Use and Abuse of PIL

8/10/2019 Use and Abuse of PIL

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JAMIA MILLIA ISLAMIA, NEW DELHI

ADMINISTRATIVE LAW PROJECT

PUBLIC INTEREST

LITIGATION

Submitted to: Submitted by:

Dr. Asad Malik

Faculty of Law B.A. LLB (H)

Jamia Millia Islamia 3rd Year, 6th Semester


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CONTENTS

1.

Acknowledgement..2

2. Introduction3

3. Meaning of PIL...6

4. Evolution of PIL in India9

5.

Reasons for Growth of PIL...13

6.

Importance of PIL.18

7. Misuse of PIL and the Later Development...26

8.

Conclusion32

9. Bibliography.34


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ACKNOWLEDGEMENT

I wish to express my heartfelt thanks to all those who have helped me in making

this project. I take this opportunity to express my profound gratitude and deep

regards to my teacher Dr. Asad Malik for his exemplary guidance, monitoring

and constant encouragement throughout the course of this project. The blessing,

help and guidance given by him time to time shall carry me a long way in the

journey of life on which I am about to embark.

I also take this opportunity to express a deep sense of gratitude to the staff of

Jamia Millia Islamia, New Delhi, for their cordial support, valuable information

and guidance, which helped me in completing this task through various stages. I

am obliged for the valuable information provided by them in their respective

fields. I am grateful for their cooperation during the period of my assignment.

Lastly, I thank almighty, my parents, brother, sisters and friends for their

constant encouragement without which this assignment would not be possible.


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INTRODUCTION

Administrative Law as a separate legal branch of legal discipline especially in

India came to be recognised only by the middle of the 20thcentury. Today the

administration is ubiquitous and impinges freely and deeply on every aspect of

an individuals life. Therefore, administrative law has become a major area for

study and research. With the growth of the huge global administrative space due

to globalisation of economy administrative law has developed globaldimensions.

Thus, four basic bricks of foundation of any administrative law may be

identified as: (i) to check abuse or detournment of administrative power; (ii) to

ensure to citizens an impartial determination of their disputes by officials; (iii)

to protect them from unauthorised encroachment on their rights and interests;

and (iv) to make those who exercise public power accountable to the people.

According to Diceys formulation, administrative law relates to that portion of a

nations legal system which determines the legal status and liabilities of all state

officials; secondly, it defines the rights and liabilities of private individuals in

their dealing with public officials; and thirdly, specifies the procedure by which

those rights and liabilities are enforced.

The rights that can be imposed under Article 226 must ordinarily be the right of

the petitioner himself, except in the case of habeas corpus and quo warranto.


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The right to be enforced must ordinarily be personal right of the petitioner

himself.1The person applying for the issue of the writ must have a locus standi.

The Courts recently have shown great flexibility and liberality of approach in

the matter of locus standi. It was realised by the courts that if the right to

challenge an administrative action is confined to the aggrieved person only,

many unauthorized and arbitrary actions of the bureaucracy may go

unchallenged as the aggrieved party may never go for a challenge on account of

several factors including its ignorance, poverty and disadvantaged position. TheSupreme Court therefore, took a lead in relaxing the rules of locus standi.

It is a fact that in India today, Public Interest Litigation (PIL) jurisdiction of the

Constitutional Courts has grown so much that now courts are drawing their

identity and legitimacy largely from the exercise of this jurisdiction and their

traditional role has slipped into background.

The term PIL comes to us from American jurisdiction where it was designed to

provide legal representation to previously unrepresented groups and interests.

The necessity for this was the recognition that the ordinary market place for

legal services fail to provide such services to significant segments of the

American population and to significant interests. Such groups and interests

include poor, environmentalists, consumer, racial and ethnic minorities, and

others.

1Calcutta Gas Co. v. State of West Bengal, AIR 1962 SC 1044


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PIL is a socio-economic movement generated by the judiciary to reach justice

especially to the weaker sections of the society for whom even after the two and

a half decades of independence, justice is a merely teasing illusion. In other

words, it is a long-arm strategy of the judiciary to reach justice to those who due

to socio-economic handicap cannot reach the doors of the court. Therefore, it is

a judge-led and judge-induced strategy that represents high benchmark of

judicial creativity and sensitivity to the problems of the weak and the

vulnerable. The idea of PIL came from actio popularis of the Roman

jurisprudence which allowed court access to every citizen in matters of public

wrongs. In India, inspiration to court for the development of this strategy came

from the oath which a judge takes to defend the Constitution wherein socio-

economic justice and equal court access are the prime principles. Thus, this

innovative strategy while providing easy access to justice to the weaker sections

of Indian society also provides a powerful tool in the hands of the public-

spirited individuals and social action groups for combatting exploitation and

injustice and securing for the underprivileged segment of society, their socialand economic entitlements.2

2State of H.P. v. Parent of a Student of Medical College(1985) 3 SCC 169


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MEANING OF PIL

Public Interest Litigation means a legal action initiated in a Court of law for

the enforcement of public interest or general interest in which the public or a

class of community have pecuniary interest or some interest by which their legal

rights or liabilities are affected.

