During 1986 the then Chief Justice P.N. Bhagwati introduced public interest litigation (PIL) to the Indian judicial system. It is known in western jurisprudence as ‘salus populi est suprema lex' means ‘regard for public welfare is the highest law' that forms the bedrock of civil law. Its innovative thought was to give marginalised citizens access to justice.
The number of PILs were increasing and by the mid of 1990s it transformed the legal landscape with a flurry of high-profile cases. Starting from the P.V. Narasimha Rao- Jharkhand Mukti Morcha bribery scandal (JMM bribery case), the Jain Hawala controversy and others.
In April 1991, a case was registered by the CBI against one Ashfaq Hussain Lone, under TADA and FERA. He was a deputy chief of intelligence of Hizbul Mujahideen, and the trail allegedly led to the Jain brothers. The former senior CBI officer was sentenced to one-year imprisonment by a Delhi court for demanding and accepting a bribe for not invoking TADA against the Jain brothers in the Jain Hawala case. P. Sharma, former CBI-DIG O. who was supervising the Hawala case probe, was also fined Rs.1 lakh.
The Satish Sharma petrol pump scandal was another PIL case. Supreme Court in Common Cause Registered Society vs Union Of India Dt. 25.9.1996 observed that ‘the allotments of retail outlets for petroleum products (the petrol pumps), by Capt. Satish Sharma, Minister of State for Petroleum & Natural Gas, exercising the powers of the Central Government, have been challenged in this public interest petition under Article 32 of the Constitution of India. The petition as originally filed was directed against corruption in various fields of public life. Mr. H.D. Shourie - Director "Common Cause" - appearing in person, invited the Court's attention to a news item dated August 11, 1995, on the front page of "Indian Express" under the caption "In Satish Sharma's Reign, Petrol and Patronage Flow Together". The Solicitor General who was present in Court, took notice of the news item and stated that he would have the matter examined in the Ministry concerned and file an affidavit giving Ministry's response to the news item. The news item, inter alia, stated as under:-
"Not only the relatives of most of the officials working for Captain Satish Sharma but even his own driver and the driver of his additional Private Secretary have been allotted a petrol pump and a gas agency respectively. The wives of two clerks and a stenographer in the Ministry have similarly been allotted petrol pumps. Some of these allotments have been made from the discretionary quota with the Petroleum Minister while others have been made through an ostensibly objective selection process undertaken by the Oil Selection Boards (OSBs). Mr Poda Rajshekar, a relative of Mr. G. Gurusharan, Private Secretary to Captain Sharma has been allotted a petrol pump at Banjara Hills, Hyderabad out of the Minister's discretionary quota taking pity on the "financial circumstances that the family finds itself in."
PIL is like a double-edged sharp weapon. By 1997, the trickle had turned into a flood, with over 300 PILs pending before the Supreme Court and another 2,000 in high courts, many either of a frivolous nature or the result of political or personal motivation. That may be one side of the PIL coin, but the fact that the courts have acted on PILs to resolve issues that civic authorities and local governments have failed to do is cause enough for celebration.
Article 39A of Constitution
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.
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. 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.
Public Interest Litigation
Public Interest Litigation (PIL), means a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary or some interest by which their legal rights or liabilities are affected. It is meant for a clear purpose to alienate the suffering of all those who have to bear the burden of insensitive treatment at the hands of fellow human beings.
Transparency in public life and fair judicial action are the right answer to check increasing menace of violation of legal rights. Traditional rule was that the right to move the Supreme Court is only available to those whose fundamental rights are infringed. Time has changed that conservative trend from 1980s and onwards. PIL has now considered as a matter of right given to the socially conscious member or a public spirited NGO to espouse a public cause by seeking judicial redressal of public injury. Public injury may arise from breach of public duty or due to a violation of certain provision of the Constitution. PIL is the device by which public participation in judicial review of administrative action is assured, which has the effect of activating the judicial process for public cause. However a petition involving individual or personal matter is not entertained as a PIL.
PIL has been used as a strategy to combat the atrocities prevailing in society. It's an institutional initiative towards the welfare of the needy class of the society. It is working as an important instrument of social change for the welfare of every section of society. It's the sword of every one used only for taking the justice. The innovation of this legitimate instrument proved beneficial for the developing country.
