Professional Documents
Culture Documents
Chapter 1
Genesis of Public Interest Litigation (PIL)
(PIL has become a powerful tool for intervention and for seeking judicial
Assistance for dealing with various issues affecting the pubic.)
Injustice anywhere is a threat to justice everywhere
-Martin Luther King, Jr.
PIL in broad terms means litigation filed in a court of law for the protection of Public
Interest on the wide variety of subjects concerning citizens.
In Indian law, public interest litigation means litigation for the protection of the public
interest. It is litigation introduced in a court of law, not by the aggrieved party but by the
court itself or by any other private party. It is not necessary, for the exercise of the court's
jurisdiction, that the person who is the victim of the violation of his or her right should
personally approach the court. Public interest litigation is the power given to the public by
courts through judicial activism.
Such cases may occur when the victim does not have the necessary resources to commence
litigation or his freedom to move court has been suppressed or encroached upon. The court
can itself take cognisance of the matter and proceed suo motu or cases can commence on the
petition of any public-spirited individual.
1
(ii)
(iii)
A social action group for the enforcement of the constitutional or the legal
rights of a person in custody or of a class or group of persons who by reason of
poverty, disability or socially or economically disadvantaged position find it
difficult to approach the court for redress.
Even though it is very much essential to curb the misuse and abuse of PIL, any move by the
government to regulate the PIL results in widespread protests from those who are not aware
of its abuse and equate any form of regulation with erosion of their fundamental rights. Under
these circumstances the Supreme Court of India is required to step in by incorporating safe
guards provided by the civil procedure code in matters of stay orders /injunctions in the arena
of PIL.
Public Interest Litigants, all over the country, have not taken very kindly to such court
decisions. They do fear that this will sound the death-knell of the people friendly concept of
PIL. However, bona fide litigants of India have nothing to fear. Only those PIL activists who
Chapter 2
What is Public Interest Litigation
3
4
The scope for ventilation of matters of legitimate public concern and public declaration in support of
accountability is a vital task for the courts and other public entities charged with finding legal resolution for
infringement of social rights: Durbach A, 'Test Case Mediation - Privatising the public interest' (1995) 6 Aust
Dispute Resolution J 233 at 238.
11
A.B.S.K. Sangh (Railway) v. Union of India, A.I.R. 1981 S.C. 298, 317.
12
The root principle of law married to justice, is ubi jus ibi remedium (where there is a grievance there is a
remedy): Shiv Shankar v State of Haryana AIR 1980 SC 1037.
11
2. The legal infrastructure for pil: lessons from, and for, asian countries
13
A.B.S.K. Sangh (Railway) v. Union of India, A.I.R. 1981 S.C. 298, 317: Our current processual jurisprudence
is not of individualistic Anglo-Indian mould. It is broad-based and people-oriented, and envisions access to
justice through 'class actions, public interest litigation,' and 'representative proceedings' [sic]. Indeed, little
Indians in large numbers seeking remedies in courts through collective proceedings, instead of being driven to
an expensive plurality of litigations, is an affirmation of participative justice in our democracy. We have no
hesitation in holding that the narrow concept of 'cause of action' and 'person aggrieved' and individual
litigation is becoming obsolescent in some jurisdictions.
14
Where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special
damage peculiar to himself from the interference with the public right: Boyce v Paddington Borough
Council [1903] 1 Ch. 109, per Buckley J.
15
Tan Sri Othman Saat v Mohamed bin Ismai [1982] 2 MLJ 177 (SC).
16
State v. M.D. Wasa , 2000 C.L.C. 22 (Lahore) 471, 475(HC): The rationale behind public interest litigation in
developing countries like Pakistan and India is the social and educational backwardness of its people, the
dwarfed development of law of tort, lack of developed institutions to attend to the matters of public concern, the
general inefficiency and corruption at various levels. In such a socio- economic and political milieu, the nonintervention by Courts in complaints of matters of public concern will amount to abdication of judicial
authority.
12
17
14
19
20
15
Puttappa Honnappa Talavar v. Deputy Commissioner, A.I.R. 1998 Karn. 10, 11; Samatha v. State of Andhra
Pradesh, A.I.R. 1997 S.C. 3297, 3302 (the right to life includes social and economic empowerment).
22
Samatha v. State of Andhra Pradesh, A.I.R. 1997 S.C. 3297.
23
P.L.D 1994 S.C. 693.
24
Parvez Hassan and Azim Azfar, Securing Environmental Rights through public interest litigation in South
Asia, 22 Va. Envtl. L.J. 215.
25
Farooque v. Bangladesh, 1997 B.L.D. 17, P 33.
26
Tan Teck Seng [1996] 1 MLJ 261(CA); Hong Leong Equipment [1996] 1 MLJ 481(CA); Ketua Pengarah
Jabatan Alam Sekitar & Ors v Kajing Tubek & Others [1997] 3 MLJ 23 (CA).
16
Sri
Lankan
Supreme
Court
in Bulankulama
v.
