PIL IN INDIA The Role of Judges and Lawyers
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Table of Cases..................................................................................................................3 Introduction......................................................................................................................4 Research Methodology................................................................................................4 From Beginning to Present : Overview...........................................................................5 What is “Public Interest�?............................................................................................8 The Constitutional Basis ...............................................................................................10 Procedure ..................................................................................................................11 Requirement of bona fide...........................................................................................11 Importance of Lawyers..................................................................................................14 Role of Judges................................................................................................................17 Important Case Summaries............................................................................................19 Who Can Move A Pil?...............................................................................................19 Judges Raise Doubts Over Pil....................................................................................20 Private Battles In Public Garb....................................................................................22 Private Interest Litigation..........................................................................................24 Conclusion.....................................................................................................................28 Bibliography..................................................................................................................30
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TABLE OF CASES 1. A K Gopalan v State of Madras, (1950) SCR 88. 2. Bandhua Mukti Morcha v. Union of India, (1984) 4 SCC 161. 3. Chhatriya Pardushan Mukti Sangarsh Samiti vs. State of U.P., AIR 1990 SC 2060 4. Chinnamma Sivdas v. Delhi Admn., WP 2526/1982. 5. Kadriya Pahadiya v. State of Bihar, WP 5943/1980 6. Krishna Swami vs. Union of India: (1992) 2 SCC 341. 7. Maneka Gandhi v. Union of India, AIR 1978 SC 597. 8. Ramsharan Atyanuprasi vs. Union of India : AIR 1989 SC 549 9. Rangadurai v. Gopalan, Civil Appeal No.839 of 1978. 10. S.P.Gupta v. Union of India, AIR 1982 SC 149 11. Shantistar Builders v. Narayan Khimalal Totame, AIR 1978 SC 597. 12. Sheela Barse v. Union of India, (1988) 4 SCC 233. 13. State of Punjab v. Sodhi Sukhdev Singh, (1961) 2 S.C.R. 384 14. Subhash Kumar v. State of Bihar, (1991) 1 SCC 598. 15. Subhash Kumar vs. State of Bihar, AIR 1991 SC 420 16. Sudipt Mazumdar vs. State of M.P. , (1983) 2 SCC 258 17. Upendra Baxi v. State of UP, 1981 (3) SCALE 1136.
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INTRODUCTION Few developments in the superior courts of India in recent times have excited such enthusiasm and interest as Public Interest litigation (PIL). PIL is a product of time and circumstances.
It did not spring from any specific constitutional provision or
legislative code; rather, it has been evolved by the need for redress, generally through affirmative action, in cases where the general public, or ascertainable sections of the public, are aggrieved. In the main, these are cases where Parliament or a State legislature has failed to address problems affecting the quality of life of the community or identifiable segments of society, or the executive is alleged to have been guilty of nonuse or misuse of its powers touching the fundamental rights of individuals. Public Interest Litigation (PIL) is now a phrase which is not alien to the language of even the lay person. In its short history of about only 2 decades PIL has done yeoman’s service to the cause of fulfilling Constitutional objects of a fair and responsive judicial system. The role of judges and lawyers has been very important in all of this and merits close examination. Credit must go to the Judges of the Apex Court who had the courage to make procedural innovations which were radical by conventional legal principles. The lawyers who supported the introduction are also be to be credited as ultimately for any innovation to be successful the Bar must enjoy confidence in and the willingness to support such measures as well.
Research Methodology The research method adopted for the purposes of this project is one which is descriptive and analytical. It is descriptive to the extent that it culls out the legal principles as enunciated in judgments. It is analytical in the sense that it seek to go beyond pronouncements and see the nature and varied role that lawyers and judges have played in PIL. The project seeks not only to understand the role of the bar and the bench in PIL but also examine in brief its jurisprudential basis and the historical context in which it arose.
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FROM BEGINNING TO PRESENT : OVERVIEW No discussion on the emergence and growth of public interest litigation can be meaningful without some reflection on the nature of judicial function since public interest litigation is, primarily judge-led. There is a myth strongly nurtured in many jurisdictions that judges do not make law: they merely interpret law. Law making belongs to the legislature and the judges merely reflect what the legislature has said. But what is the real nature of the judicial process? Rules have deliberately been evolved in order to insulate judges against vulnerability to public criticism and to preserve their image of neutrality, which is regarded as necessary for enhancing their credibility. It also helps judge; to escape accountability for what they decide, for if they are merely carrying out the intention of the legislature, they cannot be held responsible if in professedly effectuating the legislative intent, unjust results are produced This approach offers judges plenty of dignified exits from the agony of self - conscious wielding of power and it also equally suits lawyers and scholars who find it more convenient to deal with immediate issues of technique and substance rather than examine the more fundamental questions of the role of the judge in a changeful society. Hence, the incredibly persistent attempt on the part of lawyers and judges to convince the people about the truth of the lie that judges do not make law. There can be no doubt, that judges co take part in the law-making Process and if we accept this thesis, as we must, it must follow as a necessary corollary that judicial activism is a necessary and inevitable part of the judicial process. The question only is what kind of judicial activism how much of it, in what manner, within what self - imposed limits and to what willed results and with what tolerable accumulation of unintended results should the judges adopt a pro-active approach. That in its turn depends on the role which the judges are expected to fulfil in a society. Now there can be no single cross-cultural theory about the judicial role. When we talk about the role of judges, we, of necessity, talk about it in some time and space context and in the circumstances of development of a particular society. The idea of a judge may be part of the common heritage of mankind but what judges are expected to do and what hey ought to do varies across time, place and circumstance. During the initial years following the coming into force of the Indian Constitution, the Courts in India were content to follow the Orthodox traditions observed by them in 5
regard to litigation during British colonial rule. Judicial traditio0ns and judicial practice generally mirrored the traditions and practices found in the English Courts. Where there were deviations or innovations, they arose mainly as a response to local history and recognition of prevailing social and economic patterns of life. Judicial attitudes and procedures were shaped by the culture of adversarial litigation, with the court as a passive umpire. The court never initiated the proceedings before it; it merely took cognisance of it when a party brought it for adjudication. Furthermore, the judicial verdict was circumscribed by the record before the court which usually consisted of documents filed by the opposing parties and which were supplemented by oral submissions. Civil litigation was initiated by a party who was personally or directly interested in obtaining relief for himself. The procedure was required to conform to the Code of Civil Procedure, or legislation of a like nature, where strictly defined procedures and forms moulded the proceeding of the court. In short, traditional litigation bore the stamp of a highly individualized proceeding.
