it the right to privacy. The
majority held that the words personal liberty could not be confined to its negative meaning
of being mere protection from arbitrary arrest but could extend to all aspects of liberty
outside the ambit of the freedoms specified in Article 19. But Maneka Gandhi 11 was the
breakthrough judgment for an open, textured and expansive concept of personal liberty.
The judgment also incorporated the due process of law doctrine within the words
procedure established by law in Article 21. Justice Bhagwati, speaking for the majority,
enunciated two primary principles. The first was that the expression personal liberty in
Article 21 was of the wisest amplitude and covered a variety of rights which constituted the
personal liberty of man. Some of them had been raised to the status of distinct fundamental
rights and given additional protection under Article 19, but Article 21 could now include
rights not specifically covered under Article 19. The second principle was that a law
depriving a person of personal liberty and prescribing a procedure for that purpose within the
meaning of Article 21 had to stand the test of one or more of the fundamental rights conferred
under Article 19; it also had to be tested with reference to Article 14. The significance of the
test of Article 14 was that the principle of reasonableness which legally as well as
philosophically is an essential element of equality or non-arbitrariness pervades Art. 14 like a
brooding omnipresence and the procedure contemplated by Art. 21 must answer the test of
reasonableness in order to be in conformity with Art. 14. Consequently, statutory procedure
for depriving an individual of personal liberty had to be right and just and fair, and not
arbitrary, fanciful or oppressive, otherwise it would be no procedure at all and the
requirement of Article 21 would not be satisfied. Thus in Maneka, both the scope of personal
liberty and the ambit of judicial protection of such liberties was greatly widened. Maneka
established the seminal principle of interpretation that constitutional clauses can be open,
textured and courts could judicially develop their nuances in a changing social and economic
context. The principle was further elaborated by Justice Bhagwati in Francis Coralie Mullin. 12
He held, This principle of interpretation which requires that a constitutional provision must
be constructed, not in a narrow and constricted sense, but in a wide and liberal manner so as
to anticipate and take account of changing conditions and purposes so that the constitutional
provision does not get atrophied or fossilized but remains flexible enough to meet the newly

11 Maneka Gandhi v Union of India, A.I.R. 1978 SC 597

12 Francis Coralie Mullin v Administrator, Union Territory of Delhi, (1981) 1 SCC 608

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emerging problems and challenges, applies with greater force in relation to a fundamental
right enacted by the constitution.13 Along with the expanded judicial approach to the
language of Article 21, another set of decisions contributed towards the expansion of
fundamental freedoms. Elaborating on the basic structure doctrine of Kesavananda, the
court, in Minerva Mills14 found that Parts III and IV of the constitution (relating to political
and civil liberties and non-enforceable social and economic rights respectively) had to be
read together. To destroy the guarantees given by Part III (negative liberties) in order to
achieve the goals of Part IV (positive social and economic rights) was plainly to subvert the
constitution by destroying its basic structure. The Indian constitution was founded on a
bedrock of a balance between political and civil liberties and social and economic rights. But
it was the courts interpretative approach towards the right to life and personal liberty in
Article 21 that formed the basis of PIL judgments. In Francis Coralie Mullin, the court said
the fundamental right to life which is the most precious human right and which forms the arc
of all other rights must therefore be interpreted in a broad and expansive spirit so as to invest
it with significance and vitality which may endure for years to come and enhance the dignity
of the individual and the worth of the human person.15
Thus, the Supreme Court has found Article 21 to incorporate the substantive freedoms that
Sen conceives of and can also serve as a means to remove major sources of unfreedom such
as poverty, poor economic opportunities as well as systematic social deprivation, neglect of
public facilities, as well as the intolerance of repressive governments.
Some PIL judgments that provide evidence of such an approach are as follows:
Right to Livelihood (Olga Tellis & Ors vs Bombay Municipal Corporation16)
Right to live with Human Dignity (PUDR v Union of India17)
Right to Minimum Wages (Asiad Construction Workers case18)

