INTRODUCTION:

Lest the “golden key to unlock the doors of injustice”¹ remain only with the moneyed people, the Supreme Court of India pioneered the concept of Public Interest Litigation (PIL) thereby throwing open the portals of Courts to the common man.² PIL is the incarnation of judicial activism in its people oriented litigative dimension and environmental preservation. The expression ‘Public Interest Litigation’ means “litigations conducted for the benefit of public or for removal of some public grievance.” In simple words, public interest litigation means that any public spirited citizen can move/approach the court for the public cause (or public interest or public welfare) by filing a petition in the Supreme Court under Art.32 of the Constitution or in the High Court under Art.226 of the Constitution or before the Court of Magistrate under Sec. 133 of the Code of Criminal Procedure, 1973.³

It was poignantly mentioned by Justice Bhagwati in the Asain Games case⁴ that “Public Interest Litigation…….is essentially a cooperative or collaborative effort on the part of the petitioner, the State or public authority and the Court to secure observance of the constitutional or legal rights, benefits and privileges conferred upon the vulnerable sections of the community and to reach social justice to them.” It was further observed: “…….public interest litigation …….is a strategic arm of the legal aid movement……which is intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity……”⁵

The seeds of the concept of public interest litigation were initially sown in India by Krishna Iyer J., in 1976 in Mumbai Kamagar Sabha v. Abdul Thai⁶ and was initiated in Akhil Bharatiya Soshit Karmchari Sangh (Railway) v. Union of India⁷, wherein an unregistered association of workers was permitted to institute a writ petition under Art.32 of the Constitution for the redressal of common grievances. Krishna Iyer J. enunciated the reasons for liberalization of the rule of Locus Standi, used the terminology of ‘Public Interest Litigation’ and also the used the expression ‘epistolary jurisdiction’ in Fertilizer Corporation Kamgar v. Union of India⁸ and the ideal of 'Public Interest Litigation' was blossomed in S.P. Gupta and Others v. Union of India.⁹

Innovations of Public Interest Litigation

The landmark innovations of Public Interest Litigation include the following –

1. Expanding horizons of Locus Standi Rule.

2. Evolving ‘epistolary jurisprudence.’

3. Appointing socio-legal commissions of inquiry.

4. Monitoring laws and judicial orders.

5. Enforcing public duties.

A concise discussion of each is worth elucidation –

1. Expanding the ‘Locus Standi’ Rule – The traditional rule of Locus Standi, denounced sometimes for being a ‘jural hang-over of the Victorian era’¹⁰ permitted only a party to the cause/dispute to bring a suit/petition. Seeds of liberal expansion of Locus standi rule were sown in 1975 in Dabholkar case¹¹ but the first lucid elaboration was made by Krishna Iyer, J. in 1976 in a judgment as follows: “Public Interest is promoted by a spacious construction of Locus standi in our socio-economic circumstances..Representative actions, pro bono public and like……………are in keeping with the current assent of justice to the common man.”¹² Justifying the broader concept of standing Krishna Iyer, J. stated: “Law as I conceive it, is a social auditor and this function can be put into action only when someone with real public interest ignites the jurisdiction”¹³

A new era of PIL movement was heralded in 1982 when P.N. Bhagwati, J. of the Supreme Court laid down that, “any member of the public or social action group acting bona fide” can invoke the writ jurisdiction of High Courts or the Supreme Court seeking redressal against violation of legal or constitutional rights of persons who owing to social or economic or other disability cannot approach the Court.¹⁴

2. Epistolary jurisprudence or Treating mere letters as writ petitions – Procedure being “merely a hand-maiden of justice”¹⁵ the Supreme Court started treating mere letters addressed to it, as writ petitions in cases involving larger public interest or gross violation of fundamental rights. Pursuant to such letters by public spirited petitioners relief has been granted in cases of bonded labourers,¹⁶ ‘illegal’ detention,¹⁷ custodial deaths and torture,¹⁸ environmental pollution¹⁹ and so on. In Dr. Upendra Baxi v. State of U.P.²⁰, the Supreme Court entertained a letter sent by two professors of Delhi University seeking enforcement of the constitutional rights of the inmates of a Protective Home at Agra who were living in inhuman and degrading conditions. Again, in Veena Seth v. State of Bihar²¹, the Supreme Court treated a letter addressed to a Judge of Supreme Court by the Free Legal Aid Committee at Hazaribagh, Bihar a writ petition. In the ASIAD case²² also, a letter was dealt with as a writ petition by the Supreme Court for ensuring the observance of certain labour laws. In a few cases the Courts have even taken suo motu cognizance of ‘letters to editor’ in newspapers and treating them as petitions granting appropriate relief.²³

3. Appointing socio-legal commissions of Inquiry – Making marked departure from its adversarial method prevailing hitherto, the Supreme Court has resorted to inquisitorial method in PIL matters. It therefore, appointed commissioners from among advocates, professors, magistrates, journalists or other responsible persons for collecting facts and data in PIL cases involving the underprivileged. For instance, eye-specialists were ordered to ascertain nature and extent of harm in Bhagalpur prisoners’ blinding case,²⁴ and a noted sociologist was sent as Commissioner to inquire into working conditions etc. of labourers in stone-quarries of Faridabad.²⁵

4. Monitoring Laws and Judicial Orders – Bureaucratic lethargy and laxity breeds frequent violations of laws and non-execution of judicial orders, which in turn lead to lawlessness in society. Thus, in many instances the Courts have themselves monitored CBI investigations,²⁶ their own orders/directions and have been monitoring antipollution laws²⁷ etc.

