“The judicial activism gets its highest bonus when its orders wipe some tears from some eyes”. “Indian PIL might rather be a Ph nix: a whole néw creative arising out of the ashes of the old orde: -Cunhingham / | . : 5 . et Injustice anywhere is a threat to justice everywhere ~ Martin Luther King!Background > British colonial legal heritage ~ adversarial system ~ to, standi — procedural technicalities — led to the inaccessi iat justice system — lawyer was the only route for the oe of : ‘ } Ties > System suffers from complexity,where ordinary (man, as a claimant, defendant, witness or otherwise is bewildered \ sat is the rule — but ignorange writs large > Ignorentia jur \ > Dispensation of justice becomes meaningful onlytif the people! must be able to interact with justice system effectively by | | ensuring affordability and accessibility. } \ > Iris a fundamental requisite of the rule of law that ‘the dispensation of justice must be cheaper and accessible. | 3serer itisoned at thealtar, tice’ is > The preambular aspiration of *j of court system. t 1 Art. 32 and 226 facilitate adoption of liberal view Article 32 of the Constitution of India, “The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this part is guaranteed” D Justice permeates through F.Rts and DPSP : ay 2 Judicial review is the basic structure (Keshavabnanda Bharathi Case) judicial activism is the off-shoots) C1 Due process clause is read into Art.21 } \ O PIL in America was the fore runner, even though there ave differences | between the two Q . According to “Ford Foundation” of U.S.A, “Public interest law is the name that has recently been given to efforts that provide legal representation to previously unrepr ated groups and interests. Such | efforts have been undertaken in the recognition that ordinary marketplace Fails rovide oh service significa spina for legal services fails to provide such soe sieniligent ségine ulation and to significantimerests. Such groups an interests’ the pop! the proper environmentalists, consumers, racial and ethnic 4 hi : i14/30/2023 (Lessons of emergency — MISA and Hebeas corpus case excesses C Interference in the administration of justice, - judicial appointments — supersession of judges. O Report of Legal Aid submitted by Justice) Bhagwa retaining the adversary s system, whereby the judge is given greaterparticipatory i ) \ as to place the poor as. far as possible, on a footin: pfesualiy / | \\ | | | e ; with the rich in administration of justice 7} 4 Report of the Legal Aid Committee — Justice VRG Ktishnayet - spoke of PIL Both the above judges by 1977 in their final repo new type legal service programmes which can hep beyond court or litigation. - they referred to SAL O Post emergency dynamis! 1473022023 What is PIL? > Public Interest Litigation means a legal action initiated in a court of law for the enforcement of public interest or general:interestti which the public or class of the community have pecuniary interest or some interest by which, their legal ‘ rights: are affected. - BLACK'S LAW DICT nOWAne it ier Lsbilities » Different nomenclature is used like Social Action tA i (Upendra Baxi), Epistolary Jurisdiction ( Justice \ Krishnaiyer) gation > The zeal to evolve such litigations, in fact, arose:i Courts much earlier ( Seervai)Jn 1981 Justice PN. Bhagwati in .S. P. Gupta v, Union ae 1981 (Supp) SCC 87, articulated the concept of PIL as fo «Where a legal wrong or a legal injury is caused to @ person or to determinate class of persons by reason of violation of any a titutional or legal right or any burden nied consti tion of any constitutional or legal provision or witho ae f ie or any such legal wrong or legal injury or illegal /' aoe i threatened and such person or determinate class of — / | \ yur fi) | ai lows, erty, helplessness or disability or i reasons of poverty, help or ey or economically disadvantaged position unable to socia approach the court for relief, any member of public can | maintain an application for an appropriate di tion, omer + writ in the High Court under Article 226 andin ¢ e any rea of fundamental rights of such persons or determi sate class 0! persons, in this court under Article 32 seeking judicial red for the legal wrong or legal injury, aused:to sucht person® determinate class of person b : The rule of locus standi have been relaxed and a person acting bonafide and having sufficient interest in the proceeding of Public Interest Litigation will alone have a locus standi and can approach the court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not-for or private profit or political motive or-any“oblique consideration (Ashok Kumar Pandey v. State of W.B., (2004) 3 SCC 349). AN Peoples Union for Democratic Rights v. Union of India (A.LR: 1 1982 ,S C 1473). The court now permits Public Interest / | Litigation or Social Interest Litigation at the instazce 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 ofthe pattern must