13 Ibid

14 Minerva Mills v the Union of India, A.I.R. 1980 SC 1789

15 Minerva Mills v the Union of India, A.I.R. 1980 SC 1789

16 1986 AIR 180

17 1983 SCR (1) 456

18 A.I.R. 1982 SC 1473.

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Judicial Exegesis of the Right to A Balanced and Sustainable Development (Banwansi
Sewa Ashram v U.P.19, Municipal Council, Ratlam v Vardhichand20)
Protection Against Environmental Degradation (Tarun Bharat Sangh v India 21, A.P.
Pollution Control Board v Prof. M.V. Nayudu22, M.C. Mehta v Union of India23)
Right to Reasonable Accommodation (Shantistar Builders v Narayan K. Totame,24)
Right to Health (Vincent v India25)
Right to Education (Mohini Jain26 and Unni Krishnan27)
Right to Food (P.U.C.L. v Union of India28)

EVOLUTION OF PIL IN INDIA

Two judges of the Indian Supreme Court (Bhagwati and Iyer JJ.) prepared the groundwork,
from mid-1970s to early 1980s, for the birth of PIL in India. This included modifying the
traditional requirements of locus standi, liberalising the procedure to file writ petitions,
creating or expanding FRs, overcoming evidentiary problems, and evolving innovative
remedies.29

19 (1986) 3SCC 753.

20 A.I.R. 1980 SC 1622

21 (1993) Supp. (1)4.

22 (1999) 2 SCC 718.

23 A.I.R. 1988 SC 1037;

24 (1990) 1 SCC 520.

25 A.I.R. 1987 SC 990

26 Mohini Jain v Karnataka, A.I.R. 1992 SC 1858.

27 Unni Krishnan v A.P., (1993) 1 SCC 645.

28 (2007) 1 SCC 728

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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. Later on, merging representative
standing and citizen standing, the Supreme Court in Gupta v Union of India held30:

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 . . . and such person or
determinate class of persons is by reasons of poverty, helplessness, or disability or socially or
economically disadvantaged position, unable to approach the Court for any relief, any
member of the public can maintain an application for an appropriate direction, order or writ.
The court justified such extension of standing in order to enforce rule of law and provide
justice to disadvantaged sections of society. 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. 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 FRs. Article 21no person
shall be deprived of his life or personal liberty except according to the procedure established
by lawproved to be the most fertile provision in the evolution of new FRs. 31Life in this
article has been interpreted to mean more than mere physical existence35; it includes right
to live with human dignity and all that goes along with it Ever-widening horizon of art.21 is
illustrated by the fact that the Court has read into it, inter alia, the right to health, livelihood,
free and compulsory education up to the age of 14 years, unpolluted environment, shelter,
29 Public Interest Litigation in India: A Critical Overview, Surya Dev, Civil Justice Quarterly
retrieved from unpan1.un.org/intradoc/groups/public/documents/apcity/unpan047384.pdf

30 Gupta vs UOI (1981) Supp S.C.C. 87, 210

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clean drinking water, privacy, legal aid, speedy trial, and various rights of under-trials,
convicts and prisoners. It is important to note that in a majority of cases the judiciary relied
upon DPs for such extension. The judiciary has also invoked art.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 FRs. 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. As
most of the PIL cases there were no immediate or quick solutions, the Court developed
creeping jurisdiction thereby issuing appropriate interim orders and directions. The
judiciary also emphasized that PIL is not an adversarial but a collaborative and cooperative
project in which all concerned parties should work together to realize the human rights of
disadvantaged sections of society.