The expression public interest if it is employed in a given statute is to be

understood and interpreted in the light of the entire scheme purpose and object

of the enactment but in the absence of the same it cannot be pressed into service

to confer any right upon a person who otherwise does not possess any such right

in law.3

S. Ratnavel Pandian,J. in Janta Dal v. H.S. Chowdhary,4said, Lexically the

expression Public Interest Litigation means a legal action initiated in a court of

law for the enforcement of public interest or general interest in which the public

or a class of community have pecuniary interest or some interest by which their

legal rights or liabilities are affected.

During the last three decades judicial activism has opened up new dimensions

for the judicial process and has given a new hope to justice-starved millions. On

the question of legitimacy of the PIL and the significant importance of its

various aspects in the context of the present day felt needs, stimulated by the

3Meerut Development Authority v. Association of Management Studies, AIR 2009 SC 28944AIR 1993 SC 892 at 906


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emergence of a variety of new social improvements and social exigencies, this

court has laid down a long line of decisions, outlining the evolution of PIL, its

vital issues and problems relating to the focus, choice of relief methods, the

means and administrative strategy for litigation and the demand for distributive

justice for resolving the complicity of social problems and meaningful social

justice. Thus, the concept of PIL which has been and is being fostered by the

judicial activism that has become an increasingly important one setting up

valuable and respectable records, especially in the area of constitutional and

legal treatment for the unrepresented and underrepresented.5

The following characteristics of PIL are notable:

1. Petitions in PIL are filed on behalf of a group or class of persons.

2. Petitions are on behalf of such a group or class of persons, who on

account of their social, economic or other constraints cannot approach the

court for any legal remedy.

3. Action is initiated in PIL against irresponsible, illegal acts of

Government.

4.

It is a new concept of jurisprudence which is developing its own

mechanism of justicing.

5. It is a law proposed and propounded by the Judges.

6.

It gives rise to such causes of action where legal damage has been caused

to the public at large or a section of it.

7. Any public spirited person or member of an organisation, who initiated

public interest litigation, must have bona fide interest in social welfare,

his intensions must be free from malice and he should not start the action

under the influence of extraneous considerations.

5Janta Dal v. H.S. Chowdhary, AIR 1993 SC 892 at p. 907


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EVOLUTION OF PUBLIC INTEREST

LITIGATION IN INDIA

The seed of the concept of PIL was initially sown in India by Krishna Iyer, J. in

1976 (without assigning the terminology) in Mumbai Kamgar Sabha v.

Abdulbhai.7He, while disposing an industrial dispute in regard to the payment

of bonus, has observed:

Our adjectival branch of jurisprudence, by and large, deals not with

sophisticated litigant but the rural poor, the urban lay and the weaker societal

segment for which law would be an added terror if technical misdescription and

deficiencies in drafting, pleading and setting out the cause title create a secret

weapon to non-suit a part. Public interest is promoted by a spacious

construction of locus standi in our socio-economic circumstances and

conceptual latitudianism permits taking liberties with individualisation of the

right to invoke the higher courts where the remedy is shared by a considerable

number, particularly when they are weaker.

After the germination of the seeds of the concept of PIL in the soil of our

judicial system, it was nourished, nurtured and developed by the Apex Court by

a series of outstanding decisions. In Fertil izer Corporation Kamgar Union v.

Union of I ndia8 the terminology public interest litigation was used. In this

case, Krishna Iyer, J. made the following elaborate observations:

7AIR 1976 SC 14558AIR 1981 SC 344


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1)

When corruption permeates the entire fabric of Government, legality is

the first casualty, for then the State power is exercised on grounds

unrelated to its nominal purpose.

2)

In such a climate, a civil remedy for administrative wrong doing depends

upon the action of individual citizen.

3)

A pragmatic approach to social justice warrants a liberal interpretation

of constitutional provisions (including Articles 32 and 226) so that the

court may carry out effective policing of the corridors of power until

other Ombudsman arrangements are made.

4)

Courts function is limited to testing whether administrative action has

been fair and reasonable and is not mala fide.

