PUBLIC
INTEREST
LITIGATION
SUBJECT: SOCIOLOGY
SUBMITTED TO: Dr. SANGEET SUBMITTED BY: PIYUSH KUMAR IstYEAR-2nd SEMESTER ROLL NO.344
CHANAKYA NATIONAL LAW UNIVERSITY, PATNA-800001
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TABLE OF CONTENTS Page(s) 1. Acknowledgement------------------------------------------------------------------------2. List of Abbreviations---------------------------------------------------------------------3. Research Methodology-------------------------------------------------------------------4. Introduction-------------------------------------------------------------------------------5. Milestone of Public Interest Litigation-----------------------------------------------6. Public Interest Litigation as------------------------------------------------------------•
A boon
•
A abuse
7. Necessary Steps to be taken------------------------taken------------ -----------------------------------------------------------------------------------8. Social Change and Public interest litigation-----------------------------------------9. Concept of Public interest litigation---------------------------------------------------10. Aspect of Public interest litigation----------------------------------------------------11. Features of Public interest litigation-------------------------------------------------12. Public interest litigation as instrument of social change------------------------13. Conclusion--------------------------------------------------------------------------------14. Bibliography------------------------------------------------- -----------------------------
ACKNOWLEDGEMENT
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It is my privilege to record my deep sense to perform gratitude to those who helped me in completion of this project. In making of this project many people helped me immensely directly or indirectly. First of all I would like to thank Mr.Sangeet who had given me an idea and encouragement to making this project. I would like also to thank my friends for being cordial in order to make conducive environment of the CNLU Hostel.
Piyush Kumar
LIST OF ABBREVIATIONS
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1. AIRAIR-All All India India Repor Reporter ter 2. Art. – Ar Artic ticle 3. Ch-Cha -Chap pter ter 4. Ed. - Editi ition 5. Ex-Ex -Example 6. Govt Govt.-G .-Gov over ernm nmen entt 7. I.D-I I.D-Indu ndustr stria iall Dispu Dispute te 8. MANUANU-M Manup anupat atra ra 9. Ors-O rs-Otther hers 10. O.O.-Or Order der 11. SC- Suprem Supremee Court 12. SCC-Supreme SCC-Supreme Court Cases Cases 13. Sec Sec.-Sec .-Section tion 14. PIL – Public Public Interest Interest litigation litigation 15. USA-United USA-United States of America America 16. PGA - People's People's Guerrilla Guerrilla Army Army 17. UNDP-United Nations Development Program 18. AICCCR-All AICCCR-All India Coordination Committee of Communist Revolutionaries 19. MCC-Maoist Communist Centre
20. SDP- State State Domestic Domestic Product Product 21. AOBSZCAOBSZC- Andhra-Orissa Andhra-Orissa Border Special Zonal Committee 22. JBOBSZCJBOBSZC- Jharkhand-Bihar-Ori Jharkhand-Bihar-Orissa ssa Special Zonal Committee Committee 23. DSZC- Dandakaranya Dandakaranya Special Special Zonal Committee Committee 24. SAP- State State Auxiliary Auxiliary Police Police 25. MI- Moistu Moisture re index index
RESEARCH METHODOLOGY
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Rese Resear arch ch Meth Method odol olog ogy y is a syst system emat atiz ized ed inve invest stig igat atio ion n to gain gain new new knowl knowled edge ge about about the the phenomena or problems. Legal phenomena require their own research methodology. The research method methodolo ology gy applied applied here here is doctri doctrine ne method method of resear research. ch. The syste systemat matic ic invest investiga igati tion on of problems and of matters concerned with the topic “Public Interest Litigation ” has been done. The books in the library and materials available on the internet have been used to study the social and behavioural phenomena of the topic and its verification. The main object of this legal research is to gain familiarity with legal phenomena and to test and verify old facts to disguise the weakness or meri merits ts of old old lega legall aspe aspect ctss to anal analyz yzee the the fact factss into into new new theo theore reti tica call fram framew ewor orks ks..
