Essay Writing JMFC Civil Judge Exam Gujarat – Day-54-Public Interest Litigation.
Injustice anywhere is a threat to justice everywhere– Martin Luther King, Jr.
Judiciary, being the sentinel of constitutional statutory rights of citizens has a special role to play in the constitutional scheme. It can review legislation and administrative actions or decisions on the anvil of constitutional law. For the enforcement of fundamental rights one has to move the Supreme Court or the High Courts directly by invoking Writ Jurisdiction of these courts. But the high cost and complicated procedure involved in litigation, however, makes equal access to jurisdiction in mere slogan in respect of millions of destitute and underprivileged masses stricken by poverty, illiteracy and ignorance. The Supreme Court of India, pioneered the Public Interest Litigation (PIL) thereby throwing upon the portals of courts to the common man.
Till 1960s and seventies, the concept of litigation in India was still in its rudimentary form and was seen as a private pursuit for the vindication of private vested interests. Litigation in those days consisted mainly of some action initiated and continued by certain individuals, usually, addressing their own grievances/problems. Thus, the initiation and continuance of litigation was the prerogative of the injured person or the aggrieved party. Even this was greatly limited by the resources available with those individuals. There were very little organized efforts or attempts to take up wider issues that affected classes of consumers or the general public at large. However, these entire scenario changed during Eighties with the Supreme Court of India led the concept of Public Interest Litigation (PIL). The Supreme Court of India gave all individuals in the country and the newly formed consumer groups or social action groups, an easier access to the law and introduced in their work a broad public interest perspective.
The term PIL originated in the United States in the mid-1980s. Since the nineteenth century, various movements in that country had contributed to public interest law, which was part of the legal aid movement. The first legal aid office was established in New York in 1876. In the 1960s the PIL movement began to receive financial support from the office of Economic Opportunity, This encouraged lawyers and public spirited persons to take up cases of the under-privileged and fight against dangers to environment and public health and exploitation of consumers and the weaker sections.
In Indian law, public interest litigation means litigation for the protection of the public interest. It is litigation introduced in a court of law, not by the aggrieved party but by the court itself or by any other private party. It is not necessary, for the exercise of the court’s jurisdiction, that the person who is the victim of the violation of his or her right should personally approach the court. Public interest litigation is the power given to the public by courts through judicial activism. However, the person filing the petition must prove to the satisfaction of the court that the petition is being filed for a public interest and not just as a frivolous litigation by a busy body. Such cases may occur when the victim does not have the necessary resources to commence litigation or his freedom to move court has been suppressed or encroached upon. The court can itself take cognizance of the matter and proceed suo motu or cases can commence on the petition of any public spirited individual.
PIL has today acquired unprecedented legitimacy and binding power and is acknowledged as a powerful weapon to combat governmental lawlessness and social oppression. The judicial messages radiated through PIL cases provide legal resources to launch struggles against domination and abuses of power. The Indian PIL has grown in the context of political history of State repression. It emerged as a device to activate judicial power to force the government to live up to its commitments. PIL is a unique phenomenon in the Indian constitutional jurisprudence which has no parallel in the world. This technique is concerned with the protection of the interests of a class or group of persons who are either the victims of governmental lawlessness, oppression, or social oppression or denied their constitutional or legal rights and who are not in a position to approach the court for the redressal of their grievances due to the lack of resources or ignorance or their disadvantaged social and economic position. The Indian Supreme Court began to identify itself as an institution of last resort when the other two branches of the government were facing legitimating crisis.
The seeds of the concept of public interest litigation were initially sown in India by Justice Krishna Iyer, in 1976 in Mumbai Kamagar Sabha vs. Abdul Thai[1]and was initiated inRaihvaiy vs. Union of India, wherein an unregistered association of workers was permitted to institute a writ petition under Article 32 of the Constitution for the redress of common grievances.
The first reported case of PIL, in 1979, focused on the inhuman conditions of prisons and under trial prisoners. In Hussainara Khatoon vs. State of Bihar,[2]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 under trial 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.