History of PIL in India
The term “PIL” originated in the United States in the mid-1980s. Since the nineteenth century, various movements in that country had contributed to public interest law, which was part of the legal aid movement. The first legal aid office was established in New York in 1876. In the 1960s the PIL movement began to receive financial support from the office of Economic Opportunity. This encouraged lawyers and public spirited persons to take up cases of the under-privileged and fight against dangers to environment and public health and exploitation of consumers and the weaker sections. PIL had begun in India towards the end of 1970s and came into full bloom in the 80s.
Objectives of PIL
According to Justice V.R. Krishna Iyer, PIL is a process, of obtaining justice for the people, of voicing people's grievances through the legal process. The aim of PIL is to give to the common people of this country access to the courts to obtain legal redress.
Procedure to file PIL
Any public spirited citizen can move/approach the court for the public cause (in the interests of the public or public welfare) by filing a petition:
In Supreme Court under Art.32 of the Constitution; and In High Court under Art.226 of the Constitution;
With the view to regulate the abuse of PIL the apex court it has framed certain guidelines (to govern the management and disposal of PILs.) The court must be careful to see that the petitioner who approaches it is acting bonafide and not for personal gain, private profit or political or other oblique considerations. The court should not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain political objectives.
At present, the court can treat a letter as a writ petition and take action upon it. But, it is not every letter which may be treated as a writ petition by the court. The court would be justified in treating the letter as a writ petition only in the following cases-
(i) It is only where the letter is addressed by an aggrieved person or
(ii) A public spirited individual or
(iii) A social action group for enforcement of the constitutional or the legal rights of a person in custody or of a class or group of persons who by reason of poverty, disability or socially or economically disadvantaged position find it difficult to approach the court for redress.
Even though it is very much essential to curb the misuse and abuse of PIL, any move by the government to regulate the PIL results in widespread protests from those who are not aware of its abuse and equate any form of regulation with erosion of their fundamental rights. Under these circumstances the Supreme Court is required to step in by incorporating safe guards provided by the Civil Procedure Code in matters of stay orders /injunctions in the arena of PIL.
PIL is a tool in hands of public spirited citizens who have a good motive behind the PIL and to prevent it from becoming a weapon in the hands of those litigants who want to either misuse this concept for either commercial gain or publicity the apex court has time and again laid down various guidelines and by imposing costs on the frivolous public interest litigation the courts have only strengthened their stance.
[selected portion from article by Shweta Kaushik, Advocate, Punjab and Haryana High Court]
Who can file PIL
Any Indian citizen can file a PIL, the only condition being that it should not be filed with a private interest, but in larger public interest. At times, even the Court can take cognizance of a matter if it is one of utmost public importance, and appoint an advocate to handle the case. An advocate who has been filing PILs in Chennai High Court says it would be good to give a reasonable opportunity for the other party to respond to the issue that the individual or the group has raised, before filing the PIL.
For example, if you have taken up a matter that demands government action or policy change, then first raise that issue with the authorities, bring it to their knowledge and ask them how are they going to solve it. Send them a representation in the first place. Give them some time – a month or two to reply. If they fail to respond or if you are unhappy with their response, then it's the time to file a petition.
Normally a PIL is filed on behalf of persons who suffer injustice but not in a position to spend money on litigation to get the remedy. A social worker or organisation may take up the cause on behalf of such helpless victims by filing a PIL seeking appropriate relief. The court, if satisfied would not only grant the remedy but also award costs to the petitioner and the Counsel. On the other hand if the Court finds that such a petitioner has made it a profession to file PIL after PIL against one or the other authority, without proper or legal ground the Court may levy penalty against him, not in thousands but in lakhs up to 25 lakhs and fine on the Counsel who indulged in such PILs.
