361

ANNEXURE A

SUPREME COURT OF INDIA

COMPILATION OF GUIDELINES TO BE

FOLLOWED FOR ENTERTAINING

LETTERS/PETITIONS RECEIVED

IN THIS COURT AS PUBLIC INTEREST

LITIGATION.

(Based on full Court decision dated 1.12.1988 and subsequent

modifications).

No petition involving individual/ personal matter shall be

entertained as a PIL matter except as indicated hereinafter.

Letter-petitions falling under the following categories alone will

ordinarily be entertained as Public Interest Litigation:-

1. Bonded Labour matters.

2. Neglected Children.

3. Non-payment of minimum wages to workers and exploitation

of casual workers and complaints of violation of Labour Laws

(except in individual cases).

4. Petitions from jails complaining of harassment, for (pre-

mature release)* and seeking release after having completed

362

14 years in jail, death in jail, transfer, release on personal

bond, speedy trial as a fundamental right.

*$ Petitions for premature release, parole etc.

are not matters which deserve to be treated as

petitions u/Article 32 as they can effectively

be dealt with by the concerned High Court. To

save time Registry may simultaneously call

for remarks of the jail Superintendent and ask

him to forward the same to High Court. The

main petition may be forwarded to the

concerned High Court for disposal in

accordance with law.

Even in regard to petitions containing

allegations against Jail Authorities there is no

reason why it cannot be dealt with by the

High Court. But petitions complaining of

torture, custody death and the like may be

entertained by this Court directly if the

allegations are of a serious nature.

(5) Petitions against police for refusing to register a case,

harassment by police and death in police custody.

(6) Petitions against atrocities on women, in particular harassment

of bride, bride-burning, rape, murder, kidnapping etc.

+ In such cases where office calls for police report if

letter petitioner asks for copy the same may be

supplied, only after obtaining permission of the

363

Hon'ble Judge nominated by the Hon'ble Chief

Justice of India for PIL matters.

----------------------------------------------------------------------------

----------------$ Added based on Order dated 19.8.1993 of

the then Chief Justice of India.

(7) Petitions complaining of harassment or torture of villagers by

co- villagers or by police from persons belonging to Scheduled

Caste and Scheduled Tribes and economically backward classes.

(8) Petitions pertaining to environmental pollution, disturbance of

ecological balance, drugs, food adulteration, maintenance of

heritage and culture, antiques, forest and wild life and other

matters of public importance.

(9) Petitions from riot -victims.

(10) Family Pension.

All letter-petitions received in the PIL Cell will first be screened in

the Cell and only such petitions as are covered by the above

mentioned categories will be placed before a Judge to be

nominated by Hon'ble the Chief Justice of India for directions after

which the case will be listed before the Bench concerned.

If a letter-petition is to be lodged, the orders to that effect should

be passed by Registrar (Judicial) (or any Registrar nominated by

the Hon'ble Chief Justice of India), instead of Additional Registrar,

or any junior officer.

364

To begin with only one Hon'ble Judge may be assigned this work

and number increased to two or three later depending on the

workload.

*Submission Notes be put up before an Hon'ble Judge

nominated for such periods as may be decided by the Hon'ble

Chief Justice of India from time to time.

**If on scrutiny of a letter petition, it is found that the same is

not covered under the PIL guidelines and no public interest is

involved, then the same may be lodged only after the approval

from the Registrar nominated by the Hon'ble the Chief Justice

of India.

**It may be worthwhile to require an affidavit to be filed in

support of the statements contained in the petition whenever

it is not too onerous a requirement.

------------------------------------------------------------------------------------

------------

+ Added as per Order dated 29.8.2003 of the Hon'ble Chief

Justice of India.

* As per Order dated 29.8.2003 of the Hon'ble the Chief

Justice of India.

**The matters which can be dealt with by the High Court

or any other authority may be sent to them without any

comment whatsoever instead of all such matters being

heard judicially in this Court only.

365

Cases falling under the following categories will not be

entertained as Public Interest Litigation and these may be

returned to the petitioners or filed in the PIL Cell, as the case

may be:

(1) Landlord-Tenant matters.

(2) Service matter and those pertaining to Pension and

Gratuity.

(3) Complaints against Central/ State Government

Departments and Local Bodies except those relating to item

Nos. (1) to (10) above.

(4) Admission to medical and other educational institution.

(5) Petitions for early hearing of cases pending in High Courts

and Subordinate Courts.

In regard to the petitions concerning maintenance of wife,

children and parents, the petitioners may be asked to file a

Petition under sec. 125 of Cr. P.C. Or a Suit in the Court of

competent jurisdiction and for that purpose to approach the

nearest Legal Aid Committee for legal aid and advice.

___________________________________________________

** Modified keeping in view the directions dated 29.8.2003 of

the Hon'ble Chief Justice of India.

366

ANNEXURE B

Address by Justice K.G. Balakrishnan, Chief Justice

of India

Singapore Academy of Law, Fifteenth Annual Lecture

October 8, 2008

Ladies and Gentlemen,

It is indeed my privilege to be speaking here today, before

such a distinguished audience. I would like to thank the Singapore

Academy of Law for giving me this opportunity. Over the last three

decades or so, the device of Public Interest Litigation (PIL) has

come to be recognized as a characteristic feature of the higher

judiciary in India. Even though Indian courts cannot take credit for

initiating the concept of ‗public law litigation‘, they have in due

course emerged as the site where this device has been repeatedly

used to protect the interests of disadvantaged groups as well as

address matters of collective concern. The phrase ‗public law

litigation‘ was first prominently used by American academic Abram

Chayes to describe the practice of lawyers or public spirited

individuals who seek to precipitate social change through court-

ordered decrees that reform legal rules, enforce existing laws and

articulate public norms.713 However, the evolution of Public

Interest Litigation (PIL) in India, or Social Action Litigation – as

Prof. Upendra Baxi chooses to describe it, has accommodated

several other distinctive features. 713

See: Abram Chaves, ‗The role of the judge in Public Law litigation‘, 89 Harvard

Law Review 1281 (May 1976)

367

In this session, I will first summarise the core features of the

Public Interest Litigation (PIL) process and demonstrate how it

marks a departure from the common-law understanding of the

judicial process. After that I will present an overview of the

circumstances that led to the introduction of this device which is

clearly correlated to the ‗activist‘ turn of the higher judiciary in

India. The next component will be devoted to a survey of some

prominent decisions given in Public Interest Litigation (PIL) cases

and to conclude I will reflect on some of the strategies adopted to

streamline the institution of cases under this category.

Beginning with the first few instances in the late-1970‘s, the

category of Public Interest Litigation (PIL) has come to be

associated with its own ‗people-friendly‘ procedure. The foremost

change came in the form of the dilution of the requirement of ‗locus

standi‘ for initiating proceedings. Since the intent was to ensure

redressal to those who were otherwise too poor to move the courts

or were unaware of their legal entitlements, the Court allowed

actions to be brought on their behalf by social activists and

lawyers.714 In numerous instances, the Court took suo moto

cognizance of matters involving the abuse of prisoners, bonded

labourers and inmates of mental institutions, through letters

addressed to sitting judges. This practice of initiating proceedings

on the basis of letters has now been streamlined and has come to

be described as ‗epistolary jurisdiction‘.