The same characteristics identified petitions for
directions, orders or writs, including high prerogative writs such as mandamus, certioriari and prohibition, in the consideration of which, generally, the courts insisted that the petitioner should possess personal entitlement to relief. During the fourth and fifth decades of this century, a revolution in the I and recognition of civil and political rights and of economic, social and cultural rights began taking definitive shape. Although the seeds of that revolution had been sown much earlier in the philosophical basis underlying the French Revolution and the liberal values incorporated III the US Constitution, it was only in 1945 that formal human rights principles came to be drafted and adopted in the Charter of the United Nations, 1 and in the more detailed Universal Declaration of Human Rights2 which followed three years later. Those principles were subsequently expanded upon in the drafts of the two related International Covenants3 which were brought into being in 1966.
By this nine,
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UNTS xvi. Adopted on 10 December 1948, Gen Ass Res No. 217 A (III), UN Doc A/810 at 71 (1948). 3 The International; Covenant on Civil and Political Rights, 999 UNTS 171, and the International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3. These Conventions came into force on 23 March 2
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throughout the civillsed world, powerful forces steered the human race towards an enlightened view of the rights of the individual. Recognized as fundamental to the development of human personality and essential to societal happiness and well-being, the philosophy of human rights began to preoccupy jurists, lawyers and academic scholars. Inspired by this human rights revolution, courts in different parts of the world were also caught up in the ethos of change which characterized the posts-war world. In the United States, for example, the Supreme Court headed by Chief Justice Earl Warren evolved a system of affirmative action which contrasted strongly with the passive stance adopted previously In India, too, the courts were persuaded, by a variety of factors, to follow, that road to change. This new strategy evolved by the Supreme Court was unorthodox and unconventional. It shocked the conscience of many lawyers and judges. They thought that what the Court was doing was heretical. But so far as the large masses of people in the country are concerned, they warmly applauded this new initiative taken by the Court. They began to feel for the first time that the highest court in the country and also the High Court were shedding their character as upholder of the status quo and were assuming a new dynamic role as the protector of the work through the adoption of a highly goal oriented and activist approach by the judges. The new social and economic rights which are sought to be created in pursuance of the Directive Principles of State policy essentially require active intervention of the State and other public authorities.
Amongst these social and economic rights are
freedom from indigency, ignorance and discrimination as well as the right to healthy environment, to social security and to protection front financial, commercial, corporate or even governmental oppression. More and more frequently the conferment of’ these socioeconomic rights and imposition of public duties on the State and other authorities for Liking positive action generates situations in which single human action can be
1976 and 3 January 1976, respectively.
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beneficial or prejudicial to a large number of people, thus making entirely inadequate the traditional scheme of litigation as merely a two-party affair. One of the reasons why the Supreme Court evolved the PIL mechanism was also to protect the rule of law and the Constitution. It realised that people were getting increasingly disillusioned with the justice system and soon their frustrations might reach such a level that they take the law into their own hands. As noted by Justice Bhagwati in S.P.Gupta’s case, “It is also necessary to point out that if no one can have standing-to maintain an action for judicial redress in respect of a public wrong or public injury, not only will the cause of legality suffer but the people not having any judicial remedy to redress such public wrong or public injury may turn to the street and in that process the rule of law will be seriously impaired. It is absolutely essential that the rule of law must wean the people away from the lawless street and win them for the court of law.”4(emphasis supplied)
What is “Public Interest”? Justice Gajendragadkar has said that public interest is always supervening. In a Supreme Court Judgment he has said “Fair administration of justice between a citizen and a citizen or between a citizen and the State is itself a matter of’ matter of very more so would the administration of justice as a whole be a matter of very high public importance, even so, on principle if there is a real, not imaginary or fictitious, conflict between public interest and the interest of an individual in a pending case, it may reluctantly have to be conceded that the interest of the individual cannot prevail over the public interest. If social security and progress which are necessarily included in the concept of public good are the ideal then injury to the said ideal must on principle be avoided even at the cost of the interest of an individual involved in a particular case.”5 Justice P.N.Bhagwati, one of the finest and most active propellers of the PIL innovation has said, “It may therefore now be taken as well established that 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 or any burden is impose in contravention of 4 5
AIR 1982 SC 149 State of Punjab v. Sodhi Sukhdev Singh, (1961) 2 S.C.R. 384
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any constitutional or legal provisions or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty helplessness or disability or socially or economically disadvantaged position unable to approach the court for relief, any member of public can maintain and application for in appropriate direction, order or writ in the High Court under Article 226 and in case of breach of any fundamental right of such person on determinate class of persons, in this Court under Article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons.� This judgment he delivered in the path breaking S.P. Gupta v. Union of India6 which broke the the conservative interpretations of locus standi.
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AIR 1982 SC 149.
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THE CONSTITUTIONAL BASIS The comprehensive sweep which Public Interest Litigation has developed in India has been made possible largely by an expansive interpretation given by the Supreme Court of India to art 21 of the Constitution. This article reads as follows: ‘No person shall be deprived of his life, or personal liberty except according to procedure established by law.’ In A K Gopalan v State of Madras, 7 the Supreme Court took the view that art 21 was attracted only in cases of ‘deprivation of personal liberty’, and ‘deprivation’ meant a total loss of liberty. In Maneka Gandhi v. Union of India,8 the court modified that view, and enlarged the scope of ‘deprivation of personal liberty’ to include imposition of restrictions on personal liberty. As the court adopted a more liberal approach, it also gave an expanded meaning to ‘deprivation of life’, holding that the ‘right to life’ in art 21 included all those aspects of life, which combine to make human life meaningful, complete and worth living. The right to life, it said, encompassed a right to all those components, which together make up life, such as tradition, culture and heritage. In Shantistar Builders v. Narayan Khimalal Totame,9 and again in Subhash Kumar v. State of Bihar,10 the court treated the right to a decent environment as an essential prerequisite of the right to life guaranteed by art 21. The ‘quality of life’ is determined by the various attributes of life which preserve and promote human life and human living, such as the natural and cultural environs, the multifarious dimensions of man’s social relationships, and all that he represents as a member of an evolving progressive society. By this construction of art 21, the Supreme Court has become, as it were, the judicial arbiter of the entire corpus of rights, which determines, the quality of human living. It is an enormous responsibility, but one which the court considers to the promotion of a modern welfare society.