5) Locus standi must be liberalized and ubi jus ibi remedium must be

enlarged to meet the public needs.

6)

Law is a social auditor and this function can be put into action only when

someone with real public interest ignites the jurisdiction.

7)

Restrictive rules of standing are antithesis to a healthy system ofadministrative law.

8) Public minded citizens must be given opportunities to rely on legal

process and not be repelled by narrow and pedantic concept of locus

standi.

9)

There might be false and frivolous suits, but when a person wishes to sue

merely out of public interest he should not be discouraged.10)

Justiceability of the issues and standing to agitate them are two

different things.

The learned Judge also cautioned that an officious busy body picking up a

stray dispute or idle pedlar of black mail litigation through abuse of the process

of the court cannot be permitted to pollute the Court instrumentality for private


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and to whom freedom and liberty have no meaning. In habeas corpus case, the

court has further liberalized the rule of standing. In Kadra Pahadia v. State of

Bihar10

the letter written by Dr. Basudha Dhagamwar pointing out the sad

plight of the under trial prisoners languishing in jail for more than a decade was

treated to be a petition and the court proceeded to grant an appropriate remedy.

In Miss Veena Sethi v. State of Bihar,11

through a letter addressed by the Free

Legal Aid Committee, Hazaribagh to Justice Bhagwati, the judicial process was

set into motion and the attention of the court was drawn to the atrociously

illegal detention of certain prisoners in the Hazaribagh Central Jail for almost

two or three decades without any justification whatsoever, but for this letter

these forgotten specimens of humanity languishing in jail for years behind stone

walls and iron bars, deprived of freedom and liberty would have continued to

remain in jail without any hope of ever walking out of its forbidden

environment and breathing the fresh air of freedom.

10AIR 1981 SC 93411AIR 1983 SC 399


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REASONS FOR THE GROWTH OF PIL

The emergence of the concept of PIL in the Indian Legal System has been

succinctly explained by P.N. Bhagwati, J. in one of his articles contributed

under the caption Social Action Litigation. The Indian Experience reads thus:

The judiciary has to play a vital and important rolenot only in preventing and

remedying abuse and misuse of power and also eliminating exploitation and

injustice. For this purpose, it is necessary to make procedural innovations in

order to meet the challenges posed by this new role of an active and committed

judiciary. The summit judiciary in India, keenly alive to its social responsibility

and accountability to the people of the country, has liberalised itself from the

shackles of western thought, made innovative use of the power of judicial

review, forged new rules, devised new methods and fashioned new strategies

for the purpose of bringing justice for socially and economically disadvantaged

groups During the last four or five years however, judicial activism has

opened up new dimension for the judicial process and has given a new hope to

the justice starved millions of Indians.12

There are several factors which led to the growth of PIL as an instrument of

remedial justice in India and they can be described as under:

1. Article 38 of the Constitution ensures social, political and economic

justice and Article 39 embodies the jurisprudential doctrine of distributive

justice. In order to achieve these objectives Article 39-A directs the State

to ensure that the operation of the legal system promotes justice on the

12Vide Role of Judiciary in Plural Societies published in 1987


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basis of equality of opportunities and shall in particular, provide free legal

aid, by suitable legislation or schemes or any other way, to ensure that

opportunities for securing justice are not denied to any citizen by reason

of economic or other disabilities. The State must encourage and support

the participation of voluntary organisations or social action groups in

operating legal aid program. The legal aid program which is meant to

secure justice to the people cannot remain confined to the traditional

litigation oriented program but it should take into account the socio

economic conditions prevailing in the country and devise some dynamic

means of insuring justice. The system of PIL became essential in this

process so that justice could not be denied to any section of people on

account of its poverty, deprivation, ignorance and helplessness.

2. Justice Bhagwati in his report on National Judicature in 1977 advocated

for initiating the system of Representative suit in our country, which

should be made use of in case like consumer protection etc. In this respect

he pleaded for the relaxation and liberalisation of the locus standi rule.

Since then the judicial process has been revolutionized to promote PIL in

India.

3.

New dimensions to the maxim Ubi jus ibi remedium have been

discovered, which necessitated the filing of petitions by public spirited

persons or organisations for protecting public interest or extending legal

remedies to people at large or any segment thereof. In order to uphold this

kind of system, PIL has been accepted as a reality.


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4.