714

Refer: Susan D. Susman, ‗Distant voices in the Courts of India:

Transformation of standing in Public Interest Litigation‘, 13 Wisconsin International Law Journal 57 (Fall 1994)

368

In Public Interest Litigation (PIL), the nature of proceedings itself

does not exactly fit into the accepted common-law framework of

adversarial litigation. The courtroom dynamics are substantially

different from ordinary civil or criminal appeals. While an

adversarial environment may prevail in cases where actions are

brought to highlight administrative apathy or the government‘s

condonation of abusive practices, in most public interest-related

litigation, the judges take on a far more active role in terms of

posing questions to the parties as well as exploring solutions.

Especially in actions seeking directions for ensuring governmental

accountability or environmental protection, the orientation of the

proceedings is usually more akin to collective problem-solving

rather than an acrimonious contest between the counsels. Since

these matters are filed straightaway at the level of the Supreme

Court or the High Court, the parties do not have a meaningful

opportunity to present evidence on record before the start of the

court proceeding. To overcome this problem, our Courts have

developed the practice of appointing ‗fact-finding commissions‘ on

a case-by-case basis which are deputed to inquire into the subject-

matter of the case and report back to the Court. These

commissions usually consist of experts in the concerned fields or

practicing lawyers. In matters involving complex legal

considerations, the Courts also seek the services of senior counsels

by appointing them as amicus curiae on a case-by-case basis.715

715

See Ashok H. Desai & S. Muralidhar, ‗Public Interest Litigation: Potential and

Problems‘ in B.N. Kirpal et. al. (eds.), Supreme but not Infallible (OUP, 2000) 159-

192, at p. 164-167

369

For purposes of constitutional competence, these actions are

characterized as those coming under the writ jurisdiction of the

Supreme Court of India under Article 32 of our Constitution and

the various High Courts, under Article 226. The traditional extent

of writ jurisdiction was of course a colonial inheritance from the

British-era and the remedies that could be invoked were those of

habeas corpus, quo warranto, mandamus, prohibition and

certiorari. However, the Indian Courts have pushed the boundaries

of constitutional remedies by evolving the concept of a ‗continuing

mandamus‘ which involves the passing of regular directions and

the monitoring of their implementation by executive agencies. In

addition to designing remedies for ensuring that their orders are

complied with, the Courts have also resorted to private law

remedies such as injunctions and ‗stay‘ orders in Public Interest

Litigation (PIL) matters. The Supreme Court of India has been able

to shape appropriate remedies for a variety of situations on

account of the wide discretionary powers for granting

constitutional remedies that have been conferred on it as per the

language of Article 32 of the Constitution. Furthermore, under

Article 141 of the Constitution of India, the Supreme Court‘s

rulings are considered to be the ‗law of the land‘ and become

binding precedents for all courts and tribunals in the country‘s

legal system. Hence, the Supreme Court‘s decisions in Public

Interest Litigation (PIL) matters have progressively shaped a unique

jurisprudence that gives due weightage to the interests of the

underprivileged and backward sections in society. A significant

consequence of this is that creative remedies designed for

370

particular fact-situations come to be widely reported and are

referred to by Courts all over the country. In this way, the rulings

given in PIL cases create an active judicial dialogue within the

whole legal system.

The advent of Public Interest Litigation (PIL) is one of the key

components of the approach of ‗judicial activism‘ that is attributed

to the higher judiciary in India. The Courts‘ interventions have

played a pivotal role in advancing the protection of civil liberties,

the rights of workers, gender justice, accountability of public

institutions, environmental conservation and the guarantee of

socio-economic entitlements such as housing, health and

education among others. This has not only strengthened the

position of the judiciary vis-à-vis the other wings of government,

but has also raised its prestige among the general populace.

However, this activist disposition of the Courts also has its critics.

The principled criticism against Public Interest Litigation (PIL) is

that it detracts from the constitutional principle of ‗separation of

powers‘ by allowing the Courts to arbitrarily interfere with policy-

choices made by the legislature and pass orders that may be

difficult for the executive agencies to implement. In respect of

practical considerations, the criticism revolves around the

behaviour of litigants as well as judges. From time to time, it has

been urged that the dilution of the requirement of ‗locus standi‘

has opened up the floodgates for frivolous cases that either involve

the litigants‘ private interests or are vehicles for gaining publicity

371

rather than seeking justice for disadvantaged groups.716 It is

argued that in light of the increasing case-load before the appellate

judges, the PIL cases impose an additional ‗gate-keeping‘ role and

impede efficiency. From the standpoint of the judges, it is reasoned

that quite often there are no checks against decisions or orders

that amount to ‗judicial overreach‘ or ‗judicial populism‘.

While all of these criticisms have been offered by acclaimed

scholars, senior practitioners and sitting judges as well, there is a

much more compelling case in defence of the use of Public Interest

Litigation (PIL). I would like to take this opportunity to present that

defence. The main rationale for ‗judicial activism‘ in India lies in

the highly unequal social profile of our population, where judges

must take proactive steps to protect the interests of those who do

not have a voice in the political system and do not have the means

or information to move the Courts. This places the Indian Courts

in a very different social role as compared to several developed

nations where directions given by ‗unelected judges‘ are often

viewed as unjustified restraints on the will of the majority. It is

precisely this countermajoritarian function that needs to be

robustly discharged by an independent and responsible judiciary.

At this point I would like to recall an observation made in the

matter of Bihar Legal Support Society v. The Chief Justice of India

& Ors:717

716

See: T.R. Andhyarujina, Judicial Activism and Constitutional Democracy in

India (Bombay: N.M. Tripathi, 1992) 717

AIR 1987 SC 38

372

―The majority of the people of our country are subjected to

this denial of ‗access to justice‘ and overtaken by despair and

helplessness, they continue to remain victims of an exploitative

society where economic power is concentrated in the hands of a

few and it is used for perpetuation of domination over large masses

of human beings…… The strategy of public interest litigation has

been evolved by this Court with a view to bringing justice within

the easy reach of the poor and disadvantaged sections of the

community.‖

The ‗activist‘ turn of the Indian judiciary

Our judicial system is a very visible part of the inheritance from

the British Raj. We continue to rely on a sizeable body of statutory

law and precedents from the colonial period, with the exception of

what is repugnant to our constitutional provisions. However, the

framers of our Constitution incorporated influences from several

countries and adopted the idea of ‗judicial review‘ as opposed to

the

British notion of ‗Parliamentary sovereignty‘.718 In India, the

criteria for the Courts to review governmental action is threefold –

the fundamental rights enshrined in Part III of the Constitution,

the reasonableness of administrative actions and the demarcation

of legislative competence between the Union and the States. 718

There is an express provision for ‗judicial review‘ in Article 13 of the

Constitution of India. Article 13(1) says that “all laws that were in force in the territory of India immediately before the adoption of the Constitution, in so far as they are inconsistent with the provisions containing the fundamental rights, shall, to the extent of such inconsistency, be void.” Article 13(2) further says that “the states shall not make any law that takes away or abridges any of the fundamental rights, and any law made in contravention of the aforementioned mandate shall, to the extent of the contravention, be void.”

