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In a
developing country, the legal process tends to intimidate the
litigant, who feels alienated from the system. A poor person, who
enters the legal stream, whether as a claimant, a witness or a
party, may well find the experience traumatic. Lawyers have not
done much to alleviate this. The way the bar has developed gives
issues of legal aid and legal awareness a low priority. The
traditional rules of procedure in the adversial system of law
permit only a person whose rights are directly affected to
approach the court. In
Piloo Mody v Maharashtra, Gandhi J adopted
the view of locus standi which was later laid down by Bhagwati J
in the judges' case. Piloo Mody complained that the government
through three ministers had leased out valuable plots of land at
a gross undervalue. Gandhi J rejected the respondents contention
that the petitioner had no locus standi. He upheld the
petitioner's contention that the leases were granted mala fide at
a gross undervalue. Representative non political, non profit and
voluntary organization who have a sufficient interest can maintain
an action for judicial redress
for public injury arising out of arising out of breach of public
duty or violation of some provision of the constitution.
In
Panchhi v
State of UP, the court refused permission even to the National
Commission for Women to intervene in a case of a deaths sentence
awarded to a woman. The court said that any organization cannot
have locus standi in this murder case. Similarly, in service
matters the court has held that a third party cannot challenge the
appointment of a person. The courts have permitted easier access
in matters of PIL, they have been careful to note that the PIL
cannot be maintained by a
meddle-some interloper or busybody, wayfarers or officious
interveners having no public interest except for personal gain
either for themselves or for the glare of publicity.
PIL has been
marked with a departure from procedural rules extending to the
form and manner of filing writ petition, appointment of
commissions for carrying out investigation and giving a report to
court and the appointment of commissions for carrying out
investigation and giving a report to court and the appointment of
lawyers as amicus curiae. The flexibility of PIL procedure can be
best illustrated by what is termed as
Epistolary Jurisdiction.
Taking a cue from the American Supreme
Court's decision in
Gideon v
Wainwright, where a post card from a
prisoner was treated a petition. The court has accepted letters
and telegrams as petitions. In 1988, the Supreme Court issued a
notification on what matters could be entertained as PIL. Under
this, letters falling under certain categories alone would be
entertained. These included matters concerning bonded labour,
neglected children, petition from prisoners, petition against the
police, petitions against atrocities on women, children and
schedule castes and schedule tribes. Petitions pertaining to
environment, adulteration, heritage and culture and other matters
could also be entertained. Matter that would not be entertained
included landlord-tenant dispute, service matters, admission to
educational institutes etc. The petition would be first screened
in the PIL Cell and thereafter, it would be placed before a judge.
A difficulty often faced by a genuine PIL petitioner is the lack
of access to information. One method by which the court gathers
facts is by the appointment of commissioners. The court has
appointed district judges, journalists, lawyers, mental
health professionals, bureaucrats and expert bodies as
commissioners. Commissions have been appointed to propose remedial
relief and monitor its implementation. The court relied on the
opinion of experts to dismiss a PIL challenging dairy imports from
Ireland on the ground that they were radioactively contaminated by
the leak of Chernobyl plant. In cases where there are rival
contentions of expert bodies the court will not intervene. The
question concerned the seismic potential of the Tehri dam site,
the court stated that it did not have the expertise to give a
final opinion on the matter. The use of commissions has enabled the
court to check the facts alleged by the petitioner as well as the
state after a proper scrutiny without affecting its role as
adjudicator.
PIL Petitioner
and Amicus Curiae-
A PIL petitioner is perceived by the court as
one who draws its attention to a grievance requiring remedial
measures and having no personal stake in the matter. It expects
him to be conscious of his/her obligation to the case and conduct
himself accordingly. Persons bringing PILs to the court cannot of
their free will seek to withdraw the petition. He court may take
over the conduct of the matter irrespective of the wishes of the
petitioner. E.g.: In a case concerning children in jails brought
to the Supreme Court by a letter petition from Sheela Barse, a
journalist, frustrated with the
slow progress of the case, she sought withdrawal. However the
court declined saying that the court had already started an
elaborate exercise and hence, the case cannot be dismissed. The
court assigns a lawyer (Amicus Curiae) to PIL petitioner who may
be inarticulate in the presentation or may not understand the
legal dimensions of the issue.
