Public Interest Litigation (PIL) is now a phrase which is not alien to the language of even the lay person. PIL has done service of fulfilling Constitutional objects of a fair and responsive judicial system. The role of judges and lawyers has been very important in all of this and merits close examination. Credit must go to the Judges of the Apex Court who had the courage to make procedural innovations which were radical by conventional legal principles. The lawyers who supported the introduction are also be to be credited as ultimately for any innovation to be successful the Bar must enjoy confidence in and the willingness to support such measures as well.
With the development of the P.I.L. the traditional rule of ‘Locus Standi’ that a petition under Article 32 can only be filed by a person whose fundamental right is infringed has now been considerably relaxed. The court now permits public interest litigations or social interest litigation at the instance of ‘Public Spirited Citizens’ for the enforcement the constitutional and other legal rights of any person or group of person who because of their poverty or socially or economically disadvantaged position are unable to approach court for relief.
PIL is a product of time and circumstances. It did not spring from any specific constitutional provision or legislative code; rather, it has been evolved by the need for redress, generally through affirmative action, in cases where the general public, or ascertainable sections of the public, are aggrieved. In the main, these are cases where Parliament or a State legislature has failed to address problems affecting the quality of life of the community or identifiable segments of society, or the executive is alleged to have been guilty of non-use or misuse of its powers touching the fundamental rights of individuals.
It is true that a declaration of fundamental rights is meaningless unless there is an effective machinery for its enforcement. It is remedy which makes the right real. If there is no remedy there is no right at all. It was therefore in the fitness of the things that our constitution makers having incorporated a long list of fundamental rights under Article 32 of the constitution. Article 32 is itself a fundamental right. Article 226 also empowers the High courts to issue the writs for the enforcement of fundamental rights.
Bhagwati , J. in S.P.Gupta and others v. President of India and others, AIR 1982 SC 149 hastened to add as follows:
“But we must hasten to make it clear that the individual who moves the court for judicial redress in cases of this kind must be acting bona fide with a view to vindicating the cause of justice and if he is acting for personal gain or private profit or out of political motivation or other oblique consideration, the court should not allow itself to be activised at the instance of such person and must reject his application at the threshold, whether it is in the form of a letter addressed to the court or even in the form of regular writ petition filed in court.”
MEANING OF ‘PUBLIC INTEREST’:-
The words ‘public interest’ means act beneficial to general public. It means action necessarily taken for public purpose. Requirements of public interest vary from case to case (Babu Ram Verma v. State of U.P., 1971 All LJ 653.) .
In Black’s Law Dictionary3, ‘Public Interest’ is defined as follows:
“Public Interest-Something in which the public, the community at their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local State or National Government”.
In Strouds Judicial Dictionary,Volume 4 (IV Edition) 6th Ed. quoted in AIR 1996 Cal 181 at 196: (1996) 1 Com LJ 258, ‘Public Interest’ is defined thus:
“PUBLIC INTEREST (1) A matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected.” (Per Cambell C.J.,R.V.Bedfordshire,(1855) 24 LJ QB 81
Requirement of bona fide:-
The bona fide of the litigator and the lawyer who represents the case is very important. If the PIL were to be misused for serving other personal reasons then it would lead to a situation where courts would reject PILs all together.
ORIGIN of Public Interest Litigation :-
The Indian PIL is the improved version of PIL of U.S.A. According to “Ford Foundation” of U.S.A., “Public interest law is the name that has recently been given to efforts that provide legal representation to previously unrepresented groups and interests. Such efforts have been undertaken in the recognition that ordinary marketplace for legal services fails to provide such services to significant segments of the population and to significant interests. Such groups and interests include the proper environmentalists, consumers, racial and ethnic minorities and others”.
In India the seeds of the concept of P.I.L. were sown in India by Krishna Iyer, J.in 1976 (without assigning the terminology) in Mumbai Kamgar Sabha v. Abdulbhai14he while disposing an industrial dispute in regard to the payments 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 weaker societal segments for whom law will be an added terror if technical misdescription and deficiencies in drafting pleadings and setting out the cause title create a secret weapon to non suit a part. Where foul play is absent, and fairness is not faulted latitude is a grace of processual justice.
Test litigations, representative actions, 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 bypass the real issue on the merits by suspect reliance on peripheral, procedural shortcomings. Even Article 226, viewed in wider perspective, may be amenable to ventilation of collective or common grievances, as distinguished from assertion of individual rights, although the traditional view, backed by precedent, has opted for the narrower alternative. Public interest is promoted spacious construction of locus standi in , our socio-economic circumstances and conceptual latitudinarism permits taking liberties with individualization 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 adjectival law.”
In Fertilizer Corporation Kamgar Union v. Union of India, reported in (1981) 2 SCR 52 the terminology , “public interest litigation” was used. In that decision, Krishna Iyer, J. delivering his opinion for Bhagwati, J.and himself used the expression ‘epitolary’ jurisdiction. However, this rule on gaining momentum day by day, burgeoned more and more expanding its branches in the cosmos of P.I.L. and took its root firmly in the Indian judiciary and fully blossomed with fragrant smell in S.P.Gupta v. Union of India, reported in AIR 1982 SC 149
In HussainaraKhatoon v. State of Bihar, reported in AIR 1979 SC 1360. the PIL was filed by an advocate on the basis of the news item published in the Indian Express, highlighting the plight of thousands of undertrial prisoners languishing in various jails in Bihar. These proceeding led to the release of more than 40,000 under trial prisoners. Right to speedy justice emerged as a basic fundamental right which had been denied to these prisoners. The same set pattern was adopted in subsequent cases.