5. Enforcing public duties – It is one of the primary duties of the Courts to keep the others within their constitutional bounds and to direct them to perform their affirmative constitutional/ statutory obligations. Thus, orders and directions have been issued in many PIL cases for public duties, e.g. on sanitation,²⁸ environmental protection,²⁹ labour welfare,³⁰ investigation by police or CBI³¹ and human rights,³² etc. The judgment in D.K. Basu v. State of West Bengal³³ declared PIL as a potent weapon for the enforcement of ‘public duties’ where executive inaction or misdeed resulted in ‘public injury’.

Scope of Public Interest Litigation

Although PIL is no magic-wand to redress all wrongs in society, it has made a benign contribution in many areas as given below proving it to be a legitimate exercise –

a) Prisoner’s rights and prison administration – The Supreme Court has upheld prisoners’ rights to speedy trial,³⁴ free legal aid,³⁵ dignified treatment³⁶ and rights against illegal detention,³⁷ custodial death and torture³⁸ etc. Incarceration of children in jails instead of remand homes³⁹, long pendency of trials, inhuman conditions of prisoners in jails⁴⁰ and imprisoning of non-criminal insane persons⁴¹ were held invalid and unconstitutional. In the case of Prakash Singh v. Union of India⁴², the Supreme Court directed the Centre and State Governments to implement police reforms based on long-pending recommendations of various expert committees.⁴³ In PUDR v. Commissioner of Police, Delhi⁴⁴, the attention of the Supreme Court was drawn to the police atrocities committed against poor people who were forcibly taken to a police station to work without wages. The Court directed the recovery of compensation from the erring policemen. Detailed guidelines-cum-requirements for arrest and detention of persons have been laid down by the Supreme Court.⁴⁵ In Sheela Barse v. State of Maharashtra⁴⁶, the Supreme Court entertained a PIL complaining of custodial violence to women prisoners and issued directions which included the direction to lock up female prisoners only in female lock ups guarded by female constables and to interrogate female accused only in the presence of female police officials. In Sunil Batra v. Delhi Admn.⁴⁷, a prisoner lodged in the jail wrote a letter to a Judge of the Supreme Court complaining of a brutal assault by a Head Warden on another prisoner, Premchand. A three-Judge Bench heard the matter and while issuing various directions opined that “technicalities and legal niceties are no impediment to the court entertaining even an informal communication as a proceeding for habeas corpus if the basic facts are found.” Decision on such matters as the right not to be held in fetters as in Charles Sobraj v. Supdt., Central Jail⁴⁸, and the right against handcuffing as in T.V. Vatheeswaran v. State of Tamil Nadu⁴⁹ were rendered in Public Interest Litigation. The Supreme Court rose to the occasion and public interest litigation acquired a new dimension and legitimacy.

b) Protection of bonded, contract- and child-labour – Amid exuberance of labour legislations lacking in appropriate sanctions, like “mere paper tigers without any teeth or claws,” flagrant violations of labour rights are still prevalent. PIL cases have addressed the plight of labour class from time to time. Bonded labour, contract-labour, child labour cases and such other maladies have been dealt within a catena of cases and appropriate relief granted⁵⁰ ensuring better enforcement of various labour laws. In People’s Union of India for Democratic Rights v. Union of India⁵¹, the Supreme Court entertained a writ petition for the execution of certain labour laws relating to workmen engaged in construction work in ASIAD at New Delhi Projects. A PIL was brought before the Supreme Court in the case of M.C. Mehta v. State of Tamil Nadu⁵² complaining that thousands of children were employed in match factories in Sivakasi. The Court directed the State Government to enforce various welfare legislations and to provide medical care, recreation, education and basic diet to the children during working hours. Similarly in Bandhua Mukti Morcha v. Union of India⁵³, several directions were issued to the Central Government and the State of Haryana for the release of the bonded labour. Close on the heels of Hussainara Khatoon case⁵⁴, two law professors in 1980 filed a PIL in the Supreme Court, highlighting the inhuman conditions prevailing in protective homes, trafficking in women, importation of children for homosexual purpose and non-payment of wages to bonded labourers. The Supreme Court accepted their locus to agitate on behalf of the sufferers and passed orders giving certain guidelines in each of these matters.⁵⁵

c) Amplifying the scope of ‘Right to Life’ – Declaring that right to life includes ‘finer graces of human civilization’⁵⁶, the Supreme Court has virtually rendered this fundamental right a repository of various human rights. Thus, it includes right to live with human dignity,⁵⁷ right to healthy environment,⁵⁸ free education up to 14 years of age,⁵⁹ emergency medical aid,⁶⁰ privacy⁶¹ etc. In Vincent Panikurlangara v. Union of India⁶², the Supreme Court treated a letter from an advocate as public interest litigation seeking direction in public interest banning the import, manufacture, sale and distribution of such drugs which have been recommended for banning by the Drugs Consultative Committee. The Court considered the question to be of national importance and issued directions under right to health incorporated in Article 21 of the Constitution. Decisions on such matters as the right of the female employees not to be sexually harassed at the place of work as in the case of Vishaka v. State of Rajasthan⁶³ and Apparel Export Promotion Council v. A.K. Chopra⁶⁴ were rendered in public interest litigation, by expanding the ambit and scope of Article 21 so as to include within its fold the tight to live with human dignity because the “dignity of man supersedes all other considerations.” A grave violation of any such right might entail liability for compensation or/and an exemplary penalty.⁶⁵

