Public interest litigation in India

Public-Interest Litigation is litigation for the protection of the public interest. In Indian law, Article 32 of the Indian constitution contains a tool which directly joins the public with judiciary. A PIL may be introduced in a court of law by the court itself (suo motu), rather than the aggrieved party or another third party. For the exercise of the court's jurisdiction, it is not necessary for the victim of the violation of his or her rights to personally approach the court. In a PIL, the right to file suit is given to a member of the by the courts through judicial activism. The member of the public may be a non-governmental organization (NGO), an institution or an individual. The Supreme Court of India, rejecting the criticism of judicial activism, has stated that the judiciary has stepped in to give direction because due to executive inaction, the laws enacted by Parliament and the state legislatures for the poor since independence have not been properly implemented. Subodh Markandeya well known Senior Advocate of Supreme court of India and Judicial activist believes that public interest litigation is the principal legal remedy for a common man and it is main weapon of judicial activist .

History

In December 1979, Kapila Hingorani had filed a petition regarding the condition of the prisoners detained in the Bihar jail, whose suits were pending in the court. The special thing about this petiton was that it was not filed by any single prisoner, rather it was filed by various prisoners of the Bihar jail. The case got filed in the Supreme Court before the bench headed by Justice Krishnam Malhotra. This petition was filed by the name of the prisoner, Hussainara Khatoon, hence the petition came to be known as Husnara Khatoon Vs State of Bihar. In this case, the Supreme Court upheld that the prisoners should get benefit of free legal aid and fast hearing. Because of this case 40,000 prisoners, whose suits were pending in the court, were released from the jail. There after many cases like this have registered in the supreme court. It was in the case of SP Gupta vs Union of India that the Supreme Court of India defined the term Public Interest Litigation in the Indian Context.

The concept of Public Interest Litigation (PIL) is in consonance with the principles enshrined in Article 39A of the Constitution of India to protect and deliver prompt social justice with the help of law. Before the 1980s, only the aggrieved party could approach the courts for justice. After the emergency era the high court reached out to the people, devising a means for any person of the public (or an NGO) to approach the court seeking legal remedy in cases where the public interest is at stake. Justice P. N. Bhagwati and Justice V. R. Krishna Iyer were among the first judges to admit PILs in court.[1] Filing a PIL is not as cumbersome as a usual legal case; there have been instances when letters and telegrams addressed to the court have been taken up as PILs and heard.[2]

The Court entertained a letter from two professors at the University of Delhi seeking enforcement of the constitutional right of inmates at a protective home in Agra who were living in inhuman and degrading conditions. In Miss Veena Sethi v. State of Bihar, 1982 (2) SCC 583  : 1982 SCC (Cri) 511  : AIR 1983 SC 339, the court treated a letter addressed to a judge of the court by the Free Legal Aid Committee in Hazaribagh, Bihar as a writ petition. In Citizens for Democracy through its President v. State of Assam and Others, 1995 KHC 486  : 1995 (2) KLT SN 74  : 1995 (3) SCC 743  : 1995 SCC (Cri) 600  : AIR 1996 SC 2193, the court entertained a letter from Shri Kuldip Nayar (a journalist, in his capacity as President of Citizens for Democracy) to a judge of the court alleging human-rights violations of Terrorist and Disruptive Activities (Prevention) Act (TADA) detainees; it was treated as a petition under Article 32 of the Constitution of India.[3][4]

Frivolous PILs

PIL is a rule of declared law by the courts of record. However, the person (or entity) filing the petition must prove to the satisfaction of the court that the petition is being filed for the public interest and not as a frivolous litigation for pecuniary gain. The 38th Chief Justice of India, S. H. Kapadia, has stated that substantial fines would be imposed on litigants filing frivolous PILs. His statement was widely welcomed, because the instance of frivolous PILs for pecuniary interest has increased; a bench of the high court has also expressed concern over the misuse of PILs. The bench has issued a set of guidelines it wanted all courts in the country to observe when entertaining PILs.

In a September 2008 speech, Prime Minister Manmohan Singh expressed concern over the misuse of PILs: “Many would argue that like in so many things in public life, in PILs too we may have gone too far. Perhaps a corrective was required and we have had some balance restored in recent times”. In what may be a tool against frivolous PILs, the Union Ministry of Law and Justice is preparing a law regulating PILs. Helping the ministry is former Chief Justice of India P. N. Bhagwati who pioneered PIL. Justice V. R. Krishna Iyer, was also part of it till his death on 4 December 2014.

The judgment said: “This court wants to make it clear that an action at law is not a game of chess. A litigant who approaches the court must come with clean hands. He cannot prevaricate and take inconsistent positions”. Since the Amar Singh petition was vague, not in conformance with the rules of procedure and contained inconsistencies, the court did not explore his primary grievance (infringement of privacy). One positive outcome of the case was the court’s request that the government “frame certain statutory guidelines to prevent interception of telephone conversation on unauthorised requests”. In this case, Reliance Communications acted upon a forged request from police.

