Genesis and Evolution of Public Interest Litigation

Public Interest Litigation
Chapter 1
Genesis of Public Interest Litigation (PIL)
(PIL has become a powerful tool for intervention and for seeking judicial
Assistance for dealing with various issues affecting the pubic.)
“Injustice anywhere is a threat to justice everywhere”

-Martin Luther King, Jr.
Justice without force is impotent;

force without justice is tyranny
-Pascal in Pensees.
There are times when even justice brings harm with it

-Sophocles in Electra.
PIL in broad terms means litigation filed in a court of law for the protection of “Public
Interest” on the wide variety of subjects concerning citizens.
In Indian law, public interest litigation means litigation for the protection of the public
interest. It is litigation introduced in a court of law, not by the aggrieved party but by the
court itself or by any other private party. It is not necessary, for the exercise of the court's
jurisdiction, that the person who is the victim of the violation of his or her right should
personally approach the court. Public interest litigation is the power given to the public by
courts through judicial activism.
Such cases may occur when the victim does not have the necessary resources to commence
litigation or his freedom to move court has been suppressed or encroached upon. The court
can itself take cognisance of the matter and proceed suo motu or cases can commence on the
petition of any public-spirited individual.
1
Origin of public interest litigation
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. Justice P.
N. Bhagwati and Justice V. R. Krishna Iyer were among the first judges to admit PIL's in the
court.1 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 PIL's
and heard by the court.
The history of public interest litigation
Public Interest Litigation popularly known as PIL can be broadly defined as litigation in the
interest of that nebulous entity: the public in general. Prior to 1980s, only the aggrieved party
could personally knock the doors of justice and seek remedy for his grievance and any other
person who was not personally affected could not knock the doors of justice as a proxy for
the victim or the aggrieved party. As a result, there was hardly any link between the rights
guaranteed by the Constitution of India and the laws made by the legislature on the one hand
and the vast majority of illiterate citizens on the other.
However, this entire scenario gradually changed when the post emergency Supreme Court
tackled the problem of access to justice by people through radical changes and alterations
made in the requirements of locus standi and of party aggrieved. The splendid efforts of
Justice P N Bhagwati and Justice V R Krishna Iyer were instrumental of this juristic
revolution of eighties to convert the apex court of India into a Supreme Court for all Indians.
As a result any citizen of India or any consumer groups or social action groups can approach
the apex court of the country seeking legal remedies in all cases where the interests of general
public or a section of public are at stake. Further, public interest cases could be filed without
investment of heavy court fees as required in private civil litigation.
1
PIL A Boon Or A Bane
2
Till 1960s and seventies, the concept of litigation in India was still in its rudimentary form
and was seen as a private pursuit for the vindication of private vested interests. Litigation in
those days consisted mainly of some action initiated and continued by certain individuals,
usually, addressing their own grievances/problems. Thus, the initiation and continuance of
litigation was the prerogative of the injured person or the aggrieved party. Even this was
greatly limited by the resources available with those individuals. There were very little
organized efforts or attempts to take up wider issues that affected classes of consumers or the
general public at large.
However, these entire scenario changed during Eighties with the Supreme Court of India led
the concept of public interest litigation (PIL).
The development of Public Interest Litigation (PIL) in the country has, however, very
recently uncovered its own pitfalls and drawbacks. The genuine causes and cases of public
interest have in fact receded to the background and irresponsible PIL activists all over the
country have started to play a major but not a constructive role in the arena of litigation. They
try to utilize this extraordinary remedy, available at a cheaper cost, as a substitute for ordinary
ones.
PIL- A Boon:
1. In Public Interest Litigation (PIL) vigilant citizens of the country can find an inexpensive
legal remedy because there is only a nominal fixed court fee involved in this.
2. Further, through the so-called PIL, the litigants can focus attention on and achieve results
pertaining to larger public issues, especially in the fields of human rights, consumer welfare
and environment.
Abuse of PIL:
However, the apex court itself has been compelled to lay down certain guidelines to govern
the management and disposal of PILs.
Of late, many of the PIL activists in the country have found the PIL as a handy tool of
harassment since frivolous cases could be filed without investment of heavy court fees as
required in private civil litigation and deals could then be negotiated with the victims of stay
orders obtained in the so-called PILs. Just as a weapon meant for defence can be used equally
3
effectively for offence, the lowering of the locus standi requirement has permitted privately
motivated interests to pose as public interests. The abuse of PIL has become more rampant
than its use and genuine causes either receded to the background or began to be viewed with
the suspicion generated by spurious causes mooted by privately motivated interests in the
disguise of the so-called public interests.
Necessary Steps to be taken
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 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.
4
Public Interest Litigants, all over the country, have not taken very kindly 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 PIL 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, PIL 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.
5
Chapter 2
What is Public Interest Litigation
Introduction
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 obligate the Government to provide to all citizens a minimum
standard of living, the promise has not been fulfilled. The greater majority of the Indian
people have no assurance of two nutritious 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. Indian newspapers abound in stories of the exploitation -
by landlords, factory owners, businessmen, and the state's own functionaries, such as police
and revenue officials - of children, women, villagers, the poor, and the working class.
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 2 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. In this
case, adverting to the Constitutional prohibition on "begar", or forced labor and traffic in
human beings, PUDR submitted that workers contracted to build the large sports complex at
the Asian Game Village in Delhi were being exploited. PUDR asked the Court to recognize
that "begar" was far more than compelling someone to work against his or her will, and that
work under exploitative and grotesquely humiliating conditions, or work that was not even
compensated by prescribed minimum wages, was violative of fundamental rights. As 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 prostituted 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
2
1982 (2) S.C.C. 253
6
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 chamars 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 by its foremost advocate, Professor Upendra Baxi, has given the court
"epistolary jurisdiction".
Meaning of Public Interest Litigation

In Black's Law Dictionary : "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
class of the community have pecuniary interest or some interest by which their legal rights or
liabilities are affected." Public Interest Litigation's explicit purpose is to alienate the suffering
off all those who have borne the brunt of insensitive treatment at the hands of fellow human
being. Transparency in public life & fair judicial action are the right answer to check
increasing menace of violation of legal rights. Traditional rule was that the right to move the
Supreme Court is only available to those whose fundamental rights are infringed.
But this traditional rule was considerably relaxed by the Supreme Court in its recent rulings:
Peoples Union for Democratic Rights v. Union of India 3-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 participate justice and standing
in civil litigation of that pattern must have liberal reception at the judicial door steps.
In the Judges Transfer Case - 4 Court held Public Interest Litigation can be filed by any
member of public having sufficient interest for public injury arising from violation of legal
3
A.I.R.. 1982 , S C 1473.
4
AIR 1982, SC 149:
7
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.
Shiram Food & Fertilizer case 5- through Public Interest Litigation directed the Co.
Manufacturing hazardous & lethal chemical and gases posing danger to life and health of
workmen & to take all necessary safety measures before re-opening the plant.
In the case of M.C Mehta V. Union of India 6- In a Public Interest Litigation brought against
Ganga water pollution so as to prevent any further pollution of Ganga water. 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.
Parmanand Katara V. Union of India7- 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.
Council for Environment Legal Action V. Union of India 8- Public Interest Litigation filed
by registered voluntary organisation regarding economic degradation in coastal area.
Supreme Court issued appropriate orders and directions for enforcing the laws to protect
ecology.
A report entitled "Treat Prisoners Equally HC" published in THE TRIBUNE, Aug 23 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".
5
AIR (1986) 2 SCC 176 SC
6
1988 1 SCC 471
7
AIR 1989, SC 2039
8
(1996)5 SCC281
8
State V. Union Of India9- Public Interest Litigation is a strategic arm of the legal aid
movement which intended to bring justice. 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
abused and misused by the vested interest. In a recent ruling of Supreme Court on "
GROWTH OF SLUMS" in Delhi through Public Interest Litigation initiated by lawyers Mr.
B.L. Wadhera & Mr. Almitra Patel Court held that large area of public land is covered by the
people living in slum area . Departments despite being giving a dig on the slum clearance, it
has been found that more and more slums are coming into existence. Instead of "Slum
Clearance", there is "Slum Creation" in Delhi. As slums tended to increase; the Court directed
the departments to take appropriate action to check the growth of slums and to create an
environment worth for living.
During the last few years, Judicial Activism has opened up a new dimension for the judicial
process and has given a new hope to the millions who starve for their livelihood. There is no
reason why the Court should not adopt activist approach similar to Court in America, so as to
provide remedial amplitude to the citizens of India.
Supreme Court has now realised its proper role in welfare state and it is using its new strategy
for the development of a whole new corpus of law for effective and purposeful
implementation of Public Interest Litigation. One can simply approach to the Court for the
enforcement of fundamental rights by writing a letter or post card to any Judge. That
particular letters based on true facts and concept will be converted to writ petition. When
Court welcome Public Interest Litigation, its attempt is to endure observance of social and
economic programmes frame for the benefits of have-nots and the handicapped. Public
Interest Litigation has proved a boon for the common men. Public Interest Litigation has set
right a number of wrongs committed by an individual or by society. 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.
9
AIR 1996 Cal 181 at 218
9
Chapter 3
PUBLIC INTEREST LITIGATION: A MATTER OF JUSTICE AN ASIAN

PERSPECTIVE
10
1. Introduction
1.1 PIL as a component of the justice system
For some time courts in many developing countries faced a challenge of considerable
proportions. Prime amongst this was their image as being in the service of the rich. The
indigent were often dragged through its portals as unwilling suitors, usually as defendants or
accused. This perception gravely undermines access to justice. Where grievances go
undressed for this reason, the proper functioning of the rule of law is in jeopardy.
Public Interest Litigation (PIL) seeks to correct this judicial image in the eyes of its poorer
citizenry and thus restore the rule of law in the justice system. The courts in India and some
Asian countries have generally adopted PIL as an essential component of its justice delivery
system. In some areas the achievements have been quite spectacular. For example, the South
Asian judiciary is said to lead the world as a guarantor of the legal protection of sustainable
development and the environment.10 The courts in these countries have expanded on
substantive rights and removed the constraints of procedural law inhibiting access to the
courts. The judicial approach displays an Social and Environmental Norms’, 4 Asia Pac. J.
Envtl. L. 195, 195 (2000).
Some suggest that today, South Asia leads the world in jurisprudence, not America or Europe:
Werner Menski etal., Public Interest Litigation in Pakistan 109 (2000). See also Parvez
Hassan, In Pakistan, the Judiciary Leads the Way, 15 Envtl. F. 48 (1998). All cited in Parvez
Hassan and Azim Azfar, ‘Securing Environmental Rights through Public Interest Litigation in
South Asia, 22 Va. Envtl. L.J. 215. Ecological understanding and sensitivity and, as well, a
willingness to build bridges whereby all citizens, and not just the strong, may approach the
courts for vindication of their rights.11
1.2 The value of PIL

This paper discusses the values that PIL, properly channeled, advances. The ensuing
discussion elaborates on these critical values. They may be summarized as follows. PIL:
1. Provides effective judicial protection of weaker sections of community.
2. Makes officialdom accountable.12
10
Nicholas A. Robinson, ‘A Common Responsibility: Sustainable Development and Economic,
11
2 All ER 93, at 105.
11
3. Makes real the considerations of transparency in decision-making processes.