A new era of the PIL movement was heralded by Justice P.N. Bhagawati in the case of S.P. Gupta vs. Union of India.[3]In this case it was held that “any member of the public or social action group acting bonafide” can invoke the Writ Jurisdiction of the High Courts or the Supreme Court seeking redressal against violation of legal or constitutional rights of persons who due to social or economic or any other disability cannot approach the Court. By this judgment PIL became a potent weapon for the enforcement of “public duties” where executed in action or misdeed resulted in public injury. And as a result any citizen of India or any consumer groups or social action groups can now approach the apex court of the country seeking legal remedies in all cases where the interests of general public or a section of public are at stake.
Justice P.N. Bhagawati articulated the concept of PIL as follows:-
“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 or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons by reasons of poverty, helplessness or disability or socially or economically disadvantaged position unable to approach the court for relief, any member of public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case any breach of fundamental rights of such persons or determinate class of persons, in this court under Article 32 seeking judicial redress for the legal wrong or legal injury caused to such person or determinate class of persons.”
In 1981, the case of Anil Yadav vs. State of Bihar,[4]exposed the brutalities of the Police. About 33 suspected criminals were blinded by the police in Bhagalpur jail in Bihar through putting the acid into their eyes and then eyes were burnt. The Supreme Court quashed the trial of blinded persons, condemned the police barbarity in strongest terms and directed the Bihar government to bring the blinded persons to Delhi for medical treatment at the state’s expense. The Court declared free legal aid as a fundamental right as an aspect of right to life and personal liberty. The human rights of prisoners subject to torture,[5]victims of police excesses,[6]inmates of protective homes[7]and mental asylums,[8]bonded[9]and child labour,[10]victims of sexual harassment[11]and earthquake victims[12]and many other have been protected by the Supreme Court.
In Citizen for Democracy vs. State of Assam,[13]the Supreme Court declared that the handcuffs and other fetters shall not be forced upon a prisoner while lodged in jail or while in transport or transit from one jail to another or to the court or back.
The Supreme Court in Indian Banks’ Association, Bombay & Ors. vs. M/s Devkala Consultancy Service and Ors.,[14]held :-
“In an appropriate case, where the petitioner might have moved a court in her private interest and for redressal of the personal grievance, the court in furtherance of Public Interest may treat it a necessity to enquire into the state of affairs of the subject of litigation in the interest of justice. Thus a private interest case can also be treated as public interest case”.
In Guruvayur Devaswom Managing Committee And Anr. vs. C.K. Rajan and Ors.,[15]the Supreme Court held :-
“The Courts exercising their power of judicial review found to its dismay that the poorest of the poor, depraved, the illiterate, the urban and rural unorganized labour sector, women, children, handicapped by ‘ignorance, indigence and illiteracy’ and other down trodden have either no access to justice or had been denied justice. A new branch of proceedings known as ‘Social Interest Litigation’ or ‘Public Interest Litigation’ was evolved with a view to render complete justice to the aforementioned classes of persona. It expanded its wings in course of time. The Courts in pro bono publico granted relief to the inmates of the prisons, provided legal aid, directed speedy trial, maintenance of human dignity and covered several other areas. Representative actions, pro bono publico and test litigations were entertained 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 shortcomings… Pro bono publico constituted a significant state in the present day judicial system. They, however, provided the dockets with much greater responsibility for rendering the concept of justice available to the disadvantaged sections of the society. Public interest litigation has come to stay and its necessity cannot be overemphasized. The courts evolved a jurisprudence of compassion. Procedural propriety was to move over giving place to substantive concerns of the deprivation of rights. The rule of locus standi was diluted. The Court in place of disinterested and dispassionate adjudicator became active participant in the dispensation of justice.”
Public Interest Litigation is meant for enforcement of fundamental and other legal rights of the people who are poor, weak, ignorant of legal redressal system or otherwise in a disadvantageous position, due to their social or economic background. Such litigation can be initiated only for redressal of a public injury, enforcement of a public duty or vindicating interest of public nature. It is necessary that the petition is not filed for personal gain or private motive or for other extraneous consideration and is filed bona fide in public interest.The following are the subjects which may be litigated under the head of Public Interest Litigation:-
1. The matters of public interest:-
a. bonded labour matters,
b. matters of neglected children,
c. exploitation of casual labourers and non-payment of wages to them (except in individual cases),
d. matters of harassment or torture of persons belonging to Scheduled Castes, Scheduled Tribes and Economically Backward Classes, either by co-villagers or by police,
e. matters relating to environmental pollution, disturbance of ecological balance, drugs, food adulteration, maintenance of heritage and culture, antiques, forests and wild life,
f. petitions from riot victims and
g. other matters of public importance.