In every social order the right to get an effective justice is a guaranteed

legal right. To eclipse this right in the name of technicalities of legal

procedure, or to create statutory bottlenecks for it, would amount to

negation of a healthy administrative order in our society. If any persons

petition is preliminary dismissed on the ground that he is actually not the

aggrieved person, the result would be hazardous because a large number

of cases of Government excesses and violation of the law by different

instrumentalities of the Government would remain unattended and un-

remedied as the real aggrieved person would never move the court for an

appropriate remedy due to the several constraints from which they are

suffering. This would be obviously in derogation of public interest. In

Parmanand Katara v. Union of I ndia13the Court allowed the petition by

a stranger even when his personal interest was not involved in the matter

in any way.

5.

The Public Interest Litigation is a strategic arm of the legal aid movement

through which infringement of legal or fundamental rights of the poor

could be redressed at the Court of Law. Ours is a poor country where

nearly forty per cent of the population lives below poverty line and the

next forty per cent just on poverty line. In these conditions it cannot be

expected of them to come forward for a judicial remedy even in cases of

transgressions upon the right, be it fundamental or legal. The system of

PIL is an attempt to ensure justice to them by rendering the remedial

guarantees of the Constitution a reality. In this regard, Justice P.N.

Bhagwati rightly remarked:

The time has now come when the courts must become the courts for the

poor and struggling masses of this country. They must shed their

13AIR 1989 SC 2039


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protective homes and orphanages,16 custodial violence with the accused

women17sexual exploitation of blind young girls18came to the notice of

the court, which otherwise could have never come before it, and

necessary remedial directions were issued by the Court.

8. The liberalisation of the locus standi rule is the foundation of public

interest litigation. It was widely realised by the courts that if the right to

challenge the wrongful acts of the Government is confined to the

aggrieved persons only, many arbitrary unjust and illegal acts ofbureaucracy would remain unattended and their victims will continue to

suffer from ill consequences of such acts. The concept of PIL emerged

out of these considerations.

16Sheela Barse v. Union of India, AIR 1988 SC 2211

17Rural Litigation and Entitlement Centre v. U.P. AIR 1985 SC 65218Prafulla Kumar v. Orissa AIR 1989 SC 1783


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IMPORTANCE OF PIL

The Supreme Court in Bandhua Mukti Morcha v. Union of I ndia19reiterated

its justification for participative justice and the need for liberalisation of the

locus standi rule. In the instant case, the petitioner is an organisation dedicated

to the cause of release of bonded labourers in the country. He made the survey

of some of the stone quarries in Faridabad district and found that there were a

large number of labourers from Maharashtra, U.P., M.P. and Rajasthan whowere working in these quarries under inhuman and intolerable conditions and

many of them were bonded labourers. The petitioner addressed a letter to the

Supreme Court pointing out the abject conditions of the bondage of a large

number of labourers for about last ten years. The petitioner also set out the

various provisions and the statutes which were not being implemented or

observed in regard to the labourers working in these quarries.

The Court held that where a member of the public acting bona fide moves the

court for enforcement of a fundamental right on behalf of a person or class of

persons who on account of poverty or disability or socially or economically

disadvantaged position cannot approach the Court for relief, such member of the

public may move the Court even by just writing a letter, because it would not be

right or fair to expect a person acting pro bono publico to incur expenses out of

his own pocket preferring a regular writ petition for the enforcement of the

rights of the poor and deprived sections of the community and in such a case a

letter addressed by him can legitimately be regarded as an appropriate

proceeding.

19AIR 1984 SC 802


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The Court, in the case of Bandhua Mukti Morcha v. Union of I ndia20 again

treated as a letter addressed to it as a writ petition under Article 32 of the

Constitution wherein complaints about prevalence of bonded labour system and

inhuman conditions of workers in stone quarries in certain areas of Faridabad

district were made out. The Court noted with concern that the various directions

given in regard to it in 1984 were not carried out. The court further directed the

State Government to act as welfare state and ensure that workers are continued

in work with improved conditions.

Further in State of H .P. v. A parent of a student of M edical College,21the

Supreme Court maintained that public interest litigation is a weapon which has

to be used with great care and circumspection and the judiciary has to be

extremely careful to see that under the guise of redressing a public grievance it

does not encroach upon the sphere reserved by the Constitution to the Executive

and Legislature. The Court cannot give direction to Legislature or the Executive

to initiate legislation with respect to any matter (ragging in the present context).

Where a person writes a letter to the Court so as to be treated as a petition, it is

his duty to disclose his identity. If it is not done, cognizance of such a letter is

an illegality. The Judge laid down the following constraints in the matter of

Public Interest Litigations:-

a. The underlying purpose of PIL is not to mock at the Legislature or the

Executive. In PIL the courts should never try to usurp the function

assigned to the executive or the Legislature. They cannot even indirectly

require the Executive to introduce a particular legislation or Legislature

20Ibid21AIR 1985 SC 910


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to pass it. Nor should they assume to themselves a supervisory role over

the law making activities of the Executive or the Legislature.

b.

