By KPC Rao.,
LLB., FCS., FICWA
LLB., FCS., FICWA
Practising Company Secretary
“Public interest litigation has become the people’s tool fashioned by judges to enforce the obligations of the state, its institutions, and its functionaries to explore and discover ways and means of giving life and soul to the preambular assurances via the judicial process.”
-Justice O.Chinnappa Reddy
What is Public Interest Litigation?
Public Interest Litigation (PIL) or ‘Pro bono public litigation’ is a litigation at the instance of a Public spirited citizen espousing cause of others. It is a strategic arm of the legal aid movement and which is intended to bring justice within the reach of poor masses who constitute the low visibility area of humanity. Public Interest litigation is essentially a co-operative or collaborative effort on the part of the petitioner, the State or Public Authority and the court to secure observance of the constitutional or legal rights, benefits or privileges conferred upon the vulnerable sections of the community and to reach social justice to them.
Justice Krishna Iyer, one of the pioneering judges who legitimized and popularized the Public Interest Litigation in India considers Public Interest Litigation as the product of creative judicial engineering. According to the eminent judge, “the jurisdiction of the Indian Supreme Court is the widest in the world; the challenges of India’s social changes are the sharpest; the dynamics of a functional jurisprudence is the creative expression of judicial response to the crisis of hunger for justice. Public Interest Litigation is the off spring of these social forces. This burgeoning process, seminal and innovative, makes the court a catalyst of social justice, a defender of the constitutional faith and the protagonist in the drama of human rights for the common man. Justice Iyer views Public Interest Litigation as a part of the participative justice.
In India, Public Interest Litigation is an innovative strategy which has been invented by the Supreme Court for the purpose of providing easy access to justice to the weaker sections of Indian humanity and it is a powerful tool in the hands of public spirited individuals and social action groups for combating exploitation and injustice and securing for the under privileged segments of society, their social and economic entitlements. It is a highly effective weapon in the armory of the law for reaching social justice to the common man.
The Public Interest Litigation is concerned primarily with the constitutional remedies sought under Article 32 or Article 226 of the Constitution of India. The Public Interest Litigation in India is a consequence of the relaxation of ‘locus standi’ principle which is an inherent part of the adversarial system of justice. Its main aim is to provide justice within the reach of the needy, irrespective of their back-ground like the status, literacy and other factors. That is the precise reason, why the Public Interest Litigation has been called an arm of the legal aid movement in India. In United States of America , it is popularly known as the ‘Public Interest Law’ where the law firms , environmentalists , consumer activists and social scientists play an important role in protecting the rights of the unrepresented sections of the citizens who are not in a position to do the same. Apart from legal interest, in the U.S.A. the rights of persons to move the Court challenging the governmental or its agency action, on the basis of ‘general interest criteria’, statutory standing, competitor and consumer standing and also environmental standing are recognized.
Thus, Public interest litigation (PIL) is important facet of participative justice. It is a signpost which signals the decent of the judiciary from the confines of the ivory towers to the crowded mud huts and the littered pavements, flowing drains and the World of naked street walkers, street urchins, and ragamuffins. With the advent of public interest litigation, realisation is appearing to drawn on the poor, the oppressed, and the exploited that they too have a place under the some and a right to live with dignity, that the constitution protects their rights with the Supreme Court as the custodian of such rights, and their weapon is the new invention called public interest litigation, described by some as 'social action litigation'.
First case of PIL filed in India
Among the memorable legal cases fought by the way of PIL was by the People's Union for Democratic Rights (PUDR), a petition concerning the Asiad 1982 construction workers in the Supreme Court. The case had not been filed by the workers but by the PUDR which technically was not an aggrieved party. Yet considering the fact that the workers themselves were not in a position to file a case, the court agreed to accept the locus standi of the PUDR.
The nature and philosophy of public interest litigation was expounded byJustice P.N.Bhagwati in this case (well-known as Asaid Case) in the following manner:
“Public interest litigation which is a strategic arm of the legal aid moment and which is intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity, is a totally different kind of litigation from the ordinary tradition litigation which is essentially of an adversary character. Public interest litigation is brought before the court not of the purpose of enforcing the right of one individual against other, but it is intended to promote and vindicate public interest which demands that violations of constitutional or legal rights of larger number of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and un redressed. That would be destructive of the rule of law which forms one of the essential elements of public interest in any democratic form of government. The rule of law does not mean that the protection of the law must be available only a fortunate few or that the law should be allowed to be prostituted by the vested interests for protecting and upholding the status quo under the guise of enforcement of the civil and political rights. The poor too have civil and political rights and the rule of law is meant for them also, though today it exists only on paper and not in reality.”
Concept of locus standi in PIL
Public Interest Litigation is very closely linked with the relaxation of ‘locus standi’ and providing easy access to justice. It is also concerned with the protection of the countless and unrepresented masses of India, a third world country, who are not in position to protect their rights due to poverty, illiteracy, indigence and other social, economic and political factors.