d) Protection of Environment – Protection of environment and public health is a constitutional obligation of the State.⁶⁶ The issue that environment should be a concern for all is no longer res integra.⁶⁷ The Supreme Court in Subhash Kumar v. State of Bihar⁶⁸ has observed that: “Right to live is a fundamental right under Article 21 of Constitution and it includes the right of enjoyment of pollution-free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Article 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life………”⁶⁹ Ironically, a plethora of anti-pollution laws have proved ineffective to control the proliferation of environmental-pollution. As a result, industries polluting environment by toxic emissions or hazardous effluents were shifted,⁷⁰ felling of trees was banned,⁷¹ and shrimp culture industries in the coastal states were closed down⁷² following Court’s orders. State was declared bound to protect all natural resources of public use, as their trustee.⁷³ Public Interest Litigation was further consolidated in Municipal Council, Ratlam v. Vardichand⁷⁴ when a Division Bench of the Court recognized the standing of the citizens to seek directions against the Municipality for removal of stench and stink caused by open drains under Section 133 of the Code of Criminal Procedure. In M.C. Mehta v. Union of India⁷⁵, the petitioner prayed for directions for giving wide publicity to the messages and directions issued by the court from time to time to protect the environment and ecology through the government-controlled television, radio and other modes of mass media, and also to make environment, as a compulsory subject in schools and colleges. The Supreme Court accepted the prayers on principle and issued directions to that effect. In the realm of environmental protection, many of the leading decisions have been given in actions brought by renowned environmentalist M.C. Mehta.⁷⁶ Accepting ‘sustainable development’ as part of customary international law, the Court declared ‘Polluter Pays Principle’⁷⁷ and ‘Precautionary Principle’⁷⁸ as a part of Indian environmental law and imposed damages on polluter industries.

e) Political Corruption and Crime – Many PILs alleging corruption and other criminal activities indulged in by members of Parliament and of State legislatures, including Prime Minister, Union Ministers, Chief Ministers and other ministers have been brought to Courts. Abuse of discretionary power was invalidated along with imposing of exemplary damages in ‘Housing scam’⁷⁹ and ‘Petrol Pump scam’⁸⁰ cases. CBI investigations were monitored for sometime by the Court in ‘Fodder scam’ case.⁸¹ Where prosecution proceedings on a former CM were unreasonably withdrawn or where a State Government indulged routinely in repromulgation of ordinances thereby usurping ‘legislative’ functions⁸² the Court struck down such acts as illegal or unconstitutional. In such cases, ‘every citizen’ has locus standi to move the higher Courts to vindicate public interest, the Court ruled.⁸³

f) PIL vis-à-vis Human Rights – PIL in the true sense of its term is integrally linked with protection of human rights. By several landmark judgments, this aspect has been highlighted by the Apex Court and several High Courts. In Paschim Banga Khet Mazdoor Samity v. State of W.B⁸⁴, the Apex Court recognized the need for providing medical treatment to a person. Denial of such treatment, it was held results in violation of “right to life” guaranteed under Article 21 of the Constitution of India. In Bodhisattwa Gautam v. Subhra Chakraborty⁸⁵, the Supreme Court awarded an interim compensation of Rs. 1000 per month to the victim of rape. The logic behind this order appears to be that the complainant’s most cherished fundamental right to live with human dignity is violated by the accused. In an epoch-making judgment, the Apex Court in Nilabati Behera v. State of Orissa⁸⁶, said: “A claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights……” in another landmark judgment, D.K. Basu v. State of W.B.⁸⁷, another abominable violation of human rights i.e. “torture” was highlighted. This case is a classic example of unique interdependence between human right and public interest litigation. Compassion for all creation, particularly human fellow-beings, said an eminent jurist, finds its finest hour only when the last and the least person is liberated.⁸⁸

g) Award of Compensation in Public Interest Litigations – Again, with a view to minimize, if not altogether, prevent the violation of Fundamental Rights, award of compensation consequential upon the deprivation of fundamental right to life and liberty of a citizen, as a “palliative” for the unlawful acts of the instrumentalities of the State as in Rudal Shah v. State of Bihar⁸⁹ and the line of cases following it like Sebastian M. Hongray v. Union of India⁹⁰ and Bhim Singh v. State of J & K⁹¹ culminated in Nilabati Behera v. State of Orissa⁹² where this court crystallized judicial right to compensation and held: “The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by this Court or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizens.” The Supreme Court in a plethora of cases⁹³ has granted compensation when a prisoner lost his life due to police atrocities.

Apart from this, PILs have been filed on participatory justice⁹⁴, equal pay for equal work⁹⁵, adoption⁹⁶, public safety⁹⁷, rule of law⁹⁸, media⁹⁹, protection of ancient monuments¹⁰⁰, and other miscellaneous matters.¹⁰¹

Need for Self-imposed Restraints on Public Interest Litigation

Liberalizing of ‘Locus Standi’ rule and growth of epistolary jurisprudence entails inherent dangers of abuse of PIL by vested interests impelled by personal vendetta, media-craze or other dubious motives. It necessitates a careful scrutiny into bona fides of the petitioners, apart from winnowing genuine from frivolous petitions. Such abuse not only ‘criminally wastes the valuable time of the court’¹⁰² but also creates a ‘bottleneck in the superior court’¹⁰³ preventing other genuine cases from being considered. The Courts, therefore advocate self-restraint in entertaining and deciding PIL petitions. PIL is not the nest for all the bees in the bonnet of public spirited persons¹⁰⁴, the Court cautions. Thus, petition seeking preservation of disputed shrines of Mathura and Kashi was summarily rejected¹⁰⁵, as was the one seeking creation of a new state of ‘Telengana’ out of Andhra Pradesh¹⁰⁶, and another seeking prohibition on power-cuts depriving cricket fans from watching world-cup tournament’s telecast¹⁰⁷ were rejected. In view of the Judiciary’s constitutional obligation to strike down any unconstitutional act of other institutions and to provide appropriate relief to the aggrieved citizen/party, even the use of inherent judicial powers or evolving of new principles for the purpose might not be objected to. The Courts have always advocated circumspection against intruding in highly complex and specialized fields beyond the competence or encroaching upon other powers.