A letter written by an aggrieved person or by a public spirited citizen of a

social action group can surely be treated as a writ petition but the identity

of the person of the person writing such a letter cannot be concealed.

Non disclosure of the identity of the petitioner would render it difficult

for the State or its agents against whom the relief is sought to verify the

authenticity of the petitioner and the credibility of the case brought by

him.

c.

In PIL the Court can intervene only when the executive is remised in

discharging its obligations under the Constitution or the law but it cannot

compel the Government to introduce an ameliorative legislation.

In Sheela Barse v. Union of I ndia22we find another example of social action

litigation. In this case the petition is moved by Bombay based social worker and

journalist seeking release of children below 16 years detained in jails,

production of complete information of children in jails, information as to the

existence of the Juvenile Courts, homes and schools and for a direction that

District Judges should visit jails to ensure that the children are looked after

properly when in custody. The apex Court issued necessary directions to the

High Court to ensure the compliance of directions by the District Judges in

respective of above information.

In the case of D.C. Wadhwa v. State of Bihar23it is noteworthy that the Court

allowed a Professor of Political Science to file a writ petition challenging the

22AIR 1986 SC 177323AIR 1987 SC 579


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validity of the practice of the State of Bihar in promulgating in re-promulgating

Ordinances on a massive scale without letting them replaced by the Acts of the

legislature. The Court held that he had sufficient interest to maintain a petition

under Article 32 even as member of public because it is the right of every

citizen to insist that he should be governed by laws made in accordance with

Constitution and not law made by the executive in violation of the constitutional

provisions.

There came several cases in 1987 which expanded the scope of public interestlitigation to environmental protection, child welfare and protection of public

health, etc. In M.C. Mehta v. Union of I ndia24popularly known as Oleum Gas

Leakage case, one M.C. Mehta moved the Supreme Court under Article 32

praying for orders against reopening of certain plants in Sriram Food and

Fertilizers Industries manufacturing and possessing hazardous and lethal

chemicals and gas, passing danger to health and life of workmen and people

living in neighbourhood. The Court loudly appreciated the action of the

petitioner in bringing the public interest litigation and held that pending

consideration of the issue whether the caustic chlorine plant should be directed

to be shifted and relocated at some other place, the caustic chlorine plant should

be directed to be shifted and relocated at some other place, the caustic chlorine

plant should be allowed to be restarted by the management subject to certain

stringent conditions which were specified.

In second set of M.C. Mehta v. Union of I ndia25

case where the writ was

moved by the Legal Aid and Advice Board and Bar Association for closure of

24(1987) 1 SCC 39525AIR 1987 SC 1086


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certain units of a company on the ground of health hazard, the Court proceeded

to award compensation in cases of violation of fundamental right to life

enshrined in Article 21 of the Constitution. The victims of gas leak were

allowed to claim damages through public interest litigation. In this case, Justice

Bhagwati allayed the fear of Justice Pathak and Justice Sen, expressed in

Bandhua Mukti Morcha case and said that even if a letter is addressed to an

individual Judge of the Court it should be entertained, provided, of course, it is

by or on behalf of a person in custody or on behalf of a woman or a child or a

class of deprived or disadvantaged persons.

I ndian Council for Enviro L egal Action v. Union of I ndia and others,26a PIL

petition alleging environmental pollution caused by the private industrial units

was filed by an environmentalist organisation, not for issuance of writ against

such units but against Union of India, State Government and State Pollution

Control Board to compel them to perform their statutory duties on the ground

that their failure to carry on such duties violated rights guaranteed under Article

21 of the residents of the affected area. The Supreme Court held the petition

may be maintainable and the Court could after ascertaining that the alleged

industrial units were responsible for causing ecological fraternity in the area

directed the authorities concerned to perform their statutory duties.

Sheela Barse v. Secretary Chi ldren Aid Society27is another case where the

petitioner through a letter petition brought before the Court several allegations

against the working of the New Observation Home run by the Children Aid

Society, Bombay. There was an inordinate delay in repatriation or restoration of

26(1996) 3 SCC 21227(1987) 3 SCC 50


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children to their parent in respect of whom such orders were made by the

juvenile court. The Court observed that the children should not be made to stay

long in the Home and laid down several suggestion for the improvement in the

working of the observation Homes.