4. Remedies democracy deficit.
5. Creates structures for change: force the pace.
6. Allows the most effective proponents to bring cases: promotes effectivity in use of judicial
institutions.
7. Allows diffused interests to be represented: air, water, environment, biodiversity, and such
like.13
8. Ensures access to justice.
9. Allows for participative justice.
10. Ensures government acts according to its established duty to abide by and enforce legal
norms.
11. Protects and sustains democratic governance and the rule of law.
1.3Why PIL makes sense from a justice perspective in Asian countries

Asian countries have in the past few decades been engaged in efforts to ‘develop’
economically. The nature of the development brought in its wake widespread consequences
on a scale hitherto unknown. And on a populace that was more deprived than the rest. For
example, projects to build dams to supply energy involuntarily displace the less privileged
people in a country in numbers that are staggering. The Bakun dam in Malaysia would flood
a near pristine forested area the size of Singapore; and displace its 100,000 native habitants.
The Three Gorges dam in China will flood an area in which live 1.2 million People. In other
situations, fundamental rights that affect the very support system of life are impaired: the
right to housing, and the provision of basic human needs of clean air, water and sanitation.
Generally those affected have little or no means, nor capacity, to have their concerns
addressed. Bureaucracies move on regardless. The ultimate forum for redressing grievance
and seeking justice.14The courts are practically beyond reach as the traditional method of
litigation is expensive and wracked by procedural obstacles. Also the collective nature of the
rights affected are less amenable to redress through an individualistic western model rights
12
‘The scope for ventilation of matters of legitimate public concern and public declaration in support of
accountability is a vital task for the courts and other public entities charged with finding legal resolution for
infringement of social rights’: Durbach A, 'Test Case Mediation - Privatising the public interest' (1995) 6 Aust
Dispute Resolution J 233 at 238.
13
A.B.S.K. Sangh (Railway) v. Union of India, A.I.R. 1981 S.C. 298, 317.
14
‘The root principle of law married to justice, is ubi jus ibi remedium (where there is a grievance there is a
remedy)’: Shiv Shankar v State of Haryana AIR 1980 SC 1037.
12
based approach which many Asian countries inherited from their colonial predecessors.15This
eschewed group court on behalf of others. The litigant had to show that he was peculiarly and
especially affected by the damage, over and above the rest of the members of the public. 16The
classical judicial reasons for this was the fear that the court system would be open to abuse by
busybodies and cranks and the court drowned by the flood of worthless litigation; as well that
people committed to an agenda would needlessly pursue others causing them great
inconvenience and expense. The Attorney General, as the repository of the public interest,
was the only one who had the right to initiate action where there was collective widespread
damage. The Asian judiciary began to reject these arguments as inapplicable quite early on.
In Malaysia it was said that though the gates to litigation to allow standing were opened,
there was no flood.17The apex courts of India and Pakistan said that failure to accord
standing, given the socio-economic and political infrastructure, will amount to an abdication
of judicial authority.18The Indian Supreme Court considered it a ‘mockery of the Constitution’
if strict adherence to the adversarial procedure led to injustice, especially where litigants are
unevenly balanced in social or economic strength.
2. The legal infrastructure for pil: lessons from, and for, asian countries
2.1 Establishing PIL as a critical component in the justice system
15
A.B.S.K. Sangh (Railway) v. Union of India, A.I.R. 1981 S.C. 298, 317: ‘Our current processual jurisprudence
is not of individualistic Anglo-Indian mould. It is broad-based and people-oriented, and envisions access to
justice through 'class actions, public interest litigation,' and 'representative proceedings' [sic]. Indeed, little
Indians in large numbers seeking remedies in courts through collective proceedings, instead of being driven to
an expensive plurality of litigations, is an affirmation of participative justice in our democracy. We have no
hesitation in holding that the narrow concept of 'cause of action' and 'person aggrieved' and individual
litigation is becoming obsolescent in some jurisdictions’.
16
‘Where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special
damage peculiar to himself from the interference with the public right’: Boyce v Paddington Borough
Council [1903] 1 Ch. 109, per Buckley J.
17
Tan Sri Othman Saat v Mohamed bin Ismai [1982] 2 MLJ 177 (SC).
18
State v. M.D. Wasa , 2000 C.L.C. 22 (Lahore) 471, 475(HC): ‘The rationale behind public interest litigation in
developing countries like Pakistan and India is the social and educational backwardness of its people, the
dwarfed development of law of tort, lack of developed institutions to attend to the matters of public concern, the
general inefficiency and corruption at various levels. In such a socio- economic and political milieu, the non-
intervention by Courts in complaints of matters of public concern will amount to abdication of judicial
authority’.
13
Public Interest Litigation, which envisages challenge to governmental transgression of

public rights, is a vital concomitant of the justice system. If not permitted, there would be a
grave lacuna in the public law system. Justice, broadly understood, requires rebalancing the
distribution of legal resources, increasing access to justice for the disadvantaged, and imbuing
formal legal guarantees with substantive and positive content.
To advance these critical components, there must be the necessary legal support structures in
place. PIL is an important starting point. But it needs a comprehensive legal architectural
framework to function effectively. This implies, no less, a change in judicial attitudes, the
broadening of constitutional rights and the revision of existing procedural rules. Additionally,
new remedies need to be shaped to achieve effectual and optimal results. Many Asian
countries, while committed to building a strong governance ethos, in particular accountability
and transparency, are handicapped by weak institutional structures and an even weaker
enforcement culture. PIL provides an avenue for change. Indeed without PIL as an entrenched
critical component in the justice system, the proper functioning of the rule of law is in
question. Establishing it in this schema then becomes a sacrosanct democratic task for all
players involved in the justice delivery system: the citizenry working individually or through
civil society organizations, the judiciary, lawyers, members of the bureaucracy and the
government. What does this practically entail? The following discussion focuses on the
essential legal infrastructure that must be constructed for the proper functioning of PIL in
Asian societies.
The discussion is dealt with under two broad heads: first, the effective enforcement of
existing legal norms; and, secondly, the creation of new judicial norms.
2.2. Enforcing Existing Legal Norms
(a) A Proactive and Independent Judiciary: Fulfilling the Constitutional

Promise
Courts function within a constitutional democracy founded on the rule of law. There are
values inherent in this political and legal construct. It becomes the duty of the judiciary, in the
exercise of its collective adjudicatory skills in cases before it, to advance these values. This
requires judicial creativity; sometimes, even judicial courage. It may not be a matter of
simply searching for the presence or absence of a particular provision in the constitution. This
is not in itself dispositive of the nature or strength of the right. In any event constitutions were
drafted at a time long gone by. They have to be made relevant to the era of an awakened
14
citizenry. The aphorism that ‘constitutions are alive and for all time’ can only be realized by
judges cognizant of their role to advance the values of justice and the proper functioning of
the rule of law. Case law is replete with examples where the judiciary, in countries lacking
comparable constitutional provisions, has implied constitutional rights even in the absence of
a textual provision. In Asia, the constitutions of India, Pakistan and Bangaldesh have no
provision protecting the environment. Yet the judges developed one of the most advanced
environmental protection jurisprudence in the world. The Supreme Courts in these countries,
in a series of creative steps, responded to the clarion call for justice to be done, by first
recognizing that the traditional system of litigation, highly individualistic and adversarial,
was ill-suited to meet the collective claims of the underprivileged. It relied on the wide power
in the Constitution and other sources (such as the Directive principles, in India) to develop an
appropriate method to advance and protect fundamental rights. It used this power to foster a
Public Interest Litigation system to fulfill the constitutional promise of social and economic
order based on equality. Proactive and enlightened members of the judiciary exercised their
acumen to rebalance the distribution of legal resources, increase access to justice for the
disadvantaged, and imbue formal legal guarantees with substantive and positive content.
Judges dismantled archaic and irrelevant procedural processes where they were barriers to
access to justice. Substantive content was expanded to ensure that the social, political and
economic rights guaranteed to its citizens were not thwarted. Judges devised new remedies
(investigative expert panels) and cooperative styles, antithetical to the adversarial trial
process. Judges delved into areas beyond their traditional fields and searched for sustenance
for their decisions from international ‘soft-law’ declarations and treaties. At centre stage of all
these changes was the judge furthering the democratic charter of justice.
This was pithily captured by a Malaysian judge: This dictum was adopted in Malaysia in a
case reputed to have ushered in public interest litigation: 19In a Government so firmly founded
on the principles of justice and the rule of law, the Judiciary cannot idly stand as a silent and
stony pillar of democracy. The court, in its role as a public watch dog, is not expected to turn
a deaf ear to the prevailing public outcry against corruption and abuse of administrative
powers by authorities or their officials, however high in rank.
19
Mohamed bin Ismail v Tan Sri Haji Othman Saat,
15
This then is the overarching role that a judge must commit to in order to fulfil his or her oath
of office in a functioning constitutional democracy based on the rule of law.
(b) Enforcing Implicit Procedural Constitutional Rights;

In Bandhua Mukti Morcha v. Union of India,20the Indian Supreme Court acted on a mere
letter by the petitioners in place of the usual formal writ petition. The
Court justified the alteration in the rules of procedure not as an exception tailored to necessity
but as an affirmative constitutional duty to further the protection of fundamental rights.
Constitutions frequently are the source of the procedural rights necessary for citizen
organizations to pursue their advocacy work. Constitutional provisions on fundamental rights
like freedom of association and speech implicitly include rights to access to information,
public participation, and legal standing.
(c) Broadening Key Constitutional Provisions