2. The matters of private nature:-
a. threat to or harassment of the petitioner by private persons,
b. seeking enquiry by an agency other than local police,
c. seeking police protection,
d. landlord tenant dispute,
e. service matters,
f. admission to medical or engineering colleges,
g. early hearing of matters pending in High Court and subordinate courts and are not considered matters of public interest.
3. Letter Petitions:–
a. Petitions received by post even though not in public interest can be treated as writ petitions if so directed by the Hon’ble Judge nominated for this purpose.
b. Individual petitions complaining harassment or torture or death in jail or by police, complaints of atrocities on women such as harassment for dowry, bride burning, rape, murder and kidnapping, complaints relating to family pensions and complaints of refusal by police to register the case can be registered as writ petitions, if so approved by the concerned Hon’ble Judge.
c. If deemed expedient, a report from the concerned authority is called before placing the matter before the Hon’ble Judge for directions. If so directed by the Hon’ble Judge, the letter is registered as a writ petition and is thereafter listed before the Court for hearing.
“Public Interest Litigation”in simple words, means, litigation filed in a court of law, for the protection of“Public Interest”, such as Pollution, Terrorism, Road Safety, Constructional Hazards, etc. Any matter where the interest of public at large is affected can be redressed by filing a Public Interest Litigation in a court of law.“Public Interest Litigation”is not defined in any statute or in any Act. It has been interpreted by judges to consider the intent of the public at large. According to Black’s Law Dictionary[16]–
“Public Interest Litigation means a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some interest by which 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…”
Public Interest Litigation’s explicit purpose is to alienate the suffering off all those who have borne the brunt of insensitive treatment at the hands of fellow human being. Transparency in public life & fair judicial action are the right answer to check increasing menace of violation of legal rights. Traditional rule was that the right to move the Supreme Court is only available to those whose fundamental rights are infringed.But this traditional rule was considerably relaxed by the Supreme Court in its further rulings :-
1. Peoples Union for Democratic Rights vs. Union of India.[17] The court now permits Public Interest Litigation or Social Interest Litigation at the instance of “Public Spirited Citizens” for the enforcement of constitutional & legal rights of any person or group of persons who because of their socially or economically disadvantaged position are unable to approach court for relief. Public interest litigation is a part of the process of participate justice and standing in civil litigation of that pattern must have liberal reception at the judicial door steps.
2. Judges Transfer Case[18] Court held Public Interest Litigation can be filed by any member of public having sufficient interest for public injury arising from violation of legal rights so as to get judicial redress. This is absolutely necessary for maintaining Rule of law and accelerating the balance between law and justice.
3. Shiram Food & Fertilizer Case[19] Through Public Interest Litigation, directed the Co. Manufacturing hazardous & lethal chemical and gases posing danger to life and health of workmen & to take all necessary safety measures before re-opening the plant.
4. M.C Mehta vs. Union of India[20] In a Public Interest Litigation brought against Ganga water pollution so as to prevent any further pollution of Ganga water. Supreme Court held that petitioner although not a riparian owner is entitled to move the court for the enforcement of statutory provisions, as he is the person interested in protecting the lives of the people who make use of Ganga water.
5. Parmanand Katara vs. Union of India[21] Supreme Court held in the Public Interest Litigation filed by a human right activist fighting for general public interest that it is a paramount obligation of every member of medical profession to give medical aid to every injured citizen as soon as possible without waiting for any procedural formalities.
6. Council For Environment Legal Action vs. Union of India[22] Public Interest Litigation filed by registered voluntary organization regarding economic degradation in coastal area. Supreme Court issued appropriate orders and directions for enforcing the laws to protect ecology.
7. State vs. Union of India[23] Public Interest Litigation is a strategic arm of the legal aid movement which intended to bring justice. Rule of Law does not mean that the Protection of the law must be available only to a fortunate few or that the law should be allowed to be abused and misused by the vested interest. In a recent ruling of Supreme Court on “GROWTH OF SLUMS” in Delhi through Public Interest Litigation initiated by lawyers Mr. B.L. Wadhera & Mr. Almitra Patel Court held that large area of public land is covered by the people living in slum area. Departments despite being giving a dig on the slum clearance, it has been found that more and more slums are coming into existence. Instead of “Slum Clearance”, there is “Slum Creation” in Delhi. As slums tended to increase; the Court directed the departments to take appropriate action to check the growth of slums and to create an environment worth for living.