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(1950) SCR 88. AIR 1978 SC 597. 9 AIR 1990 SC 630. 10 (1991) 1 SCC 598. 8
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Procedure The reasons which promote Public Interest Litigation explain, to some extent, the peculiar procedural departures allowed by the courts for this type of litigation. In most cases, PIL arises where a public cause or public need is sought to be satisfied. Having regard to the purpose of an all state power, it is apparent that the public cause or public need is a matter to which the state would ordinarily address itself. The matter would, therefore, be one, which falls within the domain of state obligations. Viewed in that light, it would be inappropriate to treat it as attracting the adversarial procedures governing private litigation. Once it is clear that the matter is one falling within the obligations of the state, the parties (including the state) usually find themselves working in co-operation with each other in the task of finding, through the intervention of the court, a solution to the problem. Once co-operation becomes the keyword, the court, in its activist role, seeks the assistance of the parties, adopts such procedures as would enable it to obtain the relevant material and to formulate appropriate measures designed to grant redress to the affected party. The procedure adopted by the court is generally investigative. It may appoint a commission for that purpose, and it may call for expert opinion or advice.
Requirement of bona fide The bona fide of the litigator and the lawyer who represents the case is very important. If the PIL were tobe misused for serving other personal reasons then it would lead to a situation where courts would reject PILs all together. Indeed in S.P.Gupta’s case the court held very categorically as follows, “But we must hasten to make it clear that the individual who moves the Court for judicial redress in cases of this kind must be acting bona fide with a view to vindicating the cause of justice and if he is acting for personal gain or private profit or out of political motivation or other oblique consideration, the Court should not allow itself to be activised to the instance of such person and must reject his application at the threshold, whether it be in the form of a letter addressed to the Court or even in the form of a regular writ petition filed in Court. We may also point out that as a matter of prudence and not as a rule of law, the Court may confine this strategic exercise of jurisdiction to cases where legal wrong or legal
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injury is caused to a determinate class or group of persons or the constitutional or legal right of such determinate class or group of persons is violated and as far as possible not entertain cases or individual wrong of injury at the instance of a third party, where there is an effective legal aid Organization which can take care of such cases.... The strict rule of standing which insists that only a person who has suffered a specific legal injury can maintain an action for judicial redress is relaxed and a broad rule is evolved which gives standing to any member of the public who is not a mere busy-body or a meddlesome interloper but who has sufficient interest in the proceedings There can be no doubt that the risk of legal action against the State or a public authority by any citizen will induce the State or such public authority to act with greater responsibility and care thereby improving the administration of justice.”11 It was felt that “only by liberalising the rule of locus standi that it is possible to effectively police the corridors of power and prevent violations of law.” Justice Bhagwati in another case has said “We have on more Occasions than one Said 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 our community and to assure them social and economic justice which is the signature tune of our Constitution. The Government and its officers must welcome public interest litigation because it would provide them an occasion to examine whether the poor and the downtrodden are getting their social and economic entitlement or whether they are continuing to remain victims of deception and exploitation at the hands of strong and powerful sections of the community and whether social and economic justice has become a meaningful reality for them or it has remained merely a teasing illusion and a promise of unreality, so that in case the complaint in the public interest litigation is found to be true, they can discharge of their constitutional obligation, root out exploitation and injustice and ensure to the weaker sections their rights and entitlements. When the Court entertains public interest litigation, it does not do so in a cavilling spirit or in a confrontational mood or with a view to tilting at executive authority or seeking to usurp it but its attempt is only to ensure observance of
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S.P.Gupta v. Union of India, AIR 1982 SC 149
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social and economic rescue programmes, legislative as well as executive, framed for the benefit of the have-nots and the handicapped and to protect them against violation of their basic human rights which is also the constitutional obligation of the executive. The Court is thus merely assisting in the realization of the constitutional objectives.�12
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Bandhua Mukti Morcha v. Union of India, (1984) 4 SCC 161.