The general rule is that an aggrieved party namely the victim, who is affected by an act or order of an authority would file a writ petition challenging such order affecting him seeking relief. He is supposed to have an interest in the subject matter or dispute. Whereas in filing a Public Interest Litigation (PIL) there is no such rule and condition. Any individual or an association called Non-governmental Organisation (NGO) may file a PIL for public cause but not for personal cause. It is for the court to consider whether such petition involves public interest or not; for that matter the petitioner should satisfy the court that he is seeking relief for the public or atleast for a section of the society who are unable to litigate for various reason such as economic, social, unable to move about or ignorance of their right etc. Such cases may occur when the victims do not possess the necessary resources to commence litigation or their freedom to move court is suppressed or encroached upon by dominant person or authority. Thus a victim of PIL need not approach the court in person.
The court may suo motu take cognizance of the matter and proceed with it. There are several occasions on which a letter by a public-spirited individual addresses to the court has been treated as PIL and relief was granted to the victims.
Letter treated as writ petition
The 1st petitioner addressed a letter to Justice Bhagwati complaining of violation of various labour laws by respondents' and their agents and sought for interference by the Supreme Court to render social justice by means of appropriate directions to the affected workmen and that letter was taken as a PIL writ petition on the judicial side and issued notice to the Union of India, Delhi Administration and the Delhi Development Authority. (See People'S Union For Democratic vs Union Of India, dt18.9.1982; AIR 1982 SC 1473, 1983 SCR (1) 456)
Scopeand need for PIL
A simple letter complaining about violation of various labour laws in relation to workmen employed in the construction work connected with the Asian Games like Constitution of India, 1950 ( Art. 24), Minimum wages Act, 1948, Equal Remuneration Act. The employment of Children Act, 1938 and 1970, Interstate Migrant workman (Regulation of Employment and conditions of Service) Act, 1970 and contract Labour (Regulation and Abolition) Act, 1970 prompted the Supreme Court to consider it as a writ petition. The locus-standi of the petitioner (author of the letter) and maintainability of the writ and remedial relief that could be granted were questioned and arguments were addressed to the Court. The Court declared the duties of Court regarding sentencing in cases of violation of Labour Laws and discussed about the violation of articles 14, 23, 24 and 32-Scope of Article 23 of the Constitution of India. It has clarified the meaning of "begar" and duty of State when violation of Arts. 17, 23 and 24 is complained.
Legal aid movement
The legal aid movement and public interest litigation seek to bring justice to these forgotten specimens of humanity who constitute the bulk of the citizens of India and who are really and truly the "People of India who gave to themselves this magnificent Constitution. Pendency of large arrears in the courts cannot be any reason for denying access of justice to the poor and weaker sections of the community.
The time has now come when the courts must become the courts for the poor and struggling masses of this country. They must shed their character as upholders of the established order and the status quo. They must be sensitised to the need of doing justice to the large masses of people to whom justice has been denied by a cruel and heartless society for generations. The realisation must come to them that social justice is the signature tune of our Constitution and it is their solemn duty under the Constitution to enforce the basic human rights of the poor and vulnerable sections of the community and actively help in the realisation of the constitutional goals. This new change has to come if the judicial system is to become an effective instrument of social justice for without it, it cannot survive for long. Fortunately this change is gradually taking place and public interest litigation is playing a large part in bringing about this change. It is through public interest litigation that the problems of the poor are now coming to the forefront and the entire theatre of the law is changing. It holds out great possibilities for the future. This writ petition is one such instance of public interest litigation.
Doctrine of locus standi
It is true that the complaint of the petitioners in the writ petition is in regard to the violations of the provisions of various labourlaws designed for the welfare of workmen, and therefore from a strictly traditional point of view it would be only the workmen whose legal rights are violated who would be entitled to approach the court for judicial redress. But the traditional rule of standing which confines access to the judicial process only to those to whom legal injury is caused or legal wrong is done has now been jettisoned by the Supreme Court and the narrow confines within which the rule of standing was imprisoned for long years as a result of inheritance of the Anglo-Saxon system of jurisprudence have been broken and a new dimension has been given to the doctrine of locus standi which has revolutionized the whole concept of access to justice in a way not known before to the Western System of jurisprudence.
