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18Aug09

Pubic Interest Litigation

The Definition:

The term Public Interest Litigation (PIL) is composed of two

words; „Public Interest‟- According to Black‟s Law Dictionary/7th Edition states:

an expression which indicates something in which the general public or the

community at large has some pecuniary interest, or some interest by which their

legal rights or liabilities are affected. The word litigation on the other hand

means, a legal action, including all legal proceedings initiated in a Court of Law

with the purpose of enforcing a right or seeking a remedy. Hence, lexically the

expression „Public Interest Litigation‟ denotes a legal action initiated in a court

of law for the enforcement of public interest where the rights of an individual or

a group has been affected.

PLI-IN-INDIA:

The concept of Public Interest Litigation first emerged in USA.

The American concept of PIL is clarified by a statement made by “The Council for

Public Interest Law” setup by the “Ford Foundation in USA”; “Public Interest Law is the

name that has been given to efforts to provide legal representations to previously

unrepresented groups and interests. Such groups and interest include; the poor,

environmentalists, consumers, racial and ethnic minorities, and others”. “However PIL in

India substantially differs from that in the USA”. “A statement made by Clark.D.

Cunningham in his published opinion, “PIL in Indian Supreme Court: A study in

the light of American experience”Pg-494. Prof: Upendra Baxi in his published

opinion “Social Action Litigation in the Supreme Court of India” has pointed out

that the prime focus of American PIL was not so much on state repression or

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governmental lawlessness as on public participation in governmental decision

making. And since the Indian notion of PIL has assumed the character of more of

a moral and humane process in providing justice to the victim as in individual or

to a group in matters relating to infringement of fundamental rights or denial of

civil privileges on the basis of caste, color or creed, Prof: Baxi therefore insisted

that the Indian phenomenon described as PIL should be termed as “Social Action

Litigation”.

PIL in Action:

Because it was seen as a pursuit for the vindication of private

vested interest, PIL in India until the early 1970‟s was in its rudimentary state.

During this time period, initiation and continuance of litigation was prerogative

only to the individual aggrieved party. A complete change in the scenario in the

1980‟s with the efforts taken by Justice P.N.Bhagwati and Justice V.R. Krishna

Iyer which was marked by attempts to bring wider issues affecting the general

public at large within the ambit. As a result, the concept of PIL has evolved

through which legal remedies can be sought out without forwarding any heavy

court fees as is required in private civil litigation.

The PIL jurisdiction forged by the Supreme Court is an extension of its

jurisdiction under Article-32. PIL in India is centered essentially around court

actions with the liberalization of the rule of “Locus Standi”, (Latin-Place to stand. Right

to be heard in a court of law), especially for the poor and deprived. With the change in

the character and functions of the state, the rule of locus standi has been

liberalized. „Ashoke Kumar Vs The State of West Bengal_2004‟(Supreme

Court‟s Verdict); “Under the relaxed rule, any member of the public having sufficient

interest can maintain an action for judicial redress of a public injury suffered by an

indiscriminate class of persons, provided the petitioner acts bona fide and is not moved by

an oblique motivation”. In D.C. Wadhwa Vs the State of Bihar (1987), the

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petitioner, a professor of political science who had done substantial research in

the area of proper implementation of constitutional provisions, challenged the

practice followed by the State of Bihar in re-promulgating a number of

ordinances without seeking the approval of the legislature. The court held that

the petitioner as a member of public has „sufficient interest‟ to maintain a

petition under Art-32.

On 1st Dec 1988, the Supreme Court issued a notification on what matters could

be entertained as PIL. (Source-Guidelines for Entertaining Letters/Petitions as PIL, accessed

from Parivesh News Letter. www.cpcb.inc/legislation/PIL/Newsletter ). Under this

notification, letter petitions falling under certain categories alone would be

treated, but before that the letter would be first screened in the PIL Cell after

which it would be placed before the judge. The categories include matters

concerning bonded labour, petitions from prisoners, petitions against police

atrocities, petition against atrocities on women, children and SC‟s and ST‟s, in

environmental matters etc.