i. Giving the constitutional provisions on life and liberty a broad substantive component.
Several Asian apex courts based at least on the common law tradition, pioneered by India,
have given the constitutional provisions on liberty a broad substantive content – to
encompass a wide array of rights ranging from personal dignity to quality of life and right to
a decent livelihood. Any limitations on this expanded concept had to be justified as necessary.
This shifts the burden of proof to the alleged transgressor of the right.
Article 21 of the Indian Constitution provides that, "no person shall be deprived of his life or
personal liberty except according to procedure established by law."
The Supreme Court said that this right to life is meaningless unless accompanied by the
guarantee of certain social rights which make the opportunity to live life with dignity equally
available. In Frances Mullin v. Union Territory of Delhi, the Court interpreted the ‘right to
life’ expansively. It held that the right to life "includes the right to live with human dignity
and all that goes along with it, namely, the bare necessities of life such as adequate nutrition,
clothing and shelter... Every act which offends against or impairs human dignity would
constitute deprivation pro tanto of this right to live...." 21In a later case, the Court held that the
right to live with human dignity derives its substance from the Directive Principles provided
in the constitution.22This has been expanded to include the protection of more than the mere
20
AIR 1984 SC 802.
21
[1981] 2 S.C.R. at 529.
22
Bandhua Mukti Morcha v. Union of India, A.I.R. 1984 S.C. 802, 811.
16
survival or animal existence. 23 The judges held that the right to life includes the right to live
with human dignity, and the provision of minimum sustenance, shelter, and those other rights
and aspects of life which make life meaningful and worth living. 24This broadening of the
constitutional conceptual framework provided the impetus for public interest litigation of
major proportions.
On the basis of this expansionary interpretation, the Indian Supreme Court has invalidated
unreasonable restrictions on the right to travel, and upheld the rights of traditionally
powerless persons such as prisoners, bonded labourers, pre-trial detainees, rickshaw
operators, children, migrant labourers, inmates of workhouses, pavement dwellers, rape
victims, inmates of mental institutions, small farmers, workers facing plant closures, and
victims of environmental degradation.
In Pakistan the Supreme Court in Shehla Zia v. WAPDA, held that the right to life guaranteed
by Article 9 of the Constitution of Pakistan included the right to a healthy environment. 25The
Constitution makes no reference to environmental rights. These rights were upheld through
an innovative process of interpretation that regards the wide language of fundamental rights
in the constitution ‘as living tissue from which legal principles can be created in order to meet
the needs of an evolving society’.26This innovative model of rule formulation ushered in a
flourishing of PIL in Pakistan.
In Bangladesh, the Constitution also makes no reference to environmental rights. Yet its apex
Court broadened the ‘right to life’ to incorporate these rights.27
In Malaysia, the Indian Supreme Court decisions on the expanded definition of ‘life’ were
incorporated through case law into its constitutional jurisprudence. 28Where there are well-
developed codes of law and systems for policing it, there is less need to rely on broad
constitutional guarantees to provide the substantive basis for protection. The judicial role is
23
Puttappa Honnappa Talavar v. Deputy Commissioner, A.I.R. 1998 Karn. 10, 11; Samatha v. State of Andhra
Pradesh, A.I.R. 1997 S.C. 3297, 3302 (the right to life includes social and economic empowerment).
24
Samatha v. State of Andhra Pradesh, A.I.R. 1997 S.C. 3297.
25
P.L.D 1994 S.C. 693.
26
Parvez Hassan and Azim Azfar, ‘Securing Environmental Rights through public interest litigation in South
Asia, 22 Va. Envtl. L.J. 215.
27
Farooque v. Bangladesh, 1997 B.L.D. 17, P 33.
28
Tan Teck Seng [1996] 1 MLJ 261(CA); Hong Leong Equipment [1996] 1 MLJ 481(CA); Ketua Pengarah
Jabatan Alam Sekitar & Ors v Kajing Tubek & Others [1997] 3 MLJ 23 (CA).
17
likely to be more supervisory. In the European environmental law context, for example, this
is the position. The emphasis then has been on access to justice, including public access to
environmental information, and the public's role in the enforcement of environmental laws
designed for their protection. The Aarhus Convention of 1998 deals precisely with these.
Article 9 requires member states to ensure that members of the public with a sufficient
interest have access to a court of law or other 'independent and impartial body established by
law' to challenge 'the substantive and procedural legality of any decision'. The procedures
must 'provide adequate and effective remedies, including injunctive relief as appropriate, and
be fair,equitable, timely and not prohibitively expensive'.29
ii. Recourse to international rights regime

The Asian courts’ expansion of the scope of public interest law was achieved in no less
measure by going beyond the domestic legal regime and embracing universal rights and
values reflected in international regimes. Thus eminently domestic concerns like eviction of
the homeless and the landless were seen in the larger concerns relating to the universal human
right to housing.30This locates the constitutional rights within a larger universal context and
enlarges their ambit.
The Supreme Court of India frequently relies on international treaties and precepts to inject
new life into its Constitution. A famous example was the Vellore Citizens' Welfare
Forum case31in which the court held that principles of 'sustainable development', including
the 'precautionary principle' and the 'polluter pays' principle, were part of Indian law.
The Sri Lankan Supreme Court in Bulankulama v. Ministry of Industrial

Development anchored its decision on significant pronouncements on sustainable
development and the incorporation of international treaties in domestic law. 32In the
29
See Handbook on Access to Justice under the Aarhus Convention, published by the Regional Environmental
Centre for Central and Eastern Europe ('REC'): includes case studies from 19 countries illustrating the practical
problems arising for access to justice under Article 9 such as: the role of NGOs, rules as to standing, financial
guarantees for interim relief, delay, and costs. Peter Cicchino, Opening Remarks, First Annual Peter Cicchino
Awards for Outstanding Advocacy in the public interest Panel Discussion, 2001, 9 Am. U.J. Gender Soc. Pol'y
& L. 15.
30
Peter Cicchino, Opening Remarks, First Annual Peter Cicchino Awards for Outstanding Advocacy in the
public interest Panel Discussion, 2001, 9 Am. U.J. Gender Soc. Pol'y & L. 15.
31
AIR 1979 SC 1360.
32
7 S. Asian Envtl. L. Rep. 1 (Jun 2002).
18
Eppawela case in 2000, the Sri Lankan Supreme Court found that a Government proposal to
lease a phosphate mine to an American company for 30 years conflicted with principles of
sustainable development and had not been subject to adequate environmental assessment. It
emphasised the importance of public access to environmental information, drawing on the
policies of the European Commission and the Rio Declaration to provide positive content to
the fundamental rights guaranteed by the constitution.
The Pakistan Supreme Court in Shehla Zia v WPDA, cited earlier, said the Rio
Declaration ‘would serve as a great binding force’. It applied the precautionary principle
adopted in the Rio Declaration and as applicable to the needs of a developing country.
The Court said: ‘According to it (the precautionary principle) if there are threats of serious
damage, effective measures should be taken to control it and it should not be postponed
merely on the ground that scientific research and studies are uncertain and not conclusive. It
enshrines the principle that prevention is better than cure. It is a cautious approach to avert a
catastrophe at the earliest stage. Pakistan is a developing country. It cannot afford the
researches and studies made in developed countries on scientific problems particularly the
subject at hand. However, the researches and their conclusions with reference to specific
cases are available, the information and knowledge is at hand and we should take benefit out
of it. In this background if we consider the problem faced by us in this case, it seems
reasonable to take preventive and precautionary measures straightaway instead of
maintaining status quo because there is no conclusive finding on the effect of electromagnetic
fields on human life. One should not wait for conclusive finding as it may take ages to find it
out and, therefore, measures should be taken to avert any possible danger and for that reason
one should not go to scrap the entire scheme but could make such adjustments alterations or
additions which may ensure safety and security or at least minimise the possible hazards’.33
The court also relied on the concept in international environment documents of ‘sustainable
development’. It said that a balance had to be struck between economic progress and
prosperity and minimising possible hazards. Of course this implies that judges must be
familiar with the universal concepts in these international instruments, their relevance and
how they could be adapted to advance the public interest in the case before them. This must
33
PLD 1994 SC 693, 710-711.
19
mean in the long term, the phasing out of the ‘insular’ judge oblivious to the impact of
universal values and international instruments on national adjudication.34
Chapter 4
GROWTH OF PUBLIC INTEREST LITIGATION IN INDIA
34
Gurdial Singh Nijar, ‘The Application of International Norms in National Adjudication of Fundamental
Rights’, in Proceedings of the 12th Malaysian Law Conference, Bar Council Malaysia, Kuala Lumpur, 2005,
p.52.
20
Introduction
Over the last three decades or so, the device of Public Interest Litigation (PIL) has
come to be recognized as a characteristic feature of the higher judiciary in India. Even though
Indian courts cannot take credit for initiating the concept of ‘public law litigation’, they have
in due course emerged as the site where this device has been repeatedly used to protect the
interests of disadvantaged groups as well as address matters of collective concern. The phrase
‘public law litigation’ was first prominently used by American academic Abram Chayes to
describe the practice of lawyers or public spirited individuals who seek to precipitate social
change through court-ordered decrees that reform legal rules, enforce existing laws and
articulate public norms.35 However, the evolution of Public Interest Litigation (PIL) in India,
or Social Action Litigation – as Prof. Upendra Baxi chooses to describe it, has accommodated
several other distinctive features.
I will first summarise the core features of the Public Interest Litigation (PIL) process
and demonstrate how it marks a departure from the common-law understanding of the
judicial process. After that I will present an overview of the circumstances that led to the
introduction of this device which is clearly correlated to the ‘activist’ turn of the higher
judiciary in India. The next component will be devoted to a survey of some prominent
decisions given in Public Interest Litigation (PIL) cases and to conclude I will reflect on
some of the strategies adopted to streamline the institution of cases under this category.
Beginning with the first few instances in the late-1970’s, the category of Public
Interest Litigation (PIL) has come to be associated with its own ‘people-friendly’ procedure.
The foremost change came in the form of the dilution of the requirement of ‘locus standi’ for
initiating proceedings. Since the intent was to ensure redressal to those who were otherwise
too poor to move the courts or were unaware of their legal entitlements, the Court allowed
actions to be brought on their behalf by social activists and lawyers. 36 In numerous instances,
the Court took suo moto cognizance of matters involving the abuse of prisoners, bonded
labourers and inmates of mental institutions, through letters addressed to sitting judges. This
35
See: Abram Chaves, ‘The role of the judge in Public Law litigation’, 89 Harvard Law Review 1281 (May
1976)
36
Refer: Susan D. Susman, ‘Distant voices in the Courts of India: Transformation of standing in Public Interest
Litigation’, 13 Wisconsin International Law Journal 57 (Fall 1994)
21
practice of initiating proceedings on the basis of letters has now been streamlined and has
come to be described as ‘epistolary jurisdiction’.
In Public Interest Litigation (PIL), the nature of proceedings itself does not exactly fit into the
accepted common-law framework of adversarial litigation. The courtroom dynamics are
substantially different from ordinary civil or criminal appeals. While an adversarial
environment may prevail in cases where actions are brought to highlight administrative
apathy or the government’s condonation of abusive practices, in most public interest-related
litigation, the judges take on a far more active role in terms of posing questions to the parties
as well as exploring solutions. Especially in actions seeking directions for ensuring
governmental accountability or environmental protection, the orientation of the proceedings
is usually more akin to collective problem-solving rather than an acrimonious contest
between the counsels. Since these matters are filed straightaway at the level of the Supreme
Court or the High Court, the parties do not have a meaningful opportunity to present evidence
on record before the start of the court proceeding. To overcome this problem, our Courts have
developed the practice of appointing ‘fact-finding commissions’ on a case-by-case basis
which are deputed to inquire into the subject-matter of the case and report back to the Court.
These commissions usually consist of experts in the concerned fields or practicing lawyers. In
matters involving complex legal considerations, the Courts also seek the services of senior
counsels by appointing them as amicus curiae on a case-by-case basis.37
For purposes of constitutional competence, these actions are characterized as those coming
under the writ jurisdiction of the Supreme Court of India under Article 32 of our Constitution
and the various High Courts, under Article 226. The traditional extent of writ jurisdiction was
of course a colonial inheritance from the British-era and the remedies that could be invoked
were those of habeas corpus, quo warranto, mandamus, prohibition and certiorari.
However, the Indian Courts have pushed the boundaries of constitutional remedies by
evolving the concept of a ‘continuing mandamus’ which involves the passing of regular
directions and the monitoring of their implementation by executive agencies. In addition to
designing remedies for ensuring that their orders are complied with, the Courts have also
resorted to private law remedies such as injunctions and ‘stay’ orders in Public Interest
Litigation (PIL) matters. The Supreme Court of India has been able to shape appropriate
remedies for a variety of situations on account of the wide discretionary powers for granting
37
See Ashok H. Desai & S. Muralidhar, ‘Public Interest Litigation: Potential and Problems’ in B.N. Kirpal et. al.
(eds.), Supreme but not Infallible (OUP, 2000) 159-192, at p. 164-167
22
constitutional remedies that have been conferred on it as per the language of Article 32 of the
Constitution. Furthermore, under Article 141 of the Constitution of India, the Supreme
Court’s rulings are considered to be the ‘law of the land’ and become binding precedents for
all courts and tribunals in the country’s legal system. Hence, the Supreme Court’s decisions in
Public Interest Litigation (PIL) matters have progressively shaped a unique jurisprudence that
gives due weightage to the interests of the underprivileged and backward sections in society.
A significant consequence of this is that creative remedies designed for particular fact-
situations come to be widely reported and are referred to by Courts all over the country. In
this way, the rulings given in PIL cases create an active judicial dialogue within the whole
legal system.
The advent of Public Interest Litigation (PIL) is one of the key components of the
approach of ‘judicial activism’ that is attributed to the higher judiciary in India. The Courts’
interventions have played a pivotal role in advancing the protection of civil liberties, the
rights of workers, gender justice, and accountability of public institutions, environmental
conservation and the guarantee of socio-economic entitlements such as housing, health and
education among others. This has not only strengthened the position of the judiciary vis-à-vis
the other wings of government, but has also raised its prestige among the general populace.
However, this activist disposition of the Courts also has its critics.
The principled criticism against Public Interest Litigation (PIL) is that it detracts from the
constitutional principle of ‘separation of powers’ by allowing the Courts to arbitrarily
interfere with policy-choices made by the legislature and pass orders that may be difficult for
the executive agencies to implement. In respect of practical considerations, the criticism
revolves around the behaviour of litigants as well as judges. From time to time, it has been
urged that the dilution of the requirement of ‘locus standi’ has opened up the floodgates for
frivolous cases that either involve the litigants’ private interests or are vehicles for gaining
publicity rather than seeking justice for disadvantaged groups.38 It is argued that in light of the
increasing case-load before the appellate judges, the PIL cases impose an additional ‘gate-
keeping’ role and impede efficiency. From the standpoint of the judges, it is reasoned that
quite often there are no checks against decisions or orders that amount to ‘judicial overreach’
or ‘judicial populism’.
38
See: T.R. Andhyarujina, Judicial Activism and Constitutional Democracy in India (Bombay: N.M. Tripathi,
1992)
23
While all of these criticisms have been offered by acclaimed scholars, senior
practitioners and sitting judges as well, there is a much more compelling case in defence of
the use of Public Interest Litigation (PIL). I would like to take this opportunity to present that
defence. The main rationale for ‘judicial activism’ in India lies in the highly unequal social
profile of our population, where judges must take proactive steps to protect the interests of
those who do not have a voice in the political system and do not have the means or
information to move the Courts. This places the Indian Courts in a very different social role
as compared to several developed nations where directions given by ‘unelected judges’ are
often viewed as unjustified restraints on the will of the majority. It is precisely this
countermajoritarian function that needs to be robustly discharged by an independent and
responsible judiciary. At this point I would like to recall an observation made in the matter of
Bihar Legal Support Society v. The Chief Justice of India & Ors:39
“The majority of the people of our country are subjected to this denial of ‘access to
justice’ and overtaken by despair and helplessness, they continue to remain victims of an
exploitative society where economic power is concentrated in the hands of a few and it is
used for perpetuation of domination over large masses of human beings…… The strategy
of public interest litigation has been evolved by this Court with a view to bringing justice
within the easy reach of the poor and disadvantaged sections of the community.”
The ‘activist’ turn of the Indian judiciary

