Public Interest Litigation- Genesis and Evolution

Public Interest Litigation- Genesis and Evolution

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Introduction

Litigation in India was originally confined to private individuals resorting to legal recourse to defend one’s own private vested interests. This typically involved an action initiated by an individual(s) against another/others concerning their own grievances and issues. Therefore, it was the injured or the aggrieved party or individual who was entitled to initiate legal proceedings within limited resources.    

Very limited efforts were made to undertake pertinent issues and problems concerning a certain class of affected consumers or the general public at large. The judiciary being the saviour and guardian of human rights of the citizens plays a crucial role in the entire scheme of matters. It has been conferred with the power to review legislative and administrative actions or decisions and ensure that there is no derogation of constitutional rights. 

The violation of one’s fundamental rights may be enforced by invoking the Writ Jurisdiction of the Supreme Court or the High Courts. However, the time consuming and lengthy procedural processes that are inherent to litigation make access to justice a distant reality for the marginalized and underprivileged who are crippled by poverty, illiteracy and ignorance, which further adds to their woes. 

Therefore, it was in this backdrop that in the ’80s the Supreme Court welcomed the concept of Public Interest Litigation (PIL) that threw open the corridors of justice dispensing justice to the common and downtrodden. Thus, the Supreme Court gave an opportunity to the common individuals of the country, including social action groups, social activists to approach and access the law, which took into account the broader interest of the public. 

Meaning and Scope of Public Interest Litigation

The concept of public interest law was widely adopted in the USA and was used extensively during and after the social turmoil of the 1960s. The concept of public interest law was demonstrated and applied by Louis Brandeis, who in his legal practice actively advocated for the interests of the general public.1 India incorporates an improvised version of the public interest law which developed in the U.S. 

‘Locus standi’ which means that one should have the legal capacity to challenge an act or decision is the fundamental basis on which the traditional legal system to approach the court operates. Both under the adversarial and inquisitorial legal system, in order to seek redressal by approaching the court of law, one must have a grievance of a legal nature or there must be a violation of rights against he who is approaching the court. Therefore, ‘locus standi’ which confers a legal right to an aggrieved party to approach the court is an essential requirement for any legal process. 

However, there is a fundamental difference between the traditional method of adjudication and Public Interest Litigation (PIL). In the former, a direct ‘locus standi’ of the party approaching the court is mandatory whereas, under a PIL the genuine interest of the aggrieved or the interest of the public at large is sufficient. 

Moreover, in the traditional adjudication system, the hierarchy of courts in India is strictly complied with and one must approach the lowest Court first, having jurisdiction to deal with the matter and as per the prevailing law. However, under a PIL the aggrieved party represented by NGOs, social activist groups, persons or organizations may directly approach the Supreme Court under Article 32 of the Constitution or the High Court under Article 226 of the Constitution, when there has been a violation of Fundamental Rights guaranteed under Part III of the Constitution, of any person or class of persons. 

Therefore, Locus Standi is a place of standing attributed to a person who has the right to initiate legal action or be heard in a court of law. Thus, anyone with a legal grievance has a right to approach the Court, based on the concept of locus standi. However, under a Public Interest Litigation it is this concept of locus standi which has been relaxed and made more flexible to broaden the scope of litigation by taking into account the voices, rights and needs of the poor, underprivileged and marginalized.

In India, prior to the 1980s, it was only the aggrieved party that could seek justice in the Court of law and a person who was not affected personally could not approach the Court as a representative of the aggrieved party. Thus, the locus standi was vested only in the aggrieved affected party to file a case in the Courts. As a result of this, there was a huge gap in the rights guaranteed by the Constitution on one hand and the laws on the other and it was the rights of the poor, illiterate and underprivileged that remained neglected and abandoned by the entirely legal system.  

Under the traditional legal system, the locus standi with respect to the Writ jurisdiction includes only those persons who:

  • have suffered a legal injury as a result of the violation of his/her legal right or interest; or
  • is likely to suffer a legal injury as a result of the violation of his/her legal right or interest. 

Therefore, in order to acquire a locus standi a personal legal right of an individual must be threatened or violated. 