Justice Markandey Katju in the recent case of Common Cause v. Union of India¹⁰⁸ observed that PIL are being entertained by many courts routinely in large numbers in matters mostly frivolous for which the Judiciary has no remedy. He said that PIL has now-a-days become Publicity/Private/Politics Interest Litigation or the latest trend “Paisa Income Litigation.” In Divisional Manager, Arrawali Golf Club v. Chandrahass¹⁰⁹ Justice Katju declared that though judicial activism is useful adjunct to democracy, it should be resorted to only in circumstances when the situation demands it in the interest of the nation or the poorer and weaker society. Therefore, Judiciary must know their limits and exercise restraints and must not try to run the government.¹¹⁰

With the matters of corruption and other offences having been taken sternly by the Courts even against MPs, MLAs, Ministers and Governors and defences of ‘parliamentary privileges’ and ‘executive prerogative’ being rejected for charges liking bribing etc., political resentment against PIL and Judicial Activism is at its zenith.¹¹¹ Revealing its determined bid to ‘bridle’ the ‘menacing’ PIL, a Bill for the purpose has been brought in the 11^th Lok Sabha embodying a provision for a forfeitable security of Rs. One lakh with every PIL petition except those below poverty line. It is submitted that such a measure not only retards the assertion of vindication of citizens’ fundamental rights under Arts. 32 and 226, but also puts a subtle clog on the courts’ power of judicial review declaredly a basic feature of the Indian Constitution¹¹² and is therefore unconstitutional. Rather than adopting such a confrontationist attitude, the legislature must join PIL as a participatory venture with the Courts. So long as the legislature and executive branches do not become more responsive and responsible towards the common man, PIL would legitimately remain the sole potent weapon in the latter’s’ quest for justice.¹¹³

Public Interest Litigation is a Legitimate Exercise

In Municipal Council, Ratlam v. Vardichand¹¹⁴, the concept of “access to justice” was elaborately considered and discussed. It was emphasized that if the “centre of gravity of justice is to shift as indeed the Preamble to the Constitution mandates, from the traditional individualism of locus standi to the community orientation of public interest litigation, the court must consider the issues as there is need to focus on the ordinary men” so that procedures which are conducive to the pursuit and protection human rights are discovered and advanced.

While highlighting how PIL jurisdiction has assisted the underprivileged and the like to protect and preserve human rights, I must caution all concerned that with a view to retain legitimacy and its efficacy, the potent weapon of PIL forged for the benefit of the weaker sections of the society and those who, as a class, cannot agitate their legal problems by themselves has to be used carefully so that it may not get blunted by wrong or overuse. Care has to be taken to see that PIL essentially remains public interest litigation and is not allowed to degenerate into becoming political interest litigation or private inquisitiveness litigation or publicity interest litigation.¹¹⁵ Therefore, it has been held by the Courts, in a plethora of cases that for a PIL to be maintainable firstly, the petitioners must ascertain their locus standi before the court¹¹⁶ and secondly, there should be an abuse of the fundamental rights or legal rights of the public.¹¹⁷ And for establishing a satisfactory locus standi, two conditions are to be pleased by the petitioners that is to say; first, the petitioners must have sufficient interest in the matter¹¹⁸ and second, the petitioners must act pro bono publico¹¹⁹ or for the benefit of public at large.¹²⁰A vexatious petition under the colour of PIL brought before the Court for vindicating any personal grievance deserves rejection at the threshold. The Supreme Court of India in the exercise of this duty has laid down some norms to prevent misuse of public interest litigation jurisdiction under article 32 and article 226. These norms are listed below which are not exclusive but merely descriptive:

a) The Courts in the exercise of their public interest litigation jurisdiction cannot transgress into the field of policy decisions of State. This principle was discussed by the Supreme Court in Narmada Bachao Andolan v. Union of India.¹²¹ The Court in BALCO Employees Union (Regd.) v. Union of India¹²² added that the public interest litigation cannot be used to challenge the financial or economic policy decisions.

b) The Court cannot mandate the executive or the legislature to initiate legislation for a particular purpose.¹²³

c) The public interest litigation should be converted into an adversarial litigation. It should not venture to take over the functions of the Magistrate or pass any order, which would interfere with its judicial functions.¹²⁴

d) The petitioner, who was not party in the earlier proceeding, cannot file a public interest litigation to review the earlier decision of the Supreme Court.¹²⁵

e) A third party who is a total stranger to the prosecution, by making a public interest litigation, cannot be permitted to question the correctness of the conviction and sentence imposed by the Court after a regular trial.¹²⁶

f) The Supreme Court in few cases has also made it clear that the public interest litigation cannot be filed in service matters.¹²⁷

