Concept And Definition of Public Interest Litigation
By virtue of Universal Declaration of Human Rights,1948, International covenants
on civil & political rights, 1966 and on economic, social & cultural rights,
1966, all human beings are conferred some basic rights, fundamental rights and
Similarly, the codification of rights also implied several
duties on human beings to fellow citizens including global citizens and the
global environment at large. Post second world war, international organizations
such as the United Nations and its organs including the Security council,
economic and social council and its subsidiary organs, international court of
justice etc have observed gross violation of human rights on several occasions,
need for recognition of new types of rights and a growing necessity for ensuring
duties for the global environment protection.
Such concern is also reflected in
the Indian constitution in Parts III (dealing with fundamental rights), IV
(directive Principles of state policy) and IVA (Fundamental duties).
the world has witnessed a rights- explosion for groups. For example, in the US,
Black people's movement started getting prominence. Simultaneously, several
social activists, law professors, law practitioners, judges etc had also started
identifying the age old violations of womens rights, violation of the rights of
socially and economically backward classes and children.
These stake holders
felt it necessary to approach courts for the cause of these classes of people
who may due to their socio- economic situations, could not approach the courts
individually for ensuring their rights, or for seeking remedy for violation of
their rights or for seeking compensation from the State for failure to ensure
their rights or protect them from State atrocities, corrupted State practices
This in turn the concept of locus-standi of filing cases in the court got
enlarged. Locus standi actually signifies the right to file case for some sorts
of legal injury, violation of rights, victimization etc.
The stake holders, i.e.
the social activists, lawyers, law professors, judges etc who helped to broaden
this ideology of locus standi and stood for rights of people at large are also
known as social cause lawyers. Such types of litigation which is taken over by
social cause lawyers for public interest in general in the courts of law | is
known as public interest litigation. This is entirely different from litigation
preferred for private interest in the courts of law.
A formal definition Public interest litigation therefore could be as follows:
Public interest litigation is a litigation undertaken for the purpose of
redressing public injury, enforcing public duty, protecting social, collective
and diffused rights, interests or vindicating public interest. It is Legal
action initiated in a court of law for the enforcement of public or general
interest in which the public or the class of the community has pecuniary
interest, or has some interest because it will affect their legal rights.
- While this is an abstract term for the concept of public interest
litigation, according to some, public interest lawyering is the act of Public interest
lawyering which is a process of legal empowerment aimed at capacity building of
everyday people towards using the law and institutions to bring about social
change. In public interest lawyering, the community takes the lead in an active
process while working hand in hand with lawyers. As this definition suggests,
public interest lawyering is different from private interest lawyering where the
lawyer is paid by the litigator and the interest for defending is concentrated
on one particular client for specific reasons like for example, some wrongs
caused to him.
The concept of public interest lawyering may be made clear with
the example of few landmark cases:
For example, consider the case of Independent Thought Vs. Union of India, 2013,
which was filed by an NGO for criminalizing sexual intercourse with child
brides. The Supreme court in this landmark case, which is in the nature of
public interest litigation, decided that even though S.376 IPC exempts sexual
intercourse with brides above 16 years of age from the concept of rape, the same
must be considered as criminal offence because POCSO Act extends the scope of
the law to any sort of sexual intercourse done with children who are under 18
years of age.
Here the petitioner is not a particular child-bride under the age
of 18 but above the age of 15 who has been victimized of marital rape . But the
petitioner is an NGO who are cause lawyers or social cause lawyers who filed the
case for the cause of children's right against sexual violence. Thus social
cause lawyers need not be actual lawyers always. They can be any individual who
wish to fight for the causes of socially oppressed, minority groups or for some
specific environmental cause which may affect the human society as a whole.
- In Public interest litigation, Judicial activism plays an important
role. Judicial activism is a form of legal pragmatism and in such cases of
public interest litigation, Court performs interventionist role for systematic
enforcement of court orders. Juristic activism is used to provide distributive
justice which is one of the many goals of Public interest litigation.
Origin and development of Public interest litigation globally:
According to The council for Public Interest Law set up by the Ford Foundation
in USA, Public Interest Law is the name that has recently given to efforts to
provide legal representation to previously unrepresented groups and interest.
such efforts have been undertaken in recognition that the ordinary market place
for legal services fails to provide such services to
Significant sections of the population and to significant interests. Such groups
and interest include the poor, environmentalists, consumers, racial and ethnic
minorities and others. The origin and development of Public interest litigation
in the post 2nd world war can be traced back to 1960-70 when practitioners and
professors in the US started exploring mechanisms to bring relief to the
aggrieved class through social cause lawyering, class suits and engaging
In this course Professor Abram Chayes of the Harvard Law
School defined the term public law litigation
to refer to the practice of
lawyers in the United States seeking to precipitate social change through
court-ordered decrees that reform legal rules, enforce existing laws, and
articulate public norms. however, the development of Public interest litigation
in the US may further be traced back in late 19th century to early 20th century
when due to influx of immigrants in the US, huge racial and class disparity was
created between the immigrants, colonizers, racial minorities and women.