INTRODUCTION Ladies and Gentlemen, 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
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emerged as the site where this device has been repeatedly used to protect p rotect the interests of disadvantaged groups as well as address matters of c ollective 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 p recipitate social change through court-ordered decrees that reform legal rules, enforce existing laws and articulate public norms.1 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. In this session, 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 d ilution 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, en titlements, the Court allowed actions to be brought on their behalf by social activists and lawyers. lawyers.2 In numerous instances, the Court took suo suo moto cognizance of matters involving the abuse of prisoners, bonded labourers and inmates of mental institutions, through letters addressed to sitting judges. This practice of initiating proceedings on the basis of letters has now been streamlined and has h as come to be described as ‘epistolary jurisdiction’. jurisdiction’. In Public Interest Litigation (PIL), the nature of proceedings itself does not exactly fit into the accept accepted ed common common-la -law w framew framework ork of advers adversari arial al litiga litigatio tion. n. The courtro courtroom om dynami dynamics cs are substantially different from ordinary civil or criminal appeals. While an adversarial environment may may prev prevai aill in case casess wher wheree acti actions ons are are brou brought ght to highl highlig ight ht admi admini nist stra rati tive ve apat apathy hy or the the government’ government’ss condonation condonation of abusive abusive practices, practices, in most public interest-r interest-relate elated d litigation litigation,, the 1
See: Abram Chaves, ‘The role of the judge in Public Law litigation’, 89 Harvard 89 Harvard Law Review
1281 (May 1976) 2
Refer: Susan D. Susman, ‘Distant voices in the Courts of India: Transformation of standing in
Public Interest Litigation’, 13 Wisconsin International Law Journal 57 Journal 57 (Fall 1994) 25
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 overco overcome me this this proble problem, m, our Courts Courts have develop developed ed the practi practice ce of appoint appointing ing ‘fact‘fact-fin findin ding g commission commissions’ s’ on a case-by-ca case-by-case se basis which are deputed to inquire inquire into the subject-mat subject-matter ter of the case and report back to the Court. These commissions usually consist of experts in the concerned. 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. basis.3 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, corpus, quo warranto, warranto, mandamus, mandamus, prohibition and certiorari. certiorari. However, the Indian Courts have pushed the boundaries of constitutional remedies by evolving the concept of a ‘continuing manda mandamu mus’ s’ whic which h invo involv lves es the the pass passin ing g of regu regula larr dire direct ctio ions ns and the the moni monito tori ring ng of thei their r 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. 4 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 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 3
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 4
See: T.R. Andhyarujina, Judicial Activism and Constitutional Democracy in India (Bombay:
N.M. Tripathi, 1992) 25
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, 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 princi principle pled d criti criticis cism m agains againstt Public Public Intere Interest st Litiga Litigatio tion n (PIL) (PIL) is that that it detrac detracts ts from 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.4 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 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
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independent and responsible judiciary. At this point I would like to recall an observation made in Bihar Legal Support Society v. The Chief Justice of India & Ors5 the matter of Bihar “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 rely on a sizeab sizeable le body body of statut statutory ory law and precede precedents nts from the colonial colonial period period,, with with the exception of what is repugnant to our constitutional provisions. However, the framers of our Constitut Constitution ion incorporat incorporated ed influences influences from several several countries countries and adopted adopted the idea of ‘judicial ‘judicial review’ as opposed to the British notion of ‘Parliamentary sovereignty’.6 In India, the criteria for the Courts to review governmental action is threefold – the fundamental rights enshrined in Part III of the Constitution, the reasonableness of administrative actions and the demarcation of legislative competence between the Union and the States. 6
5
6
AIR 1987 SC 38
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 adoption of the Constitution, Constitution, in so far as they are inconsistent inconsistent with the provisions provisions containing containing the fundamental fundamental rights, rights, shall, to the extent of such inconsistency, 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.” 25
However, the scope of this power of ‘judicial review’ was keenly contested throughout the 1950’ 1950’ and 1960’s 1960’s,, primar primarily ily over over the questi question on of the ‘right ‘right to proper property ty’. ’. During During that that phase, phase, govern governmen ments ts at both both the Union Union level level and most most states states enacted enacted legisl legislati ations ons provid providing ing for land 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.7 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 Kerala.8 By a narrow majority of 7-6 the much-cited decision in Keshavananda in Keshavananda Bharati v. State of Kerala. 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 democr democracy acy,, rule rule of law, law, secula secularis rism, m, separa separatio tion n of powers powers and judici judicial al review review.9 .9 The said 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, 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:
7
For a brief commentary on the evolution of the doctrine of ‘judicial review’ in India, See: S.P.