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IMPORTANCE OF LAWYERS The importance of lawyers for the success of PIL cannot be understated by any stretch o imagination. Though the lawyering profession has lost much of its sheen of nobility and respect that it once had and that lawyers as a breed are perceived as being scheming, exploitative and selfish, with their professional ethics declining day-by day, it cannot be dispued that PIL in its form today would not have come through but for the active support of lawyers. Justice Krishna Iyer once said ,”Law is a noble profession, true; but it is also an elitist profession. Its ethics, in practice, (not in theory, though) leave much to be desired, if viewed as a profession for the people. When the Constitution under Art. 19 enables professional expertise to enjoy a privilege and the Advocates Act confers a monopoly, the goal is not assured income but commitment to the people - the common people whose hunger, privation and hamstrung human rights need the advocacy of the profession to change the existing order into a Human Tomorrow. This desideratum gives the clue to direction of the penance of a deviant geared to correction. Serve the people free and expiate your sin, is the hint”13 He further stated that “Law’s nobility as a profession lasts only so long as the members maintain their commitment to integrity and service to the community. Indeed, the monopoly conferred on the legal profession by Parliament is coupled with a responsibility - a responsibility towards the people, especially the poor.14” By 1979 it was clear to the discerning members of the bar and to social activists that the court was indeed in search of a new kind of constitutional litigation. And the first dramatic opportunity was provided by a Supreme Court advocate, Ms. Kapila Hingorani, who filed a writ based on a series of articles in a national daily, The Indian Express, exposing the plight of Bihar undertrial prisoners. Most of whom had served long pre-trial detention, indeed to a point that they had as it were, sentences to their credit.15 In 1980, two professors of law made a letter to the editor of The Indian Express describing the barbaric conditions of detention in the Agra Protective Home for Women the basis for a writ petition under Article 21. 16 This was followed by a similar 13
Rangadurai v. Gopalan, Civil Appeal No.839 of 1978. Ibid. 15 Hussainara Khatoon Case. 16 Upendra Baxi v. State of UP, 1981 (3) SCALE 1136. 14
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petition for Delhi Women’s Home by a third year law student in Delhi Law Faculty and a social worker.17 A law teacher on a social science research fellowship successfully brought to completion the trial of four young tribals, who grew up in a sub-jail awaiting trial.18 In addition, there are a handful of lawyers and lawyer-led Social Action Groups (SAGs ) who have also contributed to PIL. Among the lawyer-led SAGs are three principal groups: the Citizens for Democracy (CFD), the People’s Union of Civil Liberties’and the People’s Union for Democratic Rights. Of about 75 PIL writs filed between 1980-82, social activists rather than individual lawyers or lawyer groups have filed a preponderant number. 19 And this has been made possible by a rather unique development. Much of PIL in this period has arisen out of letters written by individuals to Justice P. N. Bhagwati in his twin capacities as the Justice of the Supreme Court and the Chairperson of the National Committee for the Implementation of the Legal Aid Schemes. The letters usually rely on newspapers and periodicals investigative reportage. More often than not, the Justice brings them on the board of the court, converting these letters into writ petitions. Justice Bhagwati has gone so far as to invite members of the public and especially public spirited citizens to bring to his notice violations of basic human rights, as embodied in the Constitution, for suitable judicial action. The surest sign of modicum of success of the PIL movement is provided by the changing attitude of the Supreme Court bar towards it. In 1979, when the court expressed a hope that the bar association intervene in Bihar undertrial cases, there was just no stirring of response.20 When two law professors filed the Agra Women’s Home petition, there was a certain amount of amused interest on the part of the senior leaders of the bar. When the PIL dockets explosion began, there was anguished protest. A 17
Chinnamma Sivdas v. Delhi Admn., WP 2526/1982. Kadriya Pahadiya v. State of Bihar, WP 5943/1980 19 Upendra Baxi, Taking Suffering Seriously, Social Action Litigation in the Supreme Court of India from Rajeev Dhwawan et al. (eds.), Judges and the Judicial Power, Sweet and Mazwell, London, 1985,p.296. 20 Id. 18
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leading state counsel expressed his exasperation in the open court at the day long proceedings of PIL based on the media investigative reportage; his trenchantly expressed protest was met by Justice Bhagwati with a sharp admonition: “Hold your tongue”. In the course of the Agra proceedings, senior lawyers were openly heard to say that if the Supreme Court thus wants to do social justice, it had better met on the weekends!21 The bar’s reaction has moved from indifference to indignation at what it regards as freak litigation. At the present moment, two utterly different types of responses seem to be emerging. One is a frankly antagonistic and hostile response. A senior advocate, and a member of Rajya Sabha, moved two motions pertaining to the ‘public interest’ litigation in the Supreme Court. The first at the end of 1981 urged the government to prescribe certain guidelines for this kind of litigation; this suggestion was promptly discounted by the then Law Minister, Shiv Shankar. In late April, 1982, the same member made highly derogatory references to PIL. He saw in it nothing less than a foreign conspiracy to destabilize the Indian government through the activation of the Supreme Court On the other hand, some senior lawyers have now begun to say that they have always been pursuing PIL. They cite a number of examples where public interest was involved: the National Security Ordinance and Act, the Bearer Bonds Act, and other such mattersEven H. M. Seervai could not resist the temptation, despite his contemptuous attitudes towards Justices Krishna Iyer’ and Bhagwatito assert that the Bombay bar’s initiative in challenging non-appointment of additional High Court Justices and their transfers was a shining example of the bar’s deep commitment to the new litigation. 22
21 22
Id. Id.
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ROLE OF JUDGES A striking feature of PIL is that it is primarily judge-led and even judge-induced. And it is in turn related to juristic and judicial activism on the High Bench. Many Justices have, on and off the bench, advocated active assertion of judicial power to ameliorate the miseries of masses. Although the active, almost explosive, assertion of judicial power in the aid of the dispossessed and the deprived began in the aftermath of the emergency, judicial populism had become pronounced even before the emergency, particularly in the great decisions in Golak Nath and Kesavananda Bharati.23 The judges have countered theories that PIL action on their part is unwarranted judicial activism not permitted by the Constitution which has division of powers. Where the Court embarks upon affirmative action in the attempt to remedy a constitutional imbalance within the social order, few critics will find that fault with it too 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 property 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 citizens seem to find it more convenient to apply to the Court for the vindication of constitutional rights than an appeal to the executive or legislative organs of the State. However judges have also been cautious against the excessive use of PIL and intervention. The erudite former Chief Justice M.N.Venkatachaliah in landmark case of Sheela Barse v. Union of India24 has said, “In the process of correcting executive error or removing legislative omission the Court can so easily find itself involved in policy making of a quality and to a degree characteristic of political authority and indeed run 23
R.S.Pathak, “PIL in India�, from Venkat Iyer (ed.), Democracy, Human Rights & the Rule of Law: Essays in Honour of Nani Palhivala, Butterworths, New Delhi, 2000, p.126. 24 (1988) 4 SCC 233.
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the risk of being mistaken for one. An excessively political role identifiable with political governance betrays the Court into functions alien to its fundamental character and tends to destroy the delicate balance envisaged in our constitutional system between its three basic institutions. The Judge, conceived it the true classical mould, is an impartial arbiter, beyond and above political basis, the prejudice, functioning silently in accordance with the Constitution and his judicial conscience. Thus does he maintain the legitimacy of the institution he serves and honour the trust which his office had reposed in him.” The elevation of Justice Krishna Iyer to the High Bench in 1974 reinforced the tendency towards judicial populism. He unremittingly insisted that the law is meant for the people and not the people for the law. He used every conceivable occasion, on and off the bench, to further the cause of the ‘toiling masses’ and the ‘weaker sections of the society’. He also indefatigably demonstrated and critiqued the colonial and alienating nature of legal processes and institutions and crusaded for a radical reorientation of the bench and bar towards the urgent tasks of development and justice for the Indian masses.’25 Justice Krishna Iyer enhanced the sensitivity of judges and lawyers to exploitation and suffering in a way no other Justice of the Supreme Court had ever done.