Law on PIL has undergone many changes in the recent past. The Courts are now cautious to see that a PIL has not been moved under disguise with some ulterior motive or some purpose.¹²⁸ The courts are now imposing moderate to heavy costs in case of misuse of PILs which should be an eye-opener for non-serious PIL mover. The recent trend of law Courts clearly indicates that while recognizing the importance of PILs, the Courts are not prepared to tolerate its misuse by any scrupulous PIL mover. A PIL based on a letter is entertained after scrutinizing by the PIL cell constituted in all the High Courts as well as the Supreme Court which is headed by the Hon’ble Judge of the Court. But when a formal writ petition is filed there is no such scrutiny and the judges themselves have to decide whether to accept or reject the petition. In the case of Holicow Pictures Pvt. Ltd. v. Prem Chandra Mishra¹²⁹, it was held that it would be desirable for the Courts to filter out the frivolous petition and dismiss them with costs.

The exercise of this jurisdiction has often been described by critics of the Judiciary as judicial overreach. The main thrust of the criticism is that the Judiciary by its directives to the administration is usurping the functions of the Legislatures and of the Executive and is attempting at running the country. The criticism is unfair. What these critics of the Judiciary overlook is that it is the tardiness of Legislatures and the indifference of the Executive to address itself to the complaints of the citizens about violations of their human rights which provides for the necessity for judicial intervention. In cases where the Executive refuses to carry out the legislative will or ignores or thwarts it, it is surely legitimate for courts to step in and ensure compliance with the legislative mandate. When the court is apprised of and is satisfied about gross violations of basic human rights, it cannot fold its hands in despair and look the other way. The Judiciary can neither prevaricate nor procrastinate. It must respond to the knock of the oppressed and the downtrodden for justice by adopting certain operational principles within the parameters of the Constitution and pass appropriate directions in order to render full and effective relief. If the Judiciary is also to shut its door to the citizen who finds the Legislature as not responding and the Executive indifferent, the citizen would take to the streets and that would be bad both for the rule of law and the democratic functioning of the State. The Judiciary, however, can act only as an alarm clock but not as a timekeeper. After giving the alarm call, it must ensure to see that the Executive performs its duties in the manner envisaged by the Constitution.¹³⁰

Public Interest Litigation is not Judicial Overreach

Supreme Court of India, the Apex Court of Justice as a guarantor and protector of fundamental rights and interpretator of the Constitution has a constitutional duty to secure socio-economic and political justice to all the citizens of the country. The powers of the Supreme Court for the protection of the constitutional rights of the citizens are of the widest amplitude and there is no reason why the court should not adopt activist approach similar to the Courts in America and issue directions to the State taking positive action with a view to securing enforcement of the fundamental rights. The Judiciary has been assigned this active role under this Constitution. They are not expected to sit in an ivory tower like an Olympian closing their eyes uncaring for the problems faced by the society. They have to exercise the judicial powers for protecting the fundamental rights and liberties of citizens of the country. Therefore, in order to achieve this mission the judiciary has to exercise and evolve its jurisdiction with courage, creativity and circumstances and with vision, vigilance and practical wisdom. Judicial activism and self restraints are facets of that courageous creativity and pragmatic wisdom. The Supreme Court with judicial activism has interpreted the law to further the constitutional goal of socio economic progress.

It is a misconception in equating PIL with judicial activism in India and then calling it as over-activism or overreach. Judicial activism is not PIL. A Court can be judicially active or inactive or over-active irrespective of PIL. Judicial activism is a word of many shades. There is much scope of creative judicial activism in the interpretative functions of Judges, on the choices inherent in their function. The Indian Supreme Court’s own creative jurisprudence of the inviolability of the basic structure of the Constitution and the importation of non-arbitrariness in the Fundamental Right of Equality¹³¹ and of due process of law in the right of personal liberty in Maneka Gandhi case¹³² in 1978 are stellar examples of how judicial function can be creative. Judicial Activism is equated with PIL mainly because it is the most convenient vehicle for bringing public grievances before Courts and because the Court’s orders in PIL are far reaching and sometimes sensational. It would be appropriate to quote Cunningham here – “Indian PIL might rather be a Phoenix: A whole new creative arising out of the ashes of the old order.”

The Court’s exercising their power of judicial review found to its dismay that the poorest of the poor, depraved, the illiterate, the urban and rural unorganized labour sector, women and children handicapped by ignorance, indigence and illiteracy and other downtrodden have either no access to justice or had been denied justice. A new branch of proceeding known as “Social Interest Litigation” or “Public Interest Litigation” was evolved with a view to render complete justice to the afore-mentioned classes of persons. It expanded its wings in course of time. As there are three wings of Government, i.e. Legislature, Executive and Judiciary. In India, Indian Constitution is supreme and Supreme Court is the custodian of the Constitution. If the Central Government interferes under normal circumstances with the subject matters of State or other rights, the Supreme Court can declare it ultra vires. The Judiciary has been ascribed the role under Article 32 of the Constitution and Article 226 to curb the excesses of the Executive and even declare illegal the laws passed by the Parliament and Legislature violating the fundamental rights of the people. Of late, on account of crisis in the character of the Indian society, there is a tilt in the functioning of three wings of the Government. A survey of public interest petitions in this country shows that people have gone to Courts when they found that there was no other means of redressal. Unfortunately, the Executive in a vast number of cases was found to be no longer responsive to protests expressed by the people. The political leadership was expected to be sensitive to the urges and aspirations of the people. It was found not to be so.¹³³ In Indian Constitution, Supreme Court is given a paramount position and assigned the role of sentinel protecting the liberty of the people.¹³⁴