Our judicial system is a very visible part of the inheritance from the British Raj. We continue
to rely on a sizeable body of statutory law and precedents from the colonial period, with the
exception of what is repugnant to our constitutional provisions. However, the framers of our
Constitution incorporated influences from several countries and adopted the idea of ‘judicial
review’ as opposed to the British notion of ‘Parliamentary sovereignty’. 40 In India, the criteria
for the Courts to review governmental action is threefold – the fundamental rights enshrined
39
AIR 1987 SC 38
40
There is an express provision for ‘judicial review’ in Article 13 of the Constitution of India. Article 13(1) says
that “all laws that were in force in the territory of India immediately before the adoption of the Constitution, in
so far as they are inconsistent with the provisions containing the fundamental rights, shall, to the extent of such
inconsistency, be void.” Article 13(2) further says that “the states shall not make any law that takes away or
abridges any of the fundamental rights, and any law made in contravention of the aforementioned mandate
shall, to the extent of the contravention, be void.”
24
in Part III of the Constitution, the reasonableness of administrative actions and the
demarcation of legislative competence between the Union and the States.
However, the scope of this power of ‘judicial review’ was keenly contested throughout the
1950’ and 1960’s, primarily over the question of the ‘right to property’. During that phase,
governments at both the Union level and most states enacted legislations providing for land
acquisition in order to advance the policy of agrarian land reforms. However, many of the
large landowners who were required to give up their holdings challenged these laws before
the Courts on grounds such as inadequate compensation among others. While the Nehru-led
government passed several Constitutional amendments with the objective of immunizing
these land-reforms measures against ‘judicial review’, the Courts frequently ruled in favour
of the property-owners. By the late 1960’s, this tussle between the Courts and the Congress
Party controlled Parliament turned into one between the idea of ‘judicial review’ on one hand
and unqualified ‘parliamentary sovereignty’ on the other hand. 41 The Supreme Court itself
was called upon to rule on the scope of the Parliament’s power to amend the Constitution,
and it evolved the ‘Basic Structure’ doctrine in the much-cited decision in Keshavananda
Bharati v. State of Kerala.42 By a narrow majority of 7-6 it was ruled that Parliament’s power
of amendment was not absolute and it could not amend the ‘Basic structure’ of the
Constitution, which in the opinion of the judges consisted of elements such as democracy,
rule of law, secularism, separation of powers and judicial review. 43 The said decision did not
curry favour with the Indira Gandhi-led government of the day and three of the judges who
ruled for the majority were superseded in the matter of appointment to the position of Chief
Justice of India in 1973. Nevertheless, the decision had given a clear signal in defense of
judicial independence.
Around the same time, there was an increasing realization on part of the sitting judges in the
Supreme Court that the judiciary was commonly perceived as an elitist body which would
dispense justice only to those who could afford it. Its pro-landowner decisions had also been
portrayed as an impediment to the land reforms programme by the incumbent executive
agencies. Recognising the need to engage with the egalitarian Constitutional philosophy,
41
For a brief commentary on the evolution of the doctrine of ‘judicial review’ in India, See: S.P. Sathe, ‘Judicial
Activism: The Indian experience’, 6 Washington University Journal of Law and Policy 29 (2001)
42
(1973) 4 SCC 225
43
See generally: Raju Ramachandran, ‘The Supreme Court and the Basic Structure Doctrine’ in B.N. Kirpal et.
al. (eds.), Supreme but not Infallible (OUP, 2000) at p. 107-133
25
some judges took the lead in raising concerns about improving access to justice for the
underprivileged. In a report on legal aid published in 1971, Justice P.N. Bhagwati had
observed:
“Even while retaining the adversary system, some changes may be effected whereby
the judge is given a greater participatory role in the trial so as to place the poor, as far as
possible, on a footing of equality with the rich in administration of justice.” 44
The Committee on Judicare consisting of Justice V.R. Krishna Iyer and Justice Bhagwati
referred to Social Action Litigation as a supplemental tool to grassroots legal services
programmes, in their report published in 1977. Soon after, these two judges took the lead in
promoting the same by taking suo moto cognisance of matters on the basis of letters
addressed to them. However, before describing the use of PIL in some significant instances, it
is important to understand the other limb of the Indian judiciary’s ‘activist’ turn – i.e. a
change in the understanding of constitutional rights.
The most representative right that can be examined to illustrate this change is Article 21 of
the Constitution of India. Article 21 reads as follows: “No person shall be deprived of his
life or personal liberty except according to procedure established by law.” The
understanding of Article 21 in the early years of the Supreme Court was that ‘personal
liberty’ could be curtailed as long as there was a legal prescription for the same. In A.K.
Gopalan’s case,45 the Supreme Court had ruled that preventive detention by the state was
permissible as long as it was provided for under a governmental measure (e.g. legislation or
an ordinance) and the Court could not inquire into the fairness of such a measure. It was held
that the words ‘procedure established by law’ were different from the substantive ‘due
process’ guarantee provided under the Fourteenth amendment of the US Constitution. The
framers of the Indian Constitution had consciously chosen the expression ‘procedure
established by law’ which requires a much lower threshold for placing restraints on individual
liberty. Noted scholar Granville Austin has speculated that this pro-government orientation
may have been prompted by the widespread communal violence that had taken place around
the time of partition. Furthermore, it is a well known fact that Shri B.N. Rau, one of the
principal draftsmen of our constitutional text had been advised about the complications of
44
Cited from: Ashok Desai & S. Muralidhar, ‘Public Interest Litigation: Potential and Problems’ in B.N. Kirpal
et. al. (eds.), Supreme but not infallible (OUP, 2000) 159-192, at p. 161
45
A.K. Gopalan v. State of Madras, AIR 1950 SC 27
26
incorporating a substantive ‘due process’ clause by none other than Justice Felix
Frankfurter.46
This position prevailed for several years until it was changed in Maneka Gandhi’s case.47 In
that case, it was held that restraints on ‘personal liberty’ protected under Article 21 should
also be tested against the guarantees of non-arbitrariness, reasonableness and fairness that
were implicit in the language of Articles14, 19 and 21 of the Indian Constitution. Article 14
mandates the guarantee of ‘equal protection before the law’, while Article 19 enumerates the
basic freedoms available to citizens such as free speech, peaceful assembly, association,
movement and pursuit of livelihood. The Court developed a theory of ‘inter-relationship of
rights’ to hold that governmental action which curtailed either of these rights should meet the
designated threshold for restraints on all of them. In this manner, the Courts incorporated the
guarantee of ‘substantive due processes into the language of Article 21. Many commentators
have opined that this change in the interpretation of Article 21 was prompted by the
experience of the ‘internal emergency’ imposed between June 1975 and March 1977 – a
period that was marked by the use of arbitrary and unjust detention laws against the political
opposition as well as thousands of ordinary citizens.
The decision in Maneka Gandhi’s case proved to be a precursor to a series of decisions,

