10 Public Interest Litigation

Miss Juhi Gupta

1.INTRODUCTION

Public Interest Litigation (hereinafter “PIL”) is a means of Constitutional litigation developed in India under the writ jurisdiction of courts, designed to realise fundamental human rights of the vulnerable and disadvantaged sections of society. Conceived as part of the legal aid movement in the early 1970s, the focus of PIL is not the vindication of private interests but of collective, diffused rights. The Supreme Court evolved this instrument to make the Constitutional mandate under article 32 more meaningful by allowing the demand for enforcement of the rights of the poor to be voiced through any public-spirited person. PIL petitions can be filed in the Supreme Court under article 32 to enforce a fundamental right and before a High Court under article 226 to enforce a fundamental right or any other right.

The rationale of the institution of PIL by relaxing the rigors of traditional Anglo-Saxon form of adjudication is best expressed in SP Gupta v UOI,1 a seminal judgment in PIL jurisprudence:

“It is true that there are rules made by this Court prescribing the procedure for moving this Court for relief under article 32 and they require various formalities to be gone through by a person seeking to approach this Court. But it must not be forgotten that procedure is but a handmaiden of justice and the cause of justice can never be allowed to be thwarted by any procedural technicalities. The Court would therefore unhesitatingly and without the slightest qualms of conscience cast aside the technical rules of procedure in the exercise of its dispensing power and treat the letter of the public minded individual as a writ petition and act upon it. Today a vast revolution is taking place in the judicial process; the theatre of the law is fast changing and the problems of the poor are coming to the forefront. The Court has to innovate new methods and devise new strategies for the purpose of providing access to justice to large masses of people who are denied their basic human rights and to whom freedom and liberty have no meaning. The only way in which this can be done is by entertaining writ petitions and even letters from public spirited individuals seeking judicial redress for the benefit of persons who have suffered a legal wrong or a legal injury or whose constitutional or legal right has been violated but who by reason of their poverty or socially or economically disadvantaged position are unable to approach the Court for relief. It is in this spirit that the Court has been entertaining letters for judicial redress and treating them as writ petitions and we hope and trust that the High Courts of the country will also adopt this pro-active, goal-oriented approach.”

The Court also noted how procedural technicalities were watered down in the context of PIL in the United States, the birth place of PIL, and in the United Kingdom. In the Indian context, the court observed that the increasing employment of law as a device for orchestrating socio-economic development has resulted in the emergence of collective rights and social action. In this environment, individual rights are meaningless unless accompanied by the social rights necessary to make them a reality. The consequence of such socio-economic rights is that the State now owes a duty to the larger public i.e. violation of such rights causes public injury as opposed to individual injury. In the words of the court:

Now if breach of such public duty were allowed to go unredressed because there is no one who has received a specific legal injury or who was entitled to participate in the proceedings pertaining to the decision relating to such public duty, the failure to perform such public duty would go unchecked and it would promote disrespect for the rule of law. It would also open the door for corruption and inefficiency because there would be no check on exercise of public power except what may be provided by the political machinery, which at best would be able to exercise only a limited control and at worst, might become a participant in misuse or abuse of power. It would also make the new social collective rights and interests created for the benefit of the deprived sections of the community meaningless and ineffectual. 2

Learning outcomes:

The intended outcome of this module is to provide students an overview of PIL by focussing on its following aspects:

(i) the concept and purpose,

(ii) procedural flexibilities introduced,

(iii) broad phases of development, and

(iv) advantages and problems in the institution of PIL.

FLEXIBILITY IN STANDING, FORM AND EVIDENCE

PIL entailed significant innovations spearheaded by the Supreme Court which have diluted the adversarial stronghold on judicial proceedings as explained below.

2.1  Expansion of locus standi

In the adversarial system, only the person who has directly suffered the infringement or violation of a right can approach the court for redressal. However, the whole premise of PIL is to facilitate litigation in the interest of the larger public to preserve and vindicate collective rights. If the traditional rule of locus standi was adhered to, then public grievances could obviously not have been brought before courts by any individual. Therefore, relaxation of this rule was a sine qua non for the evolution of PIL and for public participation in judicial administration. This need was even more urgent in a country like India where a huge proportion of the population is denied access to the judicial system on account of illiteracy, indigence and ignorance. Realising this need to enforce the rule of law and particularly secure justice to disadvantaged sections of society, the Supreme Court expanded the ambit of locus standi empowering any public spirited person acting bona-fide and having a sufficient interest to approach the court for redressal of a legal wrong even if his own right was not violated or infringed in any manner.

