Public Interest Litigations are the Best Tools of Transformations

Public Interest Litigations (PILs) are the best examples of the Judge-Made laws is because it is nowhere mentioned in the statute. Now PILs have become so popular in our country that most of the High Courts and even the Supreme Court has opened a PIL branch in its registry. Why has it become so popular and how does it differ from writs? There should not be any misunderstanding that PILs are also filed as other writs like; ‘mandamus’, ‘prohibition’, ‘qua warranto’, ‘habeas corpus’ or ‘certiorari’. PILs have actually entered in the Indian judicial process in the 1970s. It is intended to vindicate public interests where fundamental and other rights of the people who are poor, ignorant or socially or economically in a disadvantageous position, and are unable to seek legal redress. However, with the passage of time PILs have been entertained in other spheres, for example; judicial interventions, necessary for the protection of the sanctity of democratic institutions like the independence of judiciary and elections to the Parliament or Legislative Assemblies; matters relating to the environment, natural resources and pollution such as water, air etc.; even for making judicial laws to avoid exploitation like intercountry child adoptions, sexual harassments etc.

Locus Standi Dispensed with

In simple words litigation filed in a Court of law for the protection of public interest such as pollution, terrorism, road safety, constitutional hazards etc. fall in the category of the PIL. Any matter where the interests of the public at large is affected can be redressed through the PIL. The first PIL case, which enunciated its principle can be said to be ‘Ratlam Municipality Case’ of the late seventies. In this case, the principle of ‘locus standi’ was dispensed with. The Supreme Court said in this case that ‘decency and dignity are non-negotiable facets of human rights and are the first charge on local self-governing bodies’, which means there is no need for an individual to raise any dispute but it can be raised by any person without having any locus standi in the matter.

In normal cases, it is seen that the aggrieved party i.e. the victim, who has to file his or her case in a court of law and he/she should have an interest in the dispute but in the filing of PILs, there is no such condition. Any person can file a PIL, the only condition has to be that the same must be filed in the public interest. Thus, the PIL is the power given to the public by the courts to protect the interests of the public at large. PILs are filed under article 32 of the Constitution before the Supreme Court and Article 226 of the Constitution before the High Court. The Apex Court has framed certain guidelines to govern the management and disposal of the PILs. The court is expected to be careful to ensure that the petitioner, who approaches is acting bonafide and not for personal gain, private profit or political considerations. Many PILs are also filed for the publicity stunts and that is why they are not called genuine PILS but are nicknamed as ‘Publicity Interest Litigations’.

At present, the court can treat letters or epistles as a writ petition and take action upon it. Suo moto cognizance by the judges of the constitutional courts can also be treated as the PILs. It is a tool in the hands of public-spirited citizens who have a good motive to avail justice for the higher and larger good of the public. 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.

The emergence of Public Interest Litigation has motivated the judicial system to extend its protection to new social, public and group interest. An inscription on the wall of Harvard Law School Library reads ‘honest vivera, honalienum leaders, scum unique tridure, ‘which means that ‘the precepts of the law are those to live honourably, not to injustice another to understand his due’. Earlier, back into the horizons of law and justice in the West, the Judaieo Christian, Greek and Roman traditions concerned themselves with theorising and explaining the law. But the traditional and the medieval and post-medieval successors were free of such concern. They rather focussed on one or both of the two very different concerns. One of these concerns which have survived into modern analytical jurisprudence has its main point in facilitating on the vision of the logical coherence of the several prepositions and part of legal order and on fixing the definition of the forum used and the presuppositions which will maximize such coherence.

The seed of the concept of the Public Interest Litigation was actually sown by Justice Krishna Iyer. In 1976 (without assigning the terminology) in Mumbai Kamgar Sabha v/s Abdulbhai, he while disposing of an industrial dispute in regard to the payment of bonus observed, “Our adjectival branch of jurisprudence, by and large deals not with sophisticated litigants but the rural poor, the urban lay and the weaker societal segments for whom the law will be an added terror if technical misdescriptions and deficiencies in drafting pleadings and setting out the cause-title create a secret weapon to non-suit a part. Where a foul play is absent, and fairness is not faulted latitude is a grace of processional justice. Test litigations, representative action, 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 by-pass the real issues on the merits by suspect reliance on peripheral procedural shortcomings. Even Article 226, viewed on a wider perspective, may be amenable to the ventilation of collective or common grievances, as distinguished from the assertion of individual rights, although the traditional view, backed by precedents has opted for the narrower alternative. Public interest is promoted by a spacious construction of locus standi in our socio-economic circumstances and conceptual latitudinarianism permits taking liberties with individualisation 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 the fair process is the aim of the law.”

However, this rule on gaining momentum burgeoned more and more, expanding its branches in the cosmos of public interest litigation and took its root firmly in the Indian Judiciary and fully blossomed with the fragrant smell in S.P. Gupta v/s Union of India. Rule of Law is an integral part of a democratic society, where citizen’s rights are taken care of by an independent and impartial judiciary.

