May 11,2019:
The Author, Nidhi Garg is a student of University Institute of Legal Studies, Chandigarh University. She is currently interning with LatestLaws.com.
Introduction
The expression ‘Public Interest Litigation’ has been borrowed from American Jurisprudence, where it was designed to provide legal representation to previously unrepresented groups like the poor, the racial minorities, unorganized consumer, citizens who were passionate about the environmental issues, etc.
Public Interest Litigation differs from ordinary litigation. It does not involve the enforcement of the rights of one person against another. Rather, this type of litigation is filed to provide justice to the section of the society. It is the collaborative effort that encompasses the petitioner, the Court and the government. It is commendable to see that courts have taken all possible measures to allow access to public spirited persons and even NGOs to file petitions on behalf of those who cannot approach the Court.
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 [arty. 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. However, the person filing the petition must prove to the satisfaction of the court that the petition is being filed for a public interest and not just as a frivolous litigation by a busy body.
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 cognizance of the matter and proceed Suo motu or cases can commence on the petition of any public-spirited individual.
Origin and Development
The seeds of the concept of Public Interest Litigation were initially sown in India by Krishna lyer J., in 1976 in Mumbai Kamagar Sabha vs. Abdul Thai (AIR 1976 SC 1455; 1976 (3) SCC 832) and was initiated in Akhil 13/taratiya Sos/ail karnuu: hari sangh (Raihvaiy vs. Union of India, wherein an unregistered association of workers was permitted to institute a writ petition under Art.32 of the Constitution for the redrcssal of common grievances. Krishna lyer J., enunciated the reasons for liberalization of the rules of Locus Standi in Fertilizer Corporation Kamgar vs. Union of India (AIR 1981 SC 149; 1981 (2) SCR 52) and the idea of ‘Public Interest Litigation’ was blossomed in S.F. Gupta and others vs. Union of India, (AIR 1982 SC 149).
Evolution of public Interest Litigation in India:
It should be noted at outset that PIL, at least as it had developed in India, is different from class action or group litigation. Whereas the latter is driven primarily by efficiency consideration, the PIL is concerned at providing access to justice to all societal constituents. PIL in India has been a part of the constitutional litigation and not civil litigation. Therefore, in order to appreciate the evolution of PIL in India, it is desirable to have a basic understanding of the constitutional framework and the Indian Judiciary.
After gaining independence from the British rule on August 15, 1947, the people of India adopted a Constitution in November 1949 with the hope to establish a “sovereign socialist secular democratic republic”. Among others, the Constitution aims to secure to all its citizens justice (social, economic and political), liberty (of thought, expression, belief, faith and worship) and equality (of status and of opportunity). These aims were not merely aspirational because the founding fathers wanted to achieve a social revolution through the Constitution. The main tool employed to achieve such social change were the provisions on Fundamental Rights (FRs) and the Directive Principles of State Policy (DPs). Which Austin described as the “conscience of the Constitution”. In order to ensure that FRs did not remain empty declarations, the founding fathers made various provisions in the Constitution to establish an independent judiciary. As we will see below, provisions related to FRs, DPs and independent judiciary together provided a firm constitutional foundation to the evolution of PIL in India.
The founding fathers envisaged the judiciary as a bastion of rights and justice. An independent judiciary armed with the power of judicial review was the constitutional device chosen to achieve this objective. The power to enforce the FRs was conferred on both the Supreme Court and the High Courts - the courts that have entertained all the PIL cases. The judiciary can test not only the validity of laws and executive actions but also of constitutional amendments. It has the final say on the interpretation of the Constitution and its orders, supported with the power to punish for contempt, can reach everyone throughout the territory of the country. Since its inception, the Supreme Court has delivered judgments of far-reaching importance involving not only adjudication of disputes but also determination of public policies and establishment of rule of law and constitutionalism.
