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A Look Into: Public Interest Litigation

Earlier, the judiciary, including supreme court entertained litigation only from those parties that were affected directly or indirectly by it. It heard and decided case only under its original and appellate jurisdiction. But subsequently the court permitted case on the ground of public interest litigation.

It means that even people, who are not directly involved in the case, may bring to the notice of the court, matters of the public interest. It is the privilege of the court to entertain the application for the public interest litigation. The concept of PIL was introduced by Justice P. N. Bhagwati. PIL is important because Justice is now available to the poor and the weaker sections of the society.

It may be easy to know when such litigation is presented. Yet defining it has taxed judicial minds. Some say it is a 'nebulous concept' and is beyond definition. Others try to define it by delineating its characteristic features. A Judge in Australia identifies it by the public character to which the litigation relates evidenced by: properly bringing proceedings to advance a public interest; that proceedings contribute to the proper understanding of the law in question; and have involved no private gain.

The effect of this decision is really a crucial determining factor. Whether the action is brought by a singular individual or an organization or as a class action, or even where the remedy sought may benefit the applicant directly, the litigation may yet be in the public interest if the impact of the decision will serve the wider public interest.

What Is Public Interest Litigation?

Public Interest Litigation (PIL) is a legal action which is taken in a court of law for legal right of the community. The phrase "Public Interest Litigation" refers to human claim made in a politically organized society or political institution. The concept of human rights has assumed importance globally during the past few decades ever since the announcement of the Universal Declaration of Human Rights. Human rights are the important element of philosophical, social, and political debates of the twentieth century.

Number of people around the world suffers from their basic needs. They are also refrained from the enjoyment of the basic economic, social, cultural, civil as well as political rights. This challenge is the basic issue not only concern with the one country but also universal and global.

The word 'Public interest' according to the Oxford English Dictionary mean "The common well being also public welfare" and the word 'litigation' means "a legal action including all proceedings the reeling, initiated in a court of law with the purpose of enforcing a right or seeking a remedy."

Social Justice is main aspect of Indian Constitution. Social Justice, political Justice and economical justice is clearly laid down in the preamble as the guiding principle of the Constitution of India. The makers of constitution had taken most care to provide social, economical, and political justice to all sector of society. Therefore, justice is most positive aspect of social and political philosophy.

Features Of Public Interest Litigation

  1. By creating a new regime of human rights:
    By expanding the meaning of fundamental right to equality, life, and personal liberty. In this process, the right to speedy trial, free legal aid, dignity, means and livelihood, education, housing, medical care, clean environment, right against torture, sexual harassment, solitary confinement, bondage and servitude, exploitation and so on emerge as human rights. These new reconceptualized rights provide legal resources to activate the courts for their enforcement through PIL
  2. By democratization of access of justice:
    This is done by relaxing the traditional rule of locus standi. Any public-spirited citizen or social action group can approach the court on behalf of the oppressed classes. Courts attention can be drawn even by writing a letter or sending a telegram. This has been called epistolary jurisdiction.
  3. By fashioning new kinds of reliefs:
    Under the court's writ jurisdiction. For example, the court can award interim compensation to the victims of governmental lawlessness. This stands in sharp contrast to the Anglo- Saxon model of adjudication where interim relief is limited to preserving the status quo pending final decision. The grant of compensation in PIL matters does not preclude the aggrieved person from bringing a civil suit for damages. In PIL cases the court can fashion any relief to the victims.
  4. By judicial monitoring of state institutions:
    Such as jails, women's protective homes, juvenile homes, mental asylums, and the like. Through judicial invigilation, the court seeks gradual improvement in their management and administration. This has been characterized as creeping jurisdiction in which the court takes over the administration of these institutions for protecting human rights.
  5. By devising new techniques of fact-finding:
    In most of the cases the court has appointed its own socio-legal commissions of inquiry or has deputed its own official for investigation. Sometimes it has taken the help of National Human Rights Commission or Central Bureau of Investigation (CBI) or experts to inquire into human rights violations. This may be called investigative litigation.

Who Can File A Pil?

Earlier it was only a person whose interest was directly affected along with others, whereby his fundamental right is affected who used to file such litigation. Now, the trend has changed, and, any Public-spirited person can file a case (Public Interest Litigation) on behalf of a group of people, whose rights are affected. It is not necessary, that person filing a case should have a direct interest in this Public Interest Litigation.