8. Kapil Hingorani vs. State of Bihar[24] The matter of denial human right to food and means of livelihood was brought to the attention of the Supreme Court by way of PIL. The PIL arouse from a newspaper report that due to non-payment of salary for a long time, resulting in starvation of an employee of Bihar State Agro-Industries Development Corporation the employee tried to immolate himself. The Court recognized that hunger was violation of human rights and the State has an obligation to satisfy basic human needs.
9. Centre for Enquiry into Health & Allied Themes (CEHAT) vs. Union of India[25] A PIL was filed by a social action organized for a direction for the effective implementation of the law banning sex selection and sex determination.[26]The Court has expressed its deep concern over the non-action of the executive in preventing pre-natal sex determination leading to female foeticide. In this PIL the Supreme Court issued several directions to the government to create public awareness about the new law through advertisements throughout the country through both electronic and print media. The Court had referred to all its earlier directions[27]to the Central and State Governments and found it very fortunate that they have not been implemented.
10. Areport entitled “Treat Prisoners Equally HC” published in THE TRIBUNE, Aug 23 Punjab & Haryana High Court quashed the provisions of jail manual dividing prisoners into A, B & C classes after holding that there cannot be any classification of convicts on the basis of their social status, education or habit of living .This is a remarkable ruling given by High Court by declaring 576-A paragraph of the manual to be “Unconstitutional”.
In environmental cases the Supreme Court has addressed the issues of environmental degradation such as vehicular pollution[28]leakage of oleum gas from a factory,[29]danger to Taj Mahal from Mathura Refinery,[30]degradation of Ridge area in Delhi,[31]pollution caused by shrimp farming,[32]tanneries,[33]and chemical industries[34]and so on. The Court has taken several activist measures to ensure compliance of pollution standards. However, the judicial activism in this area has been criticized on the ground that the Court has not taken into account the interest of the workers and their families while passing orders for the closure of pollution industries. The interest of tribal population has not been taken into account by the court while passing orders for the enforcement of Forest Act and Wild Life Protection Act.[35]
It is a settled law that when a person approaches the court of equity in exercise of extraordinary jurisdiction, he should approach the court not only with clean hands but with clean mind, heart and with clean objectives.
Supreme Court has now realized its proper role in welfare state and it is using its new strategy for the development of a whole new corpus of law for effective and purposeful implementation of Public Interest Litigation.
One can simply approach to the Court for the enforcement of fundamental rights by writing a letter or post card to any Judge. That particular letters based on true facts and concept will be converted to writ petition. When Court welcome Public Interest Litigation, its attempt is to endure observance of social and economic programs frame for the benefits of have-nots and the handicapped. Public Interest Litigation has proved a boon for the common men. Public Interest Litigation has set right a number of wrongs committed by an individual or by society. By relaxing the scope of Public Interest Litigation, Court has brought legal aid at the doorsteps of the teeming millions of Indians; which the executive has not been able to do despite a lot of money is being spent on new legal aid schemes operating at the central and state level. Supreme Court’s pivotal role in expanding the scope of Public Interest Litigation as a counter balance to the lethargy and inefficiency of the executive is commendable. Among, the numerous factors that have contributed to the growth of PIL in this country,
The following deserve special mention:-
# The character of the Indian Constitution. Unlike Britain, India has a written constitution which through Part III (Fundamental Rights) and Part IV (Directive Principles of State Policy) provides a framework for regulating relations between the state and its citizens and between citizens inter-se.
# India has some of the most progressive social legislation to be found anywhere in the world whether it be relating to bonded labor, minimum wages, land ceiling, environmental protection, etc. This has made it easier for the courts to haul up the executive when it is not performing its duties in ensuring the rights of the poor as per the law of the land.
# The liberal interpretation of locus standi where any person can apply to the court on behalf of those who are economically or physically unable to come before it has helped. Judges themselves have in some cases initiated suo moto action based on newspaper articles or letters received.