A Public Interest Litigation is litigation involving the interest of the general public at large. A PIL may be filed by an individual or a group of persons, typically NGOs, social activist groups, persons or organizations. Therefore, the emergence of Public Interest Litigation has been instrumental in bringing about a positive transformation in the scope of access to justice by individuals through radical changes, especially by relaxing the concept of locus standi to address the grievances and issues affecting the general public at large.

Public Interest Litigation and the Constitution of India 

The Writ jurisdiction of the Supreme Court can be invoked under Article 322 of the Constitution when there has been a violation of Fundamental Rights guaranteed under Part III of the Constitution. The fundamental rights guaranteed to the citizens by the Constitution would be rendered meaningless unless adequate safeguards are provided to ensure an effective mechanism for their enforcement. Article 32 of the Indian Constitution has been declared the heart and soul of the Constitution by the framers of the Constitution. 

The Fundamental Rights guaranteed by the Constitution are enforceable and justiciable and any law which is inconsistent or abrogates the Fundamental Rights is void. Thus, when there is an infringement of a Fundamental Right, Article 32 can be invoked. The Supreme Court has the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, to enforce any rights conferred by Part III of the Constitution.3  

Similarly, the Writ jurisdiction of the High Court can be invoked under Article 2264 of the Constitution when there has been a violation of Fundamental Rights. However, the main difference between Article 32 and 226 is that the former can be invoked only for the enforcement of Fundamental rights whereas the latter can be invoked not only for the enforcement of Fundamental Rights but for ‘any other purpose’ as well.5  Therefore, the power of the Supreme Court under Article 32 is restricted as compared to the power of the High Court under Article 226, which are wider.

A PIL can be filed in the Supreme Court under Article 32 and in the High Court under Article 226 where a question related to the enforcement of a Fundamental Right is involved. In Bodhisattwa Gautam v Subbra Chakraborty6 the Supreme Court held that “to exercise its jurisdiction under Article 32, it is not necessary that the affected person should personally approach the Court. The Court can itself take cognizance of the matter and proceed suo motu or on a petition of any public-spirited individual or body.” Moreover, a private interest case can also be treated as a public interest case. 

Furthermore, Article 39A imposes an obligation on the state to secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall provide free legal aid, by suitable legislation or schemes, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. Therefore, the concept of Public Interest Litigation is also premised on the core mandate of Article 39A i.e., to secure a legal system which promotes justice on the basis of equal opportunity. 

The Supreme Court has entertained numerous petitions under Article 32 complaining of a violation of Fundamental Rights of individuals, or of the poor, weak, underprivileged or oppressed groups who are themselves unable to claim and fight for their own rights.   

Evolution and Development of Public Interest Litigation

In Fertilizer Corp. Kamgar Union v Union of India7 the Court reiterated that with an expansion of bureaucratic power, there was an increased chance of misuse of legal standing, and thus greater flexibility was the need of the hour. The concept of locus standi was widened to deal with the ever-expanding scope of socio-economic justice. 

In Mumbai Kamgar Sabha v Abdul Thai8 Justice Krishna Iyer for the first time sowed the seeds of the concept of public interest litigation. The case dealt with the payment of bonus to the workmen of an industry. It was held that “public interest is promoted by spacious construction of locus standi in our socio-economic circumstances and conceptual latitudinarianism permits taking liberties in the individualisation of the right to invoke the higher courts where the remedy is shared by a considerable number, particularly when they are weaker.”  

One of the earliest cases on Public Interest Litigation was that of Hussainara Khatoon v State of Bihar9 which focused on the inhuman conditions of the prisons and under trial prisoners. In the instant case, a petition was filed under Article 32 by an advocate highlighting the condition of under-trial prisoners who were languishing in various jails in Bihar and to protect their personal liberty. The Supreme Court held that in matters which are in the larger interest of the public right to speedy justice is a Fundamental Right, which comes within the scope of ‘life’ and ‘personal liberty’ guaranteed under Article 21. 

Subsequently, in S P Gupta v Union of India10, a writ petition was filed under Article 226 of the Constitution by lawyers raising certain pertinent questions concerning High Court judges. The petition was maintainable because the lawyers practising in the High Courts have an interest in the independence of the High Courts and speedy disposal of cases. 