In PIL there
are no winners or losers and the mindset of both lawyers and
judges can be different from that in ordinary litigation. The
court, the parties and their lawyers are expected to participate
in resolution of a given public problem. The purpose is to make
human right s more meaningful for the weaker sections of the
society.
The court has
issued orders relating to a very wide range of PILs covering
matters such as prisons and prisoners, the police, the armed
forces, child labour, bonded labour, urban space, environment,
resources, consumer issues, education, politics and elections,
public policy and accountability, human rights and the judiciary.
Here is a detailed account of four broad areas:
Human Rights -
Judicial activism in the area of human rights has been
facilitated in considerable measure by PIL. Courts active concern
with rights of detunes and under trials, police excesses, custodial
violence and extra judicial killings, conditions in prisons,
children's homes, women's homes, mental asylums, etc. are examples
of this. The early years of PIL, the court focused on the rights
of prisoners and the condition of prisons. The courts acted upon
postcards, letters and articles in newspapers, press reports and
petitions to open doors of the courts to the millions of
under trials living under inhuman conditions in the country's
prison. First, the courts would convert the facts brought before
the court into petitions. It would then issue directions to the
state agency concerned to provide information. It would appoint a
commission to elicit facts. The court would issue a mandamus to
state agencies to carry out its directives within a specified time
frame. The court also took the opportunity to give directions to
state agencies to minimize further violations of human rights.
In the first
PIL on prisoner's rights
Hussainara Khatoon v State of Bihar, the
attention of the court was to the incredible situation of Bihar
under trials who had been detained pending trail for periods far
excess of the maximum sentence for the offence they were charged
with. In a landmark judgment, in
D.K. Basu v State of West Bengal,
the court acted upon a letter petition which drew attention to the
repeated instances of custodial deaths in West Bengal. The court
further mandated that a relative of the arrested must be promptly
notified. It made clear that the failure to comply with this
direction would be punishable as contempt of court. The early PILs
had witnessed the award of compensation by the court to victims of
human rights violations.
During the
troubled years of militancy in the state of Punjab there were
several instances of encounter killings. In September 1991, it
directed the investigation of the encounter killings in Pilibhit
by the Central Bureau of Investigation. The killing of lawyers
practicing in the Punjab and Haryana High Court during this period
formed the subject matter of two PILs and resulted in the Supreme
Courts directing a CBI investigation and payment of compensation
to the families of the victim. In another PIL, on the basis of the
CBI report which established that seventeen Punjab Police
personnel had been responsible for a custodial death, the court
awarded compensation to the parents of the victim. The concern of
court has also extended to the victim of crime. The rape of tribal
girls by army jawans in a moving train between Ranch and Delhi
resulted in ex-gratia payment to each victim.
The Judiciary
- In a series of PILs, the Supreme Court has articulated a
dominant role for the Judiciary in the appointment and transfer of
judges, their terms and conditions of service and their removal.
S.P. Gupta v Union of India was a PIL
by a senior advocate practicing in Allahabad. It challenged the
transfer of judges from one high court to another. The Supreme
Court declared that the executive had the final say in the matter
of appointment. Later it was declared that the word consultation
occurring in the constitution should be read to mean
concurrence, there by
vesting the chief justice of India and his two
most senior colleagues with the final say in the matter of
appointments. There is considerable controversy about whether the
court has not amended the language of the article by purporting to
interpret it. The vents leading up to the unique impeachment
motion for the removal of Justice V. Rmaswami of the Supreme Court
witnessed a number of PILs. The
speaker of the Lok Sabha constituted a committee of three judges
to enquire into the allegations. With the dissolution of the Lok
Sabha, the government did not constitute the committee on the
ground that the motion for removal had lapsed. An association of
lawyers questioned this in an PIL. The Supreme Court held that the
motion had not lapsed. It clarified that the process of removal of
a judge consisted of two stages. The stage of investigation and
proof of misbehaviour and the
second stage of discussion and voting in the Parliament. After the
inquiry concluded and the report was submitted to the parliament,
the wife of the judge Sarojini Ramaswamy filed a petition
asserting the right of the judge to be supplied with a copy of the
report even before the Parliament cloud debate the motion. The
judge had to be given an opportunity to defend himself.