The best exposition of this is provided by Bhagwati J in SP Gupta v UOI:3

Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right…and such person or determinate class of persons is by reasons of poverty, helplessness, or disability or socially or economically disadvantaged position, unable to approach the Court for any relief, any member of the public can maintain an application for an appropriate direction, order or writ.

Accordingly, non-governmental, non-profit, voluntary organisations, advocates, medical practitioners and journalists have initiated PILs. For example, the landmark Hussainara Khatoon4 which brought the right to speedy trial within the fold of article 21 started with an article written by a journalist in the Indian Express newspaer. The journalist highlighted the plight of undertrial prisoners languishing in prisons in Bihar for many years beyond the sentence period, following which an advocate initiated a PIL under article 32.

Courts however have been cautious to not liberalise the concept of locus standing in criminal and service matters wherein the private interest has been reinforced, to deny frivolous petitions.

2.2  Development of epistolary jurisdiction

The interpretation of “appropriate proceeding” in article 32 as referring to only the purpose and not form of the proceeding facilitated the development of epistolary jurisdiction wherein the courts take cognisance of writ petitions filed in the form of letters and telegrams. Many landmark PIL cases such as Sunil Batra v Delhi Administration5; Upendra Baxi v State of UP6; and DK Basu v State of West Bengal7 found their way to the Supreme Court through letters. The acceptance of such cognisance was reasoned by Bhagwati J. in Bandhua Mukti Morcha8 on the ground that it is not right or fair to expect a person acting pro bono public to incur expenses out of his own pocket to approach a lawyer and prepare a regular writ petition. In response to the objection of gross impropriety in the petitioner choosing the presiding judge himself, the Supreme Court issued a set of ‘‘Guidelines to be Followed for Entertaining such grievances, in 1988, specifying permissible letter petitions and matters which will not be admitted as PIL in any form. It also laid down the procedure by which petitions will be screened by the PIL Cell and then placed before the presiding judge to be nominated by the Chief Justice of India. However, the legitimacy of epistolary jurisdiction has time and again been challenged as facilitating unnecessary and frivolous litigation.

2.3 Aid in evidence

The Supreme Court responded to the challenge faced by weaker or disadvantaged sections of producing relevant material and evidence by relaxing adversarial norms governing evidence and evolving suitable remedies. In support of this concession, the Court has consistently emphasised that PIL is not an adversarial but a collaborative and cooperative process in which all concerned parties should work together to realise the rights of deprived sections of society. In the words of the Supreme Court, “there are no winners or losers”. 9 Conscious that fundamental rights and human rights would be rendered illusory by a passive attitude, the Court has appointed fact-finding commissioners, such as expert bodies, professionals and bureaucrats, to gather facts and data.10 The commissioners’ report furnishes prima facie evidence of the facts and data. The Court retains the discretion to determine the extent of its reliance upon the report. Another innovation has been the appointment of amicus curiae to prevent PIL litigants from being unfairly prejudiced.11 The Court may be better assisted by a lawyer who comprehends the legal dimensions and implications of the issue and approaches the cause objectively and dispassionately. The role of amicus curiae has been significant in the prosecution of PILs. The Court has also assumed “creeping” jurisdiction equipping it to issue appropriate interim orders and directions.

2.4  Liberal interpretation of Article 21

A major impetus to the PIL movement was supplied by a liberal and expansive interpretation of article 21 which emerged as the most fertile provision to evolve new fundamental rights, such as the right to health,12 shelter,13 free and compulsory education up to 14 years of age,14 and speedy trial15 to name a few. This was significant in enhancing the popularity and success of PILs since many of these rights were read into article 21 as an outcome of PIL cases.