Having regard to the peculiar socio-economic conditions prevailing in the country where there is considerable poverty, illiteracy and ignorance obstructing and impeding accessibility to the judicial process, it would result in closing the doors of justice to the poor and deprived sections of the community if the traditional rule of standing evolved by Anglo-Saxon jurisprudence that only a person wronged can suefor judicial redress were to be blindly adhered to and followed, and it is, therefore, necessary to evolve a new strategy by relaxing this traditional rule of standing in order that justice may become easily available to the lowly and the lost.
Unable to approach Court
Where a person or class of persons to whom legal injury is caused or legal wrong is done is by reason of poverty, disability or socially or economically disadvantaged position not able to approach the Court for judicial redress, any member of the public acting bonafide and not out of any extraneous motivation may move the Court for judicial redress of the legal injury or wrong suffered by such person or class of persons and the judicial process may be set in motion by any public spirited individual or institution even by addressing a letter to the court. Where judicial redress is sought of a legal injury or legal wrong suffered by a person or class of persons who by reason of poverty, disability or socially or economically disadvantaged position are unable to approach the court and the court is moved for this purpose by a member of a public by addressing a letter drawing the attention of the court to such legal injury or legal wrong, court would cast aside all technical rules of procedure and entertain the letter as a writ Petition on the judicial side and take action upon it.
Here, the workmen whose rights are said to have been violated and to whom a life of basic human dignity has been denied are poor, ignorant, illiterate humans who, by reason of their poverty and social and economic disability, are unable to approach the courts for judicial redress and hence the petitioners have, under the liberalised rule of standing, locus standi to maintain the present writ petition espousing the cause of the workmen. The petitioners are not acting mala fide or out of extraneous motives since the first petitioner are admittedly an organisation dedicated to protecting and enforcement of Fundamental Rights and making Directive Principles of State Policy enforceable and justiciable. There can be no doubt that it is out of a sense of public service that the present Litigation has been brought by the petitioners and it is clearly maintainable.
Negative obligations on State
Many of the fundamental rights enacted in Part III operate as limitations on the power of the State and impose negative obligations on the State not to encroach on individual liberty and they are enforceable only against the State. But there are certain fundamental rights conferred by the Constitution which are enforceable against the whole world and they are to be found inter alia in Articles 17, 23 and 24.
Wherever any fundamental right which is enforceable against private individuals such as, for example, a fundamental right enacted in Article 17 or 23 or 24 is being violated, it is the constitutional obligation of the State to take necessary steps for the purpose of interdicting such violation and ensuring observance of the fundamental right by the private individual who is transgressing the same. The fact that the person whose fundamental right is-violated can always approach the court for the purpose of enforcement of his fundamental right, cannot absolve the State from its constitutional obligation to see that there is no violation of the fundamental right of such person, particularly when he belongs to the weaker section of humanity and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him.
Wherever any fundamental right which is enforceable against private individuals such as, for example, a fundamental right enacted in Article 17 or 23 or 24 is being violated, it is the constitutional obligation of the State to
take necessary steps for the purpose of interdicting such violation and ensuring observance of the fundamental right by the private individual who is transgressing the same. The fact that the person whose fundamental right is violated can always approach the court for the purpose of enforcement of his fundamental right, cannot absolve the State from its constitutional obligation to see that there is no violation of the fundamental right of such person, particularly when he belongs to the weaker section of humanity and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him. [ Peoples Union for Democratic Rights vs Union of India (AIR 1982 SC 1473, 1983 SCR (1) 456 ) ]
PIL is a rule of law declared 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 filed for the public interest and not as a frivolous litigation for pecuniary gain. The Court warned that substantial "fines" would be imposed on litigants filing frivolous PILs.
Penalties for PILs
In a case the Supreme Court cautioned the petitioner that he will be liable for punishment for contempt if he files yet another petition similar to 16 petitions filed before Allahabad High Court. The Allahabad High Court had imposed cost of Rs.5 lakh on him for filing frivolous PIL. The High Court, directed him so, for loss of valuable time of the court and for repeatedly abusing of process of the writ court with impunity. In case of Suraz India Trust (NGO) who had filed about 64 PILs without a single success Supreme levies a cost of Rs 25 lakhs and debarred the petitioner from filing any PILs