D.K. Basu v. State of West Bengal and others28is major PIL case on the rights

of arrestee. The Supreme Court laid down certain basic requirements to be

followed in all the cases or arrest or detention upto legal provisions are made in

that behalf as a measure to prevent custodial violence.

In M.C. Mehta v. Union of I ndia29another important case on the enforcement

of statutory provisions regarding prevention of nuisance caused by the pollution

of the River Ganga, the Court issued directions to the Nagar Mahapalika of

Kanpur to comply with the statutory provisions under the Water (Prevention

and Control of Pollution) Act, 1974. Here the petitioner was not a riparian

owner. He was person interested in protecting the lives of the people who made

use of the water flowing in the river Ganga. The nuisance caused by the

pollution of the river is a public nuisance. The petition was therefore entertained

as public interest litigation and directed the appropriate authorities to take all the

reasonable actions for the prevention of nuisance in order to enable the riparian

owners to use the clean water.

28AIR 1997 SC 301729AIR 1988 SC 2217


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Yet another important case, namely, Rural L itigation and Entitlement Kendra

v. State of U .P.,30has been decided by the Supreme Court on the issue of

environmental protection. The action initiated through a letter from the Rural

Litigation and Entitlement Kendra, Dehradun complaining of the unauthorised

and illegal mining in the Mussorie- Dehradun belt which adversely affected the

ecology of the area and led to environmental disorder. The Court directed

stoppage of mining in Doon Valley area and vacated all the orders and decrees

relating to renewal of disputed mining leases in this connection.

Parmanand Katria v. Union of I ndia,31is another important announcement of

the Supreme Court on public interest litigation. Here the petitioner, a human

right activist filed an application under Article 32 of the Constitution asking for

a direction to the Union of India that every injured citizen brought for treatment

should instantaneously be given medical aid to preserve life and thereafter the

procedural criminal law should be allowed to operate in order to avoid negligent

death. In the event of breach of such direction, apart from any action that may

be taken negligence, appropriate compensation should be admissible. He

appended to the writ petition a report entitled Law helps the injured to die

published in the Hindustan Times. In the said publication it was alleged that a

scooterist was knocked down by a speeding car. Seeing him profusely bleeding,

a passer-by picked him up and took him to the nearest hospital. The doctors

refused to attend on the injured and told the man that he should have taken the

patient to a named different hospital located some 20 kilometres away

authorised to handle medico legal cases. The Samaritan carried the victim, lost

no time to approach the other hospital but before he could reach, the victim

succumbed to his injuries.

30AIR 1988 SC 218731AIR 1989 SC 2039


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In this case, the Court observed that the article 21 of the Constitution casts the

obligation on the State to preserve life. Accordingly the doctors at the

Government hospitals are duty bound to extend medical existence for

preserving life. Every doctor whether at Government Hospital or otherwise has

a professional obligation to extend his services with due expertise for protecting

life. The matter is extremely urgent and brooks no delay to remind every doctor

of his total obligation and assure him of the position that he does not contravene

the law of the land by proceeding to treat the injured victim on his appearance

before him either by himself or being carried by others.


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MISUSE OF PIL AND THE LATER

DEVELOPMENT

The growing use of public interest litigation has brought a new hope to the

victims of administrative injustices and criminal negligence of the government

through the process of the participative justice. But there may develop some

unhealthy trends of misuse of this process which the Supreme Court pointed out

in S.P. Gupta v. Union of I ndia32in the following words:

. But we must hasten to make it clear that the individual who moves the

Court for judicial redress in cases of this kind must be acting bona fide with a

view to vindicating the cause of justice and if he is acting for the purpose of

personal gain or private profit out of political motivation or other oblique

consideration, the Court should not allow itself to be activised at the instance of

such person and must reject his application at the threshold..

In Krishna Kant Jaiswal v. Vice Chancellor, Banaras Hindu University,

Varanasi33the Allahbad High Court altered against the probable frivilious

litigations which may get berths in this process. The Court observed that public

interest litigation has come to stay as one of the species of litigation in which

redress may be found from the Courts of law. However, this does not confer a

general and untrammelled right to indulge in the frivolous litigation without any

genuine cause of action and the necessity of seeking redress of some real

grievance. Consequently, while recognising such litigation certain minimum

conditions must be satisfied before the courts shall lend assistance to such

32AIR 1982 SC 14933AIR 1984 All 350


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litigant asking for relief. The motives of personal vendetta political or otherwise

shall also be looked upon with eminent disfavour before the Court entertains

such writ petitions.