PIL represents the first attempt by a developing common country to break away from legal imperialism perpetuated for centuries. It contests the assumption that the most western the law, the better it must work for economic and social development such law produced in developing States. The shift from legal centralism to legal pluralism was prompted by the disillusionment with formal legal system. In India, however instead of seeking to evolve justice-dispensing mechanism ousted the formal legal system itself through PIL. The change is both substantial and structural. It has radically altered the traditional judicial role so as to enable the Court to bring justice within the reach of the common man. It is submitted that the following observations must always be borne in mind in dealing with Public Interest Litigation: “If carefully and prudently used, the PIL has great potential in correcting administrative wrong but if liberally and indiscriminately used in all kinds of cases, it may turn into an engine of destruction.”¹³⁵

CONCLUSION:

‘Fiat Justicia’ which means ‘let justice be done’ becomes a living reality only if PIL becomes a pragmatic facility for the common people. PIL is a sociological strategy of the judicial activism which is trying to bridge the gulf between the haves’ and have-nots’. So far as delivery of justice is concerned, PIL has covered large number of areas in socio-economic sphere. At a time of social and economic transformation the judicial process has a part to play as a midwife of change. The role held by the Court in PIL is more assertive than in traditional actions, it is creative rather than passive and it assumes a more positive attitude in determining facts. PIL has also played a role in the development of Right to Information. In Union of India v. Association for Democratic Reform¹³⁶ the Supreme Court has observed that the right to get information in democracy is recognized all throughout and it is a natural right flowing from the concept of democracy.

However, now Public Interest Litigation does require a complete rethink and restructuring as the overuse and abuse of PIL can only make it stale and ineffective. There is a need for some strong measures to promote and protect the actual purpose for which the institution of PIL came into being i.e. the enforcement of fundamental and other legal rights of the people who are poor, weak, ignorant of legal redressal system or otherwise in a disadvantageous position, due to their social and economic background. PIL 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 society and to assure them social and economic justice which is the signature tune of our Constitution. The misuse of PIL has reached ridiculous limits and petitions are being filed all over the country before the writ Courts for matters like monkey menace, students’ and teachers’ strikes, shortage of buses, lack of cleanliness in hospitals, irregularities in stock exchange, painting of road signs, dengue fever, examinations and admissions in Universities and colleges etc. One can go on but the list will not end.¹³⁷ Thus, indiscriminate use of this strategy is bringing it into disrepute because it has become the privilege of the privileged to have access to the court. PIL must be confined to case where justice is to be reached to that section of the society which cannot come to the Court due to socio-economic handicap or where a matter of grave public concern is involved.

The court in People’s Union for Democratic Rights v. Ministry of Home Affairs¹³⁸, “…….whenever the conscience of the Court is shocked, on account of action or inaction on the part of the State, the Court will exercise its jurisdiction conferred on it by the Constitution.” The development of Public Interest Litigation is an important milestone in meeting civil society expectations on the working of the Judiciary. Though, the exceptional use of the Court’s jurisdiction for ‘public interest’ purposes is being converted into a luxury or a publicity media, for want of delineation of ‘public interest’, PIL has marched forward by leaps and bounds and has done great public service by relaxing the locus standi and widening the scope of Article 32 of the Constitution. The Court has issued appropriate writs, orders and directions on the basis of Public Interest Litigation. The Court has also laid down checks and balances to restrain the perils of abuse of PIL and the Courts have now become cautious to not to entertain a mala fide petition with some personal interest or ulterior motive in the name of PIL. PIL in India has produced astonishing results which were unthinkable two decades ago. Degraded bonded labourers, tortured under trials and women prisoners, environment protection, exploited children and many others have been liberated through judicial intervention. Supreme Court has now realized its proper role in welfare state and it is using its new strategies for the development of a whole new corpus of law for effective and purposeful implementation of Public Interest Litigation. Public Interest Litigation has proved a boon for the common men.¹³⁹ Thus, Public Interest Litigation is certainly a legitimate exercise and not judicial overreach.

SUGGESTIONS:

To curb the hazards of mishandling of PILs, the following suggestions are made –

· The Courts should reject dubious PIL “at the threshold and in appropriate case with exemplary costs.”

· In cases where important projects or socio-economic regulations are challenged after gross delay, such petitions “should be thrown out at the threshold on the ground of latches. Just because a petition is termed as PIL, it does not mean that ordinary principles applicable to litigation will not apply.”

· PIL petitioners should be put on strict terms such as providing an indemnity or giving an adequate undertaking to the Court to make good the damage, if PIL is ultimately dismissed. To avoid PIL that has rendered invaluable service from becoming an unruly horse, “a firm sober judicial jockey in the saddle is essential.”

REFERENCES:

1. Peoples’ Union for Democratic Rights v. Union of India, AIR 1982 SC 1473.

2. D.K. Bhatt, Judicial Activism through Public Interest Litigation: The Indian Experience, AIR 1998 Journal 120.

3. Pritam Kumar Ghosh, Judicial Activism and Public Interest Litigation in India, http://airwebworld.com/articles/index.php?article=1531, accessed on 6^th March, 2012 at 7:41 P.M.

4. (1982) 3 SCC 235.