Thus, in every democratic society citizen’s access to justice is the hallmark and any encroachment on that right mars the spirit of a democratic system of government. However, in recent years the whole adjudicatory system has become prey to a dilatory and expensive process, which takes a heavy toll on a poor citizen’s right of easy access to justice. In the recent era, there has been a tremendous increase in the government’s power and responsibilities mainly because of the Indian State is a welfare state, which entails a host of executive interferences in various walks of human life and which leaves no corner of an individual’s life untouched. Due to this unprecedented change in socio-economic and political aspects of the governance of the country, the judiciary too has kept pace with it and has assumed several new responsibilities and jurisdictional so for unheard of.

The realization by the judiciary of this new developments executive’s increasing inference into daily lives and ever-increasing circumscription of people’s access to justice has led them to adopt fewer formal procedures and circumvent the nuances of technicalities of the litigation processes. Since the nineteenth century, various movements in the USA 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 public interest litigation movement began to receive financial support from the office of Economic Opportunity. This encouraged lawyers, public-spirited persons to take up cases of the under-privileged fight against dangers to the environment and public health as well as exploitation of consumers and the weaker sections. It should be noted at the outset that Public Interest Litigation, at least, as it had developed in India, is different from class action or group litigation. The PIL in India has been a part of the constitutional litigation and not civil litigation.

The Code of Civil Procedure also allows for a class action under Order 1 Rule 8. Furthermore, Section 91 of the Code also says that: ‘in the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, maybe instituted with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act.‘

After gaining independence from the British rule on August 15, 1947, the people of India adopted the 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). These aims were not merely inspirational because of the fact that the founding fathers wanted to achieve a social revolution through the Constitution. 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, In order to ensure that Fundamental Rights did not remain empty declarations, the founding fathers made various provisions in the Constitution to establish an independent judiciary. The social revolution meant, ‘to get (India) out of the medievalism based on birth, religion, custom, and community and reconstruct her social structure on modern foundations of law, individual merit, and social education’. Quoting K. Santhanam, a Member of the Constituent Assembly.) Granville Austin said in his celebrated book that ‘the remedy to approach the Supreme Court directly for the enforcement of any of the rights enshrined under part III has also been made a Fundamental Right.

The holder of the Fundamental Right ‘s cannot waive them nor can the fundamental rights be curtailed by an amendment of the Constitution if such curtailment is against the basic structure of the Constitution. Some of the Fundamental Rights are available only to citizens while others are available to citizens as well as non-citizens, including juristic persons. Notably, some of the Fundamental Rights are expressly conferred on groups of people or community. Not all Fundamental Rights are guaranteed specifically against the state and some of them are expressly guaranteed against non-state bodies. Austin cites three provisions, i.e. Articles 15(2), 17 and 23, which have been ‘designed to protect the individual against the action of other private citizens ‘. However, it is reasonable to suggest that the protection of even arts 24 and 29(1) 39 the ‘state ‘is liberally defined in Article 12 of the Constitution to include, the Government and Parliament of India. The Government and the legislature of each of the states and all local or other authorities within the territory of India or under the control of the Government of India ‘. The expression ‘other authorities ‘has been expansively interpreted, and any agency or instrumentality of the state will fall within its ambit. The Directive Principles (DPs) find a place in Part IV of the Constitution. Although the DPs are not justiciable, they are, nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws. After initial deviation, the Supreme Court accepted that Fundamental Rights (FRs) are not superior to Directive Principles on account of the latter being non-justiciable: rather FRs and DPs are complementary, and the former could be invoked against private individuals.

Contours of PILs

It has become imperative to examine what are the contours of the public interest litigation? What is the utility and importance of the public interest litigation? Whether similar jurisdiction exists in other countries or this is an indigenously developed jurisprudence? Looking at the special conditions prevalent in our country, whether the public interest litigation should be encouraged or discouraged by the courts? These are some of the questions which still need to be discussed.

The Judicial Activism in India can be witnessed with reference to the review power of the Supreme Court under Article 32 of the Constitution, particularly in Public interest litigation cases. The Supreme Court played a crucial role in formulating several principles in public interest litigation cases. For instance, the principle of “absolute liability” was propounded in Oleum Gas Leak case. Public Trust Doctrine was brought into play to exercise State Power for eradicating corruption. Social justice requires liberal judicial review of administrative action. Therefore, a public-minded citizen must be given an opportunity to move the court in the interests of the public. Further, the Supreme Court in S.P. Gupta v/s Union of India, popularly known as ‘Judges Transfer Case’, Justice Bhagwati firmly established the validity of the public interest litigation. Since then, a good number of public interest litigation petitions have been filed. Judicial moulding of procedure, substance and relief by two judges of the Supreme Court of India (Bhagwati and Iyer JJ.) prepared the groundwork, from the mid-1970s to early 1980s, for the birth of the Public Interest Litigation in India. This included modifying the traditional requirements of locus standi, liberalising the procedure to file writ petitions.