Sathe, Sathe, ‘Judicial ‘Judicial Activism: Activism: The Indian Indian experience’, experience’, 6 Washington University Journal of Law and Policy 29 (2001) 8
(1973) 4 SCC 225 25
“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.” The Committee on Judicare Judicare consisting consisting of Justice V.R. Krishna Krishna Iyer and Justice Bhagwati refe referr rred ed to Soci Social al Actio Action n Liti Litiga gati tion on as a supp supple leme ment ntal al tool tool to gras grassr sroo oots ts legal legal serv servic ices es programmes, in their report published in 1977. Soon after, these two judges took the lead in promoting the same by taking suo taking suo moto cognisance of matters on the basis of letters addressed to them. However, However, before before describing describing the use of PIL in some significan significantt instances, instances, it is important to unde unders rsta tand nd the the other other limb limb of the the Indi Indian an judi judici ciar ary’ y’ss ‘act ‘activ ivis ist’ t’ turn turn – i.e. i.e. a chang changee in the 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. law.”” The understanding of Article 21 in the early years of the Supreme Court was that ‘personal liberty’ could be curtailed as long as Gopalan’s case,11 the Supreme Court had there was a legal prescription for the same. In A.K. Gopalan’s 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 Consti Constitut tution ion.. The framer framerss of the Indian Indian Constit Constituti ution on had conscio consciousl usly y chosen chosen the expression ‘procedure established by law’ which requires a much lower threshold for placing restra restraint intss on indivi individual dual libert liberty. y. Noted Noted schola scholarr Granvi Granville lle Austi Austin n has specul speculate ated d that that this this proprogovernment government orientation orientation may have been prompted prompted by the widespread 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 incorporating a substantive ‘due process’ clause by none other than Justice Felix Frankfurter. This position prevailed for several years until it was changed in Maneka Gandhi’s case. 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 language of Artic Articles les 14, 19 and 21 of the Indian Indian Consti Constitut tution ion.. Articl Articlee 14 mandat mandates es 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
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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 process’ 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 case9 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: “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.” 10 Moreover, through innovative changes to the process for instituting proceedings, ascertaining facts and granting granting discretionary discretionary remedies, remedies, the Indian Courts Courts have stepped stepped beyond their traditional traditional domain to render justice to women, children, bonded laborers 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 the Kesavananda Bharati decision, 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,, Pradesh,, Justice Jeevan Reddy had declared:
9
Maneka Gandhi v. Union of India, India, AIR 1978 SC 597
10
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 25
“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 socioeconomic entitlements in order to interpret the right to ‘life and personal liberty’. For instance, in Olga Tellis v. Bombay Bombay Municipal Municipal Corporation Corporation,, a journalist had filed a petition on behalf of hundreds of pavement-dwellers who were being displaced due to construction activity by the respond respondent ent corpor corporati ation. on. The Court Court recogni recognised sed the ‘right ‘right to livel liveliho ihood od and housing housing’’ of the pavement-dwellers as an extension of the protection of life and personal liberty, and issued an India, the Court injunction to halt their eviction. Similarly, in Parmanand Katara v. Union of India, articulated a ‘right to health’ when it ruled that no medical authority could refuse to provide immedi immediate ate medica medicall attent attention ion in emerge emergency ncy cases. cases. In numero numerous us instan instances ces where where the Court’ Court’ss intervention has been sought in environment-related matters, it has also referred to a ‘right to a clean clean environ environmen ment’ t’ emanat emanating ing from from Articl Articlee 21. The Courts Courts have have also also pointe pointed d to Direct Directive ive principles in interpreting the constitutional prohibitions against forced labour and child labour
Milestones of Public Interest Litigation in India One of the earliest cases of o f public interest litigation was that reported as Hussainara as Hussainara Khatoon (I) v. State of Bihar. This This case case was concerned concerned with with a series series of articl articles es publish published ed in a promin prominent ent 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 permissi permissible ble 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 directions through which the ‘right to speedy trial’ 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 vari variou ouss abus abuses es of the the law, law, whic which, h, they they asse assert rted ed,, were were a viol violat atio ion n of Arti Articl clee 21 of the the Constitution.20 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
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non-payment of wages to bonded labourers among others. the Supreme Court accepted their locus 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 Barse11, 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 constables and that accused females could be interrogated only in the presence of a female police official. Publ Public ic inte intere rest st liti litigat gatio ion n acqu acquir ired ed a new dime dimens nsio ion n – name namely ly that that of ‘epi ‘epist stol olar ary y jurisdiction’ with the decision in the case of Sunil of Sunil Batra v. Delhi v. Delhi Administration,12 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,13 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 tradit tradition ional al indivi individua dualis lism m of locus locus standi standi to the communi community ty orient orientati ation on of public public interes interest t litigation, the court must consider the issues as there is need to focus on the ordinary men."