As regards the civil remedies, the courts recognize the ‘locus standi’ of only the aggrieved persons, to seek a remedy in a civil court. A minor concession is made under the Code of Civil Procedure, providing for class or representative action. Under the Criminal Procedure, only an affected or aggrieved person is competent to maintain an accusation or complaint, and generally not a stranger. As regards the Constitutional remedies provided under Article 32 before the Supreme Court and under Article 226 before the High Courts there is nothing contained in these two Articles to suggest that the ‘locus standi’ of only the aggrieved person is to be recognized, while issuing appropriate orders, directions or writs. In spite of glaring silence, the Constitutional Courts in India have followed the traditional principle of‘locus standi’ and permitted only the aggrieved person to initiate proceedings under Article 32 and 226. Probably this is due to the influence of the Anglo Saxon jurisprudence which has had a sway over the Indian judicial system in almost all the areas of administration of justice. ‘Locus standi’ concept was not an exception to this phenomenon. This rigid procedural barricade has been broken by the Supreme Court of India only in the 1980’s through the concept of Public Interest Litigation, popularized by judges like Justice V.R.Krishna Iyer and Justice P.N. Bhagwati.
The above traditional rule of locus standi that a petition under Art. 32 can only be filed by a person whose fundamental right is infringed has now been considerably relaxed by the Supreme Court in its recent rulings. The court now permits public interest litigations (PIL) or social interest litigation at the instance of ''public spirited citizens'' for the enforcement of Constitutional and other legal rights of any person or group of persons who because of their poverty or socially or economically disadvantaged position are unable to approach the Court for relief. The same also applied to writ petitions filed in the High Courts under the Art. 226.
Rule laid down in the Judges Transfer Case
A seven member bench of the Supreme Court has firmly established the rule of public interest litigation in the Judges Transfer Case. The court held that any member of the public having sufficient interest can approach the court for enforcing constitutional or legal rights of other persons and redressal of common grievance.
In another landmark judgment in the case of M. C. Mehta vs. Union of India the Supreme
Court further widened the scope of PIL and :
1) The court held that the poor in India can seek enforcement of their fundamental rights from the Supreme Court by writing a letter accompanied by an affidavit addressed to any judge.
2) The court held that under Art. 32 it has the power to grant remedial relief which includes the power to grant compensation in appropriate cases where the fundamental rights of the poor and disadvantaged person are violated.
Guidelines for entertaining letters/ petitions received as PIL.
a) No petition involving individual/ personal matter shall be entertained as a PIL matter except as indicated hereinafter.
b) 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. For example, Petitions for premature release, parole etc. are not matters which deserve to be treated as petitions under 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 is 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 Supreme 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.
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.
8) Petitions pertaining to environmental pollution, disturbance of ecological balance, drugs, food adulteration, maintenance of heritage and culture, antiques, forest and wild life and other matters of public importance.
9) Petitions from riot -victims.
10) Family Pension.
All letter-petitions received in the PIL Cell will first be screened in the Cell and only such petitions as are covered by the above mentioned categories will be placed before a Judge to be nominated by Hon'ble Chief Justice of India for directions after which the case will be listed before the Bench concerned.
If a letter-petition is to be lodged, the orders to that effect should be passed by Registrar (Judicial) (or any Registrar nominated by the Hon'ble Chief Justice of India), instead of Additional Registrar, or any junior officer.
To begin with only one Hon'ble Judge may be assigned this work and number increased to two or three later depending on the workload.
Submission of notes be put up before the Hon'ble Judge nominated for such periods as may be decided by the Hon'ble Chief Justice of India from time to time.
If on scrutiny of a letter petition, it is found that the same is not covered under the PIL guidelines and no public interest is involved, then the same may be lodged only after the approval from the Registrar nominated by the Hon'ble Chief Justice of India.
It may be worthwhile to require an affidavit to be filed in support of the statements contained in the petition whenever it is not too onerous a requirement.
The matters which can be dealt with by the High Court or any other authority may be sent to them without any comment whatsoever instead of all such matters being heard judicially the Supreme Court only.
c) Cases falling under the following categories will not be entertained as Public Interest Litigation and these may be returned to the petitioners or filed in the PIL Cell, as the case may be:
1) Landlord-Tenant matters.
2) Service matter and those pertaining to Pension and Gratuity.
3) Complaints against Central/ State Government Departments and Local Bodies except those relating to item Nos. (1) to (10) above.
4) Admission to medical and other educational institution.
5) Petitions for early hearing of cases pending in High Courts and Subordinate Courts.
d) In regard to the petitions concerning maintenance of wife, children and parents, the petitioners may be asked to file a Petition under sec. 125 of Cr. P.C. or a Suit in the Court of competent jurisdiction and for that purpose to approach the nearest Legal Aid Committee for legal aid and advice.
The jurisprudential philosophy and the need for public interest litigation has been summarised by Justice Krishna Iyer in an extrajudicial writing as follows;
“Class actions, public interest litigation, test cases, interventions by public organisations and the like in civil and criminal cases are facets of participate justice on behalf of the poor. This involves jurisprudential changes including redefinition of 'cause of action', 'aggrieved person' and many other concepts. For instance, the horrendous escalation of automobile accidents causes indescribable misery, and no-fault liability, now that insurance is nationalised, is simple social justice. And yet Callous governments and docket crowded courts with no regard to human relief, leave this principle in the code, despite a long ago report of the law commission for its partial acceptance. Therefore, if the poor are to have a stake in the rule of law we may now to create a new jurisprudence. Shall I call it people oriented jurisprudence so necessitous in the third world conditions?
Public interest litigation is, of course, an important and vital branch of public law and the Supreme Court has ruled that in a public law proceeding, there is constitutional obligation imposed on the court to forge new tools necessary to give relief for doing complete justice and to preserve and protect the rule of law. The court is ready to invoke the power available to the Supreme Court under article 142 of the constitution.”
[Published in Corporate Secretary of ICSI, February, 2011]
[Published in Corporate Secretary of ICSI, February, 2011]