In Kalyaneshwari vs Union of India, the court cited the misuse of public-interest litigation in business conflicts. A writ petition was filed in the Gujarat High Court seeking the closure of asbestos units, stating that the material was harmful to humans. The high court dismissed the petition, stating that it was filed at the behest of rival industrial groups who wanted to promote their products as asbestos substitutes. A similar petition was then submitted to the Supreme Court. The plea was dismissed, and the plaintiff was assessed a fine of ₹ 100,000. The judgment read: “The petition lacks bona fide and in fact was instituted at the behest of a rival industrial group, which was interested in banning of the activity of mining and manufacturing of asbestos. A definite attempt was made by it to secure a ban on these activities with the ultimate intention of increasing the demand of cast and ductile iron products as they are some of the suitable substitute for asbestos. Thus it was litigation initiated with ulterior motive of causing industrial imbalance and financial loss to the industry of asbestos through the process of court”. The court stated that it was its duty in such circumstances to punish the petitioners under the Contempt of Courts Act; it must “ensure that such unscrupulous and undesirable public interest litigation be not instituted in courts of law so as to waste the valuable time of the courts as well as preserve the faith of the public in the justice delivery system”.

“By now it ought to be plain and obvious that this Court does not approve of an approach that would encourage petitions filed for achieving oblique motives on the basis of wild and reckless allegations made by individuals, i.e., busybodies”, a bench of Justices B. Sudershan Reddy and S. S. Nijjar observed in their judgment. The bench overturned an April 2010 Andhra Pradesh High Court decision, which set aside the services of a retired Indian Police Service (IPS) officer employed by the Tirumala Venkateswara Temple. The high court’s decision concerned a public-interest petition filed by S. Mangati Gopal Reddy, who alleged in court that the former IPS officer was involved in the loss of “300 gold dollars” from the temple and should not continue in office. The Supreme Court found that the high court decided against the accused with little information about Reddy himself.

“The parameters within which PILs can be entertained have been laid down. The credentials, the motive and the objective of the petitioner have to be apparently and patently aboveboard. Otherwise the petition is liable to be dismissed at the threshold”, the judgment stated. As for why it is skeptical about a large number of PILs, the bench spoke for the Supreme Court when it said that the “judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity-seeking is not lurking. This Court (Supreme Court of India) must not allow its process to be abused for oblique considerations by masked phantoms who monitor at times from behind”.

PIL results study

According to a controversial study by social scientist Hans Dembowski, PIL has been successful in making official authorities accountable to NGOs. While Dembowski also found some effect at the grassroots level, PIL cases dealing with major environmental grievances in the Kolkata urban agglomeration did not tackle underlying problems (such as inadequate town planning). Dembowski's book Taking the State to Court - Public Interest Litigation and the Public Sphere in Metropolitan India was originally published by Oxford University Press in 2001. The publisher, however, discontinued distribution because of contempt of court proceedings initiated by the Calcutta High Court. The author (who claimed he was never officially notified by the court) has republished the book online with German NGO Asia House.[5][6]

Further considerations

A bench consisting of Justices G. S. Singhvi and Asok Kumar Ganguly pointed out that laws enacted for achieving the goals set out in the Preamble to the Constitution were inadequate; the benefits of welfare measures embodied in the legislation had not reached millions of poor people, and efforts to bridge the gap between rich and poor did not yield the desired results.

Writing the judgment in a case concerning sewage workers, Justice Singhvi stated: “The most unfortunate part of the scenario is that whenever one of the three constituents of the state i.e., the judiciary issues directions for ensuring that the right to equality, life, and liberty no longer remains illusory for those who suffer from the handicaps of poverty, illiteracy and ignorance, and directions are given for implementation of the laws enacted by the legislature for the benefit of the have-nots, a theoretical debate is started by raising the bogey of judicial activism or overreach”.[7]

The bench clarified that it was necessary to erase the impression on some that the superior courts, by entertaining PIL petitions for the poor (who could not seek protection of their rights), exceeded the unwritten boundaries of their jurisdiction. The judges said it was the duty of the judiciary (like that of the legislative and executive constituents of the state) to protect the rights of every citizen and ensure that all lived with dignity.

Such cases may be filed in the public interest when victims lack the capability to commence litigation, or their freedom to petition the court has been encroached. The court may proceed suo motu, or cases can proceed on the petition of an individual or group. Courts may also proceed on the basis of letters written to them, or newspaper reports.

The Centre for Law and Policy Research, Bangalore (CLPR) hosts a Public Interest Lawyering Hub,[8] where resources on PIL are available.

See also

References

  1. ↑ PIL A Boon Or A Bane
  2. ↑ Introduction to Public Interest Litigation
  3. ↑ Constitution of India
  4. ↑ Divine Retreat Centre Vs. State of Kerala and Others [AIR 2008 SC 1614
  5. ↑ [Taking the State to Court: http://www.asienhaus.de/public/archiv/taking%20the%20state%20to%20court.pdf]
  6. ↑ Dembowski, Hans (2009). "Erratic justice?". Development and Cooperation (Frankfurt am Main: Societäts-Verlag) 36 (3): 122–123.
  7. ↑ "Supreme Court Judgment on Scavengers working under the Delhi Jal Board (Civil Appeal No 5322 of 2011)".
  8. ↑ Public Interest Lawyering Hub

External links

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