25
P.N.Bhagwathi, Dimensions of Human Rights, 1st edn, Scoiety for Community Organisation Trust, Madurai, 1987, p.41.
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IMPORTANT CASE SUMMARIES Who Can Move A Pil? S.P. Gupta vs. Union of India: AIR 1982 SC 149 This judgment has judgment his often been described as the "Charter of PIL." The main question was, who is entitled to move the high court or the Supreme Court when there is a violation of a fundamental right? Is it only the per-son who suffered, or can anyone else on behalf of the sufferer move the court? 1-nis is the subject of this judgment, which settled this question locus standi once and for all in public interest cases. It widened the locus standi of public-spirited persons before the court. Facts: The case referred to the transfer of some high court judges to another high court against their will, and non-confirmation of some high court judges after their appointment allegedly because of some political reasons. The judges themselves did not move the court, but some public-spirited lawyers moved the high courts and the Supreme Court challenging the action of the government. The government opposed the petitions asserting that the petitioners were "meddlesome interlopers" who had no locus standi before the court and therefore their petitions should be dismissed at the threshold itself. The Constitution bench rejected this argument and heard the case for three months after which they delivered a one thousand-page judgment relating to judiciary. The main judgment by Justice Bhagwati dealt in detail with the question of locus standi and decided the issue once and for all. Ruling: The traditional rule in regard to locus standi is that judicial redress is available only to a person who has suffered a legal injury by reason of violation of his legal right or legally protected interest by an action of a public authority. This is a rule of ancient vintage and it arose during an era when private law dominated the legal scene and public law had not yet been born. Now, it may be taken as well established that where a legal wrong or legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of disadvantaged position, unable to approach the court for relief, any member of the public can maintain an application for an appropriate direction, order or writ, in the high court under Article 226, and in case of breach of any fundamental right in the Supreme Court under Article 32 seeking judicial redress for such legal injury. Where the weaker sections of the community are concerned, such as under trial prisoners, inmates of protective homes for women, or Harijans who are exploited in construction works, who are helpless victims of an exploitative society and who do not have easy access to justice, the Supreme Court will not insist on a regular writ petition to 19
be filed by the public spirited individual espousing their cause. The court will readily respond to even a letter addressed by such individual acting pro bono pubico. It is true that the court has to follow the procedures and formalities. But it must not be forgotten that procedure is but a handmaiden of justice and the cause of justice can never be thwarted by any procedural technicalities. The court would cast aside the technical rules and treat the letter of the public-minded individual as a writ petition and act upon it. We hope and trust that the high courts of the country will also adopt this projective, goal-oriented approach. But we must hasten to make it clear that the individual who moves the court for judicial redress in cases of this kind must be acting bona fide with a view to vindicating the causes of justice and if he is acting for personal gain or private profit or out of political motivation or other oblique consideration, the court should not allow itself to be activated at the instance of such person and must reject his application at the threshold, whether it be in the form of a letter addressed to the court or even in the form of a regular writ petition filed in the court. As a matter of prudence. the court may confine this strategic exercise to cases where legal wrong or injury is caused to a determinate class or group of persons or the constitutional or legal right of such determinate class is violated. As far as possible, the court may not entertain cases of individual wrong or injury at the instance of a third party, where there is an effective legal aid Organisation which can take care of -such cases.
Judges Raise Doubts Over Pil Sudipt Mazumdar vs. State of M.P. : (1983) 2 SCC 258 In this case two judges raised several questions about the practice of letters being turned into public interest writ petitions. The doubts, raised in November 1982, have not yet been answered by the court, and probably would never be. But this order of the court is an example of the reaction which can set in if one section of the judiciary is too activist and another not yet ready to go along with it as fast. It may be noted that several jurists were jurists of the activist pace of the Supreme Court during this period. There were fears of opening floodgates of litigation if letters were turned into writ petitions by the Supreme Court and the high courts. This case is quoted here mainly to highlight the hurdles that can arise in conducting public interest litigation. Facts : The petitioner was at that time a reporter of the Indian Express. He visited certain villages near the firing ranges of the army in M.P. and found that the tribals in those areas were facing danger to their lives and liberty because of the army's callousness. Some of the ammunition used for practice were left it the firing ranges, a few of them
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unexploded.- Poor tribals, women and children among them, used to pick the shells to sell them as scrap in the market. In this pursuit of making a living, several of them were killed when the shells exploded. It was said that there was one "village of widows" where all able-bodied men had been killed in the process. The petitioner reported all these in the newspaper. Then he sent the writings to the Supreme Court in the hope that it will take up the matter as a public interest case, as it hid done in several other cases. But when it was listed before this bench, the result was unexpected. The judges brought a typed sheet raising ten questions regarding the conduct of letter-petitions and referred them ill to a constitution bench for consideration. Dr. L.M. Singhvi, senior counsel, was appointed amices curiae, the Lawyer to assist the court. Fortunately for the tribals, their problems were separated from the constitutional questions and decided by other benches over a period of years. The army was asked to cordon off the firing ranges to prevent the tribals from entering and picking scraps. Questions: Though the ten questions raised by the two judges sounded very important in the early eighties, they are not quite relevant now, as the law his since been clarified by the court itself as we shall see in Later judgments. Only a sample few questions are summarized below: Should the court take notice of letters addressed to individuals (instead of the court) by post enclosing some paper cuttings and take action except where the complaint refers to deprivation of liberty of any individual? Should such letters be sent to the court's legal aid committee by the registrar with a request to ex3mine whether there is any prima facie case which requires to be considered by this court, and if it is felt that there is such a case, to file a formal petition? Can a stranger to a cause, be he a journalist, social worker, advocate or an association, initiate action in matters alleged to be involving public interest or should a petitioner have some interest in common with others whose rights are infringed by some government action or inaction? Can this court take action on letters for which remedy can be had in ordinary civil, criminal or revenue courts? Would the informality (of turning letters into petitions) not lead to greater identification of the court with the cause than it would be when a case involving the same type of case is filed in the normal way?\