373

However, the scope of this power of ‗judicial review‘ was keenly

contested throughout the 1950‘ and 1960‘s, primarily over the

question of the ‗right to property‘. During that phase, governments

at both the Union level and most states enacted legislations

providing for land acquisition in order to advance the policy of

agrarian land reforms. However, many of the large landowners who

were required to give up their holdings challenged these laws

before the Courts on grounds such as inadequate compensation

among others. While the Nehru-led government passed several

Constitutional amendments with the objective of immunizing these

land-reforms measures against ‗judicial review‘, the Courts

frequently ruled in favour of the property-owners. By the late

1960‘s, this tussle between the Courts and the Congress Party

controlled Parliament turned into one between the idea of ‗judicial

review‘ on one hand and unqualified ‗parliamentary sovereignty‘ on

the other hand.719 The Supreme Court itself was called upon to

rule on the scope of the Parliament‘s power to amend the

Constitution, and it evolved the ‗Basic Structure‘ doctrine in the

much-cited decision in Keshavananda Bharati v. State of

Kerala.720 By a narrow majority of 7-6 it was ruled that

Parliament‘s power of amendment was not absolute and it could

not amend the ‗Basic structure‘ of the Constitution, which in the

opinion of the judges consisted of elements such as democracy,

rule of law, secularism, separation of powers and judicial

719

For a brief commentary on the evolution of the doctrine of ‗judicial review‘ in

India, See: S.P. Sathe, ‗Judicial Activism: The Indian experience‘, 6 Washington

University Journal of Law and Policy 29 (2001) 720

(1973) 4 SCC 225

374

review.721 The said decision did not curry favour with the Indira

Gandhi-led government of the day and three of the judges who

ruled for the majority were superseded in the matter of

appointment to the position of Chief Justice of India in 1973.

Nevertheless, the decision had given a clear signal in defense of

judicial independence.

Around the same time, there was an increasing realization

on part of the sitting judges in the Supreme Court that the

judiciary was commonly perceived as an elitist body which would

dispense justice only to those who could afford it. Its pro-

landowner decisions had also been portrayed as an impediment to

the land reforms programme by the incumbent executive agencies.

Recognising the need to engage with the egalitarian Constitutional

philosophy, some judges took the lead in raising concerns about

improving access to justice for the underprivileged. In a report on

legal aid published in 1971, Justice P.N. Bhagwati had observed:

―Even while retaining the adversary system, some changes

may be effected whereby the judge is given a greater participatory

role in the trial so as to place the poor, as far as possible, on a

footing of equality with the rich in administration of justice.‖722

The Committee on Judicare consisting of Justice V.R. Krishna Iyer

and Justice Bhagwati referred to Social Action Litigation as a

supplemental tool to grassroots legal services programmes, in their

721

See generally: Raju Ramachandran, ‗The Supreme Court and the Basic

Structure Doctrine‘ in B.N. Kirpal et. al. (eds.), Supreme but not Infallible (OUP,

2000) at p. 107-133 722

Cited from: Ashok Desai & S. Muralidhar, ‗Public Interest Litigation: Potential

and Problems‘ in B.N. Kirpal et. al. (eds.), Supreme but not infallible (OUP, 2000)

159-192, at p. 161

375

report published in 1977. Soon after, these two judges took the

lead in promoting the same by taking suo moto cognisance of

matters on the basis of letters addressed to them. However, before

describing the use of PIL in some significant instances, it is

important to understand the other limb of the Indian judiciary‘s

‗activist‘ turn – i.e. a change in the understanding of constitutional

rights.

The most representative right that can be examined to

illustrate this change is Article 21 of the Constitution of India.

Article 21 reads as follows: ―No person shall be deprived of his life

or personal liberty except according to procedure established by

law.‖ The understanding of Article 21 in the early years of the

Supreme Court was that ‗personal liberty‘ could be curtailed as

long as there was a legal prescription for the same. In A.K.

Gopalan‘s case,723 the Supreme Court had ruled that preventive

detention by the state was permissible as long as it was provided

for under a governmental measure (e.g. legislation or an ordinance)

and the Court could not inquire into the fairness of such a

measure. It was held that the words ‗procedure established by law‘

were different from the substantive ‗due process‘ guarantee

provided under the Fourteenth amendment of the US Constitution.

The framers of the Indian Constitution had consciously chosen the

expression ‗procedure established by law‘ which requires a much

lower threshold for placing restraints on individual liberty. Noted

scholar Granville Austin has speculated that this pro-government

723

A.K. Gopalan v. State of Madras, AIR 1950 SC 27

376

orientation may have been prompted by the widespread communal

violence that had taken place around the time of partition.

Furthermore, it is a well known fact that Shri B.N. Rau, one of the

principal draftsmen of our constitutional text had been advised

about the complications of incorporating a substantive ‗due

process‘ clause by none other than Justice Felix Frankfurter.724

This position prevailed for several years until it was changed in

Maneka Gandhi‘s case.725 In that case, it was held that restraints

on ‗personal liberty‘ protected under Article 21 should also be

tested against the guarantees of non-arbitrariness, reasonableness

and fairness that were implicit in the language of Articles 14, 19

and 21 of the Indian Constitution. Article 14 mandates the

guarantee of ‗equal protection before the law‘, while Article 19

enumerates the basic freedoms available to citizens such as free

speech, peaceful assembly, association, movement and pursuit of

livelihood. The Court developed a theory of ‗inter-relationship of

rights‘ to hold that governmental action which curtailed either of

these rights should meet the designated threshold for restraints on

all of them. In this manner, the Courts incorporated the guarantee

of ‗substantive due process‘ into the language of Article 21. Many

commentators have opined that this change in the interpretation of

Article 21 was prompted by the experience of the ‗internal

emergency‘ imposed between June 1975 and March 1977 – a

period that was marked by the use of arbitrary and unjust

724

Refer: T.R. Andhyarujina, ‗The Evolution of Due Process of Law by the

Supreme Court‘ in B.N. Kirpal et. al. (eds.), Supreme but not infallible (OUP,

2000) at p. 193-213 725

Maneka Gandhi v. Union of India, AIR 1978 SC 597

377

detention laws against the political opposition as well as thousands

of ordinary citizens.

The decision in Maneka Gandhi‘s case proved to be a

precursor to a series of decisions, wherein the conceptions of ‗life‘

and ‗personal liberty‘ came to be interpreted liberally. Primarily

through the vehicle of Public Interest Litigation, the Supreme

Court has continued to expand the ambit of Article 21 which now

includes some guarantees for socio-economic entitlements which

had not been expressly enumerated as part of the fundamental

rights in the Constitution. In the words of Justice Bhagwati:726

―we think that the right to life includes the right to live with

human dignity and all that goes along with it, namely the bare

necessities of life such as adequate nutrition, clothing and shelter

over the head and facilities for reading, writing and expressing

oneself in diverse forms.‖

Moreover, through innovative changes to the process for instituting

proceedings, ascertaining facts and granting discretionary

remedies, the Indian Courts have stepped beyond their traditional

domain to render justice to women, children, bonded laborers and

other oppressed sections of society. Notably, the Supreme Court

has affirmed that both the Fundamental Rights enumerated in

Part III of the Constitution and the Directive Principles

enumerated in Part IV, must be interpreted harmoniously. It was

observed in the Kesavananda Bharati decision,727that the directive

726

Observations in Francis Coralie v. Union Territory of Delhi, (1981) 1 SCC 688 727

(1973) 4 SCC 225

378

principles and the fundamental rights supplement each other and

aim at the same goal of bringing about a social revolution and the

establishment of a welfare State. Furthermore, in Unni Krishnan,

J.P. v. State of Andhra Pradesh,728 Justice Jeevan Reddy had

declared:

―The provisions of Parts III and IV are supplementary and

complementary to each other and not exclusionary of each other

and that the fundamental rights are but a means to achieve the

goal indicated in Part IV‖.