Ministry
of
Industrial
See Handbook on Access to Justice under the Aarhus Convention, published by the Regional Environmental
Centre for Central and Eastern Europe ('REC'): includes case studies from 19 countries illustrating the practical
problems arising for access to justice under Article 9 such as: the role of NGOs, rules as to standing, financial
guarantees for interim relief, delay, and costs. Peter Cicchino, Opening Remarks, First Annual Peter Cicchino
Awards for Outstanding Advocacy in the public interest Panel Discussion, 2001, 9 Am. U.J. Gender Soc. Pol'y
& L. 15.
28
Peter Cicchino, Opening Remarks, First Annual Peter Cicchino Awards for Outstanding Advocacy in the
public interest Panel Discussion, 2001, 9 Am. U.J. Gender Soc. Pol'y & L. 15.
29
30
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Chapter 4
GROWTH OF PUBLIC INTEREST LITIGATION IN INDIA
Introduction
Over the last three decades or so, the device of Public Interest Litigation (PIL) has
come to be recognized as a characteristic feature of the higher judiciary in India. Even though
32
Gurdial Singh Nijar, The Application of International Norms in National Adjudication of Fundamental
Rights, in Proceedings of the 12th Malaysian Law Conference, Bar Council Malaysia, Kuala Lumpur, 2005,
p.52.
19
See: Abram Chaves, The role of the judge in Public Law litigation, 89 Harvard Law Review 1281 (May
1976)
34
Refer: Susan D. Susman, Distant voices in the Courts of India: Transformation of standing in Public Interest
Litigation, 13 Wisconsin International Law Journal 57 (Fall 1994)
20
See Ashok H. Desai & S. Muralidhar, Public Interest Litigation: Potential and Problems in B.N. Kirpal et. al.
(eds.), Supreme but not Infallible (OUP, 2000) 159-192, at p. 164-167
21
See: T.R. Andhyarujina, Judicial Activism and Constitutional Democracy in India (Bombay: N.M. Tripathi,
1992)
22
AIR 1987 SC 38
38
There is an express provision for judicial review in Article 13 of the Constitution of India. Article 13(1) says
that all laws that were in force in the territory of India immediately before the adoption of the Constitution, in
so far as they are inconsistent with the provisions containing the fundamental rights, shall, to the extent of such
inconsistency, be void. Article 13(2) further says that the states shall not make any law that takes away or
abridges any of the fundamental rights, and any law made in contravention of the aforementioned mandate
shall, to the extent of the contravention, be void.
23
For a brief commentary on the evolution of the doctrine of judicial review in India, See: S.P. Sathe, Judicial
Activism: The Indian experience, 6 Washington University Journal of Law and Policy 29 (2001)
40
(1973) 4 SCC 225
41
See generally: Raju Ramachandran, The Supreme Court and the Basic Structure Doctrine in B.N. Kirpal et.
al. (eds.), Supreme but not Infallible (OUP, 2000) at p. 107-133
42
Cited from: Ashok Desai & S. Muralidhar, Public Interest Litigation: Potential and Problems in B.N. Kirpal
et. al. (eds.), Supreme but not infallible (OUP, 2000) 159-192, at p. 161
24
44
Refer: T.R. Andhyarujina, The Evolution of Due Process of Law by the Supreme Court in B.N. Kirpal et. al.
(eds.), Supreme but not infallible (OUP, 2000) at p. 193-213
45
25
47
26
(1993) 1 SCC 645; See Chapter 5: Restructuring the Courts: Public Interest Litigation in the Indian Courts
in Sandra Fredman, Human rights transformed positive rights and positive duties (Oxford University Press,
2008) at p. 124-149
49
50
51
(1980) 1 SCC 81; See Upendra Baxi, The Supreme Court under trial: Undertrials and the Supreme Court,
(1980) Supreme Court Cases (Journal section), at p. 35
27
52
53
54
28
55
56
57
29
59
60
30
See observations justifying the payment of compensation for human rights violations by state agencies in the
following decisions: Bhim Singh v. State of Jammu and Kashmir, (1985) 4 SCC 677; Nilabati Behera v. State of
Orissa, (1993) 2 SCC 746; D.K. Basu v. Union of India, (1997) 1 SCC 416; Also see: Lutz Oette, Indias
International obligations towards victims of human rights violations: Implementation in domestic law and
practice in C. Raj Kumar & K. Chockalingam (eds.), Human rights, Justice and Constitutional empowerment
(OUP, 2007) at p. 462-485
62
M.C. Mehta v. Union of India, (1987) 1 SCC 395
63
M.C Mehta v. Union of India (1988) 1 SCC 471
64
M.C. Mehta v. Union of India, (1996) 4 SCC 750
65
M.C. Mehta v. Union of India, (1996) 4 SCC 351; Also see Emily R. Atwood, Preserving the Taj Mahal:
Indias struggle to salvage cultural icons in the wake of industrialisation, 11 Penn State Environmental Law
Review 101 (Winter 2002)
66
See decision in M.C. Mehta v. Union of India, (1998) 8 SCC 648; Also refer: Armin Rosencranz & Michael
Jackson, The Delhi Pollution case: The Supreme Court of India and the limits of judicial power, 28 Columbia
Journal of Environmental Law 223 (2003)
67
31
68
(1997) 6 SCC 241; See D.K. Srivastava, Sexual harassment and violence against women in India:
Constitutional and legal perspectives in C. Raj Kumar & K. Chockalingam (eds.), Human rights, Justice and
Constitutional empowerment (OUP, 2007)at p. 486-512
69
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Chapter 6
Problems facing Public Interest Litigation in India
At the time of independence, court procedure was drawn from the Anglo-Saxon system of
jurisprudence. The bulk of citizens were unaware of their legal rights and much less in a
position to assert them. And as a result, there was hardly any link between the rights
guaranteed by the Constitution of Indian Union and the laws made by the legislature on the
one hand and the vast majority of illiterate citizens on the other. However, this scenario
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37
iii.