# Although social and economic rights given in the Indian Constitution under Part IV are not legally enforceable, courts have creatively read these into fundamental rights thereby making them judicially enforceable. For instance the “right to life” in Article 21 has been expanded to include right to free legal aid, right to live with dignity, right to education, right to work, freedom from torture, bar fetters and hand cuffing in prisons, etc.
# Sensitive judges have constantly innovated on the side of the poor. For instance, in the Bandhua Mukti Morcha,[36]the Supreme Court put the burden of proof on the respondent stating it would treat every case of forced labor as a case of bonded labor unless proven otherwise by the employer. Similarly in the Asiad Workers judgment case,[37]Justice P.N. Bhagwati held that anyone getting less than the minimum wage can approach the Supreme Court directly without going through the labor commissioner and lower courts.
# In PIL cases where the petitioner is not in a position to provide all the necessary evidence, either because it is voluminous or because the parties are weak socially or economically, courts have appointed commissions to collect information on facts and present it before the bench.
Aspects of Public Interest Litigation:-
(a) Remedial in Nature
Remedial nature of PIL departs from traditional locus standi rules. It indirectly incorporated the principles enshrined in the Part IV of the Constitution of India into Part III of the Constitution. By riding the aspirations of Part IV into Part III of the Constitution had changed the procedural nature of the Indian law into dynamic welfare one. Bandhua Mukti Morcha vs. Union of India,[38] Unni Krishnan vs. State of A.P.,[39]etc. were the obvious examples of this change in nature of judiciary.
(b) Representative Standing
Representative standing can be seen as a creative expansion of the well-accepted standing exception which allows a third party to file a habeas corpus petition on the ground that the injured party cannot approach the court himself. And in this regard the Indian concept of PIL is much broader in relation to the American. PIL is a modified form of class action.
(c) Citizen standing
The doctrine of citizen standing thus marks a significant expansion of the court’s rule, from protector of individual rights to guardian of the rule of law wherever threatened by official lawlessness.
(d) Non-adversarial Litigation
In the words of Supreme Court in People’s Union for Democratic Rights vs. Union of India, “We wish to point out with all the emphasis at our command that public interest litigation…is a totally different kind of litigation from the ordinary traditional litigation which is essentially of an adversary character where there is a dispute between two litigating parties, one making claim or seeking relief against the other and that other opposing such claim or resisting such relief.”[40]
Non-adversarial Litigation are of two aspects:-
(1) Collaborative Litigation
In collaborative litigation the effort is from all the sides. The claimant, the court and the Government or the public official, all are in collaboration here to see that basic human rights become meaningful for the large masses of the people. PIL helps executive to discharge its constitutional obligations. Court assumes three different functions other than that from traditional determination and issuance of a decree.
(i) Ombudsman-The court receives citizen complaints and brings the most important ones to the attention of responsible government officials.
(ii) Forum-The court provides a forum or place to discuss the public issues at length and providing emergency relief through interim orders.
(iii) Mediator-The court comes up with possible compromises.
(2) Investigative Litigation
It is investigative litigation because it works on the reports of the Registrar, District Magistrate, comments of experts, newspapers etc.
(e) Crucial Aspects
The flexibility introduced in the adherence to procedural laws. InRural Litigation and Entitlement Kendra vs. State of U.P.,[41]Supreme Court rejected the defense ofres judicta. Court refused to withdraw the PIL and ordered compensation too. To curtail custodial violence, Supreme Court inSheela Barse vs. State of Maharashtra,[42]issued certain guidelines. Supreme Court has broadened the meaning of Right to live with human dignity available under the Article 21 of the Constitution of India to a greatest extent possible.
(f) Relaxation of strict rule of Locus Standi
The strict rule oflocus standihas been relaxed by way of (a) Representative standing, and (b) Citizen standing. InD.C. Wadhwa vs. State of Bihar,[43]Supreme Court held that a petitioner, a professor of political science who had done substantial research and deeply interested in ensuring proper implementation of the constitutional provisions, challenged the practice followed by the state of Bihar in re-promulgating a number of ordinances without getting the approval of the legislature. The court held that the petitioner as a member of public has ‘sufficient interest’ to maintain a petition under Article 32.
(g) Epistolary Jurisdiction
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.