This approach of harmonizing the fundamental rights and directive

principles has been successful to a considerable extent. For

example, the Supreme Court has pointed to the objectives of socio-

economic entitlements in order to interpret the right to ‗life and

personal liberty‘. For instance, in Olga Tellis v. Bombay Municipal

Corporation,729 a journalist had filed a petition on behalf of

hundreds of pavement-dwellers who were being displaced due to

construction activity by the respondent corporation. The Court

recognised the ‗right to livelihood and housing‘ of the pavement-

dwellers as an extension of the protection of life and personal

liberty, and issued an injunction to halt their eviction. Similarly, in

Parmanand Katara v. Union of India, the Court articulated a ‗right

to health‘ when it ruled that no medical authority could refuse to

provide immediate medical attention in emergency cases.730 In

numerous instances where the Court‘s intervention has been

728

(1993) 1 SCC 645; See ‗Chapter 5: Restructuring the Courts: Public Interest

Litigation in the Indian Courts‘ in Sandra Fredman, Human rights transformed – positive rights and positive duties (Oxford University Press, 2008) at p. 124-149 729

AIR 1985 SC 180 730

AIR 1989 SC 2039

379

sought in environment-related matters, it has also referred to a

‗right to a clean environment‘ emanating from Article 21. The

Courts have also pointed to Directive principles in interpreting the

constitutional prohibitions against forced labour and child labour.

Milestones of Public Interest Litigation in India

One of the earliest cases of public interest litigation was that

reported as Hussainara Khatoon (I) v. State of Bihar.731 This case

was concerned with a series of articles published in a prominent

newspaper - the Indian Express which exposed the plight of

undertrial prisoners in the state of Bihar. A writ petition was filed

by an advocate drawing the Court‘s attention to the deplorable

plight of these prisoners. Many of them had been in jail for longer

periods than the maximum permissible sentences for the offences

they had been charged with. The Supreme Court accepted the

locus standi of the advocate to maintain the writ petition.

Thereafter, a series of cases followed in which the Court gave

directions through which the ‗right to speedy trial‘ was deemed to

be an integral and an essential part of the protection of life and

personal liberty.

Soon thereafter, two noted professors of law filed writ

petitions in the Supreme Court highlighting various abuses of the

law, which, they asserted, were a violation of Article 21 of the

731

(1980) 1 SCC 81; See Upendra Baxi, ‗The Supreme Court under trial:

Undertrials and the Supreme Court‘, (1980) Supreme Court Cases (Journal

section), at p. 35

380

Constitution.732 These included inhuman conditions prevailing in

protective homes, long pendency of trials in court, trafficking of

women, importation of children for homosexual purposes, and the

non-payment of wages to bonded labourers among others. the

Supreme Court accepted their locus standi to represent the

suffering masses and passed guidelines and orders that greatly

ameliorated the conditions of these people.

In another matter, a journalist, Ms. Sheela Barse733, took up the

plight of women prisoners who were confined in the police jails in

the city of Bombay. She asserted that they were victims of

custodial violence. The Court took cognizance of the matter and

directions were issued to the Director of College of Social Work,

Bombay. He was ordered to visit the Bombay Central Jail and

conduct interviews of various women prisoners in order to

ascertain whether they had been subjected to torture or ill-

treatment. He was asked to submit a report to the Court in this

regard. Based on his findings, the Court issued directions such as

the detention of female prisoners only in designated female lock-

ups guarded by female constables and that accused females could

be interrogated only in the presence of a female police official.

Public interest litigation acquired a new dimension – namely

that of ‗epistolary jurisdiction‘ with the decision in the case of Sunil

Batra v. Delhi Administration,734 It was initiated by a letter that

was written by a prisoner lodged in jail to a Judge of the Supreme

732

Upendra Baxi (Dr) v. State of U.P., (1983) 2 SCC 308 733

Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96 734

(1978) 4 SCC 494

381

Court. The prisoner complained of a brutal assault committed by a

Head Warder on another prisoner. The Court treated that letter as

a writ petition, and, while issuing various directions, opined that:

―…technicalities and legal niceties are no impediment to the court

entertaining even an informal communication as a proceeding for

habeas corpus if the basic facts are found‖.

In Municipal Council, Ratlam v. Vardichand,735 the Court

recognized the locus standi of a group of citizens who sought

directions against the local Municipal Council for removal of open

drains that caused stench as well as diseases. The Court,

recognizing the right of the group of citizens, asserted that if the:

"…centre of gravity of justice is to shift as indeed the Preamble to

the Constitution mandates, from the traditional individualism of

locus standi to the community orientation of public interest

litigation, the court must consider the issues as there is need to

focus on the ordinary men."

In Parmanand Katara v. Union of India,736 the Supreme

Court accepted an application by an advocate that highlighted a

news item titled "Law Helps the Injured to Die" published in a

national daily, The Hindustan Times. The petitioner brought to

light the difficulties faced by persons injured in road and other

accidents in availing urgent and life-saving medical treatment,

since many hospitals and doctors refused to treat them unless

certain procedural formalities were completed in these medico-legal

735

(1980) 4 SCC 162 736

(1989) 4 SCC 286

382

cases. The Supreme Court directed medical establishments to

provide instant medical aid to such injured people,

notwithstanding the formalities to be followed under the

procedural criminal law.

In many other instances, the Supreme Court has risen to the

changing needs of society and taken proactive steps to address

these needs. It was therefore the extensive liberalization of the rule

of locus standi which gave birth to a flexible public interest

litigation system. A powerful thrust to public interest litigation was

given by a 7-judge bench in the case of S.P. Gupta v. Union of

India.737 The judgment recognized the locus standi of bar

associations to file writs by way of public interest litigation. In this

particular case, it was accepted that they had a legitimate interest

in questioning the executive‘s policy of arbitrarily transferring High

Court judges, which threatened the independence of the judiciary.

Explaining the liberalization of the concept of locus standi, the

court opined:

―It must now be regarded as well-settled law where a person who

has suffered a legal wrong or a legal injury or whose legal right or

legally protected interest is violated, is unable to approach the

court on account of some disability or it is not practicable for him

to move the court for some other sufficient reasons, such as his

socially or economically disadvantaged position, some other person

can invoke the assistance of the court for the purpose of providing

judicial redress to the person wronged or injured, so that the legal

737

(1981) Supp. SCC 87

383

wrong or injury caused to such person does not go unredressed

and justice is done to him.‖

The unique model of public interest litigation that has evolved in

India not only looks at issues like consumer protection, gender

justice, prevention of environmental pollution and ecological

destruction, it is also directed towards finding social and political

space for the disadvantaged and other vulnerable groups in

society. The Courts have given decisions in cases pertaining to

different kinds of entitlements and protections such as the

availability of food, access to clean air, safe working conditions,

political representation, affirmative action, anti-discrimination

measures and the regulation of prison conditions among others.