Notwithstanding these beneficial innovations for petitioners, courts have consistently emphasised that PILs cannot be actuated by selfish or personal motives to further private ends, or by malice, or by political or oblique considerations. Petitioners must be acting bona fide with a view to vindicate the cause of justice. Further, they have been restrained from abandoning petitions during proceedings as they are expected to be conscious of the obligation being exposed and to accordingly conduct themselves.16

3 PHASES OF PIL

PIL can broadly be divided into three phases:17

Engine of social change: In the first phase, which began in the late 1970s and continued through the 1980s, PIL was used as an instrument for social transformation wherein the judiciary recognised rights of marginalised sections, such as bonded labourers,18 prisoners,19 child labourers,20 and pavement dwellers,21 and directed the government to redress alleged violations. Cases were predominantly filed by public spirited persons such as lawyers, journalists, social activists and academics seeking relief against the action or non-action of executive agencies resulting in violations of fundamental rights.

Institutionalisation: In the second phase can be identified with 1990s, PIL became more institutionalised in terms of the litigants and breadth of issues. Several specialised NGOs and lawyers started bringing matters of public interest on a much regular basis. The breadth of issues also expanded tremendously ranging from environmental protection, 22 sexual harassment at the workplace, 23 right to education, 24 to good governance and general accountability of the government.25 Relief was not only sought against executive agencies but also against private individuals in relation to policy matters. The response of the Supreme Court was much bolder and unconventional as compared to the first phase and surpassed the declared objective for which PIL was originally meant. The Supreme Court engaged in judicial legislation to fill legislative lacunae and enforced fundamental rights against non-State actors, a prime example being Vishaka v State of Rajasthan26 where the Supreme Court laid down guidelines governing sexual harassment at the work place. Non-compliance with judicial directives was taken much more seriously and the Supreme Court did not hesitate to monitor government investigative agencies and/or punish civil servants. This forwardness/activism of the judiciary, however, furnished the breeding ground for the misuse of PIL which reached disturbing levels in this phase, occasionally compelling the Court to penalise plaintiffs for employing PILs for ulterior purposes.27

Private/Publicity Interest Litigation: In the third phase, which began at the turn of the century, misuse of PIL has become seriously acute raising serious questions about its true purpose and attitude of the judiciary. There has been an unforeseeable expansion of issues raised, including absolutely trivial issues such as calling back the Indian Cricket Team from Australia and preventing an alleged marriage of an actress with trees for astrological reasons. In contrast to the first two phases, it has been argued that the judiciary has shown more restraint in issuing directions to the government and has been influenced by development and free market considerations in favour of the government. This is seen as coming at the cost of the sympathetic response that the rights and interests of vulnerable sections received in the early years and indicative of undesirable changes in the judicial philosophy on PIL.

4. ADVANTAGES AND PROBLEMS

4.1 Contribution

The emergence of PIL has undoubtedly been a salutary development in making the Constitutional guarantee of fundamental human rights a meaningful reality for vast majority of deprived citizens most of them having otherwise limited or no access to justice. It has also been a powerful tool in establishing many important socio-economic guarantees (education, health, shelter, livelihood etc.) enshrined in the non-justiciable Directive Principles of State Policy as fundamental rights, at least in theory. Through PIL, the judiciary triggered legislative reforms and filled legislative lacunae in important areas through guidelines which are in consonance with the mandate of the Constitution and several international covenants ratified by India. This has enhanced sensitivity to critical issues and public confidence in the judiciary as being receptive to social realities. Beyond Indian frontiers, the PIL jurisprudence has also had a trans-judicial influence on judicial dialogue wherein courts of South Asian countries, such as in Hong Kong, Bangladesh and Sri Lanka, have relied on Indian PIL cases to develop their own PIL jurisprudence.

4.2 Judicial activism to judicial adventurism: Where do you draw the line? However, over the years, the PIL project has amplified much beyond its original conception, giving rise to legitimate criticism that its true purpose has been lost sight of. The over-zealousness of the judiciary in over-stepping its jurisdiction has been attacked for ridding this instrument of much of its credibility and for encouraging petitioners to file frivolous cases.