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FACETS OF PIL

ACCESS AND STANDING

In a developing country, the legal process tends to intimidate the litigant, who feels
alienated from the sys-tem. A poor person who enters the legal stream, whether as a
claimant, a witness or a party, may well find the experience traumatic. Lawyers have not
done much to alleviate this. The way the Bar has developed gives issues of legal aid and
legal awareness a low priority, thus ensuring that the lawyer is the only route of access to
the legal system. The traditional rules of procedure in the adversarial system of law permit
only a person whose rights are directly affected to approach the Court. Under the Common
Law, a person claiming the writ of mandamus had to show that he was enforcing his own
personal right.32 In Municipal Council, Ratlam v Shri Vardichan 33 the Court reacted to this
approach and observed:

The truth is that a few profound issues of processual jurisprudence of great strategic
significance to our legal system face us and we must zero in on them as they involve
problems of access to justice for the people beyond the blinkered rules of standing
of British-Indian vintage. If the centre of gravity of justice is to shift, as the preamble
of our Constitution mandates, from the traditional individualism of locus standi to the
community orientation of public interest litigation, these issues must be considered.

The Supreme Court in the Judges case34 said:

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 legal burden is threatened and such
person or determinate class of persons is by reasons of poverty, helplessness or
disability or socially or economically disadvantaged position, unable to approach the

32 Charanjit Lal v Union of India (1950) SCR 869

33 (1980) 4 SCC 162

34 S.P. Gupta v Union of India 1981 Supp. SCC 87

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Court for any relief, any member of the public can maintain an application for an
appropriate direction, order or writ in the High Court under Article 26 and in case of
breach of any fundamental right of such person or class of persons, in this Court under
Article 32 seek-ing judicial redress for the legal wrong or injury caused to such person
or determinate class of persons. In such case the Court will allow any member of the
public acting in a bona fide manner to espouse the cause of such person or class of
persons.35 Representative non-political, non-profit, and voluntary organisations who
have a sufficient interest can maintain an action for judicial redress for public injury
arising out of breach of public duty or violation of some provision of the Constitution.
Lawyers36 medical practitioners37 and journalists38 have brought such representative
actions. The Court has however been careful not to liberalize the concept of standing in
criminal and service matters

New Interpretation of Locus Standi:

The Latin words locus standi signify the legal right of a person to file a suit or conduct a
litigation in a court of law. According to the traditional Anglo-Saxon concept of locus standi
means only the person whose rights were violated could sue for judicial redress. No one
could file a petition in the court on his behalf. This doctrine was evolved in an era
when the courts were mainly concerned with the rights of the individual. The old
doctrine of locus standi had not been found to be adequate to meet the needs of a
developing society. In the new age of collective rights, it has been felt that the traditional
interpretation of locus standi should be changed to bring justice within the reach of the poor
masses. According to the new interpretation given to this doctrine by the Supreme Court
when the rights of an individual or a class of persons are violated and if by reasons of poverty
or disability they cannot approach the court themselves, any public spirited-person or
institution, acting in good faith, and not out of vengeance, can move the court for judicial

35 Bandhua Mukti Morcha v Union of India (1984) 3 SCC 161

36 R.K. Garg v Union of India (1981) 4 SCC 675

37 Dr Shiva Rao Shantaram Ram Wagle v Union of India (1988) 2 SCC 115

38 Sheela Barse v Union of India (1983) 2 SCC 96

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redress. The strict rule of locus standi was first relaxed in S.P. Gupta vs. Union of India 39.
The seven- Judges Constitution bench, by a majority, ruled that any member of the public
acting bona fide and having sufficient interest in instituting an action for redressal of public
wrong or public injury, but who is not a busy body or a meddlesome interloper, could move
the court. The court will not insist on strict procedures when such a person moves a petition
on behalf of another or a class of persons who have suffered legal wrong and they themselves
cannot approach the court by reason of poverty, helplessness or social backwardness. The
important part of this judgement dealing with the issue of locus stand is that it may,
therefore, now be taken as well established that 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 of such person or determinate class of persons, in this Court under
Article 32 seeking judicial redress for the legal wrong or injury caused to such person or
determinate class of persons. Regarding locus standi the Supreme Court in the Judges
transfer case ruled that any member of the public having sufficient interest can approach
the court for enforcing constitutional or legal rights of other persons and redressal of a
common grievance.

Person Disqualified from filing PIL:

The following persons are not entitled to file a PIL case.


a) a person without sufficient public interest;
b) a person acting for self-gain or personal profit.;
c) a person with political involvement; and
d) a person with malafide intentions.

