public interest litigation (pil) · •the expression public interest means as an act beneficial to...

Public Interest Litigation (PIL)

Third Lecture

MADVS2002C04: Law and Development

Lecture Notes

Dr. Anju Helen Bara Department of Development Studies

Central University of South Bihar, Panchanpur, Gaya

Note: This is only for teaching purpose at CUSB

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Key points of discussion

• Introduction to PIL

• Historical context of PIL: India

• Evolution of PIL in India: Three phases

• Positive side of PIL

• Negative side of PIL

• Measures taken by SC – Note: Various articles, journals, books has been

used to prepare this lecture note. See the reference section


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Introduction

• The expression Public Interest means as an act beneficial to the general public. It means an action necessarily taken for public purpose (Wadhera, 2009);

• Public Interest Litigation is concerned with providing access to justice to all sections of the society. Public Interest Litigation in India has been a part of the constitutional scheme;

• One of the overarching aims of law and legal systems has been to achieve justice in the society and public interest litigation (PIL) has proved to be a useful tool in achieving this objective;

Note: This is only for teaching purpose at

CUSB 3

Historical Context

• After gaining independence from the British rule on August 15, 1947, the people of India adopted a Constitution in November 1949 with the hope to establish a ‘‘sovereign socialist secular democratic republic’’;

• Among others, the Constitution aims to secure to all its citizens justice (social, economic and political), liberty (of thought, expression, belief, faith and worship) and equality (of status and of opportunity); (refer D. D. Basu, 2011)

• 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’’ (Yap and Lau, 2010);

• The founding fathers wanted to ensure that FRs does not remain mere promise, hence they made various provisions in the Constitution to establish an independent an strong judiciary;


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• The need for PIL 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;

• Realising this need, the Court held that any member of public acting bona fide 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;

• The Supreme Court in Gupta v Union of India held: ‘‘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.’’ (Deva, 2009)


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• The seeds of the concept of Public Interest Litigation were sown in India in Mumbai Kamgar Sabha v. Abdulbhai (without using the term – Public Interest Litigation) where the Supreme Court observed that “Our adjectival branch of jurisprudence, by and large, deals not with sophisticated litigants but the poor, the urban lay and the weaker societal segments for whom law will be an added torture if technical misdescriptions and deficiencies in drafting pleadings and setting out the cause title create secret weapon to non-suit a part.” (Walia, 2009);

• Judiciary realized that technical difficulties in drafting legal pleadings results in denial of access to justice to a large section of the society because of their extreme poverty, ignorance, discrimination and illiteracy from time immemorial;

• There was an urgent need to provide access to justice to the poor, deprived, vulnerable, discriminated and marginalized sections of the society;

• Hence, Judiciary while exercising its power of judicial review initiated, encouraged and promoted Public Interest Litigation in India;


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Three Phases of PIL

Year Who filed PIL What kind of cases Role of Judiciary

1980s Generally filed by public spirited persons (lawyers, journalists, activists, academics)

Cases related to the violation of the rights of the disadvantaged groups such as child labourers, bonded labourers, prisoners, mentally challenged people, pavement dwellers, women

The judiciary responded by recognizing the rights of these people and giving directions to the government to redress the alleged violations;

1990s Filing PIL became more institutionalized. Several specialized NGOs and lawyers started filing PIL

Issues became more broad such as protection of environment to corruption free administration, right to education, sexual harassment, accountability of the government

The judiciary took bolder decisions. The courts gave detailed guidelines where there were legislative gaps. Misuse of PIL began for private purposes. The courts did not hesitate to reach centres of government power and extended protection of Fundamental rights. Became an instrument to promote rule of law

2000 Anyone can file a PIL for almost anything eg. Calling back the Indian cricket team from the Australia tour

Introspection time for judiciary to think what it wants. Judiciary more restraint in issuing directions to the government. Judiciary shown support to disinvestment and development policies of the government., but this comes at the cost of the sympathetic response that the rights and interests of impoverished and vulnerable sections of the society.

