Public Interest Litigation

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 1

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 2

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 3

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 Rajasthan1997).

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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”.

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