period saw a gradual growth of free legal aid especially for laborers and women
who may have been deserted by their husbands in a new country or whose husbands
became incapable of earning due accidents in the workplace or who themselves
started working for a decent living. During this period the concept of class
suits, i.e., representing the socially /economically oppressed groups started
However, it was much later that the concept of locus standi was
broadened to accept representation by social cause lawyers, activists etc for
the benefit of the socially and economically backward people. Several
academicians have shown that one of the first landmarks in the Public interest
litigation in the US was the case of Brown v. Board of Education
, in which the U.S. Supreme Court declared unconstitutional a state's segregation of public
school students by race.
This case was associated with public law litigation and
the defendant was a public institution. In Europe on the other hand, Public
interest litigation developed post formation of European Convention on Human
Rights, and the European Court of Human Rights in the late 1970s , which not
only broadened the scope of Human rights and helped in rights explosion, but
also insisted on seeking remedial measures from the domestic courts for issues
such as racial violence, gender justice, problems related to labourers rights,
child rights, rights of immigrants and asylum seekers etc.
Similarly in Africa,
even though activists like Nelsan Mandela had already initiated social change
through free legal aid, pro bono advocacy etc for the victims of racial
violence, discriminatory and arbitrary colonial rule etc, public interest
litigation through formal court process gained more popularity with the
formation of African commission of Human rights in the 1980's which not only
helped codifying human rights for people of African continent, but also
encouraged lawyers, social activists and cause lawyers to approach domestic
courts for seeking remedy for violation of rights of under trodden,
socio-economically backward people.
However, it has been noted by many
researchers, eminent judges, and academicians that public interest lawyering and
litigation have been used widely as a legal-political tool in many countries to
defy arbitrary laws, policies etc, unearth corruption and using judiciary to
overpower the legislature for scrapping irrational laws or bringing in new laws.
In several cases, the courts have themselves observed that such private
litigations are misused to waste the time or gain fame. It is for this reason
that since late 1970's several prominent law schools in the US had started emphasising on pro bono advocacy, free legal aid etc through free legal aid
cells which may not may not be funded by the government. This initiative helped
students of law to detect class-grievances,.
Violation of rights, problems of socio-economically backward people etc. Such
initiative is also taken up by Indian law schools inspired by prominent law
schools of West. Academicians, social cause lawyers, judges etc hope that such
initiatives may not only bring down the number of frivolous Public interest
litigations, but may also make the young lawyers prepared to use the mechanism
of public interest lawyering with a social cause for public benefit.
Origin and development of Public interest litigation in India
# The origin and development of public interest litigation in India can be
traced back to mid 1970's. It was mainly because Justice P.N. Bhagawati that the
concepts of free legal aid to the poor and socially backward people and public
interest litigations started developing in India. According to him ...legal aid
means providing an arrangement in the society so that the missionary of
administration of justice becomes easily accessible and is not out of reach of
those who have to resort to it for enforcement of its given to them by law, the
poor and illiterate should be able to approach the courts and their ignorance
and poverty should not be an impediment in the way of their obtaining justice
from the courts.
Legal aid should be available to the poor and illiterate, who
don't have access to courts. One need not be a litigant to seek aid by means of
legal aid. But the concept of free legal aid and public interest litigation did
not fully materialize until the 42nd amendment of the constitution which amended
the preamble of the constitution to make the country a socialist
democratic republic along with sovereign, democratic republic
. This amendment
made the State duty bound to provide accessible justice.
This which was further
extended through Art 39A, which was included as a directive principle to the
State for ensuring equal justice and free legal aid. Article 39A states: The
State shall secure that the operation of the legal system promotes justice, on a
basis of equal opportunity, and shall, in particular, provide free legal aid, by
suitable legislation or schemes or in any other way, to ensure that
opportunities for securing justice are not denied to any citizen by reason of
economic or other disabilities.
# Such broadening of the preamble and inclusion of provisions for ensuring
social justice motivated judges like Bhagawati and Krishna lyer to broaden the
concept of locus standi to entertain cases represented by social cause
lawyers/activists for the benefit of socio-economically backward people who
could not afford to approach the courts for seeking remedy for right violation.
# Also because of the emergency during 1975-77, several fundamental rights were
grossly violated. Eminent judges like Krishna lyer.J, Bhagawati.J etc, could
rightly recognise this phase of right- explosion vis-a-vis grievance explosion
and used judicial activism to provide proper remedies for such right violations.