wherein the conceptions of ‘life’ and ‘personal liberty’ came to be interpreted liberally.
Primarily through the vehicle of Public Interest Litigation, the Supreme Court has continued
to expand the ambit of Article 21 which now includes some guarantees for socio-economic
entitlements which had not been expressly enumerated as part of the fundamental rights in the
Constitution. In the words of Justice Bhagwati:48
“we think that the right to life includes the right to live with human dignity and all that
goes along with it, namely the bare necessities of life such as adequate nutrition, clothing
and shelter over the head and facilities for reading, writing and expressing oneself in
diverse forms.”
46
Refer: T.R. Andhyarujina, ‘The Evolution of Due Process of Law by the Supreme Court’ in B.N. Kirpal et. al.
(eds.), Supreme but not infallible (OUP, 2000) at p. 193-213
47
Maneka Gandhi v. Union of India, AIR 1978 SC 597
48
Observations in Francis Coralie v. Union Territory of Delhi, (1981) 1 SCC 688
27
Moreover, through innovative changes to the process for instituting proceedings, ascertaining
facts and granting discretionary remedies, the Indian Courts have stepped beyond their
traditional domain to render justice to women, children, bonded labourers and other
oppressed sections of society. Notably, the Supreme Court has affirmed that both the
Fundamental Rights enumerated in Part III of the Constitution and the Directive Principles
enumerated in Part IV, must be interpreted harmoniously. It was observed in the
Kesavananda Bharati decision,49 that the directive principles and the fundamental rights
supplement each other and aim at the same goal of bringing about a social revolution and the
establishment of a welfare State. Furthermore, in Unni Krishnan, J.P. v. State of Andhra
Pradesh,50, Justice Jeevan Reddy had declared:
“The provisions of Parts III and IV are supplementary and complementary to each
other and not exclusionary of each other and that the fundamental rights are but a means
to achieve the goal indicated in Part IV”.
This approach of harmonizing the fundamental rights and directive principles has been
successful to a considerable extent. For example, the Supreme Court has pointed to the
objectives of socio-economic entitlements in order to interpret the right to ‘life and personal
liberty’. For instance, in Olga Tellis v. Bombay Municipal Corporation,51 a journalist had
filed a petition on behalf of hundreds of pavement-dwellers who were being displaced due to
construction activity by the respondent corporation. The Court recognised the ‘right to
livelihood and housing’ of the pavement-dwellers as an extension of the protection of life and
personal liberty, and issued an injunction to halt their eviction. Similarly, in Parmanand
Katara v. Union of India, the Court articulated a ‘right to health’ when it ruled that no
medical authority could refuse to provide immediate medical attention in emergency cases. 52
In numerous instances where the Court’s intervention has been sought in environment-related
matters, it has also referred to a ‘right to a clean environment’ emanating from Article 21. The
Courts have also pointed to Directive principles in interpreting the constitutional prohibitions
against forced labour and child labour.
49
(1973) 4 SCC 225
50
(1993) 1 SCC 645; See ‘Chapter 5: Restructuring the Courts: Public Interest Litigation in the Indian Courts’
in Sandra Fredman, Human rights transformed – positive rights and positive duties (Oxford University Press,
2008) at p. 124-149
51
AIR 1985 SC 180
52
AIR 1989 SC 2039
28
Chapter 5
Milestones of Public Interest Litigation in India
One of the earliest cases of public interest litigation was that reported as Hussainara
Khatoon (I) v. State of Bihar.53 This case was concerned with a series of articles published in
a prominent newspaper - the Indian Express which exposed the plight of undertrial prisoners
in the state of Bihar. A writ petition was filed by an advocate drawing the Court’s attention to
the deplorable plight of these prisoners. Many of them had been in jail for longer periods than
the maximum permissible sentences for the offences they had been charged with. The
Supreme Court accepted the locus standi of the advocate to maintain the writ petition.
Thereafter, a series of cases followed in which the Court gave directions through which the
‘right to speedy trial’ was deemed to be an integral and an essential part of the protection of
life and personal liberty.
Soon thereafter, two noted professors of law filed writ petitions in the Supreme Court
highlighting various abuses of the law, which, they asserted, were a violation of Article 21 of
the Constitution.54 These included inhuman conditions prevailing in protective homes, long
pendency of trials in court, trafficking of women, importation of children for homosexual
purposes, and the non-payment of wages to bonded labourers among others. The Supreme
Court accepted their locus standi to represent the suffering masses and passed guidelines and
orders that greatly ameliorated the conditions of these people.
In another matter, a journalist, Ms. Sheela Barse 55, took up the plight of women prisoners
who were confined in the police jails in the city of Bombay. She asserted that they were
victims of custodial violence. The Court took cognizance of the matter and directions were
issued to the Director of College of Social Work, Bombay. He was ordered to visit the
Bombay Central Jail and conduct interviews of various women prisoners in order to ascertain
whether they had been subjected to torture or ill-treatment. He was asked to submit a report
to the Court in this regard. Based on his findings, the Court issued directions such as the
detention of female prisoners only in designated female lock-ups guarded by female
53
(1980) 1 SCC 81; See Upendra Baxi, ‘The Supreme Court under trial: Undertrials and the Supreme Court’,
(1980) Supreme Court Cases (Journal section), at p. 35
54
Upendra Baxi (Dr) v. State of U.P., (1983) 2 SCC 308
55
Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96
29
constables and that accused females could be interrogated only in the presence of a female
police official.
Public interest litigation acquired a new dimension – namely that of ‘epistolary

jurisdiction’ with the decision in the case of Sunil Batra v. Delhi Administration,56 It was
initiated by a letter that was written by a prisoner lodged in jail to a Judge of the Supreme
Court. The prisoner complained of a brutal assault committed by a Head Warder on another
prisoner. The Court treated that letter as a writ petition, and, while issuing various directions,
opined that:
“…technicalities and legal niceties are no impediment to the court entertaining even an
informal communication as a proceeding for habeas corpus if the basic facts are found”.
In Municipal Council, Ratlam v. Vardichand,57 the Court recognized the locus standi
of a group of citizens who sought directions against the local Municipal Council for removal
of open drains that caused stench as well as diseases. The Court, recognizing the right of the
group of citizens, asserted that if the:
"…centre of gravity of justice is to shift as indeed the Preamble to the Constitution

mandates, from the traditional individualism of locus standi to the community orientation
of public interest litigation, the court must consider the issues as there is need to focus on
the ordinary men."
In Parmanand Katara v. Union of India,58 the Supreme Court accepted an application by an

