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Geetanjali Jha - Journalist

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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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Authors contact info - articles The  author can be reached at:  nupurjha79@legalservicesindia.com / Printable version Print This Article

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