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Private Battles In Public Garb Ramsharan Atyanuprasi vs. Union of India : AIR 1989 SC 549 This is an instance of abuse of public interest litigation for private ends. Therefore, the Supreme Court deprecated the practice. It also found fault with petitioners writing letter-petitions personally addressed to a judge. It should be sent to the court, not to an individual. The judgment is notable for its discussion on public interest litigation. Therefore, the important paragraphs are reproduced in detail. Facts: Two persons wrote a letter to a Supreme Court judge claiming it to be a public interest litigation. They said that they wanted to bring to the notice of the judge the total disarray caused by the arbitrary and highhanded running of the premier institution of ancient art, culture and history of Rajasthan, namely the Sawai Man Singh II Museum Trust" by its chairman. They narrated the history of the trust and gave their version of the dispute in the trust. According to them the properties of the trust were being frittered away and priceless objects were being lost to the country. So they asked the court to set up a board of trustees barring the then chairman. The Supreme Court initially issued notice to the opposite parties and ordered in injunction restraining the trustees from alienating any assets of the museum on a complaint that some valuable items were being clandestinely taken away. The petitioners argued that their right to life under Article 21 of the Constitution had been infringed. They further drew the attention of the court to Article 49 which cast a duty on the state to protect monuments and objects of historic interest. But the opposite parties contested the allegations made by the petitioners and the court realised that it was all really a dispute between heirs in the royal family. Ruling: The petition was dismissed with the following remarks: "We are of the opinion that the petition under Article 32 of the Constitution is not maintainable. On the facts as appearing from the pleadings it cannot be predicated that there is any breach of any fundamental right of the petitioners. We are fortified by this conclusion by the fact that in view of the nature of the allegations made in the present context, it is a case which is more amenable to be proceeded under Sections 37 and 38 of the Rajasthan Public Trust Act, 1959, as amended from time to time. These provisions correspond, more or less, to Sections 91 and 92 of the Code of Civil Procedure. "It appears to us, further, that it would be highly improper to consider this litigation to be a public interest litigation as it is litigation between the members of the erstwhile Raj family to settle their own scores. It is not pro bono publico, for the benefit of the public, but for the benefit of a particular section of people for their personal rights. Hence, the assertion that this dispute is a public interest dispute is wrong. The petitioner has asserted that there is violation of Article 21 of the Constitution, which enshrines protection of and personal liberty and states that no person shall be deprived of his life 22
or personal liberty save according to the procedure established by law. It is true that life in its expanded horizons today includes ill that give meaning to a man's life including his tradition, culture and heritage and protection of that heritage in its full measure would certainly come within the comp of an expanded concept of Article 21 of the Constitution. Yet, when one seeks relief for breach of Article 21, one must confine oneself to some direct, overt and tangible act which threatens the fullness of his life or the lives of others in the community. "In the instant case the allegations are too vague, too indirect and too tenuous to threaten the quality of life of people at large or any section of the people. The acts complained of' resulting in the threats alleged are too remote, in our opinion, to be amenable under Article 32 of the Constitution. The petitioners further assert that there has been violation of Article 51-A(f) of the Constitution as a duty has been cast on every citizen to value and preserve the rich heritage of our composite culture. Indeed, it is our duty, but the enforcement of that duty by means of a writ under Article 32 of the Constitution, in the facts and circumstances of this case, is not warranted. In this case there was no evidence evidencing that any attempt had been made to ask the state to protect a monument or any application had been made to state seeking intervention and action. "In that view of the matter, resort to Article 349 was not just. We think that invocation of the jurisdictional this court as a public interest litigation, in the background of the allegations made in the petition and in the context of this case, was wholly unjustified. Public interest litigation is an instrument for the administration of justice to be used properly in proper cases. Public interest litigation does not mean settling disputes between individual parties. "This Court in Bandhua Mukti Morcha vs. Union of India (34) dealt with this question and justice Bjhagwati, as the learned Chief Justice then was, observed 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, economic and political justice which is the signature tune of our Constitution. He reiterated that the court entertain public interest litigation, not in a caviling spirit or in a confrontational mood or with a view to tilting at executive authority or seeking to usurp it, but its attempts only to ensure observance o fiscal and economic rescue programmers legislative as well as executive, framed for the benefit of the have-notes and the handicapped and to protect them against violation of their basic human rights, which is also the constitutional obligation of the executive. In the same decision it was observed by Justice Pathak, as the learned Chief Justice then was, that public interest litigation in its present form constitutes a new chapter in our judicial system acquiring a significant degree of importance in the jurisprudence practiced by our courts. The learned judge deprecated individual communications and suggested that all communications and petitions invoking the jurisdiction of the court, must be addressed to the entire court, that is to say, the Chief Justice and his companion judges. Judged by that standard, this petition does not seek to advance any public right. It seeks to exploit private grievances.
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Private Interest Litigation Chhatriya Pardushan Mukti Sangarsh Samiti vs. State of U.P. : AIR 1990 SC 2060 This is another case of misuse of public interest litigation, which the Supreme Court condemned. Facts: The petition, in the form of a letter, alleged that an oil mill was polluting the environment in Sarnath, the historic temple town. The petition further stated that people were finding it difficult to eat and sleep due to the smoke and foul smell and the highly polluted water. The whole area was being laid waste due to pollution and health of the people was in danger. In view of the serious nature of the allegations, the court issued notice to the refinery owners. They replied that there was long rivalry between the petitioners and the respondents. The petitioner was an antisocial element and his only aim was to extract money from well-to-do people. Evidence was produced to show instances of blackmail. It was also pointed out that in the 1984 judgment in Bandhua Mukti Morcha case, the Supreme Court had underlined the importance of satisfactory verification of allegations. Further, it was argued that there was a law controlling pollution and therefore the court must follow the procedures prescribed in that law and should not bypass them in a public interest litigation. Lastly, the company said that it had complied with all anti-pollution laws and there was no complaint against it from any quarters.