Petitioners have approached courts for all sorts of issues such as to regulate the treatment of wild monkeys in Delhi, impose a ban on objectionable photographs in newspapers and condemn the practice of conducting school admission interviews for children.28 Unfortunately, courts too, especially the Supreme Court, have taken many petitions to their logical conclusion which have not involved a question of fundamental rights but rather issues like regulation of traffic,29 arbitrary allotment of petroleum outlets, 30 investigation of alleged bribe taking,31 and most recently the authorisation and legality of e-rickshaws. Such issues can somehow be brought within the ambit of article 21 given its liberal interpretation; however, the propriety of this is seriously questionable, especially given that the Supreme Court was conceived as a Constitutional Court. From the judiciary’s point of view, it can be demanded that it is time for judicial introspection given the more than apparent dark side of PIL, the primary problems of which have been summarised below:

4.2.1 Ulterior purpose

Although the Supreme Court has emphasised the need for circumspection in PIL, in practice it is arguable that courts have not rigorously enforced the “public interest” requirement and have allowed the “public” to be substituted by “private” or “publicity”. As demonstrated above, almost any issue is presented to courts in the guise of public interest to take advantage of benefits of PIL. Although the distinction between “public” and “private” is not always clear, it would be safe to say that courts have contributed to this abuse of process to a very large extent. Ashok H Desai and Muralidhar J. confirm the perception that “PIL is being misused by people agitating for private grievances in the garb of public interest and seeking publicity rather than espousing public causes”.32

4.2.2 Disturbing Constitutional balance of power

Although the Indian Constitution does not prescribe a strict separation of powers between the three organs of government, it still follows a system of checks and balances. The independence of the judiciary stems from this very embodiment and thus, it becomes important for courts to respect this system. However, through PILs, courts have adopted an activist mode and encroached upon the domains reserved to the executive and legislature through various means such as prescribing policy through guidelines, taking over governance and monitoring executive agencies. The blurring of the distinction between law and policy can be illustrated through some prominent cases decided by the Supreme Court: MC Mehta v Union of India,33 where the Court directed the Central Government to indicate the steps taken for environmental policy and place before it any national environmental protection policy; TN Godavarman Tirumulkpad v Union of India,34 where the Court constituted an expert committee to examine depletion of forest cover, imposed restrictions on the felling of trees and sale of timber, and issued a continuing mandamus to closely implement its orders; Vishaka v State of Rajasthan,35 where the Court readily laid down guidelines which were to be enforceable till such time the legislature enacted a law in compliance with CEDAW; and DK Basu v State of West Bengal,36 where the Court laid down the procedure to be followed by the police to arrest a person.

However, courts have selectively cited the “policy” argument to intervene or refrain from intervening in policy questions with no discernible basis for such selective intervention. To illustrate, the judiciary has intervened to tackle sexual harassment, custodial torture and adoption of children by foreigners but has stayed away from issues like the introduction of Uniform Civil Code, 37 propriety of the Government’s telecommunication policy 38 and recognition of a particular language as a national language.39 In fact, in State of Himachal Pradesh v Parent of a Student of Medical College, Simla,40 the Supreme Court overturned the High Court’s direction to the state government to introduce anti-ragging legislation on the ground that it interfered with the government’s prerogative. While the court can require the executive to carry out its duty through PILs, it cannot usurp the functions assigned to the executive and legislature. Ashok Desai and Muralidhar J observe that the dominant trend has been for courts to assert their new role as policy makers. This activism of the judiciary has been complimented for bringing to light the accountability of the executive and legislature, however, the converse perspective is that the activism may in fact make these institutions more unaccountable and complacent because they know the judiciary is always there to remedy their failures.41

The need to act with circumspection has been recognised by judges. Pathak J famously voiced his concern in Bandhua Mukti Morcha:42“Where the Court embarks upon affirmative action in the attempt to remedy a constitutional imbalance within the social order, few critics will find fault with it so long as it confines itself to the scope of its legitimate authority. But there is always the possibility, in public interest litigation, of succumbing to the temptation of crossing into territory which properly pertains to the Legislature or to the Executive Government. For in most cases the jurisdiction of the Court is invoked when a default occurs in executive administration, and sometimes where a void in community life remains unfilled by legislative action. The resulting public grievance finds expression through social action groups, which consider the Court an appropriate forum for removing the deficiencies. Indeed, the citizen seems to find it more convenient to apply to the Court for the vindication of constitutional rights than appeal to the executive or legislative organs of the State”.

There is great merit in the Court proceeding to decide an issue on the basis of strict legal principle and avoiding carefully the influence of purely emotional appeal. For that alone gives the decision of the Court a direction which is certain, and unfaltering, and that particular permanence in legal jurisprudence which makes it a base for the next step forward in the further progress of the law. Indeed, both certainty of substance and certainty of direction are indispensable requirements in the development of the law, and invest it with the credibility which commands public confidence in its legitimacy.