PIL is not an adversarial system

The judiciary also emphasized that public interest litigation is not an adversarial but a collaborative and cooperative project in which all concerned parties should work together to realize the human rights of disadvantaged sections of society. The Public Interest Litigation in India could be divided, into three broad phases. One will notice that these three phases differ from each other in terms of at least the following four variables: first, who initiated public interest litigation cases; second, what was the subject matter/focus of public interest litigation; third, against whom the relief was sought; and fourth, how judiciary responded to PIL cases.

In the first phase which began in the late 1970s and continued through the 1980s, the Public Interest Litigation cases were generally filed by public-spirited persons (lawyers, journalists, social activists or academics). Most of the cases related to the rights of disadvantaged sections of society such as child labourers, bonded labourers, prisoners, mentally challenged, pavement dwellers, and women. The relief was sought against the action or non-action on the part of executive agencies resulting in violations of fundamental rights under the Constitution. During this phase, the judiciary responded by recognising the rights of these people and giving directions to the government to redress the alleged violations. In short, it is arguable that in the first phase, the Public Interest Litigation truly became an instrument of the type of social transformation/revolution that the founding fathers had expected to achieve through the Constitution.

The second phase of the Public Interest Litigation was in the 1990s during which several significant changes in the chemistry of PIL took place. In comparison to the first phase, the filing of PIL cases became more institutionalized in that several specialized NGOs and lawyers started bringing matters of public interest to the courts on a much regular basis. In the third phase, the width of issues raised in PIL also expanded tremendously. Through an expansive interpretation of the provisions of the Constitution, the courts through Public Interest Litigation have and are continuing to play an important role in the context of making rights meaningful to the disadvantaged and weaker sections of the people as well as those cases where no one could be expected to be directly interested. An important step towards the achievement of these magnificent results has been the expansion of the category of the respondents by the application of the Doctrine of State Action.

In the fourth phase finds its roots in the American Constitution. In interpreting the word ‘State’ in the ‘due process’ and ‘equal protection’ clauses of the 14th amendment to the American Constitution, the Indian Supreme Court held that it included all the organs and acts of the State — legislative, executive and judicial and then its ‘agents’ i.e. persons, who acted in the name of and for the State or is clothed with the powers of the State or endowed with governmental functions. The essence of the doctrine is that the State cannot get rid of constitutional limitations or restraints by simply delegating its powers or functions to some private individual or group; hence, a person who acts as the agent or the instrumentality of the State, he must be subject to the same limitations, such as the Fundamental Rights, that the Constitution imposes on the State itself. The doctrine would apply not only to an agent of the State but even for a lessee from the agent, if the involvement or participation of the State (even by inaction) in the lessee ‘s acts, is established. In India, the application of this doctrine has been much easier because of most of the Fundamental Rights included in Part III of the Constitution.

However, the Public Interest Litigation in the U.S.A. today has fallen into troubled water and future prospects of progress are uncertain. The most striking of the impediments was the inevitable financial crunch caused by runaway inflation and lukewarm backing of like Non-Governmental Organizations societies and other private support bases. However, the interest in pro bono work by Lawyers and Law Firms has continuously declined. The scenario has completely changed in the USA in the late 1970s and the very conditions, which led to its growth earlier, no longer existed. Moreover, public interest lawyers found themselves at a distinct disadvantage in the decision-making process. While they were always able to make persuasive arguments for their clients, they lacked the ability to stay with the issues which required years to resolve, and which ultimately involve action in a series of areas, ranging from the courts to the legislatures. However valid the idea of advocacy equalization may be the scope of activities it entails proved to be far beyond the capabilities of most public interest firms.

The courts and administrative agencies that shape implement and enforce these policies should be open and accessible to the views of those citizens who may be affected by such actions and decisions. One notable thing about Public Interest Litigation is that it is not only concerned with obtaining beneficial results for the major chunk of the society but at the same time it seeks cooperation in carrying out the objectives of the movement by way of actual participation. However, at its peak, the movement had to reconcile the conflicting aspects of the phenomenon it had created or the forces it had unleashed. While on one hand, the groups involved in the movement had to bring as many issues as possible before the courts so as to render maximum participation of the affected sections of the populace, though not necessarily of the disadvantaged section of the society, it also had to be kept in mind that over-proliferation of Public Interest Litigation cases may be bad as it leads to overburdening of the traditional adjudicatory system. Be that as it may, the PILs now stand on a very solid footings in India and if they are judiciously used, they can be very beneficial tools of change.

Parmanand Pandey

Advocate -on Record

Supreme Court of India