The Supreme Court in Simranji t Singh M ann v. Union of I ndia34made an

important pronouncement by holding that no petition can be filed under Article

32 of the Constitution as public interest litigation in criminal cases. Although it

was pleaded by the petitioner that this PIL, commenced by an act of recognised

political party who had a genuine interest in the future of the convicts, should beentertained, the plea was turned down and it was declared by the Court that the

petitioner being a third party is totally a stranger to the prosecution and has no

locus standi but he can challenge the sentence awarded to the convicts.

In a decision of Supreme Court in Union Carbide Corporation v. Union of

India35Chief Justice Rangnath Misra said thus:

I am prepared to assume, may, concede that public activists should also be

permitted to espouse the course of the poor citizens but there must be a limit set

to such activity and nothing perhaps should be done which would affect the

dignity of the Court and bring down the serviceability of the institution to the

people at large. Those who are acquainted with the jurisprudence and enjoy

social privilege as men educated in law owe an obligation to the community of

educating it properly and allowing the judicial process to continue unsoiled.

Justice K.N. Singh expressed his opinion in Subhas Kumar v. State of Bihar36

in the following words:

34AIR 1993 SC 28035AIR 1992 SC 248


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PIL cannot be invoked by a person or body of persons to satisfy his or her

personal grudge and enmity. If such petitions under Article 32, are entertained it

would amount to abuse of process of the Court, preventing speedy remedy to

other genuine petitioners from this court. Personal interests cannot be enforced

through the process of this Court under Article 32 of the Constitution in the garb

of a PIL. It is the duty of this Court to discourage such petitions and to ensure

that the course of justice is not obstructed or polluted by unscrupulous litigants

by invoking the extraordinary jurisdiction of this court for personal matters

under the garb of PIL

The Patna High Court in President, Mahavidyalaya Siksha Sudhar Sangharsh

Samiti v.State of Bihar and others37dismissed the petition filed in the name of

PIL, praying the court for passing the order of vacation of police force from

college premises of the A.N. College, Patna. The unruly elements were

spreading terror in the college campus, extracting money from innocent students

in admissions and examinations, insulting teaching and non-teaching staff,

Principal attacked with bombs and pistols. All these situations made it necessary

that the Central Reserve Police Force camps inside the college campus to

restore law and order. The petition filed by the President of the aforesaid samiti

was held to be a gross abuse of the process of the Court. The petitioner was

neither a student nor a parent of any student of the college. It was held that he

had no locus standi. It was clearly an instance of frivolous PIL.

Where in a PIL some official documents had been annexed thereto but no

indication was given as to how petitioners came in possession thereof, frivolous

36AIR 1991 SC 42037AIR 1995 Patna 7.


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pleas were taken to explain such possession. The Supreme Court directed that in

such cases High Courts should not only dismiss petitions but also should impose

exemplary costs.38

In Chettri ya Pradushan M ukti Sangharsh Samiti v. State of Uttar Pradesh39

the Supreme Court entertained a letter petition on the alleged environmental

pollution caused by the two industrial units at Sarnath, Varanasi. Later on, the

court discovered a long history of enmity between the so called protectors of

public interest and proprietors of industrial units. It was also found that primafacie the norms laid down in the Air/Water (Prevention and Control of

Pollution) Acts, 1981 and 1974 have been followed. Rejecting the petition the

Court cautioned against the abuse of PIL and said that this weapon as a safe

guard must be utilised and invoked by the Court with great deal of

circumspection and caution.

In S.P. Anand v.H.D. Deve Gowda,40the Supreme Court observed that on

issues of constitutional laws, litigants who can lay no claim to have expert

knowledge in that field should refrain from filing petitions, which are often

drafted in casual and cavalier manner giving an extempore appearance not

having, had even a second look. Lastly, it must also be borne in mind that no

one has the right to waiver of the locus standi rule and the Court should permit

it only when it is satisfied that the carriage of proceedings is in the competent

hands of a person who is genuinely concerned in public interest and is not

moved by other extraneous considerations.

38Dattaraj Huthuji Thaware v. State of Maharashtra AIR 2005 SC 540

39(1990) 4 SCC 44940AIR 1997 SC 273


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The Madhya Pradesh High Court in A.G. Prayagi v.State of M .P.and others,

turned down the petitioners claim to invoke PIL because the petition suffered

from mala fides and frivolity. The petitioner was a public servant under

suspension facing serious charges of corruption. He moved the petition to

remove the Cabinet Minister and high officers of Public Health Department for

misuse of public funds and powers. The petition is filed by the petitioner as a

tax payer holding it to be a litigation of public interest. The Court held that the

petitioner has no locus standi as the petition is not filed bona fide but to defame

his superiors.