11
Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96
12
(1978) 4 SCC 494
13
(1980) 4 SCC 162
25
In Parmanand In Parmanand Katara v. Union of India,14 the Supreme Court accepted an application by an Die" published in a national advocate that highlighted a news item titled " Law Helps the Injured to Die" daily, The Hindustan Times. 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 many hospit hospitals als and doctors doctors refuse refused d to treat treat them them unless unless certai certain n proced procedura urall formal formalit ities ies were 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 of the rule of locus 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.15The 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 of locus standi, 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 legally protected interest interest is violated, 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 that has evolved evolved in India India not only only looks looks at issue issuess like like consum consumer er protec protectio tion, n, gender gender justic justice, e, preven preventio tion n of environ environmen mental tal pollut pollution ion and ecolog ecologica icall destru destructi ction, on, it is also also direct directed ed toward towardss 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 such as the the avai availa labi bili lity ty of food, food, acces accesss to clea clean n air, air, safe safe work workin ing g cond condit itio ions ns,, polit politic ical al 14
(1989) 4 SCC 286
15
(1981) Supp. SCC 87 25
representa representation, tion, affirmati affirmative ve action, action, anti-discr anti-discrimin imination ation measures measures and the regulation regulation of prison prison conditions among others. For instance, in People’s Union for Democratic Rights v. Union of India, India,16 a petition was brought against governmental agencies which questioned the employment of underage labourers and the payment of wages below the prescribed statutory minimum wagelevels 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. Union of India,17 the Supreme Court’s attention was drawn to the widespread incidence of the age-old practice practice of bonded labour which persists persists despite despite the constituti constitutional onal prohibitio prohibition. n. Among other interventions, one can refer to the Shriram Food & Fertilizer case18 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 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,30 directions to check pollution in and around the Ganges river,31 the relocation of hazardous industries from the municipal limits of Delhi,32 directions to state agencies to check pollution in the vicinity of the Taj Mahal33 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.34 This was followed some some time time later later by another another order order that that requir required ed privat privately ely-ru -run n ‘autor ‘autorick icksha shaws’ ws’ (three (three-wh -wheel eeler er vehicles which meet local transportation needs) to shift to the use of CNG. At the time, this 16
AIR 1982 SC 1473
17
(1984) 3 SCC 161
18
(1986) 2 SCC 176
25
decision was criticized as an 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 India,19 wherein a intervention was made in Council for Environment Legal Action v. Union of India, 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.36 Rajasthan.36 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 Discri Discrimi minati nation on Agains Againstt Women Women (CEDAW (CEDAW)) and framed framed guidel guideline iness for establ establish ishing ing redres redressal sal 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 in People’s Union for Civil Liberties v. Union of India,20 where the Court sought to ensure ensure compliance with the policy policy of supplying supplying midday 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. nutrition. However, there had been widespread widespread reports reports of problems problems in the implementation implementation of this scheme such as the pilferage of foodgrains. As a response to the same, the Supreme Court issued orders to the concerned governmental authorities in all States and Union Territories, while giving elaborate elaborate directions directions about the proper publicity publicity and implementat implementation ion of the said scheme. scheme. Public Public 19
(1996) 5 SCC 281
20
(2007) 1 SCC 728
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Interest Litigation popularly known as PIL can be broadly defined as litigation in the interest of that that nebulo nebulous us entity entity:: the public public in genera general. l. Prior Prior to 1980s, 1980s, only only the aggriev aggrieved ed party party could 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. 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 their own grieva grievances nces/pr /probl oblems ems.. Thus, Thus, the initi initiati ation on and contin continuanc uancee of litiga litigatio tion n was the prerogative of the injured person or the aggrieved party. Even this was greatly limited by the resources available with those individuals. There was very little organized efforts or attempts to take up wider issues that affected classes of consumers or the general public at large. However, all these 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
25
pla play y a majo majorr but not a cons constr truc ucti tive ve role role in the the aren arenaa of liti litigat gatio ion. n. They They try try to util utiliz izee this 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 inexpen sive 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 o n 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 frivolous cases could be filed without without investment of heavy court fees as required required in private private civil litigation and deals could then be b e negotiated with the victims of stay orders obtained in the socalled 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.
Necessary Steps to be taken
25
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 petition and take action upon it. But, it is not every letter letter,, which may be treate treated d as a writ writ petitio petition n by the court. court. The
court court would would be justif justified ied 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 o f 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. 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 frivol frivolous ous compla complaint intss will will have to pay compen compensat sation ion to the opposit oppositee partie parties. s. It is actual actually ly a welc welcom omee move move becau because se no one one in the the count country ry can can deny deny that that even even PIL PIL acti activi vist stss shoul should d 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
25
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.