A PIL filed by
All India Judges Association provided the opportunity for the
Supreme Court to give extensive directions to the state
governments on various issues concerning the appointment and
functioning of the judiciary, provision for residential
accommodation for every judicial officer, libraries, vehicles for
travel, and suggesting the setting up of an All India Judicial
Services.
Environment -
The area in which PIL's contribution has been significant in
environment law. M.C Mehta, as a petitioner in person, was a
pioneer in bringing a large number of issues to the court
concerning environmental and ecological degradation. These include
a number of issues arising out of the leak of Oleum gas from
factory in Delhi, pollution in Delhi, the danger to Taj Mahal fro
Mathura refinery, regulation of traffic in Delhi and the
degradation of the Ridge area in Delhi.
The court's
engagement with these matters has resulted in activating the
statutory machinery established under various environmental laws.
The court's activism in his area has, however, also attracted
criticism. E.G: when the court ordered the closure of industries
it neither heard all the industries affected nor their workmen
before passing the order. The danger of unchecked
industrialization has compelled the court to come down heavily on
industry and develop the polluter's pay principle. This principle
has been applied in the cases concerning shrimp farms, tanneries,
chemical industries each of which were found discharging untreated
effluents into water bodies or the soil. Each polluting industry
was asked to pay a polluting fine which was to be kept under a
separate Environment Protection Fund to be utilized to compensate
the affected persons. The units which were shut down by the court
would be permitted to reopen only after they have set up effluent
treatment
plants. The court further directed that the matter must be dealt
with the Madras High Court by a special bench, to be known as The
Green Bench.
The other
principle the court has evolved is the precautionary principle
which enjoins the state to anticipate the dangers of the use of
hazardous technology. A court was dealing with the problem of
pollution caused by over 900 tannieries operating in the five
districts of Tamil Nadu. The court noticed that the leather
industry was a major foreign exchange earner and Tamil Nadu's
export of finished leather accounted for 80 % of country's export
of that commodity.
The court then
drew on the concept of sustainable development, balancing ecology
and development, which has become part of customary international
law. The precautionary principle meant that the environmental
measures taken by the state authorities must anticipate, prevent
and attack the causes of environmental degradation. Where there
are threats of serious and irreversible damage, lack of scientific
certainty should not be used as a reason for postponing measures
to prevent environmental degradation. The onus of proof was on the
actor or industrialist to show that this action was
environmentally sound. The court through a series of orders has
also sought to ensure the supply of lead free petrol through
retail outlets in four major cities or deregistering old cars and
compelling car manufacturers to switch to higher international
standards of manufacture.
While the
courts have enforced pollution standards and sometimes even
improved on them in PILs, their orders have given rise to issues
involving workers rights. Whenever a polluting unit is shut down
the people dependent on the industry like workmen and their
families are directly affected. EG: closure of Idgah slaughter
house and removal of encroachments on the Ridge area of Delhi.
Similarly, in seeking to strictly implement the Forest Act and the
Wildlife Protection Act, the interest of the tribal population was
affected.
Public
Accountability -
The Supreme Court has played a major role in not
only unearthing scams but also carrying the discovery of such
facts to their logical conclusion. The problem of discretionary
quota vested in the minister concerned for allotment of petrol
pumps and oil and gas dealerships first surfaced in a PIL. A PIL
filed by a journalist, sought directions to the CBI to investigate
allegations of bribe given by the Jain brothers to several high
raking politician and bureaucrats in
return for favours in the award if government contracts. The
seizure of dairies from the Jain brothers had led to the discovery
of financial support to them by Hawala transactions. This in turn
disclosed a nexus between politicians, bureaucrats and criminals.