advocate that highlighted a news item titled "Law Helps the Injured to Die" published in a
national daily, The Hindustan Times. The petitioner brought to light the difficulties faced by
persons injured in road and other accidents in availing urgent and life-saving medical
treatment, since many hospitals and doctors refused to treat them unless certain procedural
formalities were completed in these medico-legal cases. The Supreme Court directed medical
establishments to provide instant medical aid to such injured people, notwithstanding the
formalities to be followed under the procedural criminal law.
In many other instances, the Supreme Court has risen to the changing needs of society
and taken proactive steps to address these needs. It was therefore the extensive liberalization
56
(1978) 4 SCC 494
57
(1980) 4 SCC 162
58
(1989) 4 SCC 286
30
of the rule of locus standi which gave birth to a flexible public interest litigation system. A
powerful thrust to public interest litigation was given by a 7-judge bench in the case of S.P.
Gupta v. Union of India.59 The judgment recognized the locus standi of bar associations to
file writs by way of public interest litigation. In this particular case, it was accepted that they
had a legitimate interest in questioning the executive’s policy of arbitrarily transferring High
Court judges, which threatened the independence of the judiciary. Explaining the
liberalization of the concept of locus standi, the court opined:
“It must now be regarded as well-settled law where a person who has suffered a legal
wrong or a legal injury or whose legal right or legally protected interest is violated, is
unable to approach the court on account of some disability or it is not practicable for him
to move the court for some other sufficient reasons, such as his socially or economically
disadvantaged position, some other person can invoke the assistance of the court for the
purpose of providing judicial redress to the person wronged or injured, so that the legal
wrong or injury caused to such person does not go unredressed and justice is done to
him.”
The unique model of public interest litigation that has evolved in India not only looks at
issues like consumer protection, gender justice, prevention of environmental pollution and
ecological destruction, it is also directed towards finding social and political space for the
disadvantaged and other vulnerable groups in society. The Courts have given decisions in
cases pertaining to different kinds of entitlements and protections such as the availability of
food, access to clean air, safe working conditions, political representation, affirmative action,
anti-discrimination measures and the regulation of prison conditions among others. For
instance, in People’s Union for Democratic Rights v. Union of India,60 a petition was
brought against governmental agencies which questioned the employment of underage
labourers and the payment of wages below the prescribed statutory minimum wage-levels to
those involved in the construction of facilities for the then upcoming Asian Games in New
Delhi. The Court took serious exception to these practices and ruled that they violated
constitutional guarantees. The employment of children in construction-related jobs clearly fell
foul of the constitutional prohibition on child labour and the non-payment of minimum wages
was equated with the extraction of forced labour. Similarly, in Bandhua Mukti Morcha v.
59
(1981) Supp. SCC 87
60
AIR 1982 SC 1473
31
Union of India,61 the Supreme Court’s attention was drawn to the widespread incidence of
the age-old practice of bonded labour which persists despite the constitutional prohibition.
Among other interventions, one can refer to the Shriram Food & Fertilizer case62 where the
Court issued directions to employers to check the production of hazardous chemicals and
gases that endangered the life and health of workmen. It is also through the vehicle of PIL,
that the Indian Courts have come to adopt the strategy of awarding monetary compensation
for constitutional wrongs such as unlawful detention, custodial torture and extra-judicial
killings by state agencies.63
In the realm of environmental protection, many of the leading decisions have been given in
actions brought by renowned environmentalist M.C. Mehta. He has been a tireless
campaigner in this area and his petitions have resulted in orders placing strict liability for the
leak of Oleum gas from a factory in New Delhi, 64 directions to check pollution in and around
the Ganges river,65 the relocation of hazardous industries from the municipal limits of Delhi, 66
directions to state agencies to check pollution in the vicinity of the Taj Mahal 67 and several
afforestation measures. A prominent decision was made in a petition that raised the problem
of extensive vehicular air pollution in Delhi. The Court was faced with considerable
statistical evidence of increasing levels of hazardous emissions on account of the use of diesel
as a fuel by commercial vehicles. The Supreme Court decided to make a decisive intervention
in this matter and ordered government-run buses to shift to the use of Compressed Natural
Gas (CNG), an environment-friendly fuel.68 This was followed some time later by another
order that required privately-run ‘auto rickshaws’ (three-wheeler vehicles which meet local
transportation needs) to shift to the use of CNG. At the time, this decision was criticized as an
61
(1984) 3 SCC 161
62
(1986) 2 SCC 176
63
See observations justifying the payment of compensation for human rights violations by state agencies in the
following decisions: Bhim Singh v. State of Jammu and Kashmir, (1985) 4 SCC 677; Nilabati Behera v. State of
Orissa, (1993) 2 SCC 746; D.K. Basu v. Union of India, (1997) 1 SCC 416; Also see: Lutz Oette, ‘India’s
International obligations towards victims of human rights violations: Implementation in domestic law and
practice’ in C. Raj Kumar & K. Chockalingam (eds.), Human rights, Justice and Constitutional empowerment
(OUP, 2007) at p. 462-485
64
M.C. Mehta v. Union of India, (1987) 1 SCC 395
65
M.C Mehta v. Union of India (1988) 1 SCC 471
66
M.C. Mehta v. Union of India, (1996) 4 SCC 750
67
M.C. Mehta v. Union of India, (1996) 4 SCC 351; Also see Emily R. Atwood, ‘Preserving the Taj Mahal:
India’s struggle to salvage cultural icons in the wake of industrialisation’, 11 Penn State Environmental Law
Review 101 (Winter 2002)
68
See decision in M.C. Mehta v. Union of India, (1998) 8 SCC 648; Also refer: Armin Rosencranz & Michael
Jackson, ‘The Delhi Pollution case: The Supreme Court of India and the limits of judicial power’, 28 Columbia
Journal of Environmental Law 223 (2003)
32
unwarranted intrusion into the functions of the pollution control authorities, but it has now
come to be widely acknowledged that it is only because of this judicial intervention that air
pollution in Delhi has been checked to a substantial extent. Another crucial intervention was
made in Council for Environment Legal Action v. Union of India,69 wherein a registered
NGO had sought directions from the Supreme Court in order to tackle ecological degradation
in coastal areas. In recent years, the Supreme Court has taken on the mantle of monitoring
forest conservation measures all over India, and a special ‘Green bench’ has been constituted
to give directions to the concerned governmental agencies. At present, I am part of this Green
bench and can vouch for the need to maintain judicial supervision in order to protect our
forests against rampant encroachments and administrative apathy.
An important step in the area of gender justice was the decision in Vishaka v. State of
Rajasthan.70 The petition in that case originated from the gang-rape of a grassroots social
worker. In that opinion, the Court invoked the text of the Convention for the Elimination of
all forms of Discrimination against Women (CEDAW) and framed guidelines for
establishing redressal mechanisms to tackle sexual harassment of women at workplaces.
Though the decision has come under considerable criticism for encroaching into the domain
of the legislature, the fact remains that till date the legislature has not enacted any law on the
point. It must be remembered that meaningful social change, like any sustained
transformation, demands a long-term engagement. Even though a particular petition may fail
to secure relief in a wholesome manner or be slow in its implementation, litigation is
nevertheless an important step towards systemic reforms. A recent example of this approach
was the decision in People’s Union for Civil Liberties v. Union of India,71 where the Court
sought to ensure compliance with the policy of supplying mid-day meals in government-run
primary schools. The mid-day meal scheme had been launched with much fanfare a few years
ago with the multiple objectives of encouraging the enrolment of children from low-income
backgrounds in schools and also ensuring that they received adequate nutrition. However,
there had been widespread reports of problems in the implementation of this scheme such as
the pilferage of food grains. As a response to the same, the Supreme Court issued orders to
69
(1996) 5 SCC 281
70
(1997) 6 SCC 241; See D.K. Srivastava, ‘Sexual harassment and violence against women in India:
Constitutional and legal perspectives’ in C. Raj Kumar & K. Chockalingam (eds.), Human rights, Justice and
Constitutional empowerment (OUP, 2007)at p. 486-512
71
(2007) 1 SCC 728
33
the concerned governmental authorities in all States and Union Territories, while giving
elaborate directions about the proper publicity and implementation of the said scheme.
34
Chapter 6
Problems facing Public Interest Litigation in India
At the time of independence, court procedure was drawn from the Anglo-Saxon system of
jurisprudence. The bulk of citizens were unaware of their legal rights and much less in a
position to assert them. And as a result, there was hardly any link between the rights
guaranteed by the Constitution of Indian Union and the laws made by the legislature on the
one hand and the vast majority of illiterate citizens on the other. However, this scenario
gradually changed when the post emergency Supreme Court tackled the problem of access to
justice by people through radical changes and alterations made in the requirements of locus
standi and of party aggrieved. Prior to 1980s, only the aggrieved party could personally
knock the doors of justice and seek remedy for his grievance and any other person who was
not personally affected could not knock the doors of justice as a proxy for the victim or the
aggrieved party. Public Interest Litigation as it has developed in recent years marks a
significant departure from traditional judicial proceedings. The court is now seen as an
institution not only reaching out to provide relief to citizens but even venturing into
formulation policy which the state must follow.
The splendid efforts of Justice P N Bhagwati and Justice V R Krishna Iyer were instrumental
of this juristic revolution of eighties to convert the apex court of India into a Supreme Court
for all Indians.
Public Interest Litigation (PIL) has been an invaluable innovative judicial remedy. It has
translated the rhetoric of fundamental rights into living reality for at least some segments of
our exploited and downtrodden humanity. Under trial prisoners languishing in jails for
inordinately long periods, inmates of asylums and care-homes live in sub-human conditions,
children working in hazardous occupations and similar disadvantaged sections.
But the development of Public Interest Litigation (PIL) in the country has very recently
uncovered its own pitfalls and drawbacks.
1. The genuine causes and cases of public interest have in fact receded to the background and
irresponsible PIL activists all over the country have started to play a major but not a
constructive role in the arena of litigation. In a recent case the court while dismissing an
35
ostensible PIL against the sale of a plot of land through public auction, held that the matter
had not been raised in public interest at all, but to ventilate a private grievance. Of late, many
of the PIL activists in the country have found the PIL as a handy tool of harassment since
frivolous cases could be filed without investment of heavy court fees as required in private
civil litigation and deals could then be negotiated with the victims of stay orders obtained in
the so-called PILs. Just as a weapon meant for defense can be used equally effectively for
offence, the lowering of the locus standi requirement has permitted privately motivated
interests to pose as public interests. The abuse of PIL has become more rampant than its use
and genuine causes either receded to the background or began to be viewed with the
suspicion generated by spurious causes mooted by privately motivated interests in the
disguise of the so-called public interests. Every matter of public interest cannot be the basis
of a PIL, e.g. increase in the price of onions or in railway fares or the dilapidated condition of
railway stations or the Red Fort or trains not running on time. Over the years, PIL
has degenerated into Private Interest Litigation, Political Interest Litigation, and above all,
Publicity Interest Litigation. Weakness for publicity affects judges, lawyers and litigants
alike.
2. The framers of Indian constitution did not incorporate a strict doctrine of separation of
powers but envisaged a system of checks and balances. Policy making and implementation of
policy are conventionally regarding as the exclusive domain of the executive and the
legislature. The power of judicial review cannot be used by the court to usurp or abdicate the
powers of other organs. PIL in practice, however, tends to narrow the divide between the
roles of the various organs of government and has invited controversy principally for this
reason. The court has sometime even obliterated the distinction between law and policy. The
approach of the court in policy matters is to ask whether the implementation or non-
implementation of the policy result in a violation of fundamental rights. In M.N Mehta v
union of India, the court explained how despite the enactment of Environment (protection)
Act, 1986, there had been a considerable decline in the quality of environment. Any further
delay in the performance of duty by the central government cannot, therefore, be permitted.
The court, however, required the central government to indicate what steps it had taken thus
far and also place before it the national policy for the protection of environment. The law and
policy divide was obliterated in Vishaka v State of Rajasthan which was a PIL concerning
sexual harassment of women at work place. A significant feature of this decision was the
courts readiness to step in where the legislature had not. The court declared that till the
36
legislature enacted a law consistent with the convention on the Elimination of All Forms of
Discrimination against Women which India was a signatory, the guidelines set out by the
court would be enforceable. However, in the Delhi Science Forum v Union of India where
the government of India telecommunication policy was challenged by a PIL the court refused
to interfere with the matter on the ground that it concerned a question of policy. PILs that
have sought prohibition on sale of liquor or recognition of a particular language as the
national language or the introduction of a uniform civil code have been rejected on the basis
that these were matters of policy. The court may refuse to entertain a PIL if it finds that the
issues raised are not within the judicial ambit or capacity. Thus, a petition seeking directions
to the central government to preserve and protect the Gyanvapi Masjid and the Vsihwanath
temple at Varanasi as well as the Krishna temple and Idgah at Mathura was rejected. Despite
such observations the court has not adopted a uniform and consistent approach in dealing
with its emerging role as policy maker. While in some cases, the court has expressed its
reluctance to step into the legislative field, in others it has laid down detailed guidelines and
explicitly formulated policy.
3. The flexibility of procedure that is a character of PIL has given rise to another set of
problems. It gives an opportunity to opposite parties to ascertain the precise allegation and
respond specific issues. The PIL relating to depletion of forest cover is a case in pint. The
petition, as originally drafted and presented, pertained to the arbitrary felling of Khair trees in
Jammu and Kashmir. The PIL has now been enlarged by the court to encompass all forests
throughout India. Individual States, therefore, will not be able to respond to the original
pleading as such, since it may not concern them at all. The reports given by court appointed
commissioners raise problems regarding their evidentiary value. No court can found its
decision on facts unless they are proved according to law. This implies the right of an
adversary to test them by cross-examination or at least counter-affidavits. In such instances
the affected parties may have misgivings about the role of the court.
4. In the political arena too, the debate over the limits of judicial activism, particularly in the
field of PIL, has been vigorous. The attempt by the judiciary through PILs to enter the area of
policy making and policy implementation has caused concern in political circles. A private
members bill, entitled Public Interest Litigation (Regulation) Bill, 1996 was tabled in Rajya
Sabha. According to it the PIL was being grossly misused. Moreover, PIL cases were being
given priority over other cases, which had remained pending in the court for years. It was
37
urged that if a PIL petition failed or was shown to be mala fide the petitioner should be put
behind bars and pay the damages. Although the bill lapsed, the debate in parliament revealed
some of the criticism and suspicion that PIL had begun to attract.
5. The credibility of PIL process is now adversely affected by the criticism that the judiciary
is overstepping the boundaries pf its jurisdiction and that it is unable to supervise the effective
implementation of its orders. It has also been increasingly felt that PIL is being misused by
the people agitating for private grievance in the grab of public interest and seeking publicity
rather than espousing public cause. The judiciary has itself recognized and articulated these
concerns periodically. A further concern is that as the judiciary enters into the policy making
arena it will have to fashion new remedies and mechanisms for ensuring effective compliance
with its orders. A judicial system can suffer no greater lack of credibility than a perception
that its order can be flouted with impunity. This court must refrain from passing orders that
cannot be enforced, whatever the fundamental right may be and however good the cause. It
serves no purpose to issue some high profile mandamus or declaration that can remain only
on paper. Although usually the Supreme Court immediately passes interim orders for relief,
rarely is a final verdict given, and in most of the cases, the follow-up is poor.
To regulate the abuse of PIL the apex court itself has framed certain guidelines (to govern the
management and disposal of PILs.) The court must be careful to see that the petitioner who
approaches it is acting bona fide and not for personal gain, private profit or political or other
oblique considerations. The court should not allow its process to be abused by politicians and
others to delay legitimate administrative action or to gain political objectives. 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 enforcement of the constitutional or the
Legal rights 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
38
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.
In his recent write up, Mr. Soli Sorabji, the former Attorney General while applauding the
liberalization of the rule of locus standi by the Supreme Court of India benefiting under-trial
prisoners languishing in jail for inordinately long periods, inmates of asylums and care homes
living in sub-human conditions, children working in hazardous occupation and similar
disadvantaged persons, has lamented that PIL is being abused with increasing frequency and
that over the years. He made the following suggestions:
i. Reject dubious PIL at the threshold, and in appropriate case with exemplary costs,
ii. In cases where important projects or socio-economic regulations are challenged after gross
delay, such petitions should be thrown out at the very threshold on the ground of latches. Just
because a petition is termed as PIL does not mean that ordinary principles applicable to
litigation will not apply. Latches are one of them. In the U.K., for enabling an applicant
seeking an order of judicial review the applicant has to satisfy the test of sufficient interest in
the matter to which the application relates. For satisfying this test an applicant need not have
a direct legal or financial interest but a mere busy body will not have sufficient interest. It is,
however, not necessary that applicants interest should be different from that of an ordinary
member of the public. An applicant having no personal connection with the dispute, in the
traditional sense of locus standi, may be allowed standing, if in its discretion, the court
considers the case to be of sufficient public importance. The courts have held in the U.K. that
standing should usually be considered along with the merits of the case and not as a
preliminary issue.
The Ontario Law Reform Commission Report on the law of Standing, 1989,
recommended that any person should be able to commence a proceeding unless a party
satisfies the Court that there exist factors against proceeding that outweigh the factors in
favour of the proceedings. The factors to be considered by the court would include:
i. whether the issue is trivial;