have liberal recepHidniait the judicial door steps.T vetity of PIL Utility + Liberalised access and standing - traditional Jocus standi modified . The truth is that a few profound issues of processual jurisprudence of great significance to our legal systemsfac and we must zero on them as they involyeiproblems, of access to justice for the people beyond the blinkered rules of ‘standing off} British Indian vintage. If the centre of gravity of justice is to / i) shift, as the preamble of our constitution mandates, from the | traditional individualism of locus standi to the community | orientation of public interest litigation, these issues must be considered - the court will allow any member of the public i acting bonafide to espouse the cause of the public orclass of persons who are not able to represent themselves, like NGOs, lawyers, Doctors, journalists and other non-profit, non once the petition is filed they can not even withdraw their own volition without valid reason/and as court allowed. > Procedural requirements are liberalized: Even post card will be taken as a writ petition. — on December 1, 1988 the supreme court issued a notification confining the letter-cum-petitions only to bonded labour, neglected children, prisoners, against police, atrocities against women and children," ais petitions will be entertained on environmental matters, food adulteration, drugs maintenance of heritage and. dulture ete. — However PIL is not entertained for landlord — tenant disputes. service matters, admission into educational institutions which have to take ordinary course - the notification also\ provides for procedure. Karly PILs were mostly'based on letters \ | / oners or Amicus Curaic are appointed. - Supreme | court while exercising its powers under Art.32 read with Art, | 142 may opt for i > The proceedings are Non-Adyersarial ¢iborative litigation — Investigative }j > It isa sort of colla > Works like Ombudsman Abus ‘public’ or Handy tool for ‘political’ or ‘publicity’ harassment Lowering locus standi Motivated — mooted privately fa | | The genuine causes and cases of public inte est on in | fact receded to the background and irresponsible. activists all over the country have started 10 play @ my but not a constructive role in the arenu of litigation Janata Dal v. H. 8. Chowdhary AIR 1993 S C 892 FIR filed by CBI against persons involved in BOFORS - Petition by a citizen to quash prosecution at threshold - Held, petition was not maintainable since it did not involve public interest - On the contrary petitioner was much concerned with personal and private-ir eresto) accused. - The Supreme Court has widely enlarged'the scope of PIL by relaxing and liberalising the rule of standing by treating letters or petition sent by any person or association complaining violation dfany fundamental \ rights and also entertaining Writ Petitions filed under Ar | Constitution by public spirited and policy oriented activist 5 | Journalists or of any organisation, the dominant object of PIL, is to ensufe | Observance of the provisions of the Constitution or the law Which can be | | best achieved to advance the cause of community Varltaged groups and individuals or public interest by permitting any person, Raving no personal gain or private motivation or any other oblique consideration but | acting bona fide and having sufficient interest in maintaining an action, for, judicial redress for public injury to put the judicial, machinery in 6th like actio popularis of Roma’ , such an action in respect of a public delict:[ Guruvayur Devaswom Managing Committee v. C. IX. Rajan AIR 2004 SC 561 The principles evolved by the Supreme Court in regard to public interest litigation : (i) The Court in exercise of powers under Art. 32 and Art. 226 of the Constitution of India can entertain a petition filed by any jnterested person in the wellare of the people who.is,inak see position and, thus, not in a position to knock'the do he Court. Thed Court is constitutionally bound to protect the fundamental rights of such |\ disadvantaged people so as to direct the State to fulfill its, constitutional \ inental rights| § and functions promises. (ii) Issues of public imp of large number of public vis~ of the State, if raised, the Court igation upon relaxing procedur’ ance, enforcement of fundal a-vis the constitutional dut reat a letter or a telegram as a public ‘al laws as also the-law relating | port interest lit to pleadings. +(iii) Whenever injust Court will not hesitate in stepping i Constitution of India as well asthe In Rights provide for reasonable and Mair trial. ice is meted out fo a large number of people the n. Articles 14,and 21 of the <7 iational-Conventions on Human” } — (iv) The common rule of locus standi is relaxed so as to enable the Court to look into the grievances complained on behalf of the poor, depraved, illiterate and the disabled who cannot vindicate the legal wrong or legal injury caused to them for any violation of any constitutional or legal right. eel (v) When the Court is prima facie satisfiedab0ut-variati constitutional right of'a group of people belonging to the disadvantaged category, it may not allow the Statelor the G i} from raising the question as to the maintaina Of th ad | \ (vi) Although procedural Jaws apply on PIL cases but the ne pee \ to whether the principles of res judicata or principle: aoe as thereto would apply depend on the nature of the irae oo | facts and circumstances of the case. {ion as also (vii) The dispute between two warring groups purely: ate law would nol be allowed lo be agitated as ¢ ofany § A trod ag | priv: litigation.