In State of Karnataka v. Al l I ndia Manufacturers Organisation and others,41

the Supreme Court has expressed the view that doctrine of res judicata is

applicable to PIL where the previous litigation is in the public interest and a

bona fide litigation and matter directly and substantially in the issue of previous

litigation operates as judgement. Judgement in rem also bars subsequent PIL

on principle of res judicata. The Calcutta High Court further observed that the

principles of res judicata and constructive res judicata apply equally to

proceedings under Article 226 of the Constitution.

In Santosh Sood v.Gajendra Singh42

, the Supreme Court has expressed the

view that if a civil suit was pending which may or may not be frivolous,

ordinarily the High Court should not have entertained a PIL. On the other hand

if it was found that the civil court was not proceeding with the matter as

expeditiously as it should have appropriate directions could have been issued in

that behalf.

41AIR 2006 SC 184642AIR 2010 SC 593


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The Delhi High Court in Vinod Kumar Kanojia v. Union of India43 recently

turned down the petitioners claim to invoke public interest litigation as it

suffered from mala fides. In this case, the petitioner has preferred PIL on behalf

of the Hindustan Kanojia Organisation (a community of dhobis), Schedule

Caste in India after coming to know from a news that a film in the name of

Dhobi Ghat is going to be released and the name of the film has affected the

sensitivity and created a dent in the feeling of the community. The court held

that Dhobi Ghat is a description of a place where clothes are washed. It has

place oriented description and naming a movie of this nature cannot be

offensive to the caste in question.

In Avishek Goenka v.Union of I ndia44the court has expressed the view that if

the order of PIL passed by the court it would be operative in rem. It was neither

expected of the court nor is it the requirement of law that the court should have

issued notice to all persons likely to be affected by the order.

43AIR 2011 Del. 7344AIR 2012 SC 3230


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CONCLUSION

The right to enforce Human Rights as provided under the Constitution of India

is constitutionally protected. Article 226 empowers the High Courts to issue

writs for enforcement of such rights. Similarly Article 32 of the Constitution

gives the same powers to the Supreme Court. A new approach has emerged in

the form of Public Interest Litigation (PIL) with the objective to bring justice

within the reach of the poor and the disadvantageous section of the society. Inthe recent past the judges of the High Courts and the Supreme Court have from

time to time given far reaching and innovative judgements to protect the Human

Rights. Public Interest Litigation has heralded a new era of Human Rights

promotion and protection in India. The greatest contribution of Public Interest

Litigation has been to enhance the accountability of the Governments towards

the Human Rights of the poor. Public Interest Litigation has undoubtedly

produced astonishing results which were unthinkable two decades ago. Public

Interest Litigation has rendered a signal service in the areas of Prisoners

Rights, development of compensatory jurisprudence for Human Rights

violation, Environmental protection, bonded labour eradication and prohibition

of Child Labour and many others. A review of the decisions of the Indian

Judiciary regarding the protection of Human Rights indicates that the judiciary

has been playing a role of saviour in situations where the executive and

legislature have failed to address the problems of the people. The Supreme

Court has come forward to take corrective measures and provide necessary

directions to the executive and legislature,. However while taking note of the

contributions of judiciary one must not forget that the judicial pronouncements

cannot be a protective umbrella for inefficiency and laxity of executive and

legislature. It is the foremost duty of the society and all its organs to provide


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justice and correct institutional and human errors affecting basic needs, dignity

and liberty of human beings. Fortunately India has pro-active judiciary. It can

thus be aspired that in the times ahead, peoples right to live, as a true human

beings will further be strengthened.

From the perusal of the above contribution it is evident that the Indian Judiciary

has been very sensitive and alive to the protection of the Human Rights of the

people. It has, through judicial activism forged new tools and devised new

remedies for the purpose of vindicating the most precious of the precious

Human Right to Life and Personal Liberty.


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BIBLIOGRAPHY

Books:

Lectures on Administrative Law Dr. U.P.D. Kesari- Twentieth Edition,

2014

Public Interest Litigation- Legal Aid and Lok Adalats- Mamta Rao- Third

Edition, 2010

Administrative Law- I.P. Massey- Eastern Book Company

Principles of Administrative Law- M.P. Jain- Fourth Edition, 2001

Articles:

Public Interest Litigation in India: Implications for Law and

Development- Sarbani Sen

Public Interest Litigation: A Conceptual Framework- Manas Ranjan

Samantaray , Mritunjay Sharma

Public Interest Litigation: Potential and Problems- Ashok H. Desai, S.

Muralidhar

Internet:

www.scconline.co.in

www.indiakanoon.com

Documents

Use and Abuse of PIL