Social Change and Public Interest Litigation in India Social change is the necessity of any society. In India it is done through Public Interest Litigation. In this this arti articl clee an atte attemp mptt was was made made to asse assess ss the the impa impact ct of PIL PIL over over Indi Indian an Soci Societ ety. y. The The jurisprudence of PIL is necessary to understand the nature of PIL in India. Such is the disillusionment with the state formal legal system that it is no longer demanded by law to do justice, if justice perchance is done, we congratulate ourselves for being fortunate. In these circumstances one of the best things that have happened in the country in recent years is the pro proce cess ss of soci social al refo reform rm thro throug ugh h Publ Public ic Inte Intere rest st Liti Litigat gatio ion n or Soci Social al Acti Action on Liti Litigat gatio ion. n. Late 1970s marked discernible shift from legal centralism. Legal pluralism was very apparent now. It was realized that social conduct was regulated by the interaction of normative orders, notion of popular justice, community justice, and distributive justice were sought to be institutionalised, though outside the sphere of the formal legal system and in opposition to it. Public Interest Litigation as exists today
PIL today offers such a paradigm which locates the content of informal justice without the formal legal system. Non Anglo-Saxon jurisdiction directs courts to transcend the traditional judicial function of adjudication and provide remedies for social wrongs. PIL had already molded the state in to the instrument of socio-economic change. Social justice is the byproduct of this transcends from the formal legal system. Evolution of Public Interest Litigation
The Indian PIL is the improved version of PIL of U.S.A. 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 unrepresented groups and interests. Such efforts have been undertaken in the recognition that ordinary marketplace for legal services fails to provide such services to significant segments of the population and to significant interests. Such groups and interests include the proper environmentalists, consumers, racial and ethnic minorities and others”. The emergency period (1975-1977) witnessed colonial nature of the Indian legal system. During emergency state repression and governmental lawlessness was widespread. Thousands of innocent
25
people including political opponents were sent to jails and there was complete deprivation of o f civil and political rights. The post emergency period provided an occasion for the judges of the Supreme Court to openly disregard the impediments of Anglo-Saxon procedure in providing access to justice to the poor. Notably two justices of the Supreme Court, Justice V. R. Krishna Iyer and P. N. Bhagwati recognised the possibility of providing access to justice to the poor and the exploited people by relaxing the rules of standing. In the post-emergency period when the political situations had changed, investigative journalism also began to expose gory scenes of governmental lawlessness, repression, custodial violence, drawing attention of lawyers, judges, and social activists. PIL emerged as a result of an informal nexus of pro-active judges, media persons and social activists. This trend shows starke difference between the traditional justice delivery system and the modern informal justice system where the judiciary is performing administrative judicial role. PIL is necessary rejection of laissez faire notions of traditional jurisprudence. The first reported case of PIL in 1979 focused on the inhuman conditions of prisons and under trial prisoners. In Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360, the PIL was filed by an advocate on the basis of the news item published in the Indian Express, highlighting the plight of thousands of undertrial prisoners languishing in various jails in Bihar. These proceeding led to the release of more than 40, 000 undertrial prisoners. Right to speedy justice emerged as a basic fundamental right which had been denied to these prisoners. The same set pattern was adopted in subsequent cases. In 1981 the case of Anil Yadav v. State of Bihar, AIR 1982 SC 1008, exposed the brutalities of the Police. News paper report revealed that about 33 suspected criminals were blinded by the police in Biha Biharr by putt puttin ing g the the acid acid into into thei theirr eyes eyes.. Thro Through ugh inte interi rim m orde orders rs S. C. dire direct cted ed the the Stat Statee government to bring the blinded men to Delhi for medical treatment. It also ordered speedy prosecution of the guilty policemen. The court also read right to free legal aid as a fundamental right of every accused. Anil Yadav signalled the growth of social activism and investigative litigation. In (Citizen for Democracy v. State of Assam, (1995) 3SCC 743), the S. C. declared that the handcuffs and other fetters shall not be forced upon a prisoner while lodged in jail or while in transport or transit from one jail to another or to the court or back.