In India, the first PIL was filed in the year 1976; Mumbai Kamgar Sabha v. M/s Abdulbhai Faizullabhai and others. The other historical PIL is the one filed for prisoner’s rights Hussainara Khatoon v. State of Bihar. Many has regarded this case as the first PIL in India as well.
A very prominent PIL activist in India is, Mr. M.C. Mehta: a lawyer by profession and a committed environmentalist by choice. From the scores of PILs he filed, it seems his mission in life was to protect the environment. He has single handedly obtained about 40 landmark judgements and numerous orders from the Supreme Court against Environmental offenders. Some of the landmark judgements arising out of PILs filed by him are:
- The oleum gas leak case
- The Delhi vehicular pollution case
- The child labour case
- The gamma rays case
- The ganga pollution case.. to name a few
The Supreme Court has performed Judicial Activism by passing various orders and judgements in PILs. The expression ‘Judicial Activism’ signifies the anxiety of the Courts to find out an appropriate remedy for the aggrieved person by formulating a new rule to settle the conflicting questions in the event of uncertain laws or absence of any law on a given point.
Who can file a Public Interest Litigation?
In general, a case can be filed by the aggrieved party i.e. the victim, or any such person who has an interest related to the dispute. But there is no such requirement for filing a Public Interest Litigation. Any person can file a Public Interest Litigation.
This is one of the primary advantages of a PIL, the person filing a PIL need not show that he has an interest in that particular case. In legal terms, the person who is filing such petition does not need to exhibit a ‘locus standi’ in the case or the fact that one has suffered or is likely to suffer legal injury. Thus, a person can approach the court on behalf of others even though he is not the one who is aggrieved in any sense. One such example is filing an application of ‘habeas corpus’ because the person for whom such application is made is missing and hence cannot be filed by him, so his relatives file such an application. Though habeas corpus is a writ, the principle of locus standi can be very well understood by this example.
During the phase, when the principles of PIL were being settled, the Supreme Court in the case of Hussainara Khatoon v. Home Secretary, State of Bihar, laid down four distinct principles of PIL in India. These principles are as follows:
- a petition need not be filed by the person whose own legal rights are at issue and can be brought before the court by any public-spirited citizen,
- the person who is filing the petition need not have personal knowledge of the case details, and he can support his contentions by referring to excerpts like those of newspaper articles,
- both legal principles and relief can be used in the preliminary stage of the litigation, and
- the scope of litigation can be expanded beyond what was stated in the original petition if during the progress of the case facts indicate greater injustice.
How to file a PIL?
In India, a PIL can be filed in the Supreme Court under Article 32 and in High Court under Article 226 of the Constitution of India. The Supreme Court has taken various steps that have given a healthy boost to PIL. The procedural requirements are very easy and relaxed as compared to filing other ordinary petitions. Even, a letter, post card, newspaper report or email addressed to the Supreme Court by a person, acting in public interest has been accepted as a petition. Any simple information received by the Court complaining of a legal injury against a person or a group of persons, who cannot approach the Court directly (because of poverty, disability, social backwardness and the like can be treated as PIL. The Courts understand that in such case it would be unfair to expect a person to incur expenses and approach the Court through ordinary litigation.
The procedure:
- Collect all information .i.e. documents and photographs etc of affected interest and the groups affected/ affecting and make a rigid decision to file a case.
- File a case as written petition carefully (as its expensive and time taking) by as follows:-
- Consult a lawyer or if you yourself doing that then just take help in drafting (advisable).
- Write to relevant authorizes and maintain records in organized form to be clear about your demand.
- It’s advisable to carry all documents for proof like, documents for proof; Photographs with affidavit of the photographer; Bills and Copies of the petition etc.
- The petition should be addressed to the court within the respective jurisdiction Location Respective court within the jurisdiction. In case of High Court two copies of petition required to be filed as well as a copy to opposite party should be given in advance) and in case of Supreme Court, five sets required to be filed. The notice to opposite party will be issued by notice.