This warning is of special significance in these times, during a phase of judicial history when a few social action groups tend to show evidence of presuming that in every case the court must bend and mould its decision to popular notions of which way a case should be decided.”

4.2.3  Strain on limited judicial resources

Liberal resort to PIL has compounded the huge backlog of cases languishing in the dockets of the Supreme Court and High Courts. By allowing frivolous PIL plaintiffs to waste the time and energy of courts, the judiciary may in fact be compromising legitimate private interests of other litigants and violating their right to speedy trial. A related problem is that courts generally take considerably long in disposing PIL cases reducing their significance to probably one of academic value.

4.2.4 Symbolic justice

Although courts have invested considerable resources in disposing PIL cases, a criticism raised is that the justice meted is more notional than tangible. The optimists, however, would dismiss this as a problem saying that something is better than nothing and that at least the judiciary has taken the initiative to compensate for the incompetence of the executive and legislature. However, the pessimists would consider this a problem in two respects – one, that courts have not been able to ensure the implementation of their guidelines and directions and that judicial intervention has not improved status quo significantly; and two, that the over-conversion of Directive Principles to Fundamental Rights has “duped disadvantaged sections into believing that justice has been done to them”. It is one thing to recognise rights but another thing to provide exactly for their enforcement and that by concentrating only on the former, the PIL project has devalued the very notion of rights by creating rights which cannot be enforced.

4.2.5 Judicial populism

Judicial populism is an academic explanation wherein it is feared that PIL is used by judges to acquire popularity among masses as crusaders of rights, resulting in leniency in admitting petitions. The converse has also been cautioned against, that the desire to become people’s judges in a democracy should not hinder admitting petitions which involve an important public interest but are potentially unpopular.

These problems have not escaped the judiciary. The Supreme Court and High Courts have endeavoured to send strong messages on a case-to-case basis whenever they notice misuse of the machinery. In some cases, petitioners have been fined for filing frivolous petitions.43 On a few occasions, the Supreme Court has expressed its displeasure on how High Courts have admitted PIL petitions.44 In addition, one systematic step the Supreme Court took was to compile the above-mentioned Guidelines governing letter petitions in 1988;45 however, the rather broad ambit of the Guidelines renders their utility doubtful. The PIL Cell has been entrusted the task of screening letters/petitions as per these Guidelines and then placing them before a judge to be nominated by the Chief Justice of India. In order to check the broad ambit of epistolary jurisdiction, the Guidelines were amended in 2003 to provide that an affidavit should accompany the statements in the petition whenever it is not too onerous a requirement. A failed attempt at regulating the misuse of the instrument was the Public Interest (Regulation) Bill 1996 which was introduced in the Rajya Sabha but could not receive the support of all political parties.

However, despite these attempts and efforts, courts continue to be plagued by frivolous petitions. In the recent past, the Supreme Court has regularly expressed its frustration at the “nuisance” created by PIL and has called for the imposition of a penalty on mala fide petitioners. Notwithstanding the judiciary’s contribution to amplifying PIL beyond its original boundaries, one must be sympathetic to their difficult position too. As the guardian of fundamental rights, it is not easy to demarcate a dividing line between genuine and frivolous PIL cases. This probably explains the open-ended nature of the 1988 Guidelines and exclusion of PIL from the Supreme Court Rules. As has been observed, given that the very premise of PIL is based on flexibility, it is not easy for the courts to keep the door open and at the same time stop busybodies at the gate”.46

It would be fitting in the end to advert to some thoughts expressed by Muralidhar J. and Ashok H Desai in their article. They note that notwithstanding the criticisms and concerns regarding PIL, which are legitimate in their own right, it cannot be denied that far-reaching judgments in many PILs have exposed executive failings and provided much needed direction to adopt mitigating and corrective measures. PIL has also fostered the development of legal principles such as the ‘polluter pays’ principle, the ‘precautionary’ principle, and the principle to award compensation for Constitutional wrongs. Given its importance in making the Constitution a ‘living reality’ for across-sections of society, the criticisms must serve as a reality check to courts and judges to reign in the PIL discourse which has expanded beyond its boundaries.47 In the words of the authors:48

“In many ways PIL imposes a burden on as well as poses a temptation for the judge. On the one hand there is the desire to resolve the problems of a society where laws are not seen to be enforced, particularly where the petitioner before the court is espousing a public and not a private cause. On the other hand, there is the temptation for a well-meaning judge to extend the law, if necessary, by a policy decision, departing ever so slightly from the trodden path. Thus, there is an interplay of enforcing the law, moulding it by equity while also responding to the perception of ‘an imperial judiciary’ making history. The future of PIL will depend much on where the Court strikes the balance between the law, and its sense of history.”