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CONCEPT OF PUBLIC INTEREST LITIGATION
According to the jurisprudence of 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”. Ordinarily, only the aggrieved party has the right to seek redress under Article 32. In 1981 Justice P. N. Bhagwati in .S. P. Gupta v. Union of India, 1981 (Supp) SCC 87, articulated the concept of PIL as follows, “Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any an y constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons by reasons of poverty, helplessness or disability or socially or economically disadvantaged position unable to ap proach the court for relief, any member of public can maintain an application for an appropriate direction, order or writ in the High Co urt under Article 226 and in case any breach of fundamental rights of such persons o r determinate class of persons, in this court under Article 32 seeking judicial redress for the legal wrong or legal injury caused to such person or determinate class of persons.” 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 pro provi visi sion ons, s, but but not not for for perso persona nall gain gain or priv privat atee prof profit it or poli politi tica call moti motive ve or any any obliq oblique ue consideration (Ashok Kumar Pandey v. State of W. B., (2004) 3 SCC 349). Supreme Court in Indian Banks’ Association, Bombay and ors v. M/s Devkala Consultancy Service and Ors., J. T. 2004 (4) SC 587, held that “In an appropriate case, where the petitioner might have moved a court in her private interest and for redressal of the personal grievance, the court in furtherance of Public Interest may treat it a necessity to enquire into the state of affairs of the subject of litigation in the interest of justice. Thus a private interest case can also be treated as public interest case”.
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In Guruvayur Devaswom Managing Commit. And Anr. Vs. C.K. Rajan and Ors, J.T. 2003 (7) S.C. 312, S.C. held, “The Courts exercising their power of judicial review found to its dismay that the poorest of the poor, depraved, the illiterate, the urban and rural unorganized labour sector, women, children, handicapped by 'ignorance, indigence and illiteracy' and other down trodden have either no access to justice or had been denied justice. A new branch of proceedings known as 'Social Interest Litigation' or 'Public Interest Litigation' was evolved with a view to render complete justice to the aforementioned classes of persona. It expanded its wings in course of time. The Courts in pro bono publico granted relief to the inmates of the prisons, provided legal aid, directed speedy speedy trial, trial, mainte maintenan nance ce of human human dignit dignity y and covered covered severa severall other other areas. areas. Repres Represent entati ative ve actions, pro bono publico and test litigations were entertained in keeping with the current accent on justice to the common man and a necessary disincentive to those who wish to by pass the, real issues on the merits by suspect reliance on peripheral procedural shortcomings… Pro bono publico constituted a significant state in the present day judicial system. They, however, provided the dockets with much greater responsibility for rendering the concept of justice available to the disadvantaged sections of the society. Public interest litigation has come to stay and its necessity cannot cannot be overem overemphas phasize ized. d. The courts courts evolve evolved d a jurisp jurisprud rudenc encee of compas compassio sion. n. Proced Procedura urall propriety was to move over giving place to substantive concerns of the deprivation of rights. The rule of locus standi was diluted. The Court in place of disinterested and dispassionate adjudicator became active participant in the dispensation d ispensation of justice”.
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Aspects of Public interest Litigation (a) Remedial in Nature
Remedial nature of PIL departs from traditional locus standi rules. It indirectly incorporated the principles enshrined in the part IV of the Constitution of India into part III of the Constitution. By riding the aspirations of part IV into part III of the Constitution had changeth the procedural nature of the Indian law into dynamic welfare one. Bandhu Mukti Morcha v. Union of India, Unnikrishnan v. State of A.P., etc were the obvious examples of this change in nature of judiciary. (b) Representative Standing
Representative standing can be seen as a creative expansion of the well-accepted standing exception which allows a third party to file a habeas corpus petition on the ground that the injured party cannot approach the court himself. And in this regard the Indian concep t of PIL is much broader in relation to the American. PIL is a modified form of class action. (c) Citizen standing
The doctrine of citizen standing thus marks a significant expansion of the court’s rule, from protector of individual rights to guardian of the rule of law wherever threatened by official lawlessness. (d) Non-adversarial Litigation
In the words of S. C. in People’s Union for Democratic Rights v. Union of India, AIR 1982 S.C. 1473, “We wish to point out with all the emphasis at our command that public interest litigation… is a totally different kind of litigation from the ordinary traditional litigation which is essentially of an adversary character where there is a dispute between two litigating parties, one making claim or seeking relief against the other and that other opposing such claim or resisting such relief”. Nonadversarial litigation has two aspects. 1. Collaborative litigation; and 2. Investigative Litigation Collaborative Litigation: In collaborative litigation the effort is from all the sides. The claimant,
the court and the Government or the public official, all are in collaboration here to see that basic human rights become meaningful for the large masses of the people. PIL helps executive to
25
discharge its constitutional obligations. Court assumes three different functions other than that from traditional determination and issuance of a decree. (i). Ombudsman- The court receives citizen complaints and brings the most important ones to the
attention of responsible government officials. (ii) Forum – The court provides a forum or place to discuss the public issues at length and
providing emergency relief through interim orders. (iii) Mediator – The court comes up with possible compromises.
