33
2 (i) HISTORICAL PROSPECTUS OF PIL
Emergence of Public Interest Litigation has motivated the judicial system
to extend its protection to new social, public and group interest.
An inscription on the wall of Harvard Law School Library which has been
taken from Justivians reads as ‗Institute says honest vivera, honalienum leaders,
scum unique tridure‘ which means that the precepts of the law are those to live
honourably, not to injustice another to understand his due.
The whole congeries of operation cantons against a misleading reduction of
ethical problem involved in reaching judgement of social justice.40
Earlier, back into the horizons of law and justice in the west, the great
Judaieo Christian, Greek and Roman tradition concerned themselves with
theorising and explaining law. But the traditional and the medieval and post
medieval successors were free of such concern. They rather focussed on one or
both of the two very different concerns. One of these concerns which has survived
into modern analytical jurisprudence, has its main point in facilitating on the
vision of the logical coherence of the several prepositions and part of a legal order
and on fixing the definition of forum used and the presuppositions which will
maximize such coherence.
Executive delves into the modern problems of electing the representative,
the right of the citizen, in other words the human right made in a politically
organized society or the integrity of the personality of this organized society or its
political institution.
40
Source justice and Law, from on Law judiciary poul ..
34
The seed of the concept of Public Interest Litigation were initially shown in
India by Krishna Iyer, J. In 1976 (without assigning the terminology) in Mumbai
Kamgar Sabha v/s Abdulbhai,41
he while disposing an industrial dispute in
regard to the payment of bonus, has observed (Para 7 of AIR):
"Our adjectival branch of jurisprudence, by and large, deals not with
sophisticated litigants but the rural poor, the urban lay and the weaker societal
segments for whom law will be an added terror if technical mis-descriptions and
deficiencies in drafting pleadings and setting out the cause-title create a secret
weapon to non-suit a part. Where a foul play is absent and fairness is not faulted
latitude is a grace of processional justice. Test litigations, representative action,
pro-bono public and like broadened forms of legal proceedings are 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 short-comings. Even Article 226, viewed on
wider perspective, may be amenable to ventilation of collective or common
grievances, as distinguished from assertion of individual rights, although the
traditional view, view backed by precedents has opted for the narrower
alternative. Public interest is promoted by a spacious construction of locus standi
in our socio-economic circumstances and conceptual latitudinarianism 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. Less litigation, consistent with fair process, is the aim of adjective law."42
41
(1976) 3 SCC 832: AIR 1976 SC 1455. 42
Janta Dal v. H.S. Chowdhary, AIR 1993 SC 892 at p. 906, 907, 908 : 1993 Cri LJ 600: 1993
SCC (Cri) 36: (1992) 3 Crimes 199 : (1992) 4 SCC 305 (Del) (S. Ratnavel Pandian and K.
Jayachandra Reddy, JJ.).
35
In Fertilizer Corporation Kamgar Union v/s Union of India,43
the
terminology "public interest litigation" was used. In that decision, Krishna Iyer, J.
Delivering his opinion for Bhagwati, J. (as he was the learned Chief Justice then)
and himself used the expression 'epistolary' jurisdiction. However, this rule on
gaining momentum burgeoned more and more, expanding its branches in the
cosmos of public interest litigation and took its root firmly in the Indian Judiciary
and fully blossomed with fragrant smell in S.P. Gupta v/s Union of India.44
Rule of Law is an integral part of a democratic society, where citizen's
rights are taken care of by an independent and impartial judiciary. Thus in every
democratic society citizen's access to justice is the hallmark and any
encroachment on that right mars the spirit of a democratic system of government.
However in recent years the whole adjudicatory system has become pray to
dilatory and expensive process takes a heavy toll on a poor citizen's right of easy
access to justice. In the recent era, there has been a tremendous increase in the
government's power and responsibilities mainly because the Indian State is a
welfare state which entails a host of executive inferences in various walks of
human life and which leaves no corner of an individual's life untouched. Due to
this unprecedented changes in socio-economic and political aspects of the
governance of the country, the judiciary too has kept pace with it and has assumed
several new responsibilities and jurisdictional so for unheard of. The realization
by the judiciary of this new developments executive's increasing inference in to
daily lives, and ever increasing circumscription of people's access to justice have
led them to adopt less formal procedures and circumvent the nuances of
technicalities of the litigation processes. The most significant of them was the
liberalization of the doctrine of locus standi.
43
(1981) 2 SCR 52 : AIR 1981 SC 344. 44
AIR 1982 SC 149.
36
―Injustice anywhere is a threat to justice everywhere.‖ - MARTIN LUTHER
KING. Jr.
The term ―Public Interest Litigation‖ originated in the United States in the
mid 1980s. The phrase ‗public law litigation‘ was first prominently used by
American academic, Abram Chayes, to describe the practice of lawyers or public
spirited individuals who seek to precipitate social change through court ordered
decrees that reform legal rules, enforce existing laws and articulate public
norms.45
Since the nineteenth century, various movements in that country had
contributed to public interest law, which was part of the legal aid movement. The
first legal aid office was established in New York in 1876. In the 1960s the public
interest litigation movement began to receive financial support from the office of
Economic Opportunity. This encouraged lawyers, public spirited persons to take
up cases of the under-privileged fight against dangers to environment and public
health as well exploitation of consumers and the weaker sections.
It should be noted at outset that Public Interest Litigation, at least as it had
developed in India, is different from class action or group litigation. Whereas the
latter is driven primarily by efficiency considerations, 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.46
Therefore, in order to
appreciate the evolution of Public Interest Litigation in India, it is desirable to
45
Abraham Chaves, ―The Role of the Judge in Public Law Litigation‖, Harvard Law Review,
Vol.89, 1976, p.1281 46
The Indian Code of Civil Procedure though allows for class action: ord.1 r.8 of the Code of
Civil Procedure 1908. Furthermore, s.91 of the Code provides: ‗‗In the case of a public nuisance
or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and
injunction or for such other relief as may be appropriate in the circumstances of the case, may be
instituted . . . with the leave of the Court, by two or more persons, even though no special damage
has been caused to such persons by reason of such public nuisance or other wrongful act.‘‘
37
have a basic understanding of the constitutional framework and the Indian
judiciary47
. After gaining independence from the British rule on August 15, 1947,
the people of India adopted the Constitution in November 1949 with the hope to
establish a ‗‗sovereign, socialist, secular, democratic, republic.‖48
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)49
. These aims were not merely inspirational because
of the fact that the founding fathers wanted to achieve a social revolution through
the Constitution.50
The main tools 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‘‘.51
In order to ensure that Fundamental Rights 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
Fundamental Right‘s, Directive Principle‘s and independent judiciary together
provided a firm constitutional foundation for the evolution of Public Interest
Litigation in India. Part III of the Constitution lays down various FRs and also
specifies grounds for limiting these rights. ‗‗As a right without a remedy does not
47
Sheetal B. Shah, ‗‗Illuminating the Possible in the Developing World: Guaranteeing the Human
Right to Health in India‘‘ (1999) 32 Vanderbilt Journal of Transnational Law 435, 463. 48
Constitution of India 1950 Preamble. Although the terms ‗‗socialist‘‘ and ‗‗secular‘‘ were
inserted by the 42nd amendment in 1976, there were no doubts that the Constitution was both
socialist and secular from the very beginning 49
Constitution of India 1950, Preamble.