(viii) However, in an appropriate case, althou; iti | u » gh the petitiones i moved a Court in his private interest and for redressal of the See grievances, the Court in furtherance of the public interest may treat it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice. (ix) The Court in special situations may appoinit’Gommission, or othe bodies for the purpose of investigating into the allegations:and finding out facts. It may also direct management ofa public institution|taken over by/ h Committee. The Court w ill not ordinarily transgress into a policy. It 1ot to transgress its jurisdiction while / purporting to protect the rights of the people from being vio) ated. | (x) The Court would ordinarily not step out of the known areas of | jew. The High Courts although may pass an order for doing J | sucl shall also take utmost care 1 judicial rev: complete justice to the parties, the Constitution of India. (xi) Ordinarily the High Court way of Public Interest Litigation questioni validity of a statute or a Statutory Rule it does not have a powersakimfo Art. 142 o: should not entertain a writ petition b, ng constitutionality-0 In Bandhu Mukki Morcha Vs Union of India ’84,803 : -an organisation brought to the notice of the court through a letter about the existence of bonded labour in stone quaries in Faridabad district. — the court treated it as a writ petiti raised preliminary objection about the locus..standi = J..held that where a PIL alleging*the existence of bonded. labour is filed it is not proper on not & - without degrading thi \ manna minimising the effects develgbment is / p seen es the principles of sustainable development. - utionary principle, ici / ae ip! anticipatory acti n may | Indian Council for Enviro Legal Action Vs Union of India 1996 “Bichhri is a small village in Udaipur district of Rajasthan -Chemical factories = production of 'H!' acid highly toxic effluents - in particular, iron-based and gypsum based sludge -which if not properly treated, pose grave threat to Mather Earth. It poisons the earth, the water and everything that comes,in, contact with it, Social action litigation on behalf of. villagers > ‘inva: their right to life because of pollution caused:by private ‘companies alleged Petition directed against Central and State Governments and State Pollution Control Board to compel them to perform tneir statutory duties - Cannot be said to be not maintainable on ground that private companies are not amenable to writ jurisdiction - Moreover S. C. has power and duty to intervene and protect right to life of citizens. The question ‘of liability of the respondents to defray the costs of remedial measures has now come to be accepted principle, viz. the "Polluter Pays" Principle. - accepted principles laid by the court in earlier cases -Pollution caused in Bichhri village due to chemical industries producing H acid and sulphuric acid, - Direction given to Central Govt. to determine amount required for remedial measures - Supreme Court directed attachment of factories: larity machinery and all other im ple, assets. of these industrie Also. directed their closure.P “yellore Citizens Welfare Forum Vs Union o i 1996,2715 f India Water pollution - Tanneries di i into agricultural fields, Fonds ieee and ee ee - Untreated effluents finally discharged in “ier the rai ee of water supply to residents of area - Stipreme Cour pias esnion eaations for maintaining standards ontr - rf 1 Court wee the High Coult fA a ciate te coat specia Bench "Green Bench" to deal wi as ‘i environmental matters. Art.21 "Precautionary Aiecime ant the polluter pays principle are part of the environmental law of the country. Court also referred to Art.47,48A and 51A(g) — constitutional mandate to improve environmen protection — required to creale environmental protection fun Intellectual Forum, Tirupati Vs State of Andhra Pradesh,2006,1350 Tanks are important part of environment of area - Govt. is responsible to protect and preserve historical tanks qua concept of ‘sustainable development’ and ‘public trust doctrine’ - Merely asserting an intention for development - Is not enough to sanction destruction, of localyecological resources - Property subject tc trust must notonly be used for a publi