Any citizen of
India or any consumer groups or social action groups can 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. Further, public interest cases could be filed without
investment of heavy court fees as required in private civil
litigation.
PIL can be
considered a boon -
1. In Public Interest Litigation (PIL) vigilant citizens of the
country can find an inexpensive legal remedy because there is only
a nominal fixed court fee involved in this.
2. Further,
through the so-called PIL, the litigants can focus attention on
and achieve results pertaining to larger public issues, especially
in the fields of human rights, consumer welfare and environment.
Much of the PIL in the initial period (1981-82) arose out of
letters written by social workers, journalists, law teachers,
lawyers and civil liberty activists directly to Chief Justice
Bhagwati. To date, in most of the cases, the Supreme Court has
acted on such reports and passed orders to give interim/permanent
relief to the petitioners. Awareness has spread regarding the use
of PIL as a form of intervention which can
be used to ameliorate misery arising from repression, government
lawlessness and administrative negligence and indifference. Court
decisions based on PIL have exposed the failure of the State
Governments to deliver the goods to the poor. Through its orders
and directions, it seeks to improve the administration and make it
more responsive and sensitive to the needs of the people.
Noted Public
Interest Litigations -
1.
The Case of the Undertrials in Bihar
- Ms. Kapila Hingorani
(Adv.) filed a writ in the Supreme Court in 1979, based on a
series of articles in the Indian Express, exposingthe plight of
29,000 Bihar undertrial prisoners. Most of them had served long
periods of pre-trial detention. This PIL helped the Court to
release many undertrial prisoners through its interim orders.
2.
Bombay
Pavement Dwellers Case -
A Writ petition was filed in the Supreme
Court in 1982 by Ms. Olga Tellis with the help of Ms. Indira
Jaising (Adv.) in the matter of demolition of hutments of 50,000
pavement dwellers by the Municipal Corporation, Bombay at the
instance of the then Chief Minister of Maharashtra. The Supreme
Court stayed the demolition. The main argument of the petitioner
was that the order of demolition of hutments infringed upon the
Fundamental rights of the pavement dwellers under Article 14, 19
and 21 of the Constitution, which guarantees citizens equality
before the law, freedom of movement, and personal liberty. It
further argued that they had the right to dwell on pavements so
long as they do not constitute obstruction to pedestrians and
vehicular traffic on the roads. It stressed the responsibility of
the State to provide them with appropriate house sites as close as
possible to their work place.
3.
Case for
giving alternative land to tribals -
A Writ Petition was filed by
Ms. Rambika Gupta, an MLA of Bihar on behalf of the tribals of
Bihar whose lands were taken over by Coal India Ltd., for the
purpose of mining. The petitioner submitted that the lands were
being acquired by Coal India Ltd. at times without recourse to
legal formalities. This acquisition of the tribals? ancestral land
without giving them alternative sites was destroying the way of
life of the tribals. The acquisition was violative of their
fundamental rights.
4.
The
Blinding of Undertrial prisoners in Bhagalpur Jail -
A news item
appeared in Sunday Weekly and later in Indian Express, wherien the
Bhaglpur Central Jail administration was alleged to have gouged
out the eyes of thirty-one undertrial prisoners. Ms. K. Hingorani
filed a writ petition in the Supreme Court for violation of
fundamental rights under the Articles 14, 19 & 21 of the
Constitution.
The increase
in PIL in the last two decades is closely related to the growth in
administrative and judicial review of governmental decisions and
to an increase in the number of statutory
public rights.
The laws creating public rights, such as those in relation to the
environment and consumer protection rely on private enforcement as
an integral part of ensuring compliance, and the Courts have in
this field developed rules of standing to allow persons other than
those whose immediate rights or interests are at stake to bring
the matter to the Court.
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Public Interest Litigation
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The
author can be reached at:
nupurjha79@legalservicesindia.com /