50 Granville Austin, The Indian Constitution: Cornerstone of a Nation, 1966, Oxford: Clarendon
Press, p.27. ‗‗The social revolution meant, ‗to get (India) out of the medievalism based on birth,
religion, custom, and community and reconstruct her social structure on modern foundations of
law, individual merit, and social education‘.‘‘ (Austin, Cornerstone of a Nation, p.26, quoting K.
Santhanam, a Member of the Constituent Assembly.)
51 Granville Austin, Indian Constitution: Cornerstone of a Nation, p.50
38
have much substance‘‘,52
the remedy to approach the Supreme Court directly for
the enforcement of any of the rights enshrined under part III has also been made a
Fundamental Right.53
The holder of the Fundamental Right‘s cannot waive
them.54
Nor can the fundamental rights be curtailed by an amendment of the
Constitution if such curtailment is against the basic structure of the Constitution.
Some of the Fundamental Right‘s are available only to citizens55
while others are
available to citizens as well as non-citizens56
, including juristic persons. Notably,
some of the Fundamental Right‘s are expressly conferred on groups of people or
community.57
Not all Fundamental Right‘s are guaranteed specifically against the
state and some of them are expressly guaranteed against non-state bodies.58
Even
52
M.P. Jain, ‗‗The Supreme Court and Fundamental Rights‘‘ in S.K. Verma and Kusum (eds),
Fifty Years of the Supreme Court of India—Its Grasp and Reach, 2000, Oxford University Press,
New Delhi, pp.1, 76.
53 Art.32, Constitution of India, 1950.
54 Basheshar Nath v. CIT AIR 1959 SC 149; Nar Singh Pal v. Union of India AIR 2000 SC
1401.
55 For example, Constitution art.15(2) (right of non-discrimination on grounds only of religion,
race, caste, sex, place of birth or any one of them to access and use of public places, etc.); art.15(4)
(special provision for advancement of socially and educationally backward classes of citizens or
the scheduled castes and the scheduled tribes); art.16 (equality of opportunity in matters of public
employment); art.19 (rights regarding six freedoms); art.29 (protection of interests of minorities).
56 For example, Constitution art.14 (right to equality); art.15 (1) (right of non-discrimination on
grounds only of religion, race, caste, sex, place of birth or any one of them); art.20 (protection in
respect of conviction of offences); art.21 (protection of life and personal liberty); art.22 (protection
against arrest and detention); art.25 (freedom of conscience and right to profess, practice and
propagate religion).
57 E.g. Constitution Arts. 26, 29 and 30.
58 Austin cites three provisions, i.e. Constitution arts 15(2), 17 and 23 which have been ‗‗designed
to protect the individual against the action of other private citizen‘‘: Austin, Cornerstone of a
Nation, p.51. However, it is reasonable to suggest that the protection of even arts 24 and 29(1)
39
the ‗‗state‘‘ is liberally defined in Article 12 of the Constitution to include, ‗‗the
Government and Parlaiment of India ,The Government and the legislature of each
of the states and all local or other authorities within the territory of India or under
the control of the Government of India‘‘.
The expression ‗‗other authorities‘‘ has been expansively interpreted, and
any agency or instrumentality of the state will fall within its ambit.59
The
Directive Principles (DPs) find a place in Part IV of the Constitution. Although
the DPs are not justiciable60
, they are, ‗‗nevertheless fundamental in the
governance of the country and it shall be the duty of the state to apply these
principles in making laws‘‘.61
After initial deviation62
, the Supreme Court accepted that Fundamental
Rights (FRs) are not superior to Directive Principless on account of the latter
being non-justiciable: rather FRs and DPs are complementary and the former are a
could be invoked against private individuals. See also Vijayashri Sripati, ‗‗Toward Fifty Years of
Constitutionalism and Fundamental Rights in India: Looking Back to See Ahead (1950–2000)‘‘
(1998) 14 American University International Law Review, 413, 447–448.
59 AjayHasia v. Khalid Mujib AIR 1981 SC 487; Pradeep Kumar v. Indian Institute of
Chemical Biology (2002) 5 S.C.C. 111. In the application of the instrumentality test to a
corporation, it is immaterial whether the corporation is created by or under a statute. Som
Prakash Rekhi v. Union of India AIR 1981SC 212.
60 The FRs are judicially enforceable whereas the DPs are unenforceable in the courts. For the
relevance of this difference, see Mahendra P. Singh, ‗‗The Statics and the Dynamics of the
Fundamental Rights and the Directive Principles—A Human Rights Perspective‘‘ (2003) 5 SCJ 1.
61 Art.37, Constitution of India, 1950.
62 State of Madras v. Champakam Dorairajan AIR 1951 SC 226.
40
means to achieve the goals indicated in the latter.63
The issue was put beyond any
controversy in Minerva Mills Ltd. v/s Union of India64
where the Court held
that the, ‗‗harmony and balance between fundamental rights and directive
principles is an essential feature of the basic structure of the Constitution‘‘.65
Since then the judiciary has employed DPs to derive the contents of various
Fundamental Right‘s.66
The founding fathers envisaged ‗‗the judiciary as a bastion of rights and
justice‘‘.67
An independent judiciary armed with the power of judicial review was
the constitutional device chosen to achieve this objective. The power to enforce
the Fundamental Right‘s was conferred on both, the Supreme Court and the
various High Court‘s68
—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
63
CB Boarding and Lodging v. State of Mysore AIR 1970 SC 2042; Kesvananda Bharti v.
State of Kelala AIR 1973 SC 1461; Minerva Mills Ltd. v. Union of India AIR 1980 SC 1789;
Unni Krishnan v. State of AP (1993) 1 S.C.C. 645. See also Rajiv Dhavan, ‗‗Republic of India:
The Constitution as the Situs of Struggle: India‘s Constitution Forty Years On‘‘ in Lawrence W.
Beer (ed.), Constitutional Systems in Late Twentieth Century Asia (Seattle: University of
Washington Press, 1992), pp.373, 382–383, 405 and 413–416.
64 AIR 1980 SC 1789, 1806.
65 Ibid.
66 Jain M.P., ‗‗The Supreme Court and Fundamental Rights‘‘ in Verma and Kusum (eds), Fifty
Years of the Supreme Court of India, pp.65–76.
67 Austin, Cornerstone of a Nation, p.175.
68 Arts. 32 and 226, Constitution of India, 1950.
41
only adjudication of disputes but also determination of public policies and
establishment of rule of law and constitutionalism.69
The germination of the PIL was initially shown in India by Justice Krishna
Iyer in 1976 in Mumbai Kamgar Sabha v/s Abdulbhai.70
In that judgment
Justice Iyer did not use the terminology ‗pubic interest litigation‘. But in
Fertilizer Corporation Kamgar Union v/s Union of India71
the terminology
‗pubic interest litigation‘ was used by Justice Iyer. In this judgment he used the
expression „Epistolary jurisdiction‟. The hon‘ble Supreme Court held that the
procedure had to be relaxed to meet the ends of justice.