5. Prof. (Dr.) D.C. Jain, The Phantom of “Public Interest”, (1986) 3 SCC (J) 31.

6. AIR 1976 SC 1455: 1976 (3) SCC 832.

7. AIR 1981 SC 298.

8. AIR 1981 SC 149: 1981 (2) SCR 52.

9. AIR 1982 SC 149.

10. Krishana Iyer, A random Miscellany Legal and Other (1984).

11. Bar Council of Maharashtra v. M.V. Dabholar, AIR 1975 SC 2092.

12. Mumbai Kamgar Sabha v. Abdulbhai, AIR 1976 SC 1455.

13. Fertilizer Corporation Kamgur Union (Regd.) v. Union of India, AIR 1981 SC 344.

14. S.P. Gupta v. Union of India, AIR 1982 SC 149.

15. M.C. Mehta v. Union of India, AIR 1987 SC 1086, Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.

16. Bandhua Mukti Morcha v. Union of India, Supra note 15.

17. Ms. Veena Sethi v. State of Bihar, AIR 1983 SC 339.

18. D.K. Basu v. State of West Bengal, AIR 1997 SC 610.

19. Rural Litigation Entitlement Kendra v. State of U.P., AIR 1988 SC 2187.

20. 1983 (2) SCC 308.

21. AIR 1983 SC 339.

22. People’s Union of India for Democratic Rights v. Union of India, Supra note 1.

23. Ram Pyari v. Union of India, AIR 1988 Raj 124.

24. Khatri v. State of Bihar, AIR 1981 SC 928.

25. Bandhua Mukti Morcha v. Union of India, Supra note 15.

26. State of Bihar v. Ranchi Zila Samta Party, AIR 1996 SC 1515.

27. Indian Council for Enviro-Legal Action v. Union of India, (1996) 5 SCC 750.

28. Dr. B.L. Wadhera v. Union of India, AIR 1996 SC 2969.

29. M.C. Mehta v. Union of India, (1996) 4 SCC 750.

30. Peoples’ Union for Democratic Rights v. Union of India, Supra note 1; Bandhua Mukti Morcha v. Union of India, Supra note 15.

31. Vineet Narayan v. Union of India, AIR 1996 SC 3386.

32. D.K. Basu v. State of West Bengal, Supra note 18; Khatri v. State of Bihar, Supra note 24.

33. AIR 1997 SC 610.

34. Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1369.

35. Ibid.; Kadra Phadia v. State of Bihar, AIR 1981 SC 939.

36. Rama Murthy v. State of Karnataka, AIR 1997 SC 1739.

37. Ms. Veena Sethi v. State of Bihar, Supra note 17.

38. D.K. Basu v. State of West Bengal, Supra note 18.

39. Sheela Barse v. Union of India, AIR 1988 SC 2211. In this case, the distinction between private litigation and public interest litigation was also made.

40. Upendra Baxi (Dr.) v. State of U.P., (1983) 2 SCC 308.

41. Sheela Barse v. Union of India, AIR 1993 SCW 2908.

42. (2006) 8 SCC 1.

43. The Court said that has given these directions based on the recommendations of NHRC, the Julio Riberio Committee and the Soli J. Sorabjee Committee to revamp the Indian Police Act, 1861.

44. (1989) 1 SCALE 114.

45. D.K. Basu v. State of West Bengal, Supra note 18.

46. (1983) 2 SCC 96.

47. (1978) 4 SCC 494.

48. (1978) 4 SCC 104.

49. (1983) 2 SCC 746.

50. Neeraja Chaudhari v. State of M.P., AIR 1984 SC 1099.

51. AIR 1982 SC 1423.

52. AIR 1991 SC 417.

53. AIR 1984 SC 802.

54. AIR 1979 SC 1369.

55. Upendra Baxi (Dr.) v. State of U.P., Supra note 40.

56. P. Nalla Thampi v. Union of India, AIR 1985 SC 1133.

57. Francis Corallie v. Administrator, Union Territory of Delhi, AIR 1981 SC 746.

58. M.C. Mehta v. Union of India, Supra note 15; Bandhua Mukti Morcha v. Union of India, Supra note 15.

59. J.P. Unnikrishnan v. State of Andhra Pradesh, AIR 1993 SC 2178.

60. Pramanand Kataria v. Union of India, AIR 1989 SC 2039.

61. Peoples’ Union of Civil Liberties v. Union of India, AIR 1997 SC 568.

62. (1987) 2 SCC 165.

63. (1997) 6 SCC 241.

64. (1999) 1 SCC 759.

65. R.S. Sodhi v. State of U.P., 1994 Supp (1) SCC 142.

66. Vineet Narayan v. Union of India, Supra note 31.

67. P.M. Bakshi, Public Interest Litigations 167 (2^nd ed., Ashoka Law House, New Delhi, 2004).

68. (1991) 1 SC 598.

69. Subhash Kumar v. State of Bihar, (1991) 1 SC 598.

70. Rural Litigation Entitlement Kendra, Supra note 18.

71. T.N. Godawarman v. Union of India, AIR 1997 SC 1228.

72. S. Jagannath v. Union of India, AIR 1997 SC 811.

73. M.C. Mehta v. Kamalnath, (1997) 1 SCC 388.

74. (1980) 4 SCC 162.

75. (1992) 1 SCC 358.

76. M.C. Mehta v. Union of India, (1987) 1 SCC 395 (Oleum gas leakage case); M.C. Mehta v. Union of India, (1988) 1 SCC 471(Ganga water case); M.C. Mehta v. Union of India, (1996) 4 SCC 750 (Relocation of hazardous industries in Delhi); M.C. Mehta v. Union of India, (1996) 4 SCC 351 (Taj Trapezium case); M.C. Mehta v. Union of India, (1998) 8 SCC 648 (Use of CNG).