For instance, in People‘s Union for Democratic Rights v. Union of

India,738 a petition was brought against governmental agencies

which questioned the employment of underage labourers and the

payment of wages below the prescribed statutory minimum wage-

levels to those involved in the construction of facilities for the then

upcoming Asian Games in New Delhi. The Court took serious

exception to these practices and ruled that they violated

constitutional guarantees. The employment of children in

construction-related jobs clearly fell foul of the constitutional

prohibition on child labour and the non-payment of minimum

wages was equated with the extraction of forced labour. Similarly,

in Bandhua Mukti Morcha v. Union of India,739 the Supreme

Court‘s attention was drawn to the widespread incidence of the

738

AIR 1982 SC 1473 739

(1984) 3 SCC 161

384

age-old practice of bonded labour which persists despite the

constitutional prohibition. Among other interventions, one can

refer to the Shriram Food & Fertilizer case740 where the Court

issued directions to employers to check the production of

hazardous chemicals and gases that endangered the life and

health of workmen. It is also through the vehicle of PIL, that the

Indian Courts have come to adopt the strategy of awarding

monetary compensation for constitutional wrongs such as

unlawful detention, custodial torture and extra-judicial killings by

state agencies.741

740

(1986) 2 SCC 176 741

See observations justifying the payment of compensation for human rights

violations by state agencies in the following decisions: Bhim Singh v. State of Jammu and Kashmir, (1985) 4 SCC 677; Nilabati Behera v. State of Orissa,

(1993) 2 SCC 746; D.K. Basu v. Union of India, (1997) 1 SCC 416; Also see: Lutz

Oette, ‗India‘s International In the realm of environmental protection, many of

the leading decisions have been given in actions brought by renowned

environmentalist M.C. Mehta. He has been a tireless campaigner in this area and his petitions have resulted in orders placing strict liability for the leak of

Oleum gas from a factory in New Delhi,30 directions to check pollution in and

around the Ganges river,31 the relocation of hazardous industries from the

municipal limits of Delhi,32 directions to state agencies to check pollution in the

vicinity of the Taj Mahal33 and several afforestation measures. A prominent

decision was made in a petition that raised the problem of extensive vehicular air pollution in Delhi. The Court was faced with considerable statistical evidence

of increasing levels of hazardous emissions on account of the use of diesel as a

fuel by commercial vehicles. The Supreme Court decided to make a decisive

intervention in this matter and ordered government-run buses to shift to the use

of Compressed Natural Gas (CNG), an environment-friendly fuel.34 This was followed some time later by another order that required privately-run

‗autorickshaws‘ (three-wheeler vehicles which meet local transportation needs)

to shift to the use of CNG. At the time, this decision was criticized as an

unwarranted intrusion into the functions of the pollution control authorities,

but it has now come to be widely acknowledged that it is only because of this

judicial intervention that air pollution in Delhi has been checked to a substantial extent. Another crucial intervention was made in Council for

Environment Legal Action v. Union of India,35 wherein a registered NGO had

sought directions from the Supreme Court in order to tackle ecological

385

In the realm of environmental protection, many of the

leading decisions have been given in actions brought by renowned

environmentalist M.C. Mehta. He has been a tireless campaigner in

this area and his petitions have resulted in orders placing strict

liability for the leak of Oleum gas from a factory in New Delhi,742

directions to check pollution in and around the Ganges river,743

the relocation of hazardous industries from the municipal limits of

Delhi,744 directions to state agencies to check pollution in the

vicinity of the Taj Mahal745 and several afforestation measures. A

prominent decision was made in a petition that raised the problem

of extensive vehicular air pollution in Delhi. The Court was faced

with considerable statistical evidence of increasing levels of

hazardous emissions on account of the use of diesel as a fuel by

commercial vehicles. The Supreme Court decided to make a

decisive intervention in this matter and ordered government-run

buses to shift to the use of Compressed Natural Gas (CNG), an

environment-friendly fuel.746 This was followed some time later by

another order that required privately-run ‗autorickshaws‘ (three-

wheeler vehicles which meet local transportation needs) to shift to

obligations towards victims of human rights violations: Implementation in domestic law and practice‘ in C. Raj Kumar & K. Chockalingam (eds.), Human

rights, Justice and Constitutional empowerment (OUP, 2007) at p. 462-485 742

M.C. Mehta v. Union of India, (1987) 1 SCC 395 743

M.C Mehta v. Union of India (1988) 1 SCC 471 744

M.C. Mehta v. Union of India, (1996) 4 SCC 750 745

M.C. Mehta v. Union of India, (1996) 4 SCC 351; Also see Emily R. Atwood,

‗Preserving the Taj Mahal: India‘s struggle to salvage cultural icons in the wake of industrialisation‘, 11 Penn State Environmental Law Review 101 (Winter 2002) 746

See decision in M.C. Mehta v. Union of India, (1998) 8 SCC 648; Also refer:

Armin Rosencranz & Michael Jackson, ‗The Delhi Pollution case: The Supreme Court of India and the limits of judicial power‘, 28 Columbia Journal of Environmental Law 223 (2003)

386

the use of CNG. At the time, this decision was criticized as an

unwarranted intrusion into the functions of the pollution control

authorities, but it has now come to be widely acknowledged that it

is only because of this judicial intervention that air pollution in

Delhi has been checked to a substantial extent. Another crucial

intervention was made in Council for Environment Legal Action v.

Union of India,747 wherein a registered NGO had sought directions

from the Supreme Court in order to tackle ecological Degradation

in coastal areas. In recent years, the Supreme Court has taken on

the mantle of monitoring forest conservation measures all over

India, and a special ‗Green bench‘ has been constituted to give

directions to the concerned governmental agencies. At present, I

am part of this Green bench and can vouch for the need to

maintain judicial supervision in order to protect our forests against

rampant encroachments and administrative apathy.

An important step in the area of gender justice was the

decision in Vishaka v. State of Rajasthan.748The petition in that

case originated from the gang-rape of a grassroots social worker. In

that opinion, the Court invoked the text of the Convention for the

Elimination of all forms of Discrimination Against Women

(CEDAW) and framed guidelines for establishing redressal

mechanisms to tackle sexual harassment of women at workplaces.

Though the decision has come under considerable criticism for

encroaching into the domain of the legislature, the fact remains

747

(1996) 5 SCC 281 748

(1997) 6 SCC 241; See D.K. Srivastava, ‗Sexual harassment and violence

against women in India: Constitutional and legal perspectives‘ in C. Raj Kumar & K. Chockalingam (eds.), Human rights, Justice and Constitutional empowerment (OUP, 2007)at p. 486-512

387

that till date the legislature has not enacted any law on the point.

It must be remembered that meaningful social change, like any

sustained transformation, demands a long-term engagement. Even

though a particular petition may fail to secure relief in a

wholesome manner or be slow in its implementation, litigation is

nevertheless an important step towards systemic reforms. A recent

example of this approach was the decision in People‘s Union for

Civil Liberties v. Union of India,749where the Court sought to

ensure compliance with the policy of supplying mid-day meals in

government-run primary schools. The mid-day meal scheme had

been launched with much fanfare a few years ago with the multiple

objectives of encouraging the enrolment of children from low-

income backgrounds in schools and also ensuring that they

received adequate nutrition. However, there had been widespread

reports of problems in the implementation of this scheme such as

the pilferage of foodgrains. As a response to the same, the Supreme

Court issued orders to the concerned governmental authorities in

all States and Union Territories, while giving elaborate directions

about the proper publicity and implementation of the said scheme.