Ruling: Considering the circumstances, the court held that there was no default on the part of the company. Writ provision under Article 32 of the Constitution is a great and salutary safeguard for preservation of fundamental rights of the citizens. But these rights can be claimed only by a person genuinely interested in the protection of society on behalf of the society or community. This weapon as a safeguard must be utilised and invoked by the court with great deal of caution. Where it appears that this is only a cloak to feed ancient grudge, this should not only be refused but also strongly discouraged. While it is the duty of the Supreme Court to enforce the rights, it is also its duty to ensure that this weapon should not be misused or permitted to be misused creating a bottleneck in the superior court preventing other genuine violation of the rights. "We must protect society from the so-called protectors. This application is legally, devoid of any merit or principles of public interest and public protection. This application certainly creates bottlenecks in court, which is an abuse of process of this court," the Supreme Court remarked while dismissing the petition. PUNISHMENT FOR MISUSE OF PIL Subhash Kumar vs. State of Bihar : AIR 1991 SC 420
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This is yet another instance of misuse of public interest litigation to settle scores with an enemy. When the public interest litigation movement was in full swing, some persons exploited it for private ends. We have seen three such cases before. When the court exposed such cases and deprecated them through the judgments, this temporary spurt in the misuse faded away. The court is now careful at the admission stage itself to examine the motive of the petitioners in the light of these judgments. In this case, the court asked the petitioner to pay costs for the abuse of process.
Facts: This so-called public interest case was filed by the petitioner seeking a direction to the Director of Collieries in Hazaribagh and the Tata Iron and Steel Co. Ltd. to stop immediately the discharge of slurry from its washeries into the Bokaro River. The effluents get settled on agricultural land, including that of the petitioner's, and reduce the fertility of the soil. 1-he river water was rendered unfit for drinking or agriculture and was a health hazard. Despite complaints to the State Pollution Control Board and the various provisions of law, the company was not restrained from polluting the waters; instead it was given fresh licences. In reply, the State Pollution Control Board narrated the various steps taken by it to prevent pollution of the river and its various directions to the Tata Company. The company was complying with them, and there was no discharge of effluents into the river. The company also gave detailed denial of the charges. Ruling: The court accepted the replies of the board and the company. The petitioner has no public interest but was fighting in his own interest. He was buying slurry from the company for several years. With the passage of time, he wanted more and more slurry, which the company refused. The petitioner, an influential businessman, first tried to put pressure on the company; then he began harassing it. He even removed the slurry in an unauthorized manner for which criminal cases were filed against him and his brother. He filed writ petitions in the high court to get slurry but they were dismissed. Thus he entertained personal grudge against the company. The present petition was one way to vent his anger. In f6ct, the prayer in the petition exposed the nature of the litigation. He wanted permission to collect slurry without the authorities' interference. This prayer clearly indicated that he was interested in collecting the slurry for his business. "Article 32 Ls designed for the enforcement of fundamental rights of a citizen by the apex court. It provides for an extraordinary procedure to safeguard the fundamental rights of a citizen. Right to live is a fundamental right under Article 21 and it includes the right of enjoyment of pollution-free water and air for full enjoyment of life. . . . A petition under Article 32 is maintainable at the instance of affected persons or even by a group of social workers or journalists. But recourse to proceeding under Article 32
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should be taken by a person genuinely interested in the protection of society on behalf of the community. Public interest litigation cannot be invoked by a person or body of persons to satisfy his or its personal grudge or enmity. If such petitions under Article 32 are entertained, it would amount to abuse of process of the court, preventing speedy remedy to other genuine petitioners of this court. Public interest litigation contemplates legal proceeding for vindication or enforcement of fundamental rights LITIGATION : FOR WHOSE BENEFIT?" Krishna Swami vs. Union of India: (1992) 2 SCC 341 The course of public interest litigation occasionally became contorted with passage of time. What started as a social action movement for the needy and helpless slowly became a tool in the hands of politicians, business rivals and interlopers. The days of PILs in favour of the under trial prisoners, children in jails, women and the insane in illegal custody seemed distant. Here is a petition filed by two persons who challenged the impeachment procedures set in motion by Parliament against a Supreme Court judge. The interesting point is that the judge did not come forward to seek the remedy. This raises a specific problem: if the beneficiary is silent or does not want to get involved, can others move petitions on his or her behalf? Though the question was academically dealt with in S.P. Gupta case (q1982), it arose in concrete form in this case.
Facts : Following allegations of financial irregularities by Justice v. Ramaswami while he was the Chief Justice of the Punjab and Haryana High Court, 108 MPs initiated a notice of motion for his impeachment in 1991. This speaker set up an inquiry committee to go into the charges, as prescribed under the impeachment procedures. Two PILs were filed against this. The first one was by Mrs. Krishna Swmai, who claimed sufficient interest to file the writ petition as a member of the Tenth Lok Sabha and as an advocate of Madras Known to justice Ramaswami for long. The other petition was field by Mr. Raj Kanwar, an advocate of Karnal district in Haryana. Both of them challenged, through PIL, the notice of motion admitted by the Speaker of the Ninth Lok Sabha for the impeachment of Justice Ramaswami. They also asked the court to quash the corruption charges framed by the inquiry committee set up by the Lok Sabha Speaker. A constitution bench, after several days of hearing, dismissed both petitions as they were not maintainable. Ruling : The judgment stated that in spite of ample opportunity given by the court to the petitioners to implead the judge as a party, they did not choose to do so. The decision of the court would have definitely affected the judge's interests. When the judge himself has not chosen to raise the legal issues affecting him, there was no reason to examine them. Therefore, the petitions have to be dismissed as not maintainable.