ii. in case where the applicant does not have a personal, proprietary or pecuniary
interest the number of people affected;
39
iii. Whether another reasonable and effective method exists to raise the issues that are
sought to be litigated;
iv. Whether another proceeding has been instituted against the same opponent in
which the same issues arise and the interests of the applicant could be met by
intervening in those proceedings and it is reasonable to expect the applicant to do
so;
v. Whether to proceed would be unfair to persons affected.
Public Interest Litigants fear that implementation of these suggestions will sound the death-
knell of the people friendly concept of PIL. However, it cannot be denied that 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. PIL requires rethinking and restructuring.
Overuse and abuse of PIL will make it ineffective. PIL has translated the rhetoric of
fundamental rights into living reality for at least some segments of our exploited and
downtrodden humanity. Under trial prisoners languishing in jails for inordinately long
periods, inmates of asylums and care-homes live in sub-human conditions, children working
in hazardous occupations and similar disadvantaged sections. Hence, any change to improve
it further should be encouraged and welcomed
CHAPTER 7
Remedies - Public Interest Litigation (PIL)
40
A Public Interest Litigation (PIL) can be filed in any High Court or directly in the Supreme
Court. It is not necessary that the petitioner has suffered some injury of his own or has had
personal grievance to litigate. PIL is a right given to the socially conscious member or a
public spirited NGO to espouse a public cause by seeking judicial for redressal of public
injury. Such injury may arise from breach of public duty or due to a violation of some
provision of the Constitution. Public interest litigation is the device by which public
participation in judicial review of administrative action is assured. It has the effect of making
judicial process little more democratic.
According to the guidelines of the Supreme Court any member of public having
sufficient interest may maintain an action or petition by way of PIL provided: -
» There is a personal injury or injury to a disadvantaged section of the population for whom
access to legal justice system is difficult,
» The person bringing the action has sufficient interest to maintain an action of public injury,
» The injury must have arisen because of breach of public duty or violation of the
Constitution or of the law; It must seek enforcement of such public duty and observance of
the constitutional law or legal provisions.
» This is a powerful safeguard and has provided immense social benefits, where there is
essentially failure on the part of the execute to ameliorate the problems of the oppressed
citizens. Considering the importance of this subject, three articles from the web on the subject
are reproduced hereunder.
Introduction
The Emergency of 1976 marked not just a political watershed in this country, but a judicial
one as well. In the euphoria of the return to democracy and in an attempt to refurbish its
image that had been tarnished by some Emergency decisions, the Supreme Court of India
opened the floodgates to public interest litigation (PIL). Under PIL, courts take up cases that
concern not the rights of the petitioner but of the public at large. In the last two decades, PIL
has emerged as one of the most powerful tools for promoting social justice and for protecting
the rights of the poor.
When and how to File a PIL

1. Make an informed decision to file a case.
41
2. Consult all affected interest groups who are possible allies.

3. be careful in filing a case because
I. Litigation can be expensive.
II. Litigation can be time consuming.
III. Litigation can take away decision making capability/strength from communities.
IV. An adverse decision can affect the strength of the movement.
V. Litigation involvement can divert the attention of the community away from the real
issues.
4. If you have taken the decision
i. Collect all the relevant information
ii. Be meticulous in gathering detail for use in the case. If you plan to use photographs, retain
the negatives and take an affidavit from the photographer. Retain bills.
iii. Write to the relevant authorities and be clear about your demands.
iv. Maintain records in an organized fashion.
v. Consult a lawyer on the choice of forum.
vi. Engage a competent lawyer. If you are handling the matter yourself make
Sure you get good legal advice on the drafting.
vii. A PIL can be filed only by a registered organization. If you are unregistered, please file
the PIL in the name of an office bearer/member in his/her personal capacity.
viii. You may have to issue a legal notice to the concerned parties/authorities before filing a
PIL. Filing a suit against the government would require issuing a notice to the concerned
officer department at least two months prior to filing.
Expanding Old Rights & Creating New Ones

There is an urgent need to expand old rights and create new rights. Indeed, the success of
legal advocacy needs to be viewed by the social activist in these terms and not merely in
terms of winning or losing cases. For instance, although Haksar and others, as part of their
work on promoting human rights in Northeastern India, have been unsuccessful in their
decade-long effort to get the Armed Forces Special Power Act repealed, they have succeeded
in getting the provision in the criminal procedure code that women be searched only by
women extended to the army.
Similarly, it is important to try and create new rights based on a vision of the future. For
instance Article 14 of the Indian Constitution treat both an MNC and a citizen equally despite
42
the inherent and yawning inequality between the two. Therefore if a citizen's rights are to be
fully protected in the wake of increasing MNC activity in the national economy, one needs to
critique the concept of equality in liberal theory and develop new ideas on equality. The filing
of test cases is one way of developing these new ideas.
The same holds true for individual rights vs. collective rights. The prevailing legal system
recognizes only private property - where the owner has the right against the whole world -
and public property, which belongs to the state. But before the imposition of the British legal
system there existed a whole tradition of common property which now has no recognition in
law. "Ass a result all forms of collective or shared realities whether they are in the realm of
rights, relations, practices or knowledge have no place in the present legal scheme even
though they are vital for human survival. They are not part of the language of legal discourse,
either of the judges or lawyers and mention of these rights as 'collective human rights' is met
with surprise, skepticism and often cynicism," say Pradeep Prabhu of Khastakari Sanghatana.
Prabhu, an advocate by training, has had some recent success in getting the Supreme Court to
accept the validity of oral testimonies of poor tribals as evidence.
Sensitising Lawyers
Given the above scenario, one of the most difficult tasks for a social activist is to find a
lawyer with a vision who is able to see the bigger picture and be prepared to fight for it. This
calls for activists to sensitize lawyers on an ongoing basis and not restrict this activity to the
peculiarities of a specific case. Also there is a need to sensitise law students in order to build
a body of public interest lawyers in this country.
Part of the reason why there are few public interest lawyers in India is due to how poorly it
pays. Public interest lawyers in the US (sometimes derisively called 'ambulance chasers') are
easier to find. They largely operate on a 'no-win, no-fee' basis, given the huge damages that
are awarded by US courts and which are then split between the client and the lawyer. In India
even where free legal aid is provided - as it is to SCs & STs, industrial workers, women,
bonded labourers, etc. - public- spirited lawyers end up paying out of their pocket as the
amounts that are fixed for even photocopying of documents do not cover the cost of the
service, says Ravi Rebba Pragada of the NGO Samata - which works among tribals in the
Vishakhapatnam district of Andhra Pradesh - who has accessed free legal aid services.
43
In the U.K., where courts like those in India don't award massive damages, there has been an
innovation in legal aid with wealthy benefactors pitching in to underwrite legal costs. One
property developer underwrote the legal costs of a large number of arthritis patients who
sued- for compensation for side effects they suffered from the drug Opren. Similarly Sir
James Goldsmith, billionaire financier and father-in-law of Imran Khan, set up the Goldsmith
Libel Fund which provided support to a motley assortment of libel defendants. But it is
debatable if such private initiative would be forthcoming, or indeed welcome, to support PIL
cases involving the poor and the marginalised. Activists, however, need to seriously consider
the issue of getting more public-spirited lawyers to enter the fray.
44
Chapter 8
NATIONAL LITIGATION POLICY
I. Introduction
Whereas at the National Consultation for Strengthening the Judiciary toward
Reducing Pendency and Delays held on the 24th and 25th October, 2009 the Union Minister
for Law and Justice, presented resolutions which were adopted by the entire Conference
unanimously.
And wherein the said Resolution acknowledged the initiative undertaken by the
Government of India to frame a National Litigation Policy with a view to ensure conduct of
responsible litigation by the Central Government and urges every State Government to evolve
similar policies.
The National Litigation Policy is as follows:-
VIII. Specialised litigation
C) Public interest litigations (PILs)
 Public Interest Litigations must be approached in a balanced manner.

On the one hand, PILs should not be taken as matters of convenience
to let the courts do what Government finds inconvenient. It is
recognized that the increase in PILs stems from a perception that there
is governmental inaction. This perception must be changed. It must
be recognized that several PILs are filed for collateral reasons
including publicity and at the instance of third parties. Such litigation
must be exposed as being not bonafide.
 PILs challenging public contracts must be seriously defended. If