Concluding remarks: Balancing a double-edged Sword

The power of the Court to entertain any circumstance that

may hinder societal growth, or may cause hardship to a class of

individuals is not uninhibited. It is carefully regulated with tight

reins, and cases of public interest are taken up only after rigorous

scrutiny. For instance, in a case wherein a challenge was made to

749

(2007) 1 SCC 728

388

the Government of India‘s telecommunication policy, the Supreme

Court refused to entertain the matter on the ground that it purely

concerned a question of policy. Similarly, public interest litigations

that have sought to prohibit the sale of liquor or the recognition of

a particular language as a national language, or the introduction of

a uniform civil code, have been rejected on the ground that these

were matters of policy and were beyond the ambit of judicial

scrutiny. The need for deference to the other wings of government

in respect of questions of policy was clearly expressed by Justice

R.S. Pathak in the following words:

―Where the Court embarks upon affirmative action in the attempt

to remedy a constitutional imbalance within the social order, few

critics will find fault with it so long as it confines itself to the scope

of its legitimate authority. But there is always the possibility in

public interest litigation, of succumbing to the temptation of

crossing into territory which properly pertains to the legislature or

to the executive government… In the process of correcting

executive error or removing legislative omission the Court can so

easily find itself involved in policy making of a quality and to a

degree characteristic of political authority, and indeed run the risk

of being mistaken for one.‖750

The Court has refused to entertain cases that are ‗private

interest‘ litigations disguised as ‗public interest‘ litigations. It has

also refused to interfere with convictions in criminal cases. In a

case where directions were sought from the Supreme Court to the

750

Cited from (1984) 3 SCC 161, at p. 232

389

Central Government to preserve and protect certain temples, the

said request was rejected. The Court stated: ―The matter is

eminently one for appropriate evaluation and action by the

executive, and may not have an adjudicative disposition or

judicially manageable standards as the pleadings now stand.‖‘

At the time of admitting matters in the form of Public

Interest Litigation (PIL), the Courts have to carefully consider

whether or not they are overstepping their domain. Upon

considering the issues at hand, they must then consider whether

the orders they intend to pass can be realistically implemented.

Judges must also be attuned to the fact that inconsistencies in the

observations made by different Courts with respect to the same set

of issues, can add to administrative difficulties. There is also a

need to keep a watch on the abuse of process by litigants so as to

avoid a situation where such cases occupy a disproportionate

extent of the Courts‘ working time. Justice S.P. Barucha has

expressed the need for caution in the following words:

―This court must refrain from passing orders that cannot be

enforced, whatever the fundamental right may be and however

good the cause. It serves no purpose to issue some high profile

mandamus or declaration that can remain only on paper. It is

counter productive to have people say ‗The Supreme Court has not

been able to do anything‘ or worse. It is of cardinal importance to

the confidence that people have in the Court that its orders are

implicitly and promptly obeyed and is, therefore, of cardinal

390

importance that orders that are incapable of obedience and

enforcement are not made.‖751

In Raunaq International Ltd. v. I.V.R. Construction Ltd.752

the following observations were made with the objective of

streamlining the institution of PILs:

―When a petition is filed as a public litigation … the Court

must satisfy itself that the party which has brought the litigation is

litigating bona fide for public good. The public interest litigation

should not be merely a cloak for attaining private ends of a third

party or of the party bringing the petition … Even when a public

interest litigation is entertained, the Court must be careful to

weigh conflicting public interest before intervening.‖

It is evident that some instances require courts to draw a balance

between the competing interests of different sections, each of

whom may articulate their claims as those grounded in public

interest. It is in this regard that the Courts engage in a process

that seeks to build a consensus among these sections. The device

of Public Interest Litigation may have its detractors, but it has

played an invaluable role in advancing our constitutional

philosophy of social transformation and improving access to

justice. It is my sincere hope that this session has rekindled your

interest in this continuing socio-legal experiment.

751

Cited from: Ashok Desai & S. Muralidhar, ‗Public Interest Litigation: Potential

and Problems‘ in B.N. Kirpal et. al. (eds.), Supreme but not infallible (OUP, 2000)

159-192, at p. 182 752

(1999) 1 SCC 492

391

ANNEXURE C

Delhi High Court (Public Interest Litigation) Rules,

2010 notified

We had in an earlier post covered the decision of the Supreme

Court exhaustively discussing the concept of 'public interest

litigation' as a specific branch of jurisprudence developed under

the constitutional canons by a pro-effective judiciary. The Supreme

Court therein had laid down the guidelines to be followed in

respect of the filing of public interest petitions and also directed

the High Court to frame rules in this regard. Accordingly the Delhi

High Court has framed and notified the above rules.

Delhi High Court (Public Interest Litigation) Rules, 2010 to this

end.

These Rules provide for constitution of a "Public Interest Litigation

Cell" in the High Court whose duty shall be to process the public

interest petitions before the "Public Interest Litigation Committee"

of the High Court i.e. "the Committee consisting of at least two

sitting Judges nominated by the Chief Justice" to hear public

interest petitions.

The Rules category the various types of public interest petitions

into five types i.e. (i) Landlord-Tenant disputes; (ii) Service matters

392

and those pertaining to pension (not being family pension)

and gratuity; (iii) Personal disputes between individuals; (iv)

Disputes relating to contractual or statutory liabilities; (v)

Matrimonial disputes. But we are not impressed. Creation of

Environmental law related category and a separate category for

inaction of public functionaries, which have generally been the

subject-matter and have set the trend of public interest litigation

in India, should also have been provided for.

The Rules provide for preliminary screening of the petitions and

stipulates that "neither any anonymous Letter Petition nor any

such Petition from which the identity of the Letter Petitioner

cannot be established or ascertained shall be entertained." Thus

the alleged petitioners would be required to establish their identity

before the grievances can be addressed. The Rules further provide

other instructions in regard to the filing of these petitions.

As a word of caution, the Rules themselves provide that they do

not restrict the wide powers of the High Court under exercise of its

constitutional and inherent jurisdiction "to make such orders

as may be necessary for the ends of justice or to prevent abuse of

the process of the Court, including the power to impose exemplary

costs and/or to debar a petitioner or an Advocate to file Public

Interest Litigation if found to be indulging in frivolous or motivated

litigation".

393

ANNEXURE D

IMPORTANT AND LANDMARK CASES PUBLIC

INTEREST LITIGATION

PIL Cases in the 1970s

In Mumbai Kamgar Sabha v. Abdul Bhai (1976) 3 SCC 832 court

gave a soothing decision in this historic case, introducing the

doctrine of Judicial Activism. Justice Krishna Iyer stated: ―Test

Litigation, representative actions, pro bono publico and the like

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 bypass the real issues on the merits by suspect

reliance on peripheral procedural short-comings‖.

In Sunil Batra v. Delhi Administration [(1978) 4 SCC 494] the

Supreme Court dealt with the right to protection against solitary

confinement and putting undertrials in fetters for an unlimited

duration of time. ‖It observed that ―the operation of Articles 14, 19

and 21 may be pared down for a prisoner but not puffed out

altogether…So also, locomotion may be limited by the needs of

imprisonment but binding hand and foot, with hoops of steel, every

man or women sentenced for a term is doing violence to Part III‖.

PIL Cases in the 1980s

Municipal Council, Ratlam v. Vardichan [(1980) 4 SCC 162] is a

path-finder in the field of people's involvement in matters of public

394

importance. The court accepted the locus standi of the citizens of a

ward to seek directions against the Municipality for taking

remedial action under Section 133 of the Code of Criminal

Procedure and putting an end to the nuisance caused due to open

drains, pits and public excretion in the absence of lavatories.