The public interest litigation is the product of realisation of the
constitutional obligation of the court. All these petitions are filed under the big
banner of the public interest litigation. In view of this matter, it has become
imperative to examine what are the contours of the public interest litigation? What
is the utility and importance of the public interest litigation? Whether similar
jurisdiction exists in other countries or this is an indigenously developed
jurisprudence? Looking to the special conditions prevalent in our country,
whether the public interest litigation should be encouraged or discouraged by the
courts? These are some of the questions which I would endeavour to discuss in
this study. The public interest litigation is an extremely important jurisdiction
exercised by the Supreme Court and the High Courts. The Courts, in a number of
cases, have given important directions and passed orders which have brought
69
See, for an analysis of some of the landmark judgments delivered by the Apex Court during
these years, Gobind Das, ‗‗The Supreme Court: An Overview‘‘ in B.N. Kirpal et al. (eds),
Supreme but not Infallible: Essays in Honour of the Supreme Court of India, 2000, Oxford
University Press, New Delhi, pp.16–47.
70 AIR 1976 SC 1455.
71 Supra 2 at p.344.
42
positive changes in the country. The Courts‘ directions have immensely benefited
marginalized sections of the society in a number of cases. It has also helped in
protection and preservation of ecology, environment, forests, marine life, wildlife
etc. The courts‘ directions to some extent have helped in maintaining probity and
transparency in the public life.
The Supreme Court while exercising its jurisdiction of judicial review
realized that a very large section of the society, because of extreme poverty,
ignorance, discrimination and illiteracy, had been denied justice for time
immemorial and in fact they had no access to justice. Predominantly, to provide
access to justice to the poor, deprived, vulnerable, discriminated and marginalized
sections of the society, this court has initiated, encouraged and propelled the
public interest litigation. The litigation is upshot and product of this courts‘ deep
and intense urge to fulfil its bounded duty and constitutional obligation.
The High Court‘s followed the Supreme Court and exercised similar
jurisdiction under Article 226 of the Constitution of India. The courts expanded
the meaning of right to life and liberty guaranteed under Article 21 of the
Constitution of India. The rule of locus standi was diluted and the traditional
meaning of ‗aggrieved person‘ was broadened to provide access to justice to a
very large section of the society which was otherwise not getting any benefit from
the judicial system. I would like to term this as the first phase or the golden era of
the public interest litigation. I would briefly deal with important cases decided by
Supreme Court in the first phase after showing the expansion to the definition of
‗aggrieved person‘.
The first reported case of public interest litigation in 1979 focused on the
inhuman conditions of prisons and under trial prisoners. The PIL was filed by an
advocate on the basis of the news item published in the Indian Express,
43
highlighting the plight of thousands of under trial prisoners languishing in various
jails in Bihar. These proceeding led to the release of more than 40,000 under trial
prisoners. As a result, right to speedy justice emerged as a basic fundamental right
which had been denied to these prisoners.72
The Supreme Court held in Akhil Bharatiya Soshit Karamchari Sangh
(Railway) (Supra)73
that our current position of jurisprudence is not of
individualistic Anglo Indian mould. It is broad-based and people-oriented, and
envisions access to justice through ‗class actions‘, ‗public interest litigation‘, and
‗representative proceedings‘. Indeed, Indians seeking remedies in large numbers
in courts through collective proceedings, instead of being driven to an expensive
plurality of litigations, is an affirmation of participative justice in our democracy.
We have no hesitation in holding that the narrow concepts of ‗cause of action‘,
‗person aggrieved‘ and individual litigation are becoming obsolescent in some
jurisdictions.
In another case Bandhua Mukti Morcha v. Union of India and
Others,74
the SC entertained a petition even of unregistered Association
espousing the cause of bonded labour of its members observing that the cause of
weaker sections can be espoused by any person having no interest in the matter.
In the said case, this court further held that where a public interest litigation
alleging that certain workmen are living in bondage and under inhuman
conditions is initiated, it is not expected of the Government that it should raise
preliminary objection that no fundamental rights of the petitioners or the
workmen on whose behalf the petition has been filed, have been infringed. On the
72
Hussainara Khatoon v. State of Bihar AIR 1979 SC 1360 73
Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India and Others AIR
1981 SC 317 74
Bandhua Mukti Morcha v. Union of India and Others AIR 1984 SC 802
44
contrary, the Government should welcome an inquiry by the Court, so that if it is
found that there are in fact bonded labourers or even if the worKels are not
bonded in the strict sense of the term, as defined in the Bonded Labour Abolition
Act, 1976 but they are made to provide forced labour or any consigned to a life of
utter deprivation and degradation, such a situation can be set right by the
Government. Public interest litigation is not in the nature of adversary litigation
but it is a challenge and an opportunity to the government and its officers to make
basic human rights meaningful to the deprived and vulnerable sections of the
community and to assure them social and economic justice which is the signature
tune of our Constitution. The Government and its officers must welcome public
interest litigation because it would provide them an occasion to examine whether
the poor and the downtrodden are getting their social and economic entitlements
or whether they are continuing to remain victims of deception and exploitation at
the hands of strong and powerful sections of the community and whether social
and economic justice has become a meaningful reality for them or it has remained
merely a teasing illusion and a promise of unreality, so that in case the complaint
in the public interest litigation is found to be true, they can in discharge of their
constitutional obligation root out exploitation and injustice and ensure to the
weaker sections their rights and entitlements.
Judicial Activism: The expression `Judicial Activism' signifies the
anxiety of courts to find out appropriate remedy for the aggrieved by formulating
a new rule to settle the conflicting questions in the event of lawlessness or
uncertain laws. The Judicial Activism in India can be witnessed in the form of the
review power of the Supreme Court under Article 32 High Court power under
Article 226 of the Constitution particularly in Public Interest Litigation.
45
Earlier, in England there were two kinds of courts namely, the Equity Courts
(Court of Chancery) and Common Law Courts. Equity Courts used to decide
cases by applying the principles of equity, justice and good conscience. Whereas
the common law courts used to decide cases based on common law i.e. the
principles' rules evolved by the judge; during judicial pronouncements. Hence, the
common law is also known as the 'Judge-made-law:' the courts of Equity /
Chancery played significant role in formulating the new piles of tart. The
common law originated in England was spread in British colonies including India.
In India, almost all laws have originated from the fair Common law. In the
absence of existing rules for relief in certain cases and predictive procedure, the
court of equity or chancery took the initiative to draw up new rules. 'The new
rules to settle the conflicting positions that had arisen in certain cases are called
'Judicial Activism'. The equity court and common law courts were merged with
the passing of the Judicature Act, I875.
Judicial Activism in India: The significant feature of Indian Constitution
is partial separation of powers. The doctrine of separation of powers was
propounded by the French Jurist Contesqeu. It is partly adopted in India since the
executive powers are vested in the president, legislative powers in the Parlaiment
and the Judicial Powers in the Supreme Court and subordinate courts. Although
the role of separation of powers in India is simple, it is a unique example all over
the world. The three organs of the Government viz. the Executive, Legislature and
the Judiciary are not independent but inter-dependently independent. (The
executive encroaches upon judicial power, while appointing the judges of
Supreme Court and High Courts. Similarly the Judiciary, by its review power
examines the law passed by ‗file legislature parliament‘ and the legislature also
intervenes in respect of impeachment of the president).