Certain Weaknesses of PIL
1.PIL actions may sometime give rise to the problem of competing rights. For instance, when a court orders the closure of a polluting industry[44]the interests of the workmen and their families who are deprived of their livelihood may not be taken into account by the court. A court order for the closure of a polluting abattoir may deprive the means of subsistence of the butchers.[45]The construction of a darn to provide water to the people may deprive other citizens their right to shelter.[46]
2.PIL matters concerning the exploited and disadvantaged groups are pending for many years. Inordinate delays in the disposal of PIL cases may render many leading judgments merely of academic value.
3.Then there is the problem of willful defiance of judicial directions. Surprisingly, the courts are unwilling to punish the violators of their own orders through the exercise of their contempt power. Frequent, defiance of judicial order might also dilute the credibility of the courts.
Public Interest Litigation has produced astonishing results which were unthinkable three decades ago. Degraded bonded labourers, tortured under trials and women prisoners, humiliated inmates of protective women’s home, blinded prisoners, exploited children, beggars,[47]and many others have been given relief through judicial intervention. The greatest contribution of PIL has been to enhance the accountability of the governments towards the human rights of the poor.[48]However, the judges acting alone cannot provide effective responses to state lawlessness but they can surely seek a culture formation where political power becomes increasingly sensitive to human rights. When people’s rights are invaded by dominant elements, PIL emerges as a medium of struggle for protection of their human rights. The legitimacy the PIL enjoys in the Indian legal system is unprecedented. PIL interrogates power and makes the courts as people’s court.
In its early career PIL was understood as a medium to liberate the oppressed and the poor. Unfortunately PIL has today has been appropriated for corporate, political and personal gains. Today the PIL is no more limited to problems of the poor and the oppressed. This technique is being used to cure all ills affecting the Indian society. It seems that dominant concern of PIL activism today is to focus the interests of Indian middle-classes. For instance, PIL seeking order to ban Koran,[49]transmission of T.V. series,[50]implementation of consumer protection law,[51]removal of corrupt politicians,[52]invalidation of irregular allotment of petrol pumps[53]and government accommodation,[54]prosecution of politicians and bureaucrats for accepting kickbacks through Hawala transactions,[55]better service conditions of members of lower judiciary,[56]quashing the selection of university teachers,[57]are some blatant instances of middle class interests.
The impact of PIL decisions is hard to measure and requires serious social research. It is undoubtedly true that in recent years the cause of social justice and emancipation of the oppressed groups has been advanced in many ways through the device of PIL but the fact that in some cases PIL has achieved positive success does not certify this technique as a sovereign remedy to protect the human rights of the poor. Mass production of rights through PIL has resulted in heightened expectations from the judges that they are available to provide relief from all miseries and misfortunes. Human rights of the poor and the disadvantaged groups will be better protected by subjecting PIL to discipline and control and which should be limited only to the cases focusing on hapless victims of domination and governmental lawlessness. 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 victimized and the disadvantaged groups.
Public Interest Litigation is now working as an important instrument of social change. It is working for the welfare of every section of society. It’s the sword of every one used only for taking the justice. The innovation of this legitimate instrument proved beneficial for the developing country like India. PIL has been used as a strategy to combat the atrocities prevailing in society. It’s an institutional initiative towards the welfare of the needy class of the society. In Bandhua Mukti Morcha vs. Union of India,[58]Supreme Court ordered for the release of bonded labourers. In Murli S. Dogra vs. Union of India,[59]the Supreme Court banned smoking in public places. In a landmark judgment of Delhi Domestic Working Women’s Forum vs. Union of India,[60]Supreme Court issued guidelines for rehabilitation and compensation for the rape on working women. InVishaka vs. State of Rajasthan,[61]Supreme Court has laid down exhaustive guidelines for preventing sexual harassment of working women in place of their work.
PIL represents the first attempt by a developing common law country to break away from legal imperialism perpetuated for centuries. It contests the assumption that the most western the law, the better it must work for economic and social development such law produced in developing states, including India, was the development of under developed men. The shift from legal centralism to legal pluralism was prompted by the disillusionment with formal legal system. In India, however instead of seeking to evolve justice- dispensing mechanism ousted the formal legal system itself through PIL. The change as we have seen, are both substantial and structural. It has radically altered the traditional judicial role so as to enable the court to bring justice within the reach of the common man.