Deva, 2009


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Positive side of PIL

• Through PIL judiciary has become more closer to the disadvantaged people. Deva (2009) has argued that PIL brings social revolution through constitutional means;

• PIL has expanded the jurisprudence of fundamental rights and human rights in India; for instance, Directive principles are non justifiable rights, the courts imported some of its principles into Fundamental rights, hence made many socio-economic rights important. Thus leading to the legal recognition of these rights as important as education, health, livelihood, environment, speedy trial and privacy;

• Through PIL, judiciary brought many legislative reforms for instance, Vishaka case which brought forth the guidelines on sexual harassment at work place (Deva, 2009);

• PIL helped to build trust and garner public confidence for the judiciary;


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Negative side of PIL

• PIL has negative aspects also. Many new problems arise such as an unanticipated increase in the workload of the superior courts, lack of judicial infrastructure to determine factual matters, gap between the promise and reality, abuse of process, friction and confrontation with fellow organs of the government, and dangers inherent in judicial populism (Desai and Muralidhar, 2000).

• PIL has been criticised for being misused for personal/private interest

• Desai and Muralidhar (2000), ‘PIL is being misused by people agitating for private grievances in the grab of public interest and seeking publicly rather than espousing public causes.”

• Indian judiciary is facing crisis of human resources and it becomes a difficult task for courts to handle all cases, in such situation frivolous PIL should be stopped;


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Negative side of PIL

• Courts are taking long time in disposing of even PIL cases; • PIL creates the problem of judicial populism , which means

that judges sometimes think themselves as crusaders and want to become people’s judges (Deva, 2009)

• In India PIL cases often turn into symbolic justice. For instance, Vishaka judgment brought guidelines but little progress has been made in combating sexual harassment of women;

• Non seriousness of redressal of PIL. “The overuse of PIL for every conceivable public interest might dilute the original commitment to use this remedy only for enforcing human rights of the victimised and the disadvantaged groups” (Singh, 2000)


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Corrections measure by Supreme Court

• There is a need to prevent misuse of PIL;

• The judiciary has responded to the dark side of PIL in two ways.

• First, the Indian Supreme Court as well as High Courts have tried to send strong messages on a case-to-case basis whenever they noticed that the process of PIL was misused. In some cases, the courts have gone to the extent of imposing a fine on plaintiffs who abused the judicial process;

• Second, the Supreme Court has taken was to compile a set of ‘‘Guidelines to be Followed for Entertaining Letters/Petitions Received by it as PIL’’.


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Conclusion

• PIL has an important role to play in the civil justice system in that it affords a ladder to justice to disadvantaged sections of society, some of which might not even be well-informed about their rights.;

• PIL could also contribute to good governance by keeping the government accountable;


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References • Desai and Muralidhar (2000), Public Interest Litigation: Potential and

Problems, in Kirpal et al (eds) Supreme but not Infallible, Oxford University Press, New Delhi

• Deva, S, 2009, ‘Public Interest Litigation in India: A Critical Review’, Civil Justice Quarterly, Issue 1

• Basu, D. D. (2011), An Introduction to the Indian Constitution, Twentieth edition, Lewis Nexis

• Singh, (2000) ‘Protecting the Rights of the Disadvantaged Groups through Public Interest Litigation’ in Singh, Goerlich and von Hauff (eds), Human Rights and Basic Need, Universal Law Publishing Co Ltd.

• Yap, P. J and H. Lau, (2010), Public interest Litigation in Asia, Routledge • Walia, I Kaur, (2009), Public Interest Litigation: An Expression of Voice for

the Sufferers of Silence (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1510271 retrieved on March 30, 2020)

• Wadehra, B. L, (2009), Public Interest Litigation: A Handbook, Universal Law Publishing


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https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1510271













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