A third party who is a total stranger to the prosecution which ended in the conviction of the
accused has no locus standi to challenge the conviction and sentence awarded to the

39 AIR 1982 SC 149

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convicts through a PIL. It was upheld by the Supreme Court in Simaranjit Singh Mann vs.
Union of India40
The fear expressed by certain people regarding the liberal view of the Supreme Court on
locus standi is that it would lead the court being flooded with writ litigation and therefore
they should not be encouraged. To the above criticism the court declared, No State, had the
right to tell its citizens that because a large number of cases of the rich are pending in our
courts, we will not help the poor to come to the courts, for seeking justice until the staggering
load of cases of people who can afford rich lawyers is disposed off.41

RELAXATION OF PROCEDURAL REQUIREMENTS

In order to permit fuller access to Courts, PIL has been marked by a departure from
procedural rules extending to the form and manner of filing a writ petition, appointment
of commissions for carrying out investigation, and giving a report to Court, and the
appointment of lawyers as amicus curiae to assist the Court. The flexibility of PIL
procedure can best be illustrated by what is termed as epistolary jurisdiction. Taking a
cue from the American Supreme Courts decision in Gideon v Wainwright,42 where a
postcard from a prisoner was treated as a petition, the Supreme Court said in the
Judges case, that a public-spirited person could move the Court even by writing a
letter. The Court has accepted letters43 and telegrams44 as petitions. The danger of such
ease of access leading to the apprehension that a litigant could indulge in forum-
shopping and address a particular judge was expressed by Pathak J, in the Bandhua
Mukti Morcha case:

When the jurisdiction of the Court is invoked, it is the jurisdiction of the entire Court.
No such communication can be properly addressed to a particular judge.
Which judge or judges will hear the case is exclusively a matter concerning the

40 1992 (4) SC 65

41 AIR 1983 SC 339

42 (1963) 372 U.S. 335

43 Ram Kumar Misra v State of Bihar (1984) 2 SCC 451

44 Paramjit Kaur v State of Punjab (1996) 7 SCC 20

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internal regulation of the business of the Court, interference with which by a litigant
or a member of the public constitutes the grossest impropriety.

Many of the early PILs, including Sunil Batra (II) v Delhi Administration,45 Dr Upendra Baxi
v State of UP,46 Veena Sethi v State of Bihar,47 and Peoples Union for Democratic Rights v
Union of India48 commenced with the petitioners sending letters to the Supreme Court. On 1
December 1988, the Supreme Court, on its administrative side, issued a notification on what
matters could be entertained as PIL. Under this notification, letter petitions falling under
certain categories alone would be ordinarily entertained. These included matters concerning
bonded labour, neglected children, petitions from prisoners, petitions against the police,
petitions against atrocities on women, children, and scheduled castes and scheduled tribes.
Petitions pertaining to environmental matters, adulteration of drugs and food, maintenance of
heritage and culture, and other matters of public importance could also be entertained. The
notification set out matters that ordinarily were not to be entertained as PIL, such as landlord
tenant disputes, service matters, and admission to medical and other educational
institutions. The notification also laid down the procedure: the petition would be first
screened in the PIL Cell and thereafter it would be placed before a judge to be nominated by
the Honble Chief Justice of India for directions.

APPOINTMENT OF COMMISSIONERS
A difficulty often faced by a genuine PIL petitioner is lack of access to information even
where he has a genuine grievance. One method by which the Court gathers facts is by the
appointment of commissioners. The Court has appointed district judges, journalists,
lawyers, mental health professionals, bureaucrats, and expert bodies as commissioners. In
environmental matters, the Court has relied upon expert bodies like the CPCB and the
NEERI to study the situation and submit a report to the Court. While the power to appoint
commissioners in matters of civil nature is found in Order XXVI Civil Procedure Code
(CPC) and Order XLVI Supreme Court Rules, the powers under Article 32 read with