For example- a person in Bombay, can file a Public Interest Litigation for, some labor workers being exploited in Madhya Pradesh or as someone filed a Public Interest Litigation in supreme court for taking action against Cracker factory in Sivakasi Tamil Nadu, for employing child labor or the case where a standing practicing lawyer filed a Public Interest Litigation challenged a government policy to transfer High Court judges and similarly a lawyer filed a Public Interest Litigation for release of 80 under trials in a jail, who had spent more number of years in jail, than the period prescribed as punishment for offence, for which they were tried.

Any person, can file a Public Interest Litigation on behalf of group of affected people. However, it will depend on every fact of case, whether it should be allowed or not.

Where Can You File A Pil?

Public Interest Litigation can be filed in any High Court or directly in the supreme court. It can be filed by any socially conscious or public-spirited person or NGO's for seeking judicial redressal of a public injury. It can be filed under article 32 of the constitution in the supreme court, and under article 226 of the constitution in the high court.

The court in furtherance of public interest my consider it necessary to inquire into the state of affairs of the subject matter with the view to correct the wrong and to enforce justice. As far as article 32 is concerned a person can only approach the supreme court only when fundamental right is violated but under article 226 a person can approach the high court for violation of fundamental as well as constitutional rights.

The basic condition that the aggrieved party should have an interest in the litigation is not present in filing of a Public Interest Litigation. In the case of PIL the presence of the aggrieved party is not necessary for the exercise of the court's jurisdiction, the only existing condition to file a PIL is that the same must be filed in public interest.

Against Who A Pil Can Be Filed?

A PIL may be filed against state government, central government, municipal authority not any private party. But private person may be included in PIL as 'Respondent', after concerned of state authority. i.e., a private factory in Mumbai which is causing pollution then public interest litigation can be filed against government of Mumbai, state pollution central board including that private factory of Mumbai.

Procedure Of Filling A Pil

Before filing a PIL one must do the complete research about the issue. When a PIL is filed concerning many people, the petitioner needs to consult all the individuals and groups which are affected.
  1. Once you are sure of filing a PIL, collect all the vital information and documents as evidence to support your case. You can argue the case on your own or appoint a lawyer to argue on behalf of you.
  2. It is always advisable to consult a lawyer before filing the PIL. If you are interested in arguing the case on your own then be prepared to explain the problem and convince the court in the time you have been allotted.
  3. Once the PIL copy is ready to be filed in the High Court, then submit two copies of the petition to the court. Along with this, one copy of the petition needs to be served to the respondents in advance. This proof of serving the petition copy to the respondents has to be affixed in the petition.
  4. If the PIL is filed in the Supreme Court, then five copies of petition need to be submitted to the court. Respondent is served with the petition copy when the court issues the notice regarding the same.

Public Interest Litigation In India

The concept of Public Interest Litigation first emerged in USA. The American concept of PIL is clarified by a statement made by "The Council for Public Interest Law" an organization setup by the "Ford Foundation" in USA, "Public Interest Law is the name that has been given to efforts to provide legal representations to previously unrepresented groups and interests. Such groups and interest include the poor, environmentalists, consumers, racial and ethnic minorities, and others."

However, PIL in India substantially differs from that in the USA. Prof: Upendra Baxi in his published opinion "Social Action Litigation in the Supreme Court of India" has pointed out that the prime focus of American PIL was not so much on state repression or governmental lawlessness as on public participation in governmental decision making.

And since the Indian notion of PIL has assumed the character of more of a moral and humane process in providing justice to the victim as in individual or to a group in matters relating to infringement of fundamental rights or denial of civil privileges based on caste, color or creed, Prof. Baxi, therefore, insisted that the Indian phenomenon described as PIL should be termed as "Social Action Litigation.

Evolution Of Pil

Prior to the 1980s, only the aggrieved party could approach the courts for justice. However, post 1980s and after the emergency era, the apex court decided to reach out to the people and hence it devised an innovative way wherein a person or a civil society group could approach the Supreme Court seeking legal remedies in cases where public interest is at stake. And thus, Public Interest Litigation was formed.

The Indian PIL is an improved version of PIL of USA. "Public interest law is the name that has recently been given to efforts that provide legal representation to previously unrepresented groups and interests. Such efforts have been undertaken in the recognition that ordinary marketplace for legal services fails to provide such services to significant segments of the population and to significant interests. Such groups and interests include the proper environmentalists, consumers, racial and ethnic minorities, and others."

The emergency period (1975-1977) witnessed a somewhat colonial nature of the Indian legal system. During the period of emergency, state repression and governmental lawlessness was widespread. Thousands of innocent people including political opponents were sent to jails and there was complete deprivation of civil and political rights.