Where the independence of the judiciary is threatened by illegal state action, the lawyers would be interested in challenging the constitutionality or legality of such action. This case paved the way for a new era of public interest litigation in India and it became a potent tool to enforce public duty which has otherwise been executed illegally resulting in injury to the public.

This case was a precursor of public interest litigation in India. Justice P N Bhagwati observed that, “Whenever there is a public wrong or public injury caused by any act or omission of the State or a public authority which is contrary to the Constitution or the law, any member of the public acting bona fide and having sufficient interest can maintain an action for redressal of such wrong or public injury.” 

Justice Bhagwati emphasized the need for PIL in India and held that “if public duties are to be enforced and social collective “diffused” rights and interests are to be protected, we have to utilize the initiative and zeal of public-minded persons and organizations by allowing them to move the Court and act for a general or group interest, even though they may not be directly injured in their own rights”. 

Moreover, where a petitioner moves the Court in his private interest to seek redressal for his personal grievances, the Court in furtherance of public interest may enquire into the subject matter of the litigation in the interest of justice. Thus, public interest litigation relates to the nature of the proceedings and no one particular forum is competent to deal with such litigation. 

In Bandhua Mukti Morcha v Union of India11, a matter related to the release of bonded labour was raised by an organization which was dedicated to the cause of the release of bonded labour before the Supreme Court. The Court held that  “public interest litigation is not in the nature of adversary litigation but it is a challenge and an opportunity to the Government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community  and to assure them social and economic justice which is the signature tune of our Constitution.”

Thus, the Court emphasized that where a person or a class of persons whose Fundamental Rights have been violated causing any legal injury and such a person is unable to approach the court owing to poverty or being in a socially or economically disadvantaged position, in such cases any member of the public acting bona fide can approach the court for relief under Article 32. 

Therefore, the Courts made it amply clear through these judgments that the Fundamental Rights are not only for the rich and the well to do who have the means to approach the Court but also for the larger ordinary masses who are poor, illiterate, underprivileged and marginalized and owing to lack of awareness and resources are unable to seek judicial redress.12    

However, over the past many years the function of public interest litigation has broadened and is not merely restricted to addressing the grievances of the weak and disadvantaged individuals. Instead, it is being used to address the grievances which concern the general public and society as a whole, rather than a specific individual. Under the traditional and more rigid rule of locus standi such public grievances could not be brought to the Court by anyone. 

In People’s Union for Democratic Rights v Union of India13, an organization working towards securing the democratic rights of the people complaining of breaches of labour laws who were workers engaged in the construction of Asiad projects was brought before the Supreme Court under Article 32. Justice P N Bhagwati in the instant case explained that a PIL is not brought before the Court only to enforce the rights of one individual against another which is what happens under the ordinary traditional litigation. Instead, it is filed to enforce the collective rights of a class of persons whose Fundamental Rights have been violated. 

Therefore, a wide range of cases are included within the scope of public interest litigation viz., socio-economic problems, administrative problems affecting the general public at large, protection of the environment, misuse of powers by Ministers, labour rights etc. Thus, any person who has sufficient interest can initiate an action to provide redressal for public injury arising from the violation of public duty or any provision of the Constitution or law and ensure the enforcement of such public duty and law. 

However, it cannot be denied that there is rampant abuse of public interest litigation as well. Public interest litigation cannot be treated as “personal interest litigation” filed for personal and selfish reasons. The petitioner should not be motivated by malice or have an intention to malign or harm others or be driven by selfish and personal motives or political considerations. The petitioner should have sufficient interest and must act bona fide to further the cause of justice. 

The Supreme Court has time and again warned that public interest litigation must be used with care and circumspection and it also imposes a duty on the judiciary to be careful to see that the redressal sought for a public grievance is genuine. However, where there has been an undue delay on the part of the petitioner to file a PIL the court may refuse to take cognizance of it. 

Therefore, Public Interest Litigation has prospered in India due to lack of accountability and responsibility on the part of the Government. The reason why people are compelled to approach the Courts to enforce their basic Fundamental Rights is because the administration fails to discharge its role effectively and act as per law.    