This period also saw a gradual growth of Juristic activism, which is used to
provide distributive justice
# India's public interest litigation jurisprudence started growing along with
cases like Mumbai Kamgar Sabha v. M/s Abdulbhai Faizullabhai and
,which was one of the first cases to expand the concept of locus standi for the labourers who come from socio-economically backward class. Since
then the higher Courts exercised wide powers given to them under Articles 32 and
226 of the Constitution; more emphasis was given on Implementation of
fundamental rights, formulation of Guidelines /policies and proper
implementation/formulation of Compensation schemes.
The development of the Public Interest litigation in India can be discussed
under three phases which is as follows:
# In the First phase, the courts dealt with cases of the nature of public
interest litigation where directions and orders were passed primarily to protect
fundamental rights under Article 21 of the marginalized groups and sections of
the society who because of extreme poverty, illiteracy and ignorance cannot
approach this court or the High Courts. Best examples Of such cases is Sunil batra vs. Delhi Administration
, 1980, SP Gupta vs. Union of India ,
1982, People's union for democratic rights vs. Union of India
to laborers in Asiad village case),
Bandhua Mukti Morcha vs. Union of India
1984(bonded laborers in stone query in Faridabad), Such cases established the
principle that any member of public acting bonafide & sufficient interest can
maintain an action of redressal against public wrong/injury.
# The second phase deals with the cases relating to protection, preservation of
ecology, environment, forests, marine life, wildlife, mountains, rivers,
historical monuments etc. Best example for such cases are
M.C. Mehta & Another
v. Union of India & Others
AIR 1987 SC 1086.
# The third phase of the growth of public interest litigation deals with the
directions issued by the Courts in maintaining the probity, transparency and
integrity in governance. Vineet Narain & Others v. Union of India & Another
1998 SC 889 (fact finding for political nexus ).
Aims and objectives of Public interest litigation
- The main aim and objectives of the public interest litigation is to
achieve the goals of a social document, i.e. the Constitution of India.
These include to ensure equal access to justice, tto undo the wrong to the underprivileged/
provide healing effect of law, to awaken the responsibilities of the
State by providing effective remedy for causing any harm to the rights
including fundamental rights to the people
- The aim and objective of the PIL also extends to ensure justice to bonded
- Non-payment of minimum wages
- Protection of pavement dwellers & slum dwellers
- Petition from riot victims
- Ethics of medical profession
- Neglected children
- Flesh trade in protection homes ยข Atrocities on women
- Ill treatment in prison
- Injustice to children in jails and juvenile homes
- Protection against police for harassment
- Atrocities against SC,ST, OBC
Public interest litigation
Difference between Private interest litigation and Public
Private interest litigation
- Locus standi is expanded
- Should be for public interest at large
- Socio-economically backward people may be represented by cause
lawyers/social activists/ pro bono advocates
- May approach the High court or the Supreme court directly
- Public interest litigation may also be filed by letter petitions
- Judicial activism and distributive justice are the main aims for PIL
PIL - A Boon:
- Locus standi remains limited to those whose rights have been
violated/whose rights are to be established for:
- Private interest.
- Must be represented by proper lawyer
- Must follow proper legal procedures and approach the right forums/courts
It can not be so.
- Private gain by legal ways is the aim of private interest litigation.
Abuse of PIL:
- In PIL vigilant citizens of the country can find an inexpensive legal
remedy because there is only a nominal court fee involved in this.
- Further, through the so-called PIL, the litigants can focus attention on
and achieve results pertaining to larger public issues, especially I the fields
of human rights,consumer welfare and environment.
Many of the PIL activists in the country have found the PIL as a handy tool of
harassment since frivolous cases could be filed without investment of heavy
court fees as required in private civil litigation and deals could be negotiated
with the victims of stay orders obtained in the so-called PILs.
The abuse of PIL has become more rampant than its use and genuine causes either
receded to the background or began to be viewed with the suspicion generated by
spurious causes mooted by privately motivated interests in the disguise of the
so-called public interests.
At present, the Court can treat a letter as a writ petition and take action upon
it. But, it is not every letter which may be treated as a writ petition by the
The court would be justified in treating the letter as a writ petition in
Procedure of Filling PIL:
- It is only where the letter is addressed by an aggrieved person or
- A public spirited individual or
- A social action group for enforcement of the constitutional or the legal
rights of a perons who by the reason of poverty, disability or social
or economically disadvantaged position find it difficult to approach the court
- Make an informed decision to file a case.
- Consult all affected interest groups who are possible allies.
- Be careful in filling a case because:
- Litigation can be expensive.
- Litigation can be time consuming.
- An adverse decision can affect the strength of the movement.
- Litigation involvement can divert the attention of the community away
from the real issues.
Articles on Public Interest Litigation
A Study on Public Interest Litigation In Full Concept
Public interest litigation:- Its origin and meaning
Public Interest Litigation