In 1981 the case of Anil Yadav v. State of Bihar, reported in AIR 1982 SC 1008 exposed the brutalities of the Police. News paper report revealed that about 33 suspected criminals were blinded by the police in Bihar by putting the acid into their eyes. Through interim orders S. C. directed the State government to bring the blinded men to Delhi for medical treatment. It also ordered speedy prosecution of the guilty policemen. The court also read right to free legal aid as a fundamental right of every accused. Anil Yadav signalled the growth of social activism and investigative litigation.
WHO CAN APPLY:-
In contrast the strict rule of locus standi which insists that only a person who has suffered a specific legal injury can maintain a action or judicial redress. The power vested in the Supreme court can be exercised for the enforcement of the fundamental rights. The writ under which the remedy is asked must be co related to the fundamental rights sought to be enforced.
The point for consideration now is whether, on materials placed before the court, a prima facie case is made out for entertaining the writ petition or whether it is a fit case for dismissal in limine.
Any member of the public acting bona fide and having sufficient interest can maintain an action for redressal of such public wrong or public injury.
GUIDELINES FOR ENTERTAINING A PUBLIC INTEREST LITIGATION:-
Though it is imperative to lay down clear guidelines and propositions and outline the correct parameters for entertaining a Public interest litigation particularly on the issue of locus standi yet no hard and fast rules have yet been formulated and no comprehensive guidelines have been evolved. There is also one view that such an adumbration is not possible and it would not be expedient to lay down any general rule which would govern all cases under all circumstances.
The full Court of the Hon’ble Supreme Court on 1.12.1988 issued guidelines to be followed for entertaining letters/petitions received in the Court as public interest litigation. The full Court decided that the petitions falling under the following categories alone would 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 14 years in jail, death in jail, transfer, release on personal bond, speedy trial as fundamental right;
(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.;
(7) petitions complaining of harassment or torture of villagers by co-villagers or by police of persons belonging to Schedule Castes and Schedule 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 wildlife and other matters of public importance;
(9) petitions from riot-victims; and,
(10) family pension.
All letter-petitions received in the PIL Cell (Public Interest Litigation Cell) in the Supreme Court would first be screened in the Cell and only such petitions as are covered by the above mentioned categories would be placed before a Judge to be nominated by the Hon’ble Chief Justice of India for directions after which the case would be listed before the bench concerned. To begin with, only one Hon’ble Judge might be assigned this work and the number increased to two or three later depending on the workload. It was also decided that the cases falling under the following categories would not be entertained as public interest litigation and these might be returned to the petitioners or filed in the PIL Cell, as the case might be:
(1) landlord tenant matters;
(2) service matter and those pertaining to pension and gratuity;
(3) compliant 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 institutions; and
(5) petitions for early hearing of cases pending in High Courts and Subordinates Courts.
The judicial activism gets its highest bonus when its orders wipe some tears from some eyes. This jurisdiction is somehow different from collective action. Number of PIL cells was open all over India for providing the footing or at least platform to the needy class of the society.
ABUSE OF PIL:-
While expanding the scope of ‘locus standi’ rules his Lordship, Bhagwati,J. (as he then was) expressed a note of caution also. He observed: “But we must be careful to see that member of the public, who approaches the court in case of this kind, is acting bonafide and not for personal gain or profit or political motivation or other oblique consideration .The court must not allow its process to be abused by politicians and others…….”
This observation makes it clear that his lordship was aware that this liberal rule might be misused. He, therefore, made it clear that in that case the court will not allow the remedy to the abused.
CRITICISM OF PUBLIC INTEREST LITIGATION:-
In spite of its beneficial effect, the use of this new strategy by the court for enforcement of various fundamental rights and other legal right is criticized by many.
Firstly, It is said that by entertaining violation of fundamental rights through letter, the court will be flooded with the litigation resulting delay in deciding many other important case.
Secondly, it is pointed out that interference by the courts through P.I.L. in the sphere of legislative and executive is not justified as it is likely to cause conflict between the three organs of the government.
Thirdly, the court has no capacity to enforce its order and in many cases the condition has not changed.
Bhagwati J. has already answered to these criticisms. As regards the enforcement of the order of the courts, Art.144 is very clear it says that “All authorities civil and judicial in the territory of India shall act on aid of the Supreme Court. If any of the authorities fail to carry out the orders of the court, the court can punish them for the contempt.”
In Mohan Lal Sharma v. State of U.P (1989) 2 SCC 609. a telegram was sent to the court from the petitioner alleging that his son was murdered by the police in the police lock up. The letter was treated as a writ petition by the court and the case was directed to be referred to C.B.I. for a thorough and detailed investigation.
It would be appropriate to conclude by quoting “Cunningham”:
“Indian PIL might rather be a Phoenix: a whole new creative arising out of the ashes of the old order.”
Rajat Rajan Singh