5. GUIDELINES ISSUED IN ‘BALWANT SINGH CHAUFAL’ 2010

Important guidelines and observation made in State of Uttaranchal v Balwant Singh Chaufal49 are quoted below:

Pre-dominantly,  to  provide  access  to  justice  to  the  poor,  deprived, vulnerable, discriminated and marginalized sections of the society, this court has initiated, encouraged and propelled the public interest litigation.

The litigation is upshot and product of this court’s deep and intense urge to fulfil its bounded duty and constitutional obligation.

Unfortunately, of late, it has been noticed that such an important jurisdiction which has been carefully carved out, created and nurtured with great care and caution by the courts, is being blatantly abused by filing some petitions with oblique motives. We think time has come when genuine and bona fide public interest litigation must be encouraged whereas frivolous public interest litigation should be discouraged.

In BALCO Employees’ Union (Regd) v Union of India & Others A.I.R. 2002 S.C. 350, this Court recognized that there have been, in recent times, increasing instances of abuse of public interest litigation. Accordingly, the court has devised a number of strategies to ensure that the attractive brand name of public interest litigation should not be allowed to be used for suspicious products of mischief. Firstly, the Supreme Court has limited standing in PIL to individuals “acting bonafide.” Secondly, the Supreme Court has sanctioned the imposition of “exemplary costs” as a deterrent against frivolous and vexatious public interest litigations. Thirdly, the Supreme Court has instructed the High Courts to be more selective in entertaining the public interest litigations.

The Supreme Court broadly tried to curtail the frivolous public interest litigation  petitions  by  two  methods  –  one  monetary  and  second,  non-monetary. The first category of cases is that where the court on filing frivolous public interest litigation petitions, dismissed the petitions with exemplary costs.

This Court, in the second category of cases, even passed harsher orders, such as initiating prosecution proceedings against the petitioner for contempt of court.

This court has been quite conscious that the forum of this court should not be abused by any one for personal gain or for any oblique motive. In BALCO. this court held that the jurisdiction is being abused by unscrupulous persons for their personal gain. Therefore, the court must take care that the forum be not abused by any person for personal gain.

A degree of precision and purity in presentation is a sine qua non for a petition filed by a member of the Bar under the label of public interest litigation. It is expected from a member of the Bar to at least carry out the basic research whether the point raised by him is res integra or not. The lawyer who files such a petition cannot plead ignorance.

6. SUMMARY

PIL has been an invaluable tool in the hands of the weaker, impoverished, and under-privileged sections of society to access Constitutional guarantees and socio-economic justice. Keeping this in mind, the recent development of the Social Justice Bench established by the Supreme Court on 3 December, 2014 assumes immense significance. The Bench has been set up to achieve the Constitutional goal of securing social justice for all citizens. This is the first time the Supreme Court will have a dedicated bench to hear cases pertaining to public interest and all fresh PILs will be heard by this bench from now on. The Bench holds its proceedings every Friday at 2 PM. The Bench will hopefully prove instrumental in providing a specialised approach for the timely disposal of cases in the domain of social justice that have been pending for many years. This in turn will go a long way in enabling the masses to realise the fruits of the rights and entitlements sanctioned by the Constitution.

Web Resources:

• Anand, U., ‘Supreme Court sets up ‘Social Justice Bench’ to address everyday issues; vows to Never ignore people’s grievances’, 4 December 2014, <http://indianexpress.com/article/india/india-others/supreme-court-sets-up-social-justice-bench-to-deal-with-social-issues/>
• K.G. Balakrishnan, ‘Growth of Public Interest Litigation in India’ <http://supremecourtofindia.nic.in/ >