46
As stated earlier, the Judicial Activism in India can be witnessed with
reference to the review power of the Supreme Court under Article 32 of the
Constitution, particularly in Public interest litigation cases. The Supreme Court
played crucial role in formulating several principles in public interest litigation
cases. For instance, the principle of "absolute liability" was propounded in Oleum
Gas Leak case, Public Trust Doctrine in Kamalnath Case75
etc.
Further, the Supreme Court gave variety of guidelines in various cases of
public interest litigation. E.g.: Ratlam Municipality Case, Oleum Gas Leak
Case, Ganga Pollution Case etc.
Public Interest Litigation and Judicial Activism: Public interest litigation or
social interest litigation today has great significance and draws the attention of all
concerned. The traditional rule of "Locus Standi" that a person, whose right is
infringed alone can file a petition, has been considerably relaxed by the Supreme
Court in its recent decisions. Now, the court permits public interest litigation at
the instance of public spirited citizens for the enforcement of constitutional or
legal rights. Now, any public spirited citizen can move/approach the court for the
public cause (in the interests of the public or public welfare) by filing a petition
in:
1. Supreme Court under Art.32 of the Con stitution;
2. High Court under Art.226 of the Constitution; and
3. The Court of Magistrate under Sec.133 and 200 Cr . P . C.
75
1998 I SCC 388
47
Justice Krishna Iyer in Fertilizer Corporation Kamgar Union v/s Union of
India76
(1981) enumerated the following reasons for liberalization of the rule of
Locus Standi:-
1. Exercise of State power to eradicate corruption may result in unrelated
interference with individuals' rights.
2. Social justice wants liberal judicial review administrative action.
3. Restrictive rules of standing are antithesis to a healthy system of administrative
action.
4. ―Activism is essential for participative public justice".
Therefore, a public minded citizen must be given an opportunity to move
the court in the interests of the public.
Further, the Supreme Court in S.P. Gupta v/s Union of India77
, popularly
known as ―Judges‘ Transfer Case‖, Bhagwati J. firmly established the validity of
the public interest litigation. Since then, a good number of public interest
litigation petitions were filed.
Judicial moulding of standing, procedure, substance and relief
Two judges of the Supreme Court of India (Bhagwati and Iyer JJ.)78
prepared the groundwork, from mid-1970s to early 1980s, for the birth of Public
Interest Litigation in India. This included modifying the traditional requirements
of locus standi, liberalising the procedure to file writ petitions, creating or
76
1981 AIR 344, 1981 SCR (2) 52 77
AIR 1982 SC 149 78
These two judges headed various committees on legal aid and access of justice during 1970s,
which provided a backdrop to their involvement in the PIL project. See Jeremy Cooper, ‗‗Poverty
and Constitutional Justice: The Indian Experience‘‘ (1993) 44 Mercer Law Review 611, 614–615.
48
expanding fundamental rights, overcoming evidentiary problems, and evolving
innovative remedies.79
Modification of the traditional requirement of standing was sine qua non
for the evolution of Public Interest Litigation and any public participation in
justice administration. The need was more pressing in a country like India where a
great majority of people were either ignorant of their rights or were too poor to
approach the court. Realizing this need, the Court held that any member of public
acting bona fidely and having sufficient interest, has a right to approach the court
for redressal of a legal wrong, especially when the actual plaintiff suffers from
some disability or the violation of collective diffused rights is at stake. Later on,
merging representative standing and citizen standing, the Supreme Court in S.P.
Gupta v Union of India held80
: ‗‗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 and such person or determinate class of persons is by
reasons of poverty, helplessness, or disability or socially or economically
disadvantaged position, unable to approach the Court for any relief, any member
of the public can maintain an application for an appropriate direction, order or
writ.‘‘
79
See Cooper, ‗‗Poverty and Constitutional Justice‘‘ (1993) 44 Mercer Law Review 611, 616–
632; See Shah, ‗‗Illuminating the Possible in the Developing World‘‘ (1999) 32 Vanderbilt
Journal of Transnational Law 435, 467–473; Vijayashri Sripati, ‗‗Human Rights in India Fifty
Years after Independence‘‘ (1997) Denver Journal of International Law and Policy 93, 118–125.
80 Gupta v Union of India (1981) Supp S.C.C. 87, 210. See also PUDR v Union of India AIR
1982 SC 1473; Bandhua Mukti Morcha v Union of India (1984) 3 S.C.C. 161.
49
The court justified such extension of standing, in order to enforce rule of
law and provide justice to disadvantaged sections of society.81
Furthermore, the
Supreme Court observed that the term ‗‗appropriate proceedings‘‘ in art.32 of the
Constitution82
does not refer to the form but to the purpose of proceeding: so long
as the purpose of the proceeding is to enforce a fundamental right, any form will
do.83
This interpretation allowed the Court to develop epistolary jurisdiction by
which even letters or telegrams were accepted as writ petitions.84
Once the
hurdles posed by locus standi and the procedure to file writ petitions were
removed, the judiciary focused its attention on providing a robust basis for
pursuing a range of issues under Public Interest Litigation. This was achieved by
both interpreting existing fundamental rights widely and by creating new
fundamental rights. Article 21 says that ‗‗no person shall be deprived of his life or
personal liberty except according to the procedure established by law‘‘ proved to
be the most fertile provision to mean more than mere physical existence85
; it
‗‗includes right to live with human dignity and all that goes along with it‘‘.86
81
It is suggested that the way a judge applies the rule of standing corresponds to how she sees her
judicial role in the society. Aharon Barak, ‗‗Foreword: A Judge on Judging: The Role of a
Supreme Court in a Democracy‘‘ (2002) 116 Harvard Law Review 16, 107–108.
82 ‗‗The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights contained in this Part is guaranteed.‘‘ Constitution of India 1950 Art.32(1).
83 Shukla V.N.,Singh M.P. (ed.), Constitution of India, pp.278–279.
84 For example, Sunil Batra v. Delhi Administration AIR 1980 SC 1579; Dr Upendra Baxi v.
State of UP (1982) 2 S.C.C. 308.
85 Kharak Singh v. State of UP AIR 1963 SC 1295; Sunil Batra v. Delhi Administration (1978)
4 S.C.C. 494; Olga Tellis v. Bombay Municipal Corp AIR 1986 SC 180; Francis Coralie v.
Union Territory of Delhi AIR 1981 SC 746; Bandhua Mukti Morcha v. Union of India AIR
1984 SC 802; Consumer Education and Research Centre v. Union of India (1995) 3 S.C.C.
42; Bodhisattwa Gautam v. Subhra Chakraborty (1996) 1 S.C.C. 490; Visakha v. State of
50
Ever-widening horizon of article 21 is illustrated by the fact that the court
has read into it, inter alia, the right to health, livelihood, free and compulsory
education up to the age of 14 years, unpolluted environment, shelter, clean
drinking water, privacy, legal aid, speedy trial, and various rights of under-trials,
convicts and prisoners. It is important to note that in a majority of cases the
judiciary relied upon Directive Principles for such extension. The judiciary has
also invoked article 21 to give directions to government on matters affecting lives
of general public or to invalidate state actions or to grant compensation for
violation of fundamental rights. The final challenge before the Indian judiciary
was to overcome evidentiary problems and find suitable remedies for the public
interest litigation plaintiffs. The Supreme Court responded by appointing fact-
finding commissioners and amicus curiae.87
As in most of the PIL cases there
were no immediate or quick solutions, the Court developed ‗‗creeping‘‘
jurisdiction thereby issuing appropriate interim orders and directions.88
The
judiciary also emphasized that public interest litigation is not an adversarial but a
collabourative and cooperative project in which all concerned parties should work
together to realize the human rights of disadvantaged sections of society.89
The Three Phases of Public Interest Litigation
Rajasthan AIR 1997 SC 3011. In some of these cases the Court has relied upon the observation
of Justice Field in Munn v. Illinois 94 US 113.