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Ordinarily, it is the person aggrieved and directly affected who must seek the relief himself unless disabled from doing so for a good reason, which permits someone else to seek the relief on his behalf. In that situation also, the person affected even though the form may be different and it is so stated expressly makes the claim in substance. The judgment then quoted the S.P. Gupta judgment (14) in which this aspect was dealt with. In that case, some lawyers were fighting the case of a few high court judges who were transferred or not confirmed in their appointments. The passages are quoted below: "But we must be careful to see that the member of the public, who approaches the court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The court must not allow its process to be abused by politicians and others.... "Before we part with this general discussion in regard to locus standi, there is one point we would like to emphasise and it is, that cases may arise where there is undoubtedly public injury by the act or omission of the state or a public authority but such act or omission also causes a specific legal injury to an individual or to a specific class or group of individuals. In such cases, a member of the public having sufficient interest can certainly maintain an action challenging the legality of such act or omission, but if the person or specific class or group of persons who are primarily injured as a result of such act or omission; do not wish to claim any relief and accept such act or omission willingly and without protest, the member of the public who complains of a secondary public injury cannot maintain the action, for the effect of entertaining the action at the instance of such member of the public would be to foist a relief on the person or specific class or group of persons primarily injured, which they do not want. "We have taken a broad and Liberal view in regard to locus standi and held that any public-spirited advocate acting bona fide and not for private gain or personal profit or political motivation or any other oblique consideration, may file a writ petition in the high court challenging an unconstitutional or illegal action of the government or any other constitutional authority prejudicially affecting the administration of justice and in such writ petition he may claim relief not for himself personally but for those who are the direct victims of such unconstitutional or illegal action, because granting such relief to them would repair the injury caused to administration of justice. But the persons for whom the relief is sought must be ready to accept it; they must appear and make it known that they are claiming such relief; it cannot be thrust upon them unless they wish it. "The court does not decide issues in the abstract. It undertakes determination of a controversy provided it is necessary in order to give relief to a party and if no relief can be given because none is sought, the court cannot take upon itself a theoretical exercise merely for the purpose of deciding academic issues, howsoever important they may be. 'The court cannot embark upon an inquiry whether there was any misuse or abuse of power in a particular case, unless relief is sought by the person who is said to have been wronged by such misuse or abuse of power. The court cannot take upon itself the role of a commission of inquiry-a knight errant roaming at will with a view to destroying evil wherever it is found."
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CONCLUSION All in all, PIL symbolizes the politics of liberation: the ruled and misruled have added to the might of the adult franchise the quiet dignity of constitutionalism in their struggle against the myriad excesses of power. And the Supreme Court is thereby slowly marshalling a new kind of social legitimation, which neither the legislature, nor the executive nor political parties can contest without a appearing to justify injustice and tyranny. It was once said that Article 32 is the heart of the Indian Constitution. Alas this heart never supplied blood for whose purpose it was created. A few years after independence the people, common people of India were to realize that justice was not a right. Justice was a claim only people who had a degree of social and economic status could ask for. For the vast masses afflicted by poverty and penury justice was a dream as they were unable to access the judicial system for relief. In light of this deplorable situation the judiciary with the aid of activists, adopted a correction course and suggested revolutionary ways of permitting the cause of justice to be served. The evolution of public interest litigation has redeemed the faith of the people in the Constitution and its promises that justice is a right, not a privilege. On the other side, the attempts of the judge and the lawyer are watched with sceptical concern by those who see interference by the courts in public interest litigation as a series of quixotic forays in a world of unyielding and harsh reality, whose success in the face of opposition bolstered by the inertia and apathy of centuries is bound to be limited in impact and brief in duration. They see judicial endeavour frustrated by the immobility of public concern and a traditional resistance to change and believe that the temporary success gained is doomed to waste away as a mere ripple in the vastness of a giant slow-moving society. Even in the optimistic sense danger to the credibility and legitimacy of the existing judicial system, a feeling contributed no doubt by the apprehension that the region into which the judiciary has ventured appears barren, uncharted and unpredictable, with few guiding posts and direction finding principles, and they fear that a traditionally proven legal structure may yield to the anarchy of purely emotional impulse. To the mind trained in the certainty of the law, of defined principles, of binding precedent and the common law doctrine of Stare decisis the future 28
is fraught with confusion and disorder in the legal world and severe strains in the constitutional system. At the lowest, there is an uneasy doubt where we are going. In fact, the PIL movement is well established. Hopeful signs for the growth of the PIL type professional competence abound. The national legal aid movement is rapidly acquiring PIL orientation. And more and more High Court Justices are becoming PILprone.
4. In our own country, this new class of litigation is justified by its protagonists on the basis generally of vast areas in our population of illiteracy and poverty, of social and economic backwardness, and of an insufficient awareness and appreciation of individual and collective rights. These handicaps have denied millions of our countrymen access to justice, Public interest litigation is said to possess the potential of providing such access in the milieu of a new ethos in which participating sectors in the administration of justice cooperate in the creation of a system which promises legal relief without cumbersome formality and heavy expenditure. In the result, the legal organization has taken on a radically new dimension and correspondingly new perspectives are opening up before judges and lawyers and State Law agencies in the tasks before them. A crusading zeal is abroad, viewing the present as an opportunity to awaken the political and legal order to the objectives of social justice projected in our constitutional system. New slogans fill the air and new phrases have entered the legal dictionary, and we hew of the “justicing system� being galvanised into supplying justice to the socioeconomic disadvantaged. These urges are responsible for the birth or new judicial concepts and the expanding horizon of juridical power.
They claim to represent an increasing
emphasis on social welfare and progressive humanitarianism.
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BIBLIOGRAPHY
BOOKS AND ARTICLES 1. Lakshmi Rao, “Human Rights and PIL to Vindicate Abuse of Human Rights” from Vijay Chitnis etc al.(ed.s), Human Rights and the Law: National and Global Perspectives”, Snow White Publications, Mumbai, 1997. 2. M.J.Anthony, Social Action Through Courts: Landmark judgments in Pil, ISI, New Delhi, 1993. 3. P.N.Bhagwathi, Dimensions of Human Rights, 1st edn, Scoiety for Community Organisation Trust, Madurai, 1987. 4. R.C.Jha (ed.), Selected Judgments in Professional Ethics, Bar Council of India Trust, New Delhi, 2002. 5. R.S.Pathak, “PIL in India”, from Venkat Iyer (ed.), Democracy, Human Rights & the Rule of Law: Essays in Honour of Nani Palhivala, Butterworths, New Delhi, 2000. 6. S.L.Agarwal, Supreme Court of India: Wisdom of Judges, Prentice Hall of India, New Delhi, 1992. 7. Sangeeta Ahuja, People, Law and Justice- A casebook of PIL, Orient Longman, Hyderabad, 1997. 8. Upendra Baxi, Taking Suffering Seriously, Social Action Litigation in the Supreme Court of India from Rajeev Dhwawan et al. (eds.), Judges and the Judicial Power, Sweet and Mazwell, London, 1985.
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