One of the earliest cases in the subject of Public Interest

Litigation is the famous Hussainara Khatoon case. There were a

series of cases entitled Hussainara Khatoon v. Home Secretary,

State of Bihar reported in 1980 (1) SCC 81, 1980 (1) SCC 91, 1980

(1) SCC 93, 1980 (1) SCC 98, 1980 (1) SCC 108 and 1980 (1) SCC

115. These were filed by an advocate in the Supreme Court of India

by way of a writ petition, in which the plight of helpless

undertrials, who were behind bars for decades, for a period much

more than they would have undergone in case of conviction, was

brought to the notice of the court. It observed that ―even under our

Constitution, though speedy trial is not specifically enumerated as

a fundamental right, it is implicit in the broad sweep and content

of Article 21‖.

The Constitution Bench of the Supreme Court of India in S.P.

Gupta v. Union of India [1981 Supp SCC 87] upheld the locus

standi of lawyers to file a writ petition by way of public interest

litigation. Highlighting the change in the court‘s approach to the

concept of locus standi, the court observed: (at page 207,

paragraph 16) "It must now be regarded as well-settled law where a

person who…is unable to approach the court on account of some

disability or it is not practicable for him to move the court for some

395

other sufficient reasons…some other person can invoke the

assistance of the court for the purpose of providing judicial redress

to the person wronged or injured…‖

Another famous case, which is significant in the early years of

the PIL is Khatri v. State of Bihar 1981 (1) SCC 627, in which the

Bhagalpur Central Jail administration was alleged to have gouged

out the eyes of thirty-one undertrial prisoners. Advocate Kapila

Hingorani filed a writ petition in the Supreme Court contending the

violation of fundamental rights of these prisoners under Articles

14, 19 and 21 of the Constitution, and the court came to their

rescue. Justice Bhagwati, while considering the relief that could be

given by the court, stressed on the need for implementing public

interest litigation in very explicit terms: "...Why should the court

not be prepared to forge new tools and devise new remedies for the

purpose of vindicating the most precious of the precious

fundamental right to life and personal liberty".

In Upendra Baxi (Dr) v. State of U.P. [(1983) 2 SCC 308], the

Supreme Court‘s attention was drawn to the pathetic condition

prevailing in protective homes. The Supreme Court took notice of

these conditions on the basis of a letter written by two law

professors and issued remedial guidelines to improve the same.

Sheela Barse v. State of Maharastra [(1983) 2 SCC 96]: In this

case, on receiving a letter from the petitioner, a journalist, the

Supreme Court took notice of the complaint of custodial violence to

women prisoners in the lock-up in the city of Bombay. The court

396

issued various directions which included the following: ―Four or

five police lock-ups should be selected in reasonably good localities

where only female suspects should be kept and they should be

guarded by female constables‖.

In Olga Tellis v Bombay Municipal Corporation (1985) 3 SCC

545, a petition was filed by a journalist challenging the decision of

the Municipality to remove huts from pavements, sometimes

without even giving a hearing to the slum dwellers. The court held

that such an action could be challenged as violative of Article 21 of

the Constitution of India and ruled as follows: ―Trespass is a

tort…But, even the law of Torts requires that though a trespasser

may be evicted forcibly, the force used must be no greater that

what is reasonable and appropriate to the occasion and, what is

even more important, the trespasser should be asked and given a

reasonable opportunity to depart before force is used to expel him.‖

Rural litigation and Environment Kendra, Dehradun and others

v. State of U.P. and others [(1985) 2 SCC 431] was a case

―involving issues relating to environment and ecological balance

with implications to the welfare of the generality of people living in

the country.‖ The Supreme Court held that Article 2l covers the

right to a clean environment and that the permanent assets of

mankind cannot be allowed to be exhausted.

In Vincent Panikurlangara v. Union of India [(1987) 2 SCC 165],

a letter was entertained by the Supreme Court of India as a public

interest litigation. It issued directions to the Central Government

397

―to set up Regional Drug Laboratories in addition to the Central

Laboratory‖ to keep a check on sale and use of banned or harmful

drugs and also to promote research and to coordinate activity in

that regard.

PIL Cases in the 1990s

In Subhash Kumar v. State of Bihar [(1991) 1 SCC 598] the

Supreme Court held that the ―right to live is a fundamental right

under Article 21 of the Constitution and it includes the right of

enjoyment of pollution-free water and air for full enjoyment of life.

If anything endangers or impairs that quality of life in derogation of

laws, a citizen has right to have recourse to Article 32 of the

Constitution for removing the pollution of water or air which may

be detrimental to the quality of life.‖

i) In M C Mehta v. Union of India [(1992) 1 SCC 358] the petitioner

prayed for issuing appropriate directions to various sources of

mass media to make aware the people of the country about

environmental issues and that environment should be made a

compulsory subject in schools and colleges. The Supreme Court

accepted these prayers and issued various directions in this

respect.

ii) There have been a series of cases filed by M C Mehta on various

aspects of the environment: these include inter alia the Taj Mahal

case, the Ganges Pollution case, the Vehicular Pollution case, the

re-location of polluting industries case, the Delhi sewage

398

Treatment Plant case, the Child Labour Case, the Aquaculture

Case and many others. For more information, please see the link:

http://www.mcmef.org/landmark.htm

In Vishaka v. State of Rajasthan [(1997) 6 SCC 241], which is the

celebrated case laying down guidelines for the prevention of sexual

harassment of women in the workplace, the court focused its

attention in ―assisting in finding suitable methods for realisation of

the true concept of 'gender equality'; and to prevent sexual

harassment of working women in all work places through judicial

process, to fill the vacuum in existing legislation.‖

In Apparel Export Promotion Council v. A.K. Chopra [(1999) 1

SCC 759], the subject of sexual harassment of women at the work

place has further been elaborated upon by the Supreme Court of

India.

PIL Cases 2000 onwards

In Balco Employees‘ Union v. Union of India and Others (2002) 2

SCC 333 dealing with the question of judicial interference in

economic policy decisions, the Supreme Court emphasised that ―in

the sphere of economic policy or reforms the court is not the

appropriate forum… Courts will interfere only if there is a clear

violation of constitutional or statutory duties.‖ It also clarified that

Public Interest Litigation was intended to mean nothing more than

what the words themselves said, namely, "litigation in the interest

of the public‖.

399

In Kapila Hingorani v. State of Bihar, 2003 (6) SCC 1, the

Supreme Court noted the plight of the employees of public sector

undertakings or the statutory authorities in the State of Bihar. In a

letter to the Supreme Court, an Advocate of the Supreme Court,

Kapila Hingorani brought to its notice many incidents of death

owing to starvation or malnutrition due to non-payment of salaries

of the workers working in these corporations. The court pierced the

corporate veil in this case and also held the State of Bihar liable.

In Dattaraj Nattuji Thaware v. State of Maharashtra 2005 (1)

SCC 590, the Supreme Court of India reiterated the recent trend to

the following effect: ―Public Interest Litigation which has now come

to occupy an important field in the administration of law… (should

not become)…'publicity interest litigation' or 'private interest

litigation' or 'politics interest litigation' or the latest trend, i.e.

'paise income litigation'. In order to discourage the practice, the

court stressed the necessity of imposing ‗exemplary‖ costs on

people for bringing frivolous petitions.