86 Francis Coralie v. Union Territory of Delhi AIR 1981 SC 746, 753.
87 See Ashok H. Desai and S. Muralidhar, ‗‗Public Interest Litigation: Potential and Problems‘‘ in
Kirpal et al., Supreme but not Infallible, pp.159, 165–167. The Court also held that the power to
appoint commissioners is not constrained by the Code of Civil Procedure or the Supreme Court
Rules.
88 Baxi, ‗‗Taking Suffering Seriously‘‘ (1985) Third World Legal Studies 107, 122
89 Sathe, Judicial Activism in India, pp.207–208, 235–237.
51
At the risk of over-simplification and overlap, the public interest litigation
discourse in India could be divided, in my view, into three broad phases.37
One
will notice that these three phases differ from each other in terms of at least the
following four variables: first, who initiated public interest litigation cases;
second, what was the subject matter/focus of public interest litigation; third,
against whom the relief was sought; and fourth, how judiciary responded to PIL
cases.
In the first phase which began in the late 1970s and continued through the
1980s, the Public Interest Litigation cases were generally filed by public-spirited
persons (lawyers, journalists, social activists or academics). Most of the cases
related to the rights of disadvantaged sections of society such as child labourers,
bonded labourers, prisoners, mentally challenged, pavement dwellers, and
women. The relief was sought against the action or non-action on the part of
executive agencies resulting in violations of fundamental rights under the
Constitution. During this phase, the judiciary responded by recognising the rights
of these people and giving directions to the government to redress the alleged
violations. In short, it is arguable that in the first phase, the Public Interest
Litigation truly became an instrument of the type of social
transformation/revolution that the founding fathers had expected to achieve
through the Constitution.
The second phase of the Public Interest Litigation was in the 1990s during
which several significant changes in the chemistry of PIL took place. In
comparison to the first phase, the filing of PIL cases became more
institutionalized in that several specialized NGOs and lawyers started bringing
matters of public interest to the courts on a much regular basis. The width of
issues raised in PIL also expanded tremendously—from the protection of
52
environment to corruption-free administration, right to education, sexual
harassment at the workplace, relocation of industries, rule of law, good
governance and the general accountability of the Government. It is to be noted
that in this phase, the petitioners sought relief not only against the action/non-
action of the executive but also against private individuals, in relation to policy
matters and regarding something that would clearly fall within the domain of the
legislature. The response of the judiciary during the second phase, was by and
large, much bolder and unconventional than the first phase. For instance, the
courts did not hesitate to come up with detailed guidelines where there were
legislative gaps. The courts enforced fundamental rights against private
individuals and granted relief to the petitioner without going into the question of
whether the violator of the fundamental right was the state. The courts also took
non-compliance with its orders more seriously and in some cases, went to the
extent of monitoring government investigative agencies and/or punishing civil
servants for contempt of failing to abide by their directions. The second phase was
also the period when the misuse of PIL not only began but also reached to a
disturbing level, which occasionally compelled the courts to impose fine on
plaintiffs for misusing public interest litigation for private purposes.
It is thus apparent that in the second phase the PIL discourse broke new
grounds and chartered on previously unknown paths in that it moved much
beyond the declared objective for which public interest litigation was meant. The
courts, for instance, took resort to judicial legislation when needed, did not
hesitate to reach centres of government power, tried to extend the protection of
fundamental rights against non-state actors, moved to protect the interests of the
middle class rather than poor populace, and sought means to control the misuse of
public interest litigation for ulterior purposes.
53
On the other hand, the third phase, the current phase, which began with
the 21st century, is a period in which anyone could file public interest litigation
for almost anything. It seems that there is a further expansion of issues that could
be raised as PIL, e.g. calling back the Indian cricket team from the Australian tour
and preventing an alleged marriage of an actress with trees for astrological
reasons. From the judiciary‘s point of view, one could argue that it is time for
judicial introspection and for reviewing what courts tried to achieve through PIL.
As compared to the second phase, the judiciary has seemingly shown more
restraint in issuing directions to the government. Although the judiciary is
unlikely to roll back the expansive scope of Public Interest Litigation, it is
possible that it might make more measured interventions in the future.
One aspect that stands out in the third phase deserves a special mention. In
continuation of its approval of the government‘s policies of liberalization in Delhi
Science Forum, the judiciary has shown a general support to disinvestment and
development policies of the Government.38
What is more troublesome for
students of the PIL project in India is, however, the fact that this judicial attitude
might be at the cost of the sympathetic response that the rights and interests of
impoverished and vulnerable sections of society (such as slum dwellers and
people displaced by the construction of dams) received in the first phase. The
Supreme Court‘s observations such as the following, also fuel these concerns:
‗‗Socialism might have been a catchword from our history. It may be present in
the Preamble of our Constitution. However, due to the liberalization policy
adopted by the Central Government from the early nineties, this view that the
Indian society is essentially wedded to socialism is definitely withering away.‘‘
It seems that the judicial attitude towards PIL in these three phases is a response,
at least in part, to how it perceived to be the ‗‗issue(s) in vogue‘‘. If rights of
prisoners, pavement dwellers, child/bonded labourers and women were in focus in
54
the first phase, issues such as environment, AIDS, corruption and good
governance were at the forefront in the second phase, and development and free
market considerations might dominate the third phase. So, the way the courts have
reacted to PIL in India is merely a reflection of what people expected from the
judiciary at any given point of time.
2 (ii) EVOLUTION OF PIL IN INDIA
‗Public Interest Litigation‘ (PIL) has a uniquely American development, the use
of term PIL to cover the efforts to provide legal representation to unrepresented
groups and interests, goes back no further then mid 1960s.
The funding by private foundations led to the rapid development of public
interest litigation, during the late 1960s. During 1972-75, the Foundations and
private contributions provided 74% of PIL funding while 22% came from
Government and 1% from fee awards.
If we look back to earlier period, the real genesis of Public Interest
Litigation can be traced to back to the legal aid movement. In United States, an
organized Legal Aid Movement for the poor began in 1876 with the setting up of
an organization for providing Legal Aid for the then fresh arrived immigrants by
the German Society of New York.