iv.
sought to be litigated;
Whether another proceeding has been instituted against the same opponent in
which the same issues arise and the interests of the applicant could be met by
intervening in those proceedings and it is reasonable to expect the applicant to do
v.
so;
Whether to proceed would be unfair to persons affected.
Public Interest Litigants fear that implementation of these suggestions will sound the deathknell of the people friendly concept of PIL. However, it cannot be denied that PIL activists
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CHAPTER 7
Remedies - Public Interest Litigation (PIL)
A Public Interest Litigation (PIL) can be filed in any High Court or directly in the Supreme
Court. It is not necessary that the petitioner has suffered some injury of his own or has had
personal grievance to litigate. PIL is a right given to the socially conscious member or a
public spirited NGO to espouse a public cause by seeking judicial for redressal of public
injury. Such injury may arise from breach of public duty or due to a violation of some
provision of the Constitution. Public interest litigation is the device by which public
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40
department
at
least
two
months
prior
to
filing.
Chapter 8
NATIONAL LITIGATION POLICY
I.
Introduction
Whereas at the National Consultation for Strengthening the Judiciary toward
Reducing Pendency and Delays held on the 24th and 25th October, 2009 the Union Minister
43
If
Chapter 9
SUPREME COURT OF INDIA
COMPILATION OF GUIDELINES TO BE FOLLOWED FOR ENTERTAINING
LETTERS/PETITIONS RECEIVED IN THIS COURT AS PULIC INTEREST
LITIGATION
(Based on full Court decision dated 1.12.1988 and subsequent modifications).
44
No petition involving individual/ personal matter shall be entertained as a PIL matter except
as indicated hereinafter.
Letter-petitions falling under the following categories alone will ordinarily be entertained as
Public Interest Litigation:1. Bonded Labour matters.
2. Neglected Children.
3. Non-payment of minimum wages to workers and exploitation of casual workers and
complaints of violation of Labour Laws (except in individual cases).
4. Petitions from jails complaining of harassment, for (pre-mature release)* and seeking
release after having completed 14 years in jail, death in jail, transfer, release on personal
bond, speedy trial as a fundamental right.
*
70
Petitions for premature release, parole etc. are not matters which deserve to be
treated as petitions u/Article 32 as they can effectively be dealt with by the concerned
High Court. To save time Registry may
Simultaneously call for remarks of the jail Superintendent and ask him to forward the
same to High Court. The main petition may be forwarded to the concerned High Court
for disposal in accordance With law. Even in regard to petitions containing allegations
against Jail Authorities there are no reason why it cannot be dealt with by the High
Court. But petitions complaining of torture, custody death and the like may be
entertained by this Court directly if the allegations are of a serious nature.
(5) Petitions against police for refusing to register a case, harassment by police and death in
police custody.
(6) Petitions against atrocities on women, in particular harassment of bride, bride- burning,
rape, murder, kidnapping etc.
In such cases where office calls for police report if letter petitioner asks for copy the
same may be supplied, only after obtaining permission of the Hon'ble Judge nominated
by the Hon'ble Chief Justice of India for PIL matters.71
(7) Petitions complaining of harassment or torture of villagers by co- villagers or by police
from persons belonging to Scheduled Caste and Scheduled Tribes and economically
backward classes.
70
71
Added based on Order dated 19.8.1993 of the then Chief Justice of India.
Added as per Order dated 29.8.2003 of the Hon'ble Chief Justice of India.
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72
73
* As per Order dated 29.8.2003 of the Hon'ble the Chief Justice of India.
** Modified keeping in view the directions dated 29.8.2003 of the Hon'ble Chief Justice of India
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Chapter 10
Amend constitution for public interest litigation
District courts should be empowered to initiate suo moto PILs in public interest.
A public interest litigation (PIL) can be filed in any high court or directly in the supreme
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Chapter 11
Concluding remarks: Balancing a double-edged Sword
The power of the Court to entertain any circumstance that may hinder societal growth, or may
cause hardship to a class of individuals is not uninhibited. It is carefully regulated with tight
49
50
75
Cited from: Ashok Desai & S. Muralidhar, Public Interest Litigation: Potential and Problems in B.N. Kirpal
et. al. (eds.), Supreme but not infallible (OUP, 2000) 159-192, at p. 182
76
(1999) 1 SCC 492
51