The post emergency period provided an occasion for the judges of the Supreme Court to openly disregard the impediments of Anglo-Saxon procedure in providing access to justice to the poor.

Notably, two Justices of the Supreme Court, Justice V. R. Krishna Iyer and P. N. Bhagwati recognized the possibility of providing access to justice to the poor and exploited people by relaxing the rules of standing. In the post-emergency period, when the political situations had changed, investigative journalism also began to expose gory scenes of governmental lawlessness, repression, custodial violence, drawing attention of lawyers, judges, and social activists. PIL emerged as a result of an informal nexus of pro-active judges, media persons and social activists.

This trend showed a stark difference between the traditional justice delivery system and the modern informal justice system where the judiciary is performing an administrative judicial role. PIL is a necessary rejection of laissez faire notions of traditional jurisprudence.

The first reported case of PIL, in 1979, focused on the inhuman conditions of prisons and under trial prisoners. In Hussainara Khatoon v. State of Bihar, 1979, the PIL was filed by an advocate based on the news item published in the Indian Express, highlighting the plight of thousands of undertrial prisoners languishing in various jails in Bihar. These proceeding led to the release of more than 40, 000 undertrial prisoners. Right to speedy justice emerged as a basic fundamental right which had been denied to these prisoners. The same set pattern was adopted in subsequent cases.[i]

In 1981, the case of Anil Yadav v. State of Bihar, 1982, exposed the brutalities of the Police. Newspaper reports revealed that about 33 suspected criminals were blinded by the police in Bihar, by putting acid into their eyes. Through interim orders, the Supreme Court directed the State Government to bring the blinded men to Delhi for medical treatment. It also ordered speedy prosecution of the guilty policemen. The court also read right to free legal aid as a fundamental right of every accused. Anil Yadav signalled the growth of social activism and investigative litigation.[ii]

In Citizen for Democracy v. State of Assam (1995), the Supreme Court declared that handcuffs and other fetters shall not be forced upon a prisoner while lodged in jail or while in transport or transit from one jail to another or to the court or back.[iii]

Filing a PIL is not as cumbersome as any other legal case and there have been instances when even letters and telegrams addressed to the court have been taken up as PILs and heard by the court.

Landmark Pil Cases

  1. Vishaka V. State of Rajasthan:
    This case was against sexual harassment at work place, brought by Bhanwari Devi to stop the marriage of a one-year-old girl in rural Rajasthan. Five men raped her. She faced numerous problems when she attempted to seek justice. Naina Kapoor decided to initiate a PIL to challenge sexual harassment at work place, in the supreme courts.

    The judgement of the case recognized sexual harassment as a violation of the fundamental constitutional rights of Article 14, Article 15, and Article 21. The guidelines also directed for sexual harassment prevention.[iv]
  2. M. C. Mehta V. Union of India:
    In this case, the court passed three landmark judgments and several orders against polluting industries which were more than 50,000 in the Ganga basin. The court shut down numerous industries and allowing them to reopen only after controlled pollution. At the end, millions of people escaped air and water pollution in the Ganga basin, including eight states in India.[v]

It would be appropriate to conclude by quoting Cunningham, "Indian PIL might rather be a Phoenix: a whole new creative arising out of the ashes of the old order." PIL represents the first attempt by a developing common law country to break away from legal imperialism perpetuated for centuries.

It contests the assumption that the most western the law, the better it must work for economic and social development such law produced in developing states, including India, was the development of under develop men. The shift from legal centralism to legal pluralism was prompted by the disillusionment with formal legal system.

In India, however instead of seeking to evolve justice- dispensing mechanism ousted the formal legal system itself through PIL. The change as we have seen, are both substantial and structural. It has radically altered the traditional judicial role to enable the court to bring justice within the reach of the common man.

Further, it is humbly submitted that PIL is still is in an experimental stage. Many deficiencies in handling the kind of litigation are likely to come on the front. But these deficiencies can be removed by innovating better techniques. In essence, the PIL develops a new jurisprudence of the accountability of the state for constitutional and legal violations adversely affecting the interests of the weaker elements in the community. We may end with the hope once expressed by an eminent judge "The judicial activism gets its highest bonus when its orders wipe some tears from some eyes.

  1. AIR 1979 SC 1360
  2. AIR 1982 SC 1008
  3. 1995 3 SCC 743
  4. AIR 1997 SC 3011
  5. 1996 8 SCC 462

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