The objective behind legal aid is the presumption that in every society
there are individuals who are unable to participate in the legal system. Therefore it
is of cardinal importance for the system of justice and society to provide such
individuals voluntary services of advocates. In its earlier phase the Legal Aid
Movement was virtually tottering but soon the idea of collective social
responsibility started catching on which paved the way for the emergence of
philosophy on the Bars to provide Channel for the underrepresented masses to
55
secure access to Justice Administration. In this regard a lot of credit has to go to
Regnald Heber Smith, an advocate with the Boston Legal Aid Society, who
published the work, ―Justice and the Poor‖ which paved the way for such
landmark developments. This work gave a major thrust in this direction by
shaping the Idea Legal Aid by not merely through a philanthropic drive but rather
with a well organized programme with a distinct objective of affixing the idea of
collective social responsibility of the Bar.
The Second Stage of the development of the Legal Aid Movement was
marked by a fairly organized form of Legal Aid Programme, where completely
independent law firms distinct from an ordinary business motivated law firm,
devoted itself solely towards legal aid programme, where lawyers worked full
time on the problems of the clients. However it was different from a pure
charitable organization, as under this an advocate did not have to treat Public
Interest Service as an uneconomic enterprise rather an otherwise lucrative
commercial practice, which can be surely termed, as a watershed development.
2. (iii) CONSTITUTIONAL HABITAT OF PUBLIC INTEREST
LITIGATION AND ITS DEVELOPMENT
Public Interest Litigation emerged on the landscape of constitutional disputation
in India soon after the emergency (1975-77)90
. India had for centuries, been
governed by feudal structures of polity and social values and a stratified order of
time-endorsed hierarchical systems. Under the British rule, such structures had
become the foundation on which a colonial regime could be developed and
nurtured. Thus when India gained independence and adopted a homegrown
political system, the Constitution gave pride of place to the new philosophy of
90
R. Dhavan, ‗Law as a struggle: Public Interest Law in India‖, 36 JILI 302(1994).
56
human rights91
and to the obligation of the State to provide a social and economic
structure which promised human welfare, happiness and development92
. As the
values of the new order percolated through the Indian society, assertive citizens
and activist groups in the social sphere began raising demands that the Indian
government establishes conditions ensuring an improved quality of life for its
people. With some 800 million (now more than 1.30 billion) people living amidst
perhaps the most formidable diversity of languages, cultures, religions, economic
inequalities, a sea of aspirations, expectations and hopes soon swept over the
country. Not surprisingly, neither the Parlaiment, nor the Executive was able to
respond adequately to those manifold demands. The citizens then turned to the
judiciary and that constituted the beginning of PIL. In India, it can also be traced
to the insistence by the executive throughout the seventies that the judges and the
courts should be committed ‗explained as committed to the Constitution‘ and the
promise of progress and justice within it. Through PIL, judges have shown their
'commitment' to the oath that they take to defend the Constitution though the
executive did not have this kind of 'commitment' in view; at the same time, it
cannot repudiate it publicly.
Tracing the development of PIL in India, Pandian, J. in Janata Dal‘s93
case
observed:
―The seeds of the concept of PIL were initially shown in India by Krishna
Iyer, J. in 1976 while disposing an industrial dispute who observed ―Our
adjectival branch of jurisprudence by and large, deals not with sophisticated
litigants but the rural poor, the urban lay and the weaker societal segments to
whom law will be an added terror if technical mis-descriptions and deficiencies in
91
The Constitution in Part 111 incorporates detailed provisions conferring Fundamental Rights on
the people of India. 92
More specifically the Part of the Constitution dealing with Directive Principles of State Policy. 93
Janata Dal v. H.S. Choudhary (1992) 4 SCC 305.
57
drafting pleadings and setting out the cause-title create a secret weapon to non-
suit a party. Where foul play is absent, and fairness is not faulted, latitude is a
grace of processual justice. Test litigations, representative actions, pro bono
publico and like broadened forms of legal proceedings are 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. Even Article 226, viewed on wider
perspective, may be amenable to ventilation of collective or common grievances,
as distinguished from assertion of individual rights.‖94
Later Bhagwati, J. (as he then was) in one of his articles observed,
―The judiciary has to play a vital and important role not only in
preventing and remedying abuse and misuse of power but also in eliminating
exploitation and injustice.... During the last three to five years however Judicial
Activism has opened up a new dimension for the judicial process and has given
new hope to the justice-starved millions of India‖.95
2. (iv) CONSTITUTIONAL HABITAT OF JUDICIAL
ACTIVISM AND PIL
In the Indian Constitutional scheme, provisions are there for the enforcement of
the Fundamental Rights with Article 32 i.e. Right to Constitutional Remedies
itself being a Fundamental Right. This Article reads:
Right to Constitutional Remedies
32. Remedies for enforcement of rights conferred by this Part.-
94
SCALE (PIL) 325 at 328 95
P.N. Bhagwati, ―Social Action Litigation: The Indian Experience‖, Rote of the Judiciary in
Plural Societies, (1987).
58
(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari whichever may be appropriate, for the enforcement of
any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses
(1) and (2), Parlaiment may by law empower any other court to exercise
within the local limits of its jurisdiction all or any of the powers exercisable
by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as
otherwise provided for by this Constitution.
Further Article 226 confers power on High Courts to issue writs in the
nature of ‗mandamus, certiorari, prohibition, habeas corpus and quo warranto‘
besides directions or orders for protection and enforcement of fundamental rights
and for any other purpose. The Supreme Court and recently even the various High
Courts have taken the initiative in playing a positive role in espousing the cause of
the poor, indigent, under-trials, prisoners, women, bonded labourers, in protecting
the environment and soon.96
PIL is now firmly rooted in Articles 14 and 21 of the
Constitution. The Supreme Court has given a new dimension to Right to Equality
under Article 14 under which ‗Article 14 does not embody merely the theory of
classification of persons and things‘ but is a ‗dynamic concept having an activist
magnitude‘.97
According to Justice P.N. Bhagwati who propounded the new
96
See infra. 97
Supra 20 at p.30.
59
approach first in E.P. Royappa98
and further developed it in Maneka Gandhi99
,
RD. Shetty100
, Kasturilal Reddy101
and Ajay Hasia102
observed, ―Article 14 strikes
at arbitrariness in state action and ensures fairness and equality of treatment. The
principle of reasonableness, which logically as well as philosophically, is an
essential element of equality or non arbitrariness, pervades Article 14 like a
brooding omnipresence.‖103
And further:
―Wherever there is arbitrariness in State action whether it be of the
legislature or of the executive or of an ―authority‖ under Article 12,
Article 14 immediately springs into action and strikes down such State
action.‖104
The Court has read the requirement of reasonableness in all laws and
actions affecting personal liberty. This has been the result of a ‗reinterpretation‘
of Article 21 of the Constitution that states, ―No person shall be deprived of his
life or personal liberty except according to procedure established by law‖.
Beginning with Maneka Gandhi's case 105
in 1978, the court by a gradual process
of interpretation has for all practical purposes introduced the concept of ‗Due
Process of Law‘ of the American Constitution in the expression ‗Procedure
established by Law‘ in the Article.106
―Life has been given a recondite meaning to
mean ―not merely animal existence or continued drudgery through life but the
98
EP. Royappa v. State of Tamil Nadu AIR 1974 SC 555: (1974)4 SCC 3. 99
Maneka Gandhi v. Union of India AIR 1978 SC 597: (1978) 1 SCC 248. 100
R.D. Shetty v. International Airport Authority AIR 1979 SC 1628: (1979)3 SCC 489. 101
Kasturi Lal. v. State of Jamnu and Kashmir AIR 1980 SC 1992: (1980)4 SCC 1. 102
Ajay Hasia v. Khalid Mujib AIR l98l SC 487: (1981)1 SCC 722. 103
Supra 33 at 624 pg.56. 104
Supra 36, p.741, para16. 105
Supra 33. 106
Admitted candidly in Rajen Dwivedi v. Union of India AIR 1983 SC 624.