45 (1980) 3 SCC 488

46 (1983) 2 SCC 308

47 (1982) 2 SCC 583

48 (1982) SCC 253

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Article 142 are wide enough to permit such a course of action in any matter before the
Supreme Court. Commissions have also been appointed to propose remedial relief and
monitor its implementation. The Court in Indian Council for Enviro-Legal Action v Union
of India,49 appointed NEERI as an expert body to study the situation of ground water soil
pollution. The Court has also drawn upon empirical data and expert studies to decide
whether pavement dwellers right to life and livelihood would be affected by their
eviction.50 Likewise, the Court relied upon the opinions of experts to dismiss a PIL
challenging dairy imports from Ireland on the ground that they were radioactively
contaminated by the leak from the Chernobyl nuclear plant. However, in cases where there
are rival contentions of expert bodies the Court will not intervene. Where the question
concerned the seismic potential of the Tehri dam site, the Court stated that it did not have
the expertise to give a final opinion on the matter.51 The Court could only investigate and
adjudicate if the government was not conscious of the inherent dangers. The use of
commissions has enabled the Court to check the facts alleged by the petitioner as well as
the State after a proper scrutiny without affecting its role as an adjudicator. This has,
however, had to be done with circumspection lest it appear that in its desire to redress the
grievance, the Court is going beyond its powers.

PIL PETITIONERS AND AMICUS CURIAE


A PIL petitioner is provided by the Court as one who draws its attention to a grievance
requiring remedial measures and having no personal stake in the matter. It expects her/
him to be conscious of her/ his obligation to the cause being espoused and conduct
herself/ himself accordingly. Thus persons bringing PILs to the Court cannot of their
free will seek to withdraw the petition. The Court may take over the conduct of the
matter if it feels that in the interests of justice that issue should be decided irrespective
of the wishes of the petitioner. This is what happened in a case concerning children in
jails brought to the Supreme Court by a letter petition from Sheela Barse, a journalist.
Frustrated with the slow progress of the case, primarily due to the repeated adjourn-

49 (1996) 3 SCC 212

50 Olga Tellis v Bombay Municipal Corporation (1985) 3 SCC 545

51 Tehri Bandh Virodhi Sangharsh Samiti v State of UP (1992) Supp 1 SCC 44

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ments sought and obtained by the state governments, she sought to withdraw the case.
The Court, however, declined saying:52

The third ground is that the proceedings are brought as a voluntary


action and that the applicant is entitled to sustain her right to be the
petitioner in person in a public interest litigation and that the
proceedings cannot be proceeded with after delinking her from the
proceedings. This again proceeds on certain fallacies as to the rights
of a person who brings a public interest litigation. Any recognition of
any such vested right in the persons who initiate such proceedings is
to introduce a new and potentially harmful element in the judicial
administration of this form of public law remedy. That apart, what is
implicit in the assertion of the applicant is the appropriation to herself
of the right and wisdom to determine the course the proceedings are to
or should take and its pattern. This cannot be recognised the Court
has already initiated an elaborate exercise The petition cannot be
permitted to be abandoned at this stage. Only a private litigant can
abandon his claims.

PIL petitioners (who often appear in person) may be inarticulate in the presentation
of the case or may so identify with the cause that they may not be able to maintain
the necessary detachment. The Court may be better assisted by a lawyer who
understands the legal dimensions of the issue and is objective in her/ his approach to
the cause. The Courts have, in PIL cases, sought the assistance of lawyers as amicus
curiae. In order to ensure that the process of the Court is not misused, the Court may
require that the information supplied to it by the petitioner or the state be verified by
the amicus curiae.53 Senior advocates of the Supreme Court have assisted it as amicus
curiae in several cases, including those relating to bonded labour, police excesses,
forests, and public accountability. It is a moot point whether the appointment of an
amicus curiae shuts out the petitioner from being heard by the Court and being made
dependent on the amicus curiae for he effective presentation of her/ his point of view.