PIL is a tool in hands of public spirited citizens who have a good motive behind the PIL and to prevent it from becoming a weapon in the hands of those litigants who want to either misuse this concept for either commercial gain or publicity the apex court has time and again laid down various guidelines and by imposing costs on the frivolous public interest litigation the courts have only strengthened their stance. Further, it is humbly submitted that PIL is still is in experimental stage. Many deficiencies in handling this kind of litigation are likely to come on the front. But these deficiencies can be removed by innovating better techniques. In essence, the PIL develops a new jurisprudence of the accountability of the state for constitutional and legal violations adversely affecting the interests of the weaker elements in the community.
In PIL the court normally acts as an investigator, a mediator, a counsellor, or a collaborator as has been pointed by Justice M.N. Venkatachaliah in Sheela Barse vs. State of Maharashtra. [62]
PIL requires a judge to play an active role in providing immediate relief to the victims of human rights violations by relaxing procedural technicalities and by exempting the petitioner to prove the alleged facts which are investigated by the court itself. If all the characteristics are not present simultaneously the matter cannot legitimately be called a PIL. But unfortunately the judges have not resisted their temptation to treat any and every matter as a PIL even if such matter is not even remotely connected with human rights. The result is that over the years the courts have emerged as an institution of governance through the device of PIL.
The norms for entertaining a PIL should be laid down so as to eliminate the subjective choices of the judges to entertain anything under the sun as a PIL. PIL should be limited only to vindicate the rights of the victims of governmental lawlessness and social oppression. Issues involving political governance, or misrule or arbitrary exercise of power and so on are also important but they should still be handled within the traditional mould of litigation. Such cases need not be borrow the nomenclature of PIL.
We may end with the hope once expressed by, Justice Krishna Iyer :–The judicial activism gets its highest bonus when its orders wipe some tears from some eyes.
End-Notes
[1] AIR 1976 SC 1455 ; 1976 (3) SCC 832.
[2] AIR 1979 SC 1369.
[3] AIR 1982 SC 149.
[4] AIR 1982 SC 1008 ; (1981) 1 SCC 622.
[5]Khatri vs. State of Bihar, (1981)1 SCC 627, 635 ;VeenaSethi vs. State of Bihar, (1982)2 SCC 583 (Right to legal aid declared as an aspect of Article 21).
[6] NilabatiBehera vs. State of Orissa, AIR 1993 SC 1961.
[7] UpendraBaxi vs. State of UP, 1981 (3) SCALE 1136.
[8] R.C. Narainvs. State of Bihar, (1986) Supp. SC 576,B.R. Kapoor vs. Union of India, AIR 1990 SC 752. On the basis of a Newspaper report that more than 25 mentally challenged patients housed in mental asylum in Ervadi in Ramanathpuram District of Tamil Nadu were charred to death as the patients could not escape the blaze as they had been chained to poles or beds, the Supreme Court in Inre: Death of 25 Chained Inmates in Asylum Fire in T.N. (AIR 2002 SC 979)tooksuo motoaction by way of PIL and issued several directions to every State and Union Territory to implement the Mental Health Act, 1987.
[9] Bandhua Mukti Morcha vs. Union of India supra. Note. 3, See, Parmanand Singh, “Bandhua Mukti Morcha: Social Action and the Indian Supreme Court”, 12 Indian Bar Review 228 (1985).
[10] M.C. Mehta vs. Union of India,(1996) Supp. SCC 553.
[11] Vishaka vs. State of Rajasthan,(1997) 6 SCC 241.
[12] InBipinchandravs. State of Gujarat,AIR 2002 Guj. The High Court of Gujarat applied the doctrine of parents patriae for providing relief to earthquake victims of Gujarat, holding that under the Constitution the State has an obligation to help people in distress. Article 12 was the repository of all human rights. The court gave directions for relief and rehabilitation of earthquake victims.
[13] 1995 (3) SCR 943.
[14] Judgment Today 2004 (4) SC 587.
[15] (2003) 7 SCC 546.
[16] 6thEdition.
[17] AIR 1982 SC 1473 ; 1983 SCR (1) 456.
[18]S.P. Gupta vs. Union of India,AIR 1982 SC 149.
[19]M.C. Mehta vs. Union Of India, AIR 1987 SC 1086 ; 1987 SCR (1) 819.
[20]AIR 1988 SC 1115 ; 1988 SCR (2) 530.
[21]AIR 1989 SC 2039 ; 1989 SCR (3) 997.