investiga igativ tivee litiga litigatio tion n becaus becausee it works works on the reports reports of the Investigative Investigative Litigation Litigation : It is invest Registrar, District Magistrate, comments of experts, newspapers etc. (e) Crucial Aspects
The flexibility introduced in the adherence to procedural laws. In Rural Litigation and Entitlement Kendra v. State of U.P.,(1985) 2 SCC 431, court rejected the defense of Res Judicta. Court refused to withdraw the PIL and ordered compensation too. In R.C. Narain v. State of Bihar, court legislated the rules for the welfare of the persons living in the mental asylum. To curtail custodial violence, Supreme Court in Sheela Barse v. State of Maharashtra, issued certain guidelines. Supreme Court has broadened the meaning of Right to live with human dignity available under the Article 21 of the Constitution of India to a greatest extent possible. (f) Relaxation of strict rule of Locus Standi
The strict rule of locus standi has been relaxed by way of (a) Representative standing, and (b) Citizen standing. In D.C.Wadhwa v. State of Bihar, AIR 1987 SC 579, S.C. held h eld that a petitioner, a professor of political science who had done substantial research and deeply interested in ensuring proper implementation of the constitutional provisions, challenged the practice followed by the state of Bihar in repromulgating a number of ordinances without getting the approval of the legislature. The court held that the petitioner as a member of public has ‘sufficient interest’ to maintain a petition under Article 32. 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 pro provi visi sion ons, s, but but not not for for perso persona nall gain gain or priv privat atee prof profit it or poli politi tica call moti motive ve or any any obliq oblique ue
25
consideration…court has to strike balance between two conflicting interests: (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive and the legislature (Ashok Kumar Pandey v. State of W. B., (2004) 3 SCC 349). It is depres depressin sing g to note note that that on account account of trumpe trumpery ry procee proceedin dings gs initia initiated ted before before the courts, courts, innumerable days are wasted, which time otherwise could have been spent for the disposal of cases of genuine litigants. Though the Supreme Court spares no efforts in fostering and developing the laudabl laudablee concept concept of PIL and extendi extending ng its its ling ling arm of sympat sympathy hy to the poor, ignorant ignorant,, the oppr oppres esse sed d and the the need needy y whose whose fund fundam amen enta tall righ rights ts are are infr infrin inged ged and viol violat ated ed and and whos whosee grievances go unnoticed, unrepresented and unheard (Ashok Kumar Pandey v. State of W. B., (2004) 3 SCC 349). (g) Epistolary Jurisdiction
The judicial activism gets its highest bonus when its orders wipe some tears from some eyes. This jurisdiction is somehow different from collective action. Number of PIL cells was open all over India for providing the footing or at least platform to the needy class of the society.
Features of Public interest litigation Through the mechanism of PIL, the courts cou rts seek to protect human rights in the following ways: 1) By creating a new regime of human rights by expanding the meaning of fundamental right to equality, life and personal liberty. In this process, the right to speedy trial, free legal aid, dignity,
25
means and livelihood, education, housing, medical care, clean environment, right against torture, sexual harassment, solitary confinement, bondage and servitude, e xploitation and so on emerge as human rights. These new reconceptualised rights provide legal resources to activate the courts for their enforcement through PIL . 2) By democratization of access to justice. This is done by relaxing the traditional rule o f locus standi. Any public spirited citizen or social action group can approach the court on behalf of the oppressed classes. Courts attention can be drawn even by writing a letter or sending a telegram. This has been called epistolary jurisdiction.
3) By fashioning new kinds of relief’s under the court’s writ jurisdiction. For example, the court can award interim compensation to the victims of governmental lawlessness. This stands in sharp contrast to the Anglo-Saxon model of adjudication where interim relief is limited to preserving the status quo pending final decision. The grant of compensation in PIL matters does not preclude the aggrieved person from bringing a civil suit for damages. In PIL cases the court can fashion any relief to the victims.
4) By judicial monitoring of State institutions such as jails, women’s protective homes, juvenile homes, mental asylums, and the like. Through judicial invigilation, the court seeks gradual improvement in their management and administration. This has been characterized as creeping jurisdiction in which the court takes over the administration of these institutions for protecting human rights. 5) By devising new techniques of fact-finding. In most of the cases the court has appointed its own socio-legal commissions of inquiry or has deputed its own official for investigation. Sometimes it has taken the help of National H uman Rights Commission or Central Bureau of Investigation (CBI) or experts to inquire into human rights violations. This may be called investigative litigation.