60
finer graces of human civilization that makes life worth living.‖107
It has come to
encompass violation of various Directive Principles of State Policy in the
Constitution, some of which have been read as constituting rights under Article 21
for instance the right to education.108
In Bandhua Mukti Morcha case,109
Bhagwati, J. held that Central Government and State of Haryana could be
obligated by writ petition under Article 32 of the Constitution to ensure
observance of various social welfare and labour laws as inaction on the part of
the state in securing their implementation ―would amount to denial of the right to
live with human dignity enshrined in Article 14.‖110
According to Prof. Sathe, Public Interest Litigation does not mean merely
litigation through writ petitions111
. There has been PIL even in lower courts. An
instance of this is provided by Municipal Corporation, Ratlam v/s
Vardhichand112
. In this case, the residents of a locality within the local limits of
Ratlam Municipality tormented by stench and stink caused by open drains and
public excretion by nearby slum dwellers moved the magistrate under Section 133
of the Criminal Procedure Code, 1973 to motivate the municipality to do its duty
of removing such nuisance which it owed to the public. The magistrate ordered
the municipality to draft a plan for removing the nuisance within six months. The
magistrate‘s order was approved by the Supreme Court. Here the residents were
allowed to move for removal of nuisance, though there was no specific individual
with specific injury to the petitioner. This case recognizes that collective actions
in public interest would be in order.
107
Board of Trustees, Port of Bombay v. D.R. Nadtarni (1983)1 SCC 124. 108
J.P. Unnikrishnan v. State of Andhra Pradesh (1993)1 SCC 645; Infra Chapter III. 109
Bandhua Mukti Morcha v. Union of India AIR 1984 SC 802: (1984)3 5CC 161. 110
Ibid, p.812, para 10. 111
S.P. Sathe, Administrative Law, 381. 112
AIR 1980 SC 1622.
61
Through an expansive interpretation of the provisions of the Constitution,
the courts through Public Interest Litigation have and are continuing to play an
important role in the context of making rights meaningful to the disadvantaged
and weaker sections of the people as well as those cases where no one could be
expected to be directly interested. An important step towards the achievement of
these magnificent results has been the expansion of the category of the
respondents by the application of the Doctrine of State Action. This doctrine has
its origin in USA and originated nearly a century after the adoption of its
Constitution. In interpreting the word ‗State‘ in the ‗due process‘ and ‗equal
protection‘ clauses of the 14th amendment to the American Constitution, the
Supreme Court held that it included all the organs and acts of the State —
legislative, executive and judicial113
and then its ‗agents‘ i.e. persons who acted in
the name of and for the State or is clothed with the powers of the State114
or
endowed with governmental functions.115
The essence of the doctrine is that the
State cannot get rid of constitutional limitations or restraints by simply delegating
its powers or functions to some private individual or group; hence, a person who
acts as the agent or the instrumentality of the State, he must be subject to the same
limitations, such as the Fundamental Rights, that the Constitution imposes on the
State itself. The doctrine would apply not only to an agent of the State, but even a
lessee from the agent, if the involvement or participation of the State (even by
inaction) in the lessee‘s acts, is established.116
In India, the application of this doctrine has been much easier because
most of the Fundamental Rights included in Part III of the Constitution are
113
Strauder v. West Virginia (1879) 100 US 303.
114 Ex parte Virginia (1880) 100 US 339; Home Telephone Co. v. Los Angeles (1913) 227 US
278. 115
Evans v. Newton (1966) 382 US 296. 116
Burton v. W.P.A. (1961)365 US 715.
62
addressed to the ‗State‘. Part III starts with the definition of the word ‗State‘ in
Article 12 which includes ‗other authorities‘. By a liberal interpretation of the
word ‗authority‘, the Court has made the Fundamental Rights enforceable against
numerous bodies, when they might be regarded as ‗agency‘ or ‗instrumentality‘ of
the State, by applying certain tests laid down by the Court where:
a) It is clothed with statutory power.117
b) The Government exercises control over the management and policies of
the private body.118
c) It has been granted monopoly of a business by the State.119
d) It exercises functions which would normally be performed by the State.120
e) The authority has been set up for administering a statute121
or where
statutory duties are imposed on it?122
f) Where the company is owned or substantially given financial assistance by
the Government.123
But a recent Constitutional Bench decision122
has in an obiter held that all
American decisions under the ‗State action‘ doctrine may not be applicable to
India, owing to different social conditions and even where a private corporation
becomes an agency of the State under Article 12, its private activities which have
no social impact may not be subject to the constitutional limitation of fundamental
117
Rajasthan State Electricity Board v. Mohan AIR 1967 SC 1856. 118
Sukhdev v. Bhagatram AIR l975 SC 1331. 119
C.I.W.C. v. Brojo AIR 1986 SC 1371. 120
R.D. Shetty v. I.A.A.I. AIR 1979 SC 1628; Ajay Hasia v. Khalid Mujib AIR 1981 SC 487. 121
S.RT.C. v. Devraj AIR 1976 SC 1027 pr.14; Ujjam Bai v. State of Uttar Pradesh (1963) 1
5CR 778. 122
L.1.C v. Escorts AIR 1986 SC 1370 pr. 100. 123
Workmen v. F.C.I AIR 1986 SC 670 pr. 16, 17.
63
rights. However this observation has in no way whittled down the application of
this doctrine in India.
Public Interest Litigation furthers the rule of law which forms the basic
structure of the Constitution. Rule of law demands equal access to justice for all
and PIL helps in creating a rule of law society. The courts have achieved these
results by various innovations and development of procedural laws to suit the
requirements of this strategy. As observed by Justice Bhagwati, ―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 committing judiciary in India,
keenly alive to its social responsibility and accountability to the people of the
country, has liberated itself from the shackles of Western thought, made
innovative use of the power of judicial review, forged new tools, devised new
methods and fashioned new strategies for the purpose of bringing justice for
socially and economically disadvantaged groups.‖
2(v) EVOLUTION OF PIL IN OTHER JUDICIAL SYSTEMS
NAMELY, U.S.A. AND U.K
Public Interest Litigation in U.S.A. today has fallen into troubled water
and future prospects of progress are uncertain. The most striking of the
impediments was the inevitable financial crunch caused by runaway inflation and
lukewarm backing of likeke Non-Governmental Organizations societies and other
private support bases.
Further the bleak future prospects of the public interest career has forced
the outstanding lawyers to make their ways out of this mess, as has been dubbed
by most of the people involved in this part of the profession. The government
funded Legal Aid programmes so as to cover other public interest litigation
64
activities as had been anticipated. The compensation, the courts of attorney‘s
awards in Public Interest Litigation cases too were extremely limited in its scope.