52 Sheela Barse v Union of India (1988) 4 SCC 226

53 State of West Bengal v Sampat Lal (1985) 1 SCC 317

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None the less, the role of the amicus curiae has thus far been significant in the
prosecution of PILs. Chief Justice J.S. Verma, speaking at a public function,
eulogized the lawyers role in PILs in these words:

It must be said to the credit of the Bar, and this I say from personal
experience over the years, the most busy lawyers who charge large
fees which I often openly criticize, if called upon to appear as amicus
curiae in any such matter, leave every other work and without
charging a single rupee put in their best effort in a PIL matter. That
credit is due to the Bar. That is the beauty of the justice delivery
system and that goes to show that the legal profession has not yet
become wholly mercenary. Professionalism remains and
professionalism is the essential trait of any such service-oriented
enterprise.54

NON ADVERSARIAL
In the traditional adversarial system, the lawyers of each party are expected to
present contending points of view to enable the judge to decide the issue for or
against a party. In PIL there are no winners or losers and the mind-set of both lawyers
and judges can be different from that in ordinary litigation. The Court, the parties and
their lawyers are expected to participate in resolution of a given public problem. This
was explained by the Court in Dr Upendra Baxi v State of U.P.55 It must be
remembered that this is not a litigation of an adversary character undertaken for the
purpose of holding the State Government or its officers responsible for making
reparation but it is a public interest litigation which involves a collaborative and
cooperative effort on the part of the State Government and its officers, the lawyers
appearing in the case and the Bench for the purpose of making human rights
meaningful for the weaker sections of the community.

54 Justice J.S. Verma, The Constitutional Obligation of the Judiciary, R.C. Ghiya Memorial
Lecture (1997) 7 SCC (Jrl.) 1

55 (1986) 4 SCC 106 at 117

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CRITIQUE OF PIL
PIL has, however, led to new problems such as an unanticipated increase in the workload of
the superior courts, lack of judicial infrastructure to determine factual matters, gap between
the promise and reality, abuse of process, friction and confrontation with fellow organs of the
government, and dangers inherent in judicial populism. 56 Before elaborating these problems,
let me take readers to a quick tour of some recent PIL cases that would offer an indication of
this dark side. It seems that the misuse of PIL in India, which started in the 1990s, has
reached to such a stage where it has started undermining the very purpose for which PIL was
introduced. In other words, the dark side is slowly moving to overshadow the bright side of
the PIL project.

ULTERIOR PURPOSE

One major rationale why the courts supported PIL was its usefulness in serving the public
interest. It is doubtful, however, if PIL is still wedded to that goal. As we have seen above,
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). Of course, it is not always easy to differentiate public interest from private
interest, but it is arguable that courts have not rigorously enforced the requirement of PILs
being aimed at espousing some public interest.

INEFFICIENT USE OF LIMITED JUDICIAL RESOURCES

If properly managed, the PIL has the potential to contribute to an efficient disposal of
peoples 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 are facing a huge backlog of cases, it is puzzling why the courts have not done enough
to stop no genuine 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.

56 Desai and Muralidhar in Kirpal et al., Supreme but not Infallible, pp.176183

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JUDICIAL POPULISM

Judges are human beings, but it would be unfortunate if they admit PIL cases on account of
raising an issue that is (or might become) popular in the society. Conversely, the desire to
become peoples judges in a democracy should not hinder admitting PIL cases which involve
an important public interest but are potentially unpopular. The fear of judicial populism is not
merely academic is clear from the following observation of Dwivedi J. in Kesavnanda
Bharathi v Union of India:
The court is not chosen by the people and is not responsible to them in the sense in which
the House of People is. However, it will win for itself a permanent place in the hearts of the
people and augment its moral authority if it can shift the focus of judicial review from the
numerical concept of minority protection to the humanitarian concept of the protection of the
weaker section of the people.57

DISTURBS THE CONSTITUTIONAL BALANCE OF POWER

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.58

Although the Indian Constitution does not follow any strict separation of powers, it still
embodies the doctrine of checks and balances, which even the judiciary should respect.
However, the judiciary on several occasions did not exercise self-restraint and moved on to
legislate, settle policy questions, take over governance, or monitor executive agencies.
Moreover, there has been a lack of consistency as well in that in some cases, the Supreme
Court did not hesitate to intrude on policy questions but in other cases it hid behind the shield
of policy questions.130 Just to illustrate, the judiciary intervened to tackle sexual harassment
as well as custodial torture and to regulate the adoption of children by foreigners, but it did

57 Kesavnanda Bharathi v Union of India (1973) 4 S.C.C. 225

58 Jain, The Supreme Court and Fundamental Rights in Verma and Kusum (eds), Fifty Years of the Supreme
Court of India, p.86.