Category of Cases Covered by PIL

Originally, it was only in Habeas Corpus petitions that PIL was recognised and subsequently in the case of under trial prisoners. The scope of PIL broadened over time and it covered the following matters as well:

  • atrocity against women, rape cases, murder, kidnapping;
  • children who are neglected;  
  • child labour and child abuse;
  • bonded labour cases;
  • non-payment of minimum wages to workmen;
  • complaints against police for refusing to register case related to custodial death or harassment by police;
  • bride burning;
  • harassment or torture against the downtrodden and economically backward class of individuals, especially women and children;
  • environment protection. 

Drawbacks Related to Public Interest Litigation

  • A PIL may give rise to the problem of “competing rights”. Where the Court orders the closure of the polluting industry, the rights and interest of the workmen working in the industry may be violated as their only source of livelihood is taken away from them and this aspect may be ignored by the Court.
  • People can misuse and file frivolous PILs motivated by personal and selfish reasons or malice. It is for this reason that the Courts have reiterated time and again that PIL is not “personal interest litigation” for corporate, personal and political gains. This leads to the overburdening of the courts. 
  • In the process of solving socio-economic issues or a problem associated with the protection of the environment, the judiciary may in certain cases exercise judicial overreach through the PILs.  
  • There is an inordinate delay in the disposal of PIL cases especially matters involving the poor and disadvantaged. This defeats the whole purpose of speedy justice and dilutes the importance of judgment. 

Conclusion

Public Interest Litigation which is also known as Social Action Litigation or Class Litigation has departed from the traditional system of litigation and brought about a legal system which involves initiating a legal action to enforce the interest of the public at large. Over the years it has become a potent tool for the poor, illiterate and underprivileged to have access to the Courts and seek judicial redress by filing an application under Article 226 to the High Court and Article 32 to the Supreme Court. 

Therefore, public interest litigation has democratized access to justice by relaxing the rule of locus standi. Thus, any public-spirited person or social activist or group can now approach the Court on behalf of a certain group or class of persons, especially the oppressed and marginalized. The main reason why PIL has flourished in India is that the Constitution of India through its Fundamental Rights under Part III and the Directive Principles of State Policy under Part IV provides a framework to regulate the relation between the state and the citizens and also between citizens.  

The accountability of the Government towards the rights and interests of the poor and disadvantaged has increased with the development of PIL in the country. PIL has also enhanced the accountability of the State in cases of Constitutional and legal violations affecting the underprivileged and weaker sections of the community.  

The relaxation of the traditional rule of locus standi enables any person to approach the Court and represent those who are socio-economically in a position of disadvantage and unable to seek legal redressal. Therefore, PIL has been an important tool in bringing about social change upholding the Rule of Law enshrined under Article 14 and created a delicate balance between law and justice. 

Endnotes

1.  https://www.britannica.com/biography/Louis-Brandeis

2.  https://indiankanoon.org/doc/981147/

3.  The Constitution of India, 1950, Article 32 (2). 

4.  https://indiankanoon.org/doc/1712542/

5.  M P Jain, Indian Constitutional Law 1355 (LexisNexis, 7th Edition, 2014). 

6.  AIR 1996 SC 722 : 1996 SCC (1) 490 available at https://indiankanoon.org/doc/642436/

7.  AIR 1981 SC 344 : 1981 SCR (2) 52 available at https://indiankanoon.org/doc/1171702/

8.  AIR 1976 1455 : 1976 SCR (3) 591 available at https://indiankanoon.org/doc/191016/

9.  AIR 1979 1369 : 1979 SCR 3) 532 available at https://indiankanoon.org/doc/1373215/

10.  AIR 1982 SC 149 available at https://indiankanoon.org/doc/1294854/

11.  AIR 1984 SC 802 : 1984 SCR (2) 67 available at https://indiankanoon.org/doc/595099/

12.  Supra note 5. 

13.  AIR 1982 SC 1473 available at https://indiankanoon.org/doc/496663/


Anusuya Mukherjee-DU

Anasuya Mukherjee

Author

Anasuya hails from Delhi University and she spends most of her time in Reading, Practising Yoga and Working towards community animal welfare. Her Interest area lies in Intellectual Property Law. For any clarifications, feedback, and advice, you can reach her at anasuyamukherjee86@gmail.com

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