The PIL process, to be effective demands proactive action to be taken requiring

the judges to take cognizance of matters „Sou motu‟ (on their own), as was

practiced by Justice Thakkar of the Gujarat High Court, who converted a letter

to the editor in a newspaper written by a widow mentioning her plight because

of the non-payment of the „Provident Fund Family Pension‟ after her husband

death, and ordered a „Show Cause Notice‟ to be issued without any further

formalities to the Regional Provident Fund Officer. The arrears were paid just

after the first hearing. However there are dangers of suo motu action, e.g. the

judges cannot know the motivation of a person in writing a letter to the editor.

He has no means of verifying the veracity of the contents of the letter, before

he/she commences the proceedings.

PIL in the Indian judiciary is also been focused on matters concerning „prisoners

rights‟. In the Hussainnara Vs the State of Bihar- 1980_SCC 81, the attention of

the court was drawn to the shocking situation of Bihar under-trials, who had

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been detained pending trials for periods far in excess of the maximum sentence

for the offence that they were charged with. The court not only proceeded to

make the right to speedy trial the central issue of the case but also passed an

order of general release of under-trials that had gone detention beyond such

maximum period.

Some of the early PIL‟s had witnessed the award of compensation by the court to

the victims of human rights violations. This principle was reiterated in D.K. Basu

Vs Union of India-1997_ SCC416, a case where the court declared that; “Award

of compensation for infringement of the indefeasible rights guaranteed under Art-21 is a

remedy available in public law since the purpose of public law is not only to civilize public

power but also to assure to the citizens that they live under a legal system wherein their

rights and interest shall be preserved and protected”.

PIL‟s contribution has also been significant in the sphere of environmental laws.

The dangers of globalization and industrialization have paved way for the

judiciary towards the formulation of new principles for the protection of the

environment. Amongst the principles, the “Pollution Pays” principle has been

applied in the cases concerning „Shrimp Farms‟ i.e. (S. Jagannath Vs Union of

India), Tanneries i.e. (Vellore Citizens Welfare Vs Union of India-1996),

chemical industries in Rajasthan and Andhra Pradesh i.e. (Indian Council for

Enviro-Legal Action Vs Union of India-1996), etc. In the Tanneries case, the

courts verdict stated; “It (tanneries) cannot be permitted to expand or even continue

with the present production unless it tackles by itself the problem of pollution created by

the said industry”.

There even been cases in which the courts have stepped in where the legislature

had not or was not willing to. An example of this would a PIL concerning the

sexual harassment of women at work place i.e. in (Vishaka Vs State of Rajasthan-

1997).

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Criticism of PIL:

The debates over the limits of Judicial Activism in the area

of PIL, has been vigorous. A private members bill entitled “Public Interest

Litigation (Regulation) Bill, 1996” was tabled in the Rajya Sabha. The statement

of objectives and reasons stated that PIL was misused in the name of providing

justice to the poor sections of the society and also that PIL cases were given

more priority over other cases which led to pending of several „general section

cases‟ in the court for years. However the bill did not get passed.

Bearing in mind the power and importance of PIL in making the Constitution a

living reality for every citizen and also the efforts channeled through the medium

of PIL jurisprudence in providing justice to the deprived, the process is

positively succeeding, following the logic of its nature. In a country

characterized by numerous “Variable Ethnicity” and religious diversity, working

via the pattern through a comprehensive bureaucracy, a grieved, poor, deprived

citizen does find it hard to seek justice because of economic disability or lack of

„Know-How‟ or even due to Red tape. The only option left before the deprived

next to a miracle is a PIL petition. In quoting Justice Krishna Iyer “The judicial

activism gets its highest bonus when its order wipes some tears from some eyes”.

“Further suggestions by readers are welcomed in: anupamgurung@yahoo.com”