interim orders are passed stopping such projects then appropriate
conditions must be insisted upon for the Petitioners to pay
compensation if the PIL is ultimately rejected.
45
Chapter 9
SUPREME COURT OF INDIA
COMPILATION OF GUIDELINES TO BE FOLLOWED FOR ENTERTAINING
LETTERS/PETITIONS RECEIVED IN THIS COURT AS PULIC INTEREST
LITIGATION
(Based on full Court decision dated 1.12.1988 and subsequent modifications).
No petition involving individual/ personal matter shall be entertained as a PIL matter except
as indicated hereinafter.
Letter-petitions falling under the following categories alone will ordinarily be entertained as
Public Interest Litigation:-
1. Bonded Labour matters.
2. Neglected Children.
3. Non-payment of minimum wages to workers and exploitation of casual workers and
complaints of violation of Labour Laws (except in individual cases).
4. Petitions from jails complaining of harassment, for (pre-mature release)* and seeking
release after having completed 14 years in jail, death in jail, transfer, release on personal
bond, speedy trial as a fundamental right.
72
* Petitions for premature release, parole etc. are not matters which deserve to be
treated as petitions u/Article 32 as they can effectively be dealt with by the concerned
High Court. To save time Registry may
Simultaneously call for remarks of the jail Superintendent and ask him to forward the
same to High Court. The main petition may be forwarded to the concerned High Court
for disposal in accordance With law. Even in regard to petitions containing allegations
against Jail Authorities there are no reason why it cannot be dealt with by the High
Court. But petitions complaining of torture, custody death and the like may be
entertained by this Court directly if the allegations are of a serious nature.
(5) Petitions against police for refusing to register a case, harassment by police and death in
police custody.
(6) Petitions against atrocities on women, in particular harassment of bride, bride- burning,
rape, murder, kidnapping etc.
72
Added based on Order dated 19.8.1993 of the then Chief Justice of India.
46
In such cases where office calls for police report if letter petitioner asks for copy the
same may be supplied, only after obtaining permission of the Hon'ble Judge nominated
by the Hon'ble Chief Justice of India for PIL matters.73
(7) Petitions complaining of harassment or torture of villagers by co- villagers or by police
from persons belonging to Scheduled Caste and Scheduled Tribes and economically
backward classes.
(8) Petitions pertaining to environmental pollution, disturbance of ecological balance, drugs,
food adulteration, maintenance of heritage and culture, antiques, forest and wild life and other
matters of public importance.
(9) Petitions from riot -victims.
(10) Family Pension. All letter-petitions received in the PIL Cell will first be screened in the
Cell and
only such petitions as are covered by the above mentioned categories will be placed before a
Judge to be nominated by Hon'ble the Chief Justice of India for directions after which the
case will be listed before the Bench concerned.
If a letter-petition is to be lodged, the orders to that effect should be passed by Registrar
(Judicial) (or any Registrar nominated by the Hon'ble Chief Justice of India), instead of
Additional Registrar, or any junior officer. To begin with only one Hon'ble Judge may be
assigned this work and number increased to two or three later depending on the workload.
*74Submission Notes be put up before an Hon'ble Judge nominated for such periods as
may be decided by the Hon'ble Chief Justice of India from time to time.
**75If on scrutiny of a letter petition, it is found that the same is not covered under the
PIL guidelines and no public interest is involved, then the same may be lodged only
after the approval from the Registrar nominated by the Hon'ble the Chief Justice of
India.
**It may be worthwhile to require an affidavit to be filed in support of the
Statements contained in the petition whenever it is not too onerous a requirement.
**The matters which can be dealt with by the High Court or any other authority may
be sent to them without any comment whatsoever instead of all such matters being
heard judicially in this Court only.
73
Added as per Order dated 29.8.2003 of the Hon'ble Chief Justice of India.
74
* As per Order dated 29.8.2003 of the Hon'ble the Chief Justice of India.
75
** Modified keeping in view the directions dated 29.8.2003 of the Hon'ble Chief Justice of India
47
Cases falling under the following categories will not be entertained as public interest
litigation and these may be returned to the petitioners or filed in the PIL Cell, as the case may
be:
(1) Landlord-Tenant matters.
(2) Service matter and those pertaining to Pension and Gratuity.
(3) Complaints against Central/ State Government Departments and Local Bodies except
those relating to item Nos. (1) to (10) above.
(4) Admission to medical and other educational institution.
(5) Petitions for early hearing of cases pending in High Courts and Subordinate Courts. In
regard to the petitions concerning maintenance of wife, children and parents, the petitioners
may be asked to file a Petition under sec. 125 of Cr. P.C. Or a Suit in the Court of competent
jurisdiction and for that purpose to approach the nearest Legal Aid Committee for legal aid
and advice.
48
Chapter 10
Amend constitution for public interest litigation
District courts should be empowered to initiate suo moto PILs in public interest.
A public interest litigation (PIL) can be filed in any high court or directly in the supreme
court. It is not necessary that the petitioner has suffered some injury on his own or has had
personal grievance to litigate. The PIL is a right given to the socially conscious member or a
public spirited NGO to espouse a public cause by seeking judicial means for redressal of
public injury. Such injury may arise from breach of public duty or due to a violation of some
provision of the constitution. The PIL is the device by which public participation in judicial
review of administrative action is assured. It has the effect of making the judicial process
little more democratic.
The Bombay High Court created history by initiating a PIL case suo moto on the basis of a
series of newsletters exposing corruption in the Maharashtra government’s transport
department. High courts in other states are also expected to take note of such issues of public
interest and suo moto initiate PILs.
A constitutional amendment is necessary so that even district courts are allowed to conduct
cases under PILs. This is because most of the national newspapers have spread over regions
and districts with their editions and more public grievances are reported by way of news and
investigative newsletters. When the constitutional provision was made at the initial stage,
most of the national newspapers were based in state capitals and it was quite reasonable that
high courts were expected to consider cases for PIL only on the basis of news reports
published in them.
Newspaper network
But during the subsequent period newspapers’ network is so widespread that almost every
district has its own newspaper and that too equipped with new modern machinery and
expertise so much so that they are almost competing with regional and national newspapers.
Most of the national newspapers are published in English or Hindi while regional newspapers
are published in the respective regional languages. Even national and regional newspapers
have been publishing their regional and district editions and are covering various issues with
in-depth analysis and investigative penetration. These editions are almost equal to the state
49
capital-based dailies and periodicals and are now gaining the same status which they have in
state capitals. Even original district newspapers have geared up to compete with the new
editions of the state-based dailies. District newspapers and editions are concentrating on
major issues which are in public interest.
Delay and corruption in administration, injustice done to people in general and neglected
families in particular, economic crimes which harass people and dupe them, irregularities in
nationalised and co-operative banking sector, farmers plight and hoarding of essential
commodities by middlemen, failure of decentralised panchayat raj system due to non-
cooperative attitude of the bureaucracy and similar variety of issues are periodically covered
in these newspapers. It is therefore necessary that district courts should be empowered to
initiate suo moto PILs in public interest.
While district courts are competent enough to hear PIL cases, advocates or members of the
district bar associations are also well-equipped with legal acumen and knowledge so much so
that they will conduct the argumentative aspect of such cases with expertise and ease which is
seen in high courts. It is therefore high time that necessary amendments are made in the
constitution for empowering the district courts to hear PIL either initiated by citizens or by
courts by way of suo moto action.
For an amendment, both the Union and state governments should take the lead and MLAs and
MPs of all political parties should take initiative in the matter. State assemblies may demand
amendment by resolution while parliament will respond to the demand and pass the
amendment unanimously. This is because this amendment is not based on any controversial
issue or it may not trigger any controversy as this is purely in public interest.
Once district courts are empowered to hear PILs, it will create an atmosphere conducive to
legal remedies for various issues which are brought on surface by news reports in district
newspapers which are on par and in some respect even better as compared to regional and
national newspapers whose editions are also brought out at district places.
Even some exposures having nationwide significance go to the credit of such district editions
and if district and sessions courts are given the power to proceed with suo moto cases against
the erring and corrupt administration; justice under the PIL will be available to the aggrieved
people in small cities and adjacent rural areas of a vast country like India.
50
Chapter 11
Concluding remarks: Balancing a double-edged Sword
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 uninhibited. It is carefully regulated with tight
reins, and cases of public interest are taken up only after rigorous scrutiny. For instance, in a
case wherein a challenge was made to the Government of India’s telecommunication policy,
the Supreme Court refused to entertain the matter on the ground that it purely concerned a
question of policy. Similarly, public interest litigations that have sought to prohibit the sale of
liquor or the recognition of a particular language as a national language, or the introduction of
a uniform civil code, have been rejected on the ground that these were matters of policy and
were beyond the ambit of judicial scrutiny. The need for deference to the other wings of
government in respect of questions of policy was clearly expressed by Justice R.S. Pathak in
the following words:
“Where the Court embarks upon affirmative action in the attempt to remedy a
constitutional imbalance within the social order, few critics will find fault with it so long as
it confines itself to the scope of its legitimate authority. But there is always the possibility in
public interest litigation, of succumbing to the temptation of crossing into territory which
properly pertains to the legislature or to the executive government… In the process of
correcting executive error or removing legislative omission the Court can so easily find
itself involved in policy making of a quality and to a degree characteristic of political
authority, and indeed run the risk of being mistaken for one.”76
The Court has refused to entertain cases that are ‘private interest’ litigations disguised
as ‘public interest’ litigations. It has also refused to interfere with convictions in criminal
cases. In a case where directions were sought from the Supreme Court to the Central
Government to preserve and protect certain temples, the said request was rejected. The Court
stated: “The matter is eminently one for appropriate evaluation and action by the
executive, and may not have an adjudicative disposition or judicially manageable
standards as the pleadings now stand.”’
76
Cited from (1984) 3 SCC 161, at p. 232
51
At the time of admitting matters in the form of Public Interest Litigation (PIL), the
Courts have to carefully consider whether or not they are overstepping their domain. Upon
considering the issues at hand, they must then consider whether the orders they intend to pass
can be realistically implemented. Judges must also be attuned to the fact that inconsistencies
in the observations made by different Courts with respect to the same set of issues, can add to
administrative difficulties. There is also a need to keep a watch on the abuse of process by
litigants so as to avoid a situation where such cases occupy a disproportionate extent of the
Courts’ working time. Justice S.P. Barucha has expressed the need for caution in the
following words:
“This court must refrain from passing orders that cannot be enforced, whatever the
fundamental right may be and however good the cause. It serves no purpose to issue some
high profile mandamus or declaration that can remain only on paper. It is
counterproductive to have people say ‘The Supreme Court has not been able to do
anything’ or worse. It is of cardinal importance to the confidence that people have in the
Court that its orders are implicitly and promptly obeyed and is, therefore, of cardinal
importance that orders that are incapable of obedience and enforcement are not made.” 77
In Raunaq International Ltd. v. I.V.R. Construction Ltd.78 the following observations

were made with the objective of streamlining the institution of PILs:
“When a petition is filed as a public litigation … the Court must satisfy itself that
the party which has brought the litigation is litigating bona fide for public good. The
public interest litigation should not be merely a cloak for attaining private ends of a third
party or of the party bringing the petition … Even when a public interest litigation is
entertained, the Court must be careful to weigh conflicting public interest before
intervening.”
It is evident that some instances require courts to draw a balance between the
competing interests of different sections, each of whom may articulate their claims as those
grounded in public interest. It is in this regard that the Courts engage in a process that seeks
to build a consensus among these sections. The device of Public Interest Litigation may have
its detractors, but it has played an invaluable role in advancing our constitutional philosophy
of social transformation and improving access to justice.
77
Cited from: Ashok Desai & S. Muralidhar, ‘Public Interest Litigation: Potential and Problems’ in B.N. Kirpal
et. al. (eds.), Supreme but not infallible (OUP, 2000) 159-192, at p. 182
78
(1999) 1 SCC 492
52
53

Genesis and Evolution of Public Interest Litigation

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Genesis and Evolution of Public Interest Litigation

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Public Interest Litigation

“Injustice anywhere is a threat to justice everywhere”

Justice without force is impotent;

There are times when even justice brings harm with it

Origin of public interest litigation

The history of public interest litigation

Necessary Steps to be taken

(i) It is only where the letter is addressed by an aggrieved person or

(ii) A public spirited individual or

Meaning of Public Interest Litigation

PUBLIC INTEREST LITIGATION: A MATTER OF JUSTICE AN ASIAN

1.2 The value of PIL

3. Makes real the considerations of transparency in decision-making processes.

1.3Why PIL makes sense from a justice perspective in Asian countries

2.1 Establishing PIL as a critical component in the justice system

Public Interest Litigation, which envisages challenge to governmental transgression of

(a) A Proactive and Independent Judiciary: Fulfilling the Constitutional

(b) Enforcing Implicit Procedural Constitutional Rights;

(c) Broadening Key Constitutional Provisions

ii. Recourse to international rights regime

The Sri Lankan Supreme Court in Bulankulama v. Ministry of Industrial

The ‘activist’ turn of the Indian judiciary

The decision in Maneka Gandhi’s case proved to be a precursor to a series of decisions,

Public interest litigation acquired a new dimension – namely that of ‘epistolary

"…centre of gravity of justice is to shift as indeed the Preamble to the Constitution

In Parmanand Katara v. Union of India,58 the Supreme Court accepted an application by an

Problems facing Public Interest Litigation in India

(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 enforcement of the constitutional or the

Legal rights of a person in custody or of a class or group of persons who by reason of

i. whether the issue is trivial;

When and how to File a PIL

2. Consult all affected interest groups who are possible allies.

Expanding Old Rights & Creating New Ones

C) Public interest litigations (PILs)

 Public Interest Litigations must be approached in a balanced manner.

 PILs challenging public contracts must be seriously defended. If

In Raunaq International Ltd. v. I.V.R. Construction Ltd.78 the following observations

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