After Supreme Court‘s decisions in 1975 in Alyeska Pipeline‟s case which
circumscribed the opportunity for obtaining such fees in the Udall Courts as is
required where there is specific statutory authority but later miner relief‘s were
granted. However the decision remains more or less undisturbed.
Trubek has made a very incisive assessment of the development of Public
Interest Litigation in America in the 1960s. It was a period of social fervent in
which challenges to many laws were advanced and reforms were proposed and
tried. Public Interest Litigation was one such reform. Proponents spoke of
―balancing the scales of justice by equalizing the resource available to organized
and unorganized groups.
However, the interest in probono work by Lawyers and Law Firms has
continuously declined. As mentioned earlier the scenario had completely changed
in the USA in the late 1970s and the very conditions, which led to its growth
earlier, no longer existed. The ware has partially recorded, if it has not completely
ebbed.
Tnibek have notable observations in this regard. Courts have issued
numerous orders favouring the public interest lawyer‘s clients. However often
courts orders proved difficult to enforce, as they required continued monitoring of
numerous field level decision. And often the courts in the end, shied away from
direct confrontation with agency decisions. Moreover public interest lawyers
found themselves at a distinct disadvantage in decision making process. While
they were always able to make persuasive arguments for their clients, they lacked
the ability to stay with the issues which required years to resolve, and which
ultimately involve action in a series of areas, ranging from the courts to the
65
legislatures. However valid the idea of advocacy equalization may be the scope of
activities it entails proved to be far beyond the capabilities of most public interest
firms.
From the ongoing discussion it becomes quite clear that the nomenclature
of Public Interest Litigation has been actually given to a conglomeration of
various moments endeavoring to put to great use the law and the legal services.
The major thrust of this movement has been to ensure that citizens whose lives
may be affected by the governmental policies have a right to participate in the
formulations of these policies. The courts and administrative agencies that shape
implement and enforce these policies should be open and accessible to the views
of those citizens who may be affected by such actions and decisions.
However one notable thing about Public Interest Litigation is that it is not
only concerned with obtaining beneficial results for the major chunk of the
society but at the same time it seeks cooperation in carrying out the objectives of
the movement by way of actual participation. However at its peak, the movement
had to reconcile the conflicting aspects of the phenomenon it had created or the
forces it had unleashed. While on one hand, the groups involved in the movement
had to bring as many issue as possible before the courts so as to render maximum
participation of the affected sections of populace, though not necessarily of the
disadvantaged section of the society, it also had to be kept in mind that over
proliferation of Public Interest Litigation cases may be bad as it leads to
overburdening of the traditional adjudicatory system. Therefore the time
nonmusical in each litigation whether successful or not is kept at the lower side.
PIL lawyers in America have their share of successes to boast of but the dark side
of the whole phenomenon is not less pronounced socially in the stage of its
development or so as to say in its post full blooms era. Though, all these losses
are a reflection of the incompetence or at the most, indifference of the concerned
66
lawyers, as in many cases seem especially in a few recent instances. Judicial
attitude too has played its role to the detriment of the cause of the movement
which need not be much emphasized as it is too apparent. We can perceive the
fact that even in cases where the Public Interest Litigation advocates have lost;
they have done an exemplary service to the entire legal system, by at least
attempting to assume that all interests are heard. And finally in cases where they
have come with resounding success, the Public Interest Litigation have casted its,
over bearing influence for all aspects of American life be it social, economic and
political in a positive manner.
a. United.Kingdom.
The use of Public Interest Litigation in United Kingdom (England) has
been comparably limited. The limited development in PIL has occurred by
broadening the rules of standing.
In Re. Reed, Bowen and Co. case,124
in order to facilitate vindication of
public interest, the English judiciary prescribed broad rules of standing. Under the
traditional rule of standing, judicial redress was only available to a ‗person
aggrieved‘ i.e. one ―who has suffered a legal grievance, a man against whom a
decision has been pronounced which has wrongfully deprived him of something
or wrongfully refused him something or wrongfully affected his title to
something.‖ However, the traditional rule no longer governs standing in the
English Courts.
One of the most distinguished and respected English judge Lord Denning
initiated the broadening of standing in the English courts with his suggestion that
124
(1887) 19 QBD 174.
67
the words person aggrieved are of wide import and should not be subjected to a
restrictive interpretation.125
The Blackburn Cases broadened the rule of standing in actions seeking
remedy through prerogative writs brought by individuals against public officials
for breach of a private right. (e.g., mandamus, prohibition and certiorari). Under
the Blackburn standard, ―any person who was adversely affected‖ by the action of
a government official in making a mistaken policy decision was eligible to be
granted standing before the Court for seeking remedy through prerogative
writs.126
In Blackburn II, the Court of Appeal found no defects in Blackburn's
standing to challenge the Government's decision to join a common market.127
In Blackburn III, the Court of Appeal granted standing to Blackburn to
seek a writ of mandamus to compel the Metropolitan Police to enforce laws
against obscene publications.128
English judiciary was hesitant in applying this
broadened rule of standing to actions seeking remedy through relator claims.
Relator claims are remedies brought by the Attorney General to remedy a breach
of a public right (e.g., declaration and injunction). Initially, Lord Denning
extended the broadened rule of standing in actions seeking remedy through
prerogative writs to actions seeking remedy through relator claims. In Attorney
General Exrel. Mc Whirter v/s Independent Broadcasting Authority,129
the
court stipulated that, ―in the last resort, if the Attorney-General refuses leave in a
proper case, or causes unreasonably delays in giving leave, or his machinery
125
Attorney-General of the Gambia v. Pierre Sarr N‟ Jie 1961 AC 617. 126
Regina v. Commissioner of Police of the Metropolis, Ex parte Blackburn (1968) 2 WLR 893
(―Blackburn I‖). 127
Blackburn v. Attorney-General (1971) 1 WLR 1037. 128
Regina v. Commissioner of Police of the Metropolis, Ex parte Blackburn (1973) 4 QB 241. 129
(1973) 3 QB 629
68
works too slowly, then a member of the public who has a sufficient interest can
himself apply to the court.‖ This rule was promptly overturned by the House of
Lords in Gouriet v/s Union of Post Office WorKels.130
In this case, the House of
Lords held that in relator claims, the Attorney General holds absolute discretion in
deciding whether to grant leave to a case. Thus, the English judiciary did not grant
standing to an individual seeking remedy through relator claims.
Finally, an amendment to the rules of the Supreme Court in 1978 through
Order 53, overcame the English judiciary's hesitation in applying a broadened rule
of standing in relation to relator claims. Order 53 applied the broadened rule of
standing to both actions seeking remedy through prerogative writs and actions
seeking remedy through relator claims. Rule 3(5) of Order 53 stipulates that the
Court shall not grant leave for judicial review ―unless it considers that the
applicant has a sufficient interest in the matter to which the applicant relates.‖
In Regina v/s Secretary of State for the Environment, Ex parte Rose
Theatre Trust Co.,131
the court elabourated that ―direct financial or legal interest
is not required to find sufficient interest‖. Thus, under the new rule of standing
embodied in Order 53, individuals can challenge actions of public officials if they
are found to have ―sufficient interest‖, now a flexible standard.
130
1978 AC 435 131
(1990) 1 QB 504