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not intervene to introduce a uniform civil code, to combat ragging in educational institutions,
to adjust the height of the Narmada dam and to provide a humane face to liberalization-
disinvestment polices. No clear or sound theoretical basis for such selective intervention is
discernable from judicial decisions.
OVERUSE-INDUCED NON-SERIOUSNESS

PIL should not be the first step in redressing all kinds of grievances even if they involve
public interest. In order to remain effective, PIL should not be allowed to become a routine
affair which is not taken seriously by the Bench, the Bar, and most importantly by the masses:
The overuse of PIL for every conceivable public interest might dilute the original
commitment to use this remedy only for enforcing human rights of the victimised and the
disadvantaged groups.

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CONCLUSION
PIL in India has produced astounding results which were unthinkable three decades ago. The
greatest contribution of it has been enhancing the accountability of governments towards
human rights of underprivileged. Judges alone cannot provide effective responses to
governmental lawlessness but they can surely a culture formation where political power
becomes increasingly sensitive to human rights. But, public interest litigants, all over the
country, have not taken very humanely to such court decisions. They do fear that this will
sound the death-knell of the people-friendly concept of PIL. However, bona fide litigants of
India have nothing to fear.

Only those activists who prefer to file frivolous complaints will have to pay compensation to
the opposite parties. It is actually a welcome move because no one in the country can deny
that even PIL activists should be responsible and accountable. It is also notable here that
even the Consumers Protection Act, 1986 has been amended to provide compensation to
opposite parties in cases of frivolous complaints made by consumers. In any way, it now
does require a complete rethink and restructuring. It is however, obvious that overuse and
abuse of PIL can only make it stale and ineffective. Since it is an extraordinary remedy
available at a cheaper cost to all citizens of the country, it ought not to be used by all litigants
as a substitute for ordinary ones or as a means to file frivolous complaints.

The power of the Court to entertain any circumstance that may hinder societal growth, or
may cause hardship to a class of individuals is not unconstrained. It is carefully regulated
with tight reins, and cases of public interest are taken up only after scrupulous scrutiny.
Similarly there may be cases where the PIL may affect the right of persons not before the
court, and therefore in shaping the relief the court must invariably take into account its
impact on those interests and the court must exercise greatest caution and adopt procedure
ensuring sufficient notice to all interests likely to be affected. At present, the court can
treat a letter as a writ petition and take action upon it. But, it is not every letter, which may
be treated as a writ petition by the court. The court would be justified in treating the letter
as a writ petition only in the following cases:
i. It is only where the letter is addressed by an aggrieved person or
ii. A public spirited individual or
iii. A social action group for the enforcement of the constitutional or the legal rights

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of a person in custody or of a class or group of persons who by reason of poverty,
disability or socially or economically disadvantaged position find it difficult to
approach the court for redress.

Even though it is very much essential to curb the misuse and abuse of PIL, any move by the
government to regulate the PIL results in widespread protests from those who are not aware
of its abuse and equate any form of regulation with erosion of their fundamental rights. Under
these circumstances the Supreme Court of India is required to step in by incorporating safe
guards provided by the civil procedure code in matters of stay orders /injunctions in the arena
of PIL. However shedding all the doubts and abuses against misuse of PIL, it must be
accepted that is working as an important instrument of social change. It is working for the
welfare of every section of society. It is the sword of every one used only for taking the
justice. The innovation of this legitimate instrument proved beneficial for the developing
country like India. PIL has been used as a strategy to combat the atrocities prevailing in
society. It is an institutional initiative towards the welfare of the needy class of the society.

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