77. Indian Council for Enviro-Legal Action, Supra note 27.

78. Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647; Andhra Pradesh Pollution Control Board v. M. V. Nayudu, (1999) 2 SCC 718.

79. Shiv Sagar Tewari v. Union of India, AIR 1997 SC 2725.

80. Common Cause v. Union of India, AIR 1997 SC 1886.

81. State of Bihar v. Ranchi Zila Samta Party, Supra note 26.

82. Sheonandan Paswan v. State of Bihar, AIR 1987 SC 877.

83. Ibid.

84. (1996) 4 SCC 37.

85. (1996) 1 SCC 490; Delhi Domestic Working Women’s Forum v. Union of India, (1995) 1 SCC 14.

86. (1993) 2 SCC 746.

87. D.K. Basu v. State of West Bengal, Supra note 18.

88. Hon’ble Mr. Justice Arijit Pasayat, M.C. Bhandari Memorial Lecture on Public Interest Litigation vis-à-vis Human Rights, (2001) 7 SCC (J) 11.

89. (1983) 4 SCC 141.

90. (1984) 3 SCC 82.

91. (1985) 4 SCC 677.

92. (1993) 2 SCC 746.

93. Rajasthan Kisan Sangthan v. State, AIR 1989 Raj 10; C. Ramkonda Reddy v. State, AIR 1989 AP 235; State of Maharashtra v. Ravikant S. Patil, (1991) 2 SCC 373; Saheli, A Women’s Resources Centre v. Commr. Of Police, Delhi, (1990) 1 SCC 422; Pratul Kumar Sinha v. State of Bihar, (1994) Supp (3) SCC 100; Inder Singh v. State of Punjab, (1995) 3 SCC 702; Charanjit Kaur v. Union of India, (1994) 2 SCC 1; Union of India v. Luithukla, (1999) 9 SCC 273; Ajab Singh v. State of U.P., (2000) 3 SCC 521; R.D. Upadhyay v. State of A.P., (2001) 1 SCC 437.

94. Pranatosh Roy v. State of Assam, AIR 2000 Gau 33.

95. Dhirendra Chamoli v. State of U.P., (1986) 1 SCC 637.

96. Laxmi Kant Pandey v. Union of India, (1987) 1 SCC 67.

97. M.K. Sharma v. Bharat Electronics Ltd., (1987) 3 SCC 231.

98. D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579.

99. Chottelal Dalal v. Union of India, (1988) 1 SCC 668.

100. Rajeev Mankotia v. Secy. to President of India, (1997) 10 SCC 441.

101. Mamta Rao, Public Interest Litigation – Legal Aid and Lok Adalats 254-264 (2^nd Ed., Eastern Book Company, Lucknow, 2004) (2002).

102. Janata Dal v. H.S. Chaudhary, AIR 1993 SC 892.

103. Chhetriya Pradushan Mukti Sangharsh Samiti v. State of U.P., AIR 1990 SC 2060.

104. R.S. Sodhi v. State of U.P., Supra note 65.

105. Mohd. Aslam v. Union of India, (1994) 2 SCC 48.

106. Mechineni Krishan Rao v. Union of India, AIR 1997 Andh Pra 275.

107. K.M. Natraj v. State of Karnataka, AIR 1997 Kant 36.

108. 2008 AIR SCW 3164.

109. 2008 AIR SCW 406.

110. K.S. Rathore, Role of Judicial Activism towards Protection and Promotion of Constitutional Rights, AIR 2010 Journal 140.

111. Tehri Bandh Virodhi Sangharsh Samiti v. State of U.P., 1992 Supp (1) SCC 44.

112. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125; S.R. Bommai v. Union of India, AIR 1994 SC 1918.

113. D.K. Bhatt, Supra note 2.

114. (1980) 4 SCC 162.

115. Ashok Kumar Pandey v. State of West Bengal, AIR 2004 SC 280. See also B. Singh v. Union of India, AIR 2004 SC 1923; National Council for Civil Liberties v. Union of India, AIR 2007 SC 2631.

116. Janata Dal v. H.S. Chowdhary, Supra note 94 (¶¶ 107, 108); S.P. Anand v. H.D. Deve Gowda, AIR 1997 SC 272 quoted in S.P. Anand v. Union of India, AIR 2002 M.P. 51. See also State of Rajasthan v. Prakash Chand, AIR 1998 SC 1344; A.R. Antulay v. R.S. Nayak, AIR 1998 SC 1531; Assistant Collector of Central Excise v. Dunlop India Ltd., AIR 1985 SC 530; Kausalya Devi Bogra v. Land Acquisition Officer, AIR 1984 SC 892.

117. People’s Union of Democratic Republic v. Union of India, Supra note 1; Janata Dal v. H.S. Chowdhary, Supra note 94; Bandhua Mukti Morcha v. Union of India, Supra note 15; Mohammad Anis v. Union of India, 1994 Supp (1) SCC 145; Chhetriya Pradushan Mukti Sangharsh Samiti v. State of U.P., AIR 1990 SC 2060; Sheela Barse v. Union of India, AIR 1988 SC 2211; S.P. Gupta v. Union of India, AIR 1982 SC 149.

118. Bihar Legal Support Society v. Chief Justice of India, AIR 1987 SC 38; Sachidanand Pandey v. State of West Bengal, AIR 1987 SC 1109; Chaitanya Kumar v. State of