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PIL as an Instrument of Social Change PIL is working as an important instrument of social change. It is working for the welfare of every section of society. It’s the sword of every one used only for taking the justice. The innovation of this legitimate instrument proved beneficial for the developing cou ntry like India. PIL has been used as a strategy to combat the atrocities prevailing in society. It’s an institutional initiative towards the welfare of the needy class of the society. In Bandhu Mukti Morcha v. Union of India, S.C. ordered for the release of bonded labourers. In Murli S. Dogra v. Union of India, court banned smoking in public places. In a landmark judgement of Delhi Domestic Working Women’s Forum v. Union of India, (1995) 1 SCC 14, Supreme Court issued guidelines for rehabilitation and compensation for the rape on working women. In Vishaka v. State of Rajasthan Supreme court has laid down exhaustive guidelines for preventing sexu al harassment of working women in place of their work.
Conclusion It would be appropriate to conclude by quoting Cunningham, “Indian PIL might rather be a Phoenix:
a
whole
new
creative
arising
out
of
the
ashes
of
the
old
order.”
PIL represents the first attempt by a developing common law country to break away from legal imperialism perpetuated for centuries. It contests the assumption that the most western the law, the
25
better it must work for economic and social development such law produced in developing states, including
India,
was
the
development
of
under
develop
men.
The shift from legal centralism to legal pluralism was prompted by the disillusionment with formal legal system. In India, however instead of seeking to evolve justice- dispensing mechanism ousted the formal legal system itself through PIL. The change as we have seen, are both substantial and structural. It has radically altered the traditional judicial role so as to enable the court to bring justice
within
the
reach
of
the
common
man.
Further, it is humbly submitted that PIL is still is in experimental stage. Many deficiencies in handling the kind of litigation are likely to come on the front. But these deficiencies can be removed by innovating better techniques. In essence, the PIL develops a new jurisprudence of the accountability of the state for constitutional and legal violations adversely affecting the interests of the weaker elements in the community. We may end with the hope once expressed by Justice Krishna Iyer, “The judicial activism gets its highest bonus when its orders wipe some tears from some eyes”.
BIBLIOGRAPHY 1 1. B.N. Kirpal, Ashok H. Desai, Gopal Subramanium, Rajeev Dhavan & Raju Ramachandran (eds.), Supreme but not Infallible Infallible – Essays in Honour of the Supreme Court of India (New Delhi: Oxford University Press, 2000)
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2. C. Raj Raj Kuma Kumarr & K. Choc Chocka kali ling ngam am (eds (eds.) .),, Human Human rights rights,, Justice Justice and Consti Constitut tution ional al empowerment (New empowerment (New Delhi: Oxford University Press, 2007) 3. Charles Epp, The Rights Revolution: Lawyers, Activists and Supreme Courts in comparative perspective (University of Chicago, 1998) 4. Granville Austin, Working a Democratic Constitution – The Indian experience (New Delhi: Oxford University Press, 1999) 5. Jagga Kapur (ed.), Supreme Court on Public Interest Litigation: Cases and materials – The debate over original intent , in 4 volumes (New Delhi, LIPS Publications Pvt. Ltd., 1998) 6. Jeremy Cooper & Rajeev Dhavan, Public Dhavan, Public Interest Law (London: Blackwell Publishing, 1987) 7. M.P. Singh (ed.), V.N. V.N. Shukla Shukla’s ’s Consti Constitut tution ion of India, India, 11th edn. (Lucknow: (Lucknow: Eastern Eastern Book Company, 2008) 8. Mamta Rao, Public Interest Litigation in India – a Renaissance in Social Justice, 2 nd edn. (Lucknow: Eastern Book Company, 2004) 9. Marc Galanter, Law Galanter, Law and society in modern India (New Delhi: Oxford University Press, 1989) Fiftyy years of the Supreme Court of India: Its Grasp and Reach 10. S.K. Verma & Kusum (eds.), (eds.), Fift (New Delhi: Oxford University Press, 2000) 11. S.P. Sathe, Judicial Sathe, Judicial Activism in India (New Delhi: Oxford University Press, 2002) 12. Sandra Fredman, Human rights transformed – positive rights and positive duties (Oxford University Press, 2008) 13. Sangeeta Ahuja, People, Law and Justice: A casebook on Public Interest Litigation, Litigation, in 2 volumes (New Delhi: Orient Longman, 1996)
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