Public Interest Litigation
Remedies - Public Interest Litigation
(PIL) - Part: 1
We briefly dealt with Public Interest Litigation in the earlier Project
on "Knowledge of Law Essential for Public Servants". For your
beneift the biref is reproduced hereunder:
A Public Interest Litigation (PIL) can be filed in any High Court or
directly in the Supreme Court. It is not necessary that the petitioner
has suffered some injury of his own or has had personal grievance to
litigate. PIL is a right given to the socially conscious member or a
public spirited NGO to espouse a public cause by seeking judicial for
redressal of public injury. Such injury may arise from breach of public
duty or due to a violation of some provision of the Constitution. Public
interest litigation is the device by which public participation in judicial
review of administrative action is assured. It has the effect of making
judicial process little more democratic.
According to the guidelines of the Supreme Court any member of public
having sufficient interest may maintain an action or petition by way
of PIL provided: -
» There is a personal injury or injury to a disadvantaged section
of the population for whom access to legal justice system is difficult,
» The person bringing the action has sufficient interest to maintain
an action of public injury,
» The injury must have arisen because of breach of public duty
or violation of the Constitution or of the law,
It must seek enforcement of such public duty and observance of the constitutional
law or legal provisions.
» This is a powerful safeguard and has provided immense social
benefits, where there is essentially failure on the part of the execute
to ameliorate the problems of the oppressed citizens. Considering the
importance of ths subject, three articles from the web on the subject
are reproduced hereunder.
The Emergency of 1976 marked not just a political watershed in this
country, but a judicial one as well. In the euphoria of the return to
democracy and in an attempt to refurbish its image that had been tarnished
by some Emergency decisions, the Supreme Court of India opened the floodgates
to public interest litigation (PIL). under PIL, courts take up cases
that concern not the rights of the petitioner but of the public at large.
In the last two decades, PIL has emerged as one of the most powerful
tools for promoting social justice and for protecting the rights of
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
» 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
» 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, barfetters and hand
cuffing in prisons, etc.
» Sensitive judges have constantly innovated on the side of the
poor. for instance, in the Bandhua Mukti Morcha case in 1983, 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, 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
When and how to File a PIL
1.Make an informed decision to file a case.
2.Consult all affected interest groups who are possible allies.
3.Be careful in filing a case because
i.Litigation can be expensive.
ii.Litigation can be time consuming.
iii.Litigation can take away decision making capability/strength from
iv.An adverse decision can affect the strength of the movement.
v.Litigation involvement can divert the attention of the community away
from the real issues.
4.If you have taken the decision
i.Collect all the relevant information
ii.Be meticulous in gathering detail for use in the case. If you plan
to use photographs, retain the negatives and take an affidavit from
the photographer. Retain bills.
iii.Write to the relevant authorities and be clear about your demands.
iv.Maintain records in an organized fashion.
v.Consult a lawyer on the choice of forum.
vi.Engage a competent lawyer. If you are handling the matter yourself
make sure you get good legal advice on the drafting.
vii.A PIL can be filed only by a registered organization. If you are
unregistered, please file the PIL in the name of an office bearer/member
in his/her personal capacity.
viii.You may have to issue a legal notice to the concerned parties/authorities
before filing a PIL. Filing a suit against the government would require
issuing a notice to the concerned officer department at least two months
prior to filing.
Expanding Old Rights & Creating New Ones
There is an urgent need to expand old rights and create new rights.
Indeed, the success of legal advocacy needs to be viewed by the social
activist in these terms and not merely in terms of winning or losing
cases. For instance, although Haksar and others, as part of their work
on promoting human rights in Northeastern India, have been unsuccessful
in their decade-long effort to get the Armed Forces Special Power Act
repealed, they have succeeded in getting the provision in the criminal
procedure code that women be searched only by women extended to the
Similarly, it is important to try and create new rights based on a vision
of the future. For instance Article 14 of the Indian Constitution treat
both an MNC and a citizen equally despite the inherent and yawning inequality
between the two. Therefore if a citizen's rights are to be fully protected
in the wake of increasing MNC activity in the national economy, one
needs to critique the concept of equality in liberal theory and develop
new ideas on equality. The filing of test cases is one way of developing
these new ideas.
The same holds true for individual rights vs. collective rights. The
prevailing legal system recognizes only private property - where the
owner has the right against the whole world - and public property, which
belongs to the state. But before the imposition of the British legal
system there existed a whole tradition of common property which now
has no recognition in law. "Ass a result all forms of collective
or shared realities whether they are in the realm of rights, relations,
practices or knowledge have no place in the present legal scheme even
though they are vital for human survival. They are not part of the language
of legal discourse, either of the judges or lawyers and mention of these
rights as 'collective human rights' is met with surprise, skepticism
and often cynicism," say Pradeep Prabhu of Khastakari Sanghatana.
Prabhu, an advocate by training, has had some recent success in getting
the Supreme Court to accept the validity of oral testimonies of poor
tribals as evidence.