[22] Decided on 18 July, 2011, by Bench of : Justice DalveerBhandari, Justice H.L. Dattu.
[23] AIR 1996 Cal. 181 at 218.
[24] (2003) 6 SCC 1.
[25] 2003 (7) SCALE 345.
[26] The Pre-natal Diagnostic Technique (Regulation and Prevention of Missue) Act, 1994. This Act has now been re-titled as
The Preconception and Pre-natal Diagnostic Technique (Prohibition Of Sex Selection) Act.
[27] Direction issued on 04.05.2001, 19.09.2001, 17.11.2001, 31.03.2003. Also seeCEHAT vs. Union of India, 2003 (10)
SCALE 11.
[28]M.C. Mehta vs. Union of India, 1996 (1) SCALE 42.
[29]M.C. Mehta vs. Union of India, (1987) 1 SCC 395.
[30]M.C. Mehta vs. Union of India, (1996) 4 SCC 351.
[31]M.C. Mehta vs. Union of India, (1996) 1 SCALE SP 22 ;M.C. Mehta vs. Union of India, (1996) 6 SCC 756.
[32] M.C. Mehta vs. Union of India, (1996) 4 SCC 351.
[33] S. Jagannath vs. Union of India, (1996) 5 SCC 647.
[34] In reBharvani River Sakti Ltd.,(1998) 6 SCC 335.
[35] Narmada Bachao Andolan vs. Union of India, (2000) 10 SCC 664.
[36] AIR 1984 SC 802 ; 1984 SCR (2) 67.
[37] AIR 1982 SC 1473 ; 1983 SCR (1) 456.
[38] AIR 1984 SC 802 ; 1984 SCR (2) 67.
[39] AIR 1993 SC 2178 ; 1993 SCR (1) 594.
[40] AIR 1982 SC 1473 ; 1983 SCR (1) 456.
[41] AIR 1985 SC 652 ; 1985 SCR (3) 169.
[42] Judgment Today 1988 (3) 15 ; (1988) 4 SCC 226.
[43] AIR 1987 SC 579 ; 1987 SCR (1) 798.
[44] M.C. Mehta vs. Union of India, (1997) 11 SCC 227, 312, 327.
[45] Buffalo Traders Welfare Association vs. Maneka Gandhi, 1994 Supp (3) SCC 448.
[46] Narmada Bachao Andolan vs. Union of lndia, (2000) 10 SCC 664.
[47] M.S. Patar vs. Government of N.C.T. Delhi, AIR Delhi 133, (A PIL was filed by a social worker seeking appropriate
compensation and direction fixing responsibility on persons responsible for the death of 8 beggars in a beggars home in
Delhi. The High Court of Delhi issued directions to make the beggars home more habitable.)
[48] See Mahendra P. Singh, Statics and Dynamics of Fundamental Rights and Directive Principles — A Human Right
Perspective, in S.P. Sathe and Satyanarayan (eds) Liberty, Equality and Justice: Struggles for a New Social Order, 45-58,
(2003) Eastern Book Company, Lucknow.
[49] Chandanmal Chopra vs. State of West Bengal, AIR 1986 Cal. 104.
[50] Oddessey Lok Vidyayana Sanghatan vs. Union of India, (1988) 1 SSC 168.
[51] Common Cause vs. Unoin ofIndia, (1996) 2 SCC 752.
[52] D. Satyanarayana vs. N. T. Rama Rao, AIR 1988 AP 144.
[53] Centre For Public Interest Litigation vs. Unoin of India, 1995 (Supp) 3 SCC 382.
[54] Shiv Sagar Tiwari vs. Unoin of India, (1996) 6 SCC 558.
[55] Vineet Narain vs. Unoin of India, (1996) 2 SCC 199.
[56] All India Judges Association vs. Union of India, AIR 1992 SC 165.
[57] Bishwajeet Sinha vs. Dibrugarh University, AIR 1991 Guj. 27.
[58] AIR 1984 SC 802 ; 1984 SCR (2) 67.
[59] 2001 Supp (4) SCR 650.
[60] 1995 SCC (1) 14 ; Judgment Today 1994 (7) 183.
[61] (1997) 6 SCC 241.
[62] Judgment Today 1988 (3) 15 ; (1988) 4 SCC 226