- With a Court fee of RS. 50, per respondent (i.e. for each number of opposite party, court fees of RS. 50) have to be affixed on the petition.
- After getting the replies from opposite party and rejoinder by the petitioner, final hearing takes place, and the judge gives his final decision (judge may appoint a commissioner, to inspect allegations, in the middle of the case).
Landmark Judgements on PIL
- Parmanand Katara v. Union of India:
Parmanand Katara, a human rights activist, filed a writ petition in the Supreme Court. His basis was a newspaper report concerning the death of a scooterist after an accident with a speeding car. Doctors refused to attend to him. They directed him to another hospital around 20 km. away that could handle medico-legal cases. Based on the petition, the Supreme Court held that:
- Preservation of human life is of paramount importance.
- Every doctor, at a government hospital or otherwise, has the professional obligation to extend his/her services to protect life.
- There should be no doubt that the effort to save the person should receive top priority. This applies not only to the legal profession, but also to the police and other citizens part of the matter.
- K. Basu v. State of West Bengal:
In this case, the court acted upon a letter petition which drew attention to the repeated instances of custodial death in West Bengal. The Court further mandated that a relative of the arrested must be promptly notified. It made clear that the failure to comply with this direction would be punishable as contempt of Court. The early PILs had witnessed the award of compensation by the Court to victims of human rights violation. This practice of initiating proceedings on the basis of letters has now been streamlined and has come to be described as ‘epistolary jurisdiction’.
- Hussainare Khatoon v. State of Bihar:
Many have regarded this case as the first PIL in India as well. In this case, the attention of the Court focussed on the incredible situation of under-trials in Bihar who had been in detention pending trial for periods far in excess of the maximum sentence for their offences. The Court not only proceeded to make the right to a speedy trial the central issue of the case, but passed the order of general release of close to 40,000 under-trials who had undergone detention beyond such maximum period.
- C. Mehta v. Union of India:
The judgement delivered on January 12, 1988 lashed out at civic authorities for allowing untreated sewage from Kanpur’s tanneries to make its way into the Ganges.
The court passed three landmark judgments and a number of Orders against polluting industries, numbering more than 50,000 in the Ganga basin, from time to time. In this case, apart from industries, more than 250 towns and cities also had to set up sewage treatment plants.
600 tanneries operated in a highly congested residential area of Kolkata. The ruling shifted them out of the city and relocated them to a planned leather complex in West Bengal. The Court closed down several industries, allowing them to reopen only after setting up effluent treatment plants and controlled pollution. As a result, millions of people escaped air and water pollution in the Ganga basin, covering eight states in India.
Criticism of PIL
PILs have been subject to a lot of criticism in recent times. One of the main criticism is that by entertaining PILs and exercising Judicial Activism, Courts are trying to usurp the functions of the legislature and Executive. Justice Bhagwati, in the judgement of Bandu Mukti Morcha v. Union of India had observed that the Courts by performing the aforementioned actions are merely assisting in the realization of the constitutional objectives of the judiciary and usurping the functions of the Legislature and Executive.
Another criticism is the major dilution of the principle of Locus Standi. It has been argued that such dilution has opened up the floodgates for frivolous cases that either involves the litigant’s private interest, or to stage their political objectives. In such cases, the petitions have been dismissed and heavy costs have been imposed by the courts. This acts as a deterrent to people from filing such PILs in future.
Conclusion:
PIL has an important role to play in the civil justice system in that it affords a ladder to justice to disadvantaged sections of society, some of which might not even be well-informed about their rights. Furthermore, it provides an avenue to enforce diffused rights for which either it is difficult to identify an aggrieved person or where aggrieved persons have no incentives to knock at the doors of the courts. PIL could also contribute to good governance by keeping the government accountable. Last but not least, PIL enables civil society to play an active role in spreading social awareness about human rights, in providing voice to the marginalized sections of society, and in allowing their participation in government decision making.