purpose, but it must be held available for use by general public - Property must be maintained for particular types of use (i) either traditional uses, oF (ii) some uses particular to that form of resources - Principle of ‘Inter- Generational Equity’ also to be applied for protecting natural resources. ~ Right to shelter qua preservation of historical tankslenvironment - Tank isa communal property and State authorities are trustees to: hold and manage such properties for benefits of community - Cannot be allowed to commit any act or omission which will infringe right of community and alienate property to any other person or body - No one will be left homeless if proposed construction are not carried out - Right to shelter not so pressing so as to outweigh all environmental considerations - Fact that, party has spent money on developing land - Immaterial - Court passed direc ONS will regard to feasibility of revival of 'Peruru tank’ and‘Avivala Tank’ in Tirupati and prohibits further housing constructions.J Jagannath Vs Union of India 197,811 f Environment (Protection) Act (29 of 19, culture industry - notification is environment and the aesthetic u: related to water front" nor “direct up of within prohibited area an adverse effect on environment “Neither "direct! ly needing foreshore facilities" - Setting d in ecology fragile Coastal area has J and coastal ecology and e ic Cannot be permitted to Operate -Before any shrimp indies Tare ; Pond is permitted to be installed in th area times he ecology fragile coastal area i t ee ‘nfough a ae environment test - Employees of industries heen , entitled to retrenchment com: ‘ z ; @s additional compensation — Hi wer author Gres wages d gh power authority directed. to ‘b Constiluted for granting permission for installation of shrimp industry *Constitution of India - Art.4ga, \ 1 & Bar fetters and solitary confinement and right to socialise: Suni Batra Vs. Delhi Administration 1978, 1675 *Charles Sobhraj — kept in bar fetters day and night — Sec.56 of Prison Act,1894 doe not permit - Conviction for a crime. SoeseDotp reduce the person into a non-person whose: rights are-st ject to} the whim of the prison administration ‘and, therefore; the imposition’ of any major punishment within the prison system is conditional upon the observance of procedural safeguards. - S, 30 (2) does not authorise prison authority to impose solitary confinement within the meaning of Ss. 73 and 74 |.P.C. - if by imposing solitary confinement there is total deprivation of comradetie (friendship) amongst co-prisoners coming and taking and being) talked to, it would offend Ar.21 of the Constilution. The liberty toymove, mix, mingle, talk, share company with co-prisoners if substantially curtailed would be violative of Art. 21 Harbans Singh Vs State of U.P. 1991,534 ¢ ; Keeping under trial prisoners in bar fetters held invalidre. Third Degree Methods and inhuman treatment Kishore Singh Vs State of Rajasthan 1981, 625 *S.46 of Prisons Act and Rr. 1 (f), 46 and 79 of Rajasthan Prisons Rules - Interpretation of - Must be in consonance of Art. 21. - Solitary confinement and putting fetters - To be resorted only in rarest of rare cases for security, -feasonss — Flimsy grounds like “loitering in the prison" "behaving insolently and in an uncivilised manner’, “tearing off his history ticket" cannot be the foundation for the to rturesome treatment of solitary confinement and cross-bar fetters. Keeping prisoners in separate solitary rooms for long periods from 8 months to 414 months-spells long enough to be regarded as barbarous and would amount to breach of fundamental law laid down by the Supreme Court in Sunil Batra's case.(AIR 1978 SC 1675) - no police lifestyle which relies more on fists. than ‘on wits, on torture more than on culture can control crime because means boomerang on ends and re-fuel the vice which it seeks to extinguish - Nothing is more cowardly and unconscionable than a person in police custody being beaten up and nothing inflicts a deeper wound on our constitutional culture than a State official running berserk regardless of human rights. So long as an iron curtain divides the law set by the Constitution and _lit_b} Supreme Court from the minions of the State, so long shall this writ remain a mystic myth and:tiaritiless half-truth making law books and law-in-action distant neighbours — V.R. Krihna lyer Custodial deaths and illegal arrests: -Jogindar Kumar State of U.P. 1994 Lawyer was called to the police station in connection with i inquiry = er not seen afterwards — family members filed petition for hebeas corpus ~ produced after a week ~ police pleaded tliat he was only assisting © and not in the custody — $.C. did not grant the writ — laid guidelines. | +1. Arrested person is entitled to communicate his a friend or well wisher rest ete to his | | 2. Police to inform the arrestee sbout his right as above \ + 3. Entry to be made in the Diary