PILs on Civil Liberties

There have been a series of cases dealing with civil liberties making

public interest litigation as a medium. These have led to the

expansion of the ambit and scope of Article 21. The right to live

with human dignity is considered as one of the cardinal

fundamental rights available to a person for the "dignity of man

supersedes all other considerations". It includes inter alia the

following cases:

400

In Charles Sobhraj v. Superintendent, Central Jail [(1978) 4 SCC

104] the court emphasised ―that imprisonment does not spell

farewell to fundamental rights...‖

The principle that free legal services to the poor and the needy

was an essential element of any reasonable, fair and just

procedure under Article 21 was upheld in M.H. Hoskot v. State of

Maharashtra 1978 (3) SCC 544.

In T.V. Vatheeswaran v. State of Tamilnadu [(1983) 2 SCC 68]

the Supreme Court held a prisoner on death row has a right to

move the court for quashing of the sentence in case of

unreasonable delay in the carrying out of the sentence.

The right against custodial violence was upheld in Nilabati

Behera v. State of Orissa, [(1993) 2 SCC 746]. With regard to the

question of awarding compensation, the court crystallised the

judicial right to compensation and held: ―The relief of monetary

compensation, as exemplary damages, in proceedings under Article

32…is a remedy available in public law and is based on the strict

liability for contravention of the guaranteed basic and indefeasible

rights of the citizen‖.

In Parmanand Katara v. Union of India 1989 (4) SCC 286 the

Supreme Court in the context of medico-legal cases, has

emphasised the need for rendering immediate medical aid to

injured persons to preserve life and the obligations of the State as

well as doctors in that regard.

401

In Paschim Banga Khet Mazdoor Samiti v. State of West Bengal

[(1996) 4 SCC 37] the Supreme Court observed that ―Article 21

imposes an obligation on the State to safeguard the right to life of

every person. Preservation of human life is thus of paramount

importance. The government hospitals run by the State and the

medical officers employed therein are duty-bound to extend

medical assistance for preserving human life.‖

In Bodhisattwa Gautam v. Subhra Chakraborty [(1996) 1 SCC

490] the Supreme Court suo moto awarded an interim

compensation of Rs. 1,000 per month to a victim of rape. At page

500, the court has described the position of women in rather

eloquent terms: ―Unfortunately, a woman, in our country, belongs

to a class or group of society who are in a disadvantaged position

on account of several social barriers and impediments and have,

therefore, been the victims of tyranny, at the hands of men with

whom they, under the Constitution, enjoy equal status.‖

The rights of an arrested person are highlighted in D.K. Basu v.

State of West Bengal [(1997) 1 SCC 416]. The Supreme Court‘s

observation was as follows: ―An enforceable right to compensation

in cases of ‗torture‘ including ‗mental torture‘ inflicted by the State

or its agencies is now a part of the public law regime in India.‖

2G Scam- SC Cancels 122 Telecom Licences, Chidambaram Case

Dismissed

Mon, 02/06/2012 - 15:32 — LIG Reporter

402

India Legal News: A special court here on Saturday dismissed

Janata Party president Subramanian Swamy's plea that requested

to make Home Minister P. Chidambaram, co-accused with the

former Telecom Minister. The petition read that the then finance

minister colluded with A.

SC‘s Landmark Judgment: Passive Euthanasia Permissible

Tue, 03/08/2011 - 11:23 — LIG Reporter

The Supreme Court of India, in its landmark judgment,

pronounced passive euthanasia as permissible under Section 309

of the Indian Penal Code. The main ground for adjudication before

the apex court was whether a person who advertently refuses to

accept life saving treatments or food in order to die, commits a

crime under IPC section 309 (suicide attempt).

26/11 Mumbai Terror Attacks: The Case of Ajmal Kasab

Fri, 11/26/2010 - 15:03 — LIG Reporter

A CCTV garb of Mohammed Ajmal Aamir Kasab, a 23 year old

from Faridkot village of Punjab, Pakistan, became the most

recognizable mascot of terrorism for Indians post 26/11 terrorist

attacks in Mumbai. Following his arrest on November 27, 2008,

from Girgaum Chowpatty in South Mumbai, 86 counts were filed

against the lone survivor Out of a gang of 10 who arrived to

unleash terror in the financial capital of India. Bombay High Court

heard this highly sensitive case.

403

Indian Law: PIL against Foreign Law Firms Practicing in India

Mon, 08/16/2010 - 07:30 — LIG Reporter

Public interest litigation is an integral part of Indian law and its

legal system. In August 2010, the Central Government informed

the Madras High Court that it has decided to introduce new rules

to form a regulatory authority to streamline the operations of law

firms in India.

Mr. M. Ravindran, additional solicitor-general and a senior

advocate from South India, made this submission, in response to a

Public Interest Litigation (PIL). The PIL demanded the restriction of

foreign law firms from functioning in India. This PIL was filed by

Advocate A.K Balaji.

Constitution of India: SC Denies Disability Pension

Tue, 07/20/2010 - 15:30 — LIG Reporter

In July 2010, the Supreme Court has denied disability pension to

an ex-serviceman who has opted for voluntary retirement. Further,

the apex court held regulation 50 of military service rules as valid

in accordance with the Constitution of India.

Legal Right: Delhi HC Relaxes Strict Attendance Rules for Pregnant

Students

Thu, 07/15/2010 - 11:58 — LIG Reporter

As per the Constitution of India, every citizen has the right to

education and procreation, though not necessarily both at one go.

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In an interesting twist of events, almost like something out of a

film, on July 13, 2010, the Delhi High Court ruled that a pregnant

woman student cannot be barred from taking examinations in any

semester, due to attendance shortage. The court directed the Delhi

University and Bar Council of India, to relax the strict attendance

rules, for students who are unable to attend classes, due to

pregnancy.

India Legal News: Hindu Wife Can Seek Divorce Even if Husband is

Foreign Citizen

Wed, 07/14/2010 - 11:10 — LIG Reporter

As per India legal news reports, the Madras High Court has held

that the courts in the country have jurisdiction to address

matrimonial cases, which involve Hindus and are governed by the

Hindu Marriage Act, including those cases where the opposite

party is a foreign citizen, residing outside India.

Constitution of India: Are Forced Conversions Legal?

Wed, 07/14/2010 - 08:33 — LIG Reporter

In a country like India, which is a melting pot of religious and

cultural diversity, religious conflicts are not uncommon.

Thousands of Indians are killed in riots that break out due to

communal tensions. Instances of Hindus being forcefully converted

to other religions have been condemned by most organizations.

Force in any form, whether it is by threat, fear, force or economic

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offers, is not considered legal. The Constitution of India has

established the country as a secular one.

Indian Law: No Law to Curb Illegal Colonies, Says Government

Sun, 07/11/2010 - 05:12 — LIG Reporter

Did you know that there are over 1,639 unauthorized colonies in

Delhi? Imagine what the statistics are in other states! The State

Government has admitted in an RTI reply that there is no Indian

law to restrict the growth of illegal colonies. Further, it has said

that the lack of Indian laws pertaining to unauthorized colonies

has failed the purpose of planned development. Also, the urban

development department said that no legal action has been taken

till date against anyone, for the commission of such offence.

India Legal News: Selling Helmets with Two Wheelers is Mandatory,

Says SC

Thu, 07/08/2010 - 11:39 — LIG Reporter

India legal news reports indicate that the Supreme Court on

July 7, 2010 ruled that two-wheeler manufacturers will have to sell

helmets along with the vehicles. Further, the headgears should be

Bureau of Indian Standards (BIS) certified. The apex court passed

the order on rejecting the plea of Society of Indian Automobile

Manufacturers (SIAM), against an order of the High Court,

pertaining to the matter.