Given the above scenario, one of the most difficult tasks for a social
activist is to find a lawyer with a vision who is able to see the bigger
picture and be prepared to fight for it. This calls for activists to
sensitize lawyers on an ongoing basis and not restrict this activity
to the peculiarities of a specific case. Also there is a need to sensitise
law students in order to build a body of public interest lawyers in
Part of the reason why there are few public interest lawyers in India
is due to how poorly it pays. Public interest lawyers in the US (sometimes
derisively called 'ambulance chasers') are easier to find. They largely
operate on a 'no-win, no-fee' basis, given the huge damages that are
awarded by US courts and which are then split between the client and
the lawyer. In India even where free legal aid is provided - as it is
to SCs & STs, industrial workers, women, bonded laborers, etc. -
public- spirited lawyers end up paying out of their pocket as the amounts
that are fixed for even photocopying of documents do not cover the cost
of the service, says Ravi Rebba Pragada of the NGO Samata - which works
among tribals in the Vishakapatnam district of Andhra Pradesh - who
has accessed free legal aid services.
In the U.K., where courts like those in India don't award massive damages,
there has been an innovation in legal aid with wealthy benefactors pitching
in to underwrite legal costs. One property developer underwrote the
legal costs of a large number of arthritis patients who sued- for compensation
for side effects they suffered from the drug Opren. Similarly Sir James
Goldsmith, billionaire financier and father-in-law of Imran Khan, set
up the Goldsmith Libel Fund which provided support to a motley assortment
of libel defendants. But it is debatable if such private initiative
would be forthcoming, or indeed welcome, to support PIL cases involving
the poor and the marginalised. Activists, however, need to seriously
consider the issue of getting more public-spirited lawyers to enter
Public Interest Litigation - Part:
Though the Constitution of India guarantees equal rights to all citizens,
irrespective of race, gender, religion, and other considerations, and
the "directive principles of state policy" as stated in the
Constitution obligate the Government to provide to all citizens a minimum
standard of living, the promise has not been fulfilled. The greater
majority of the Indian people have no assurance of two nutritious meals
a day, safety of employment, safe and clean housing, or such level of
education as would make it possible for them to understand their constitutional
rights and obligations. Indian newspapers abound in stories of the exploitation
- by landlords, factory owners, businessmen, and the state's own functionaries,
such as police and revenue officials - of children, women, villagers,
the poor, and the working class.
Though India's higher courts and, in particular, the Supreme Court have
often been sensitive to the grim social realities, and have on occasion
given relief to the oppressed, the poor do not have the capacity to
represent themselves, or to take advantage of progressive legislation.
In 1982, the Supreme Court conceded that unusual measures were warranted
to enable people the full realization of not merely their civil and
political rights, but the enjoyment of economic, social, and cultural
rights, and in its far- reaching decision in the case of PUDR [People's
Union for Democratic Rights] vs. Union of India [1982 (2) S.C.C. 253],
it recognised that a third party could directly petition, whether through
a letter or other means, the Court and seek its intervention in a matter
where another party's fundamental rights were being violated. In this
case, adverting to the Constitutional prohibition on "begar",
or forced labor and traffic in human beings, PUDR submitted that workers
contracted to build the large sports complex at the Asian Game Village
in Delhi were being exploited. PUDR asked the Court to recognize that
"begar" was far more than compelling someone to work against
his or her will, and that work under exploitative and grotesquely humiliating
conditions, or work that was not even compensated by prescribed minimum
wages, was violative of fundamental rights. As the Supreme Court noted,
The 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 prostituted by the vested interests for protecting and upholding
the status quo under the guise of enforcement of their civil and political
rights. The poor too have civil and political rights and rule of law
is meant for them also, though today it exists only on paper and not
in reality. If the sugar barons and the alcohol kings have the fundamental
right to carry on their business and to fatten their purses by exploiting
the consuming public, have the chamars belonging to the lowest strata
of society no fundamental right to earn an honest living through their
sweat and toil?
Thus the court was willing to acknowledge that it had a mandate to advance
the rights of the disadvantaged and poor, though this might be at the
behest of individuals or groups who themselves claimed no disability.
Such litigation, termed Public Interest Litigation or Social Action
Litigation by its foremost advocate, Professor Upendra Baxi, has given
the court "epistolary jurisdiction".
What is Public Interest Litigation
IN BLACK'S LAW DICTIONARY :
"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."
Public Interest Litigation's explicit purpose is to alienate the suffering
off all those who have borne the burnt 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 recent rulings:
Peoples Union for Democratic Rights v. Union of India
A.I.R.. 1982 , S C 1473). 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.
In the Judges Transfer Case -
AIR 1982, SC 149: 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
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
Shiram Food & Fertilizer case
AIR (1986) 2 SCC
176 SC 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.
In the case of M.C Mehta V. Union of India
SCC 471 - 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.
Parmanand Katara V. Union of India -
AIR 1989, SC 2039
:- 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
Council For Environment Legal Action V. Union Of India -
(1996)5 SCC281 : Public Interest Litigation filed by registered voluntary
organisation regarding economic degradation in coastal area. Supreme
Court issued appropriate orders and directions for enforcing the laws
to protect ecology.
A report 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".
State V. Union Of India -
AIR 1996 Cal 181 at 218 :
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.
During the last few years, Judicial Activism has opened up a new dimension
for the Judicial process and has given a new hope to the millions who
starve for their livelihood. There is no reason why the Court should
not adopt activist approach similar to Court in America , so as to provide
remedial amplitude to the citizens of India.
Supreme Court has now realised 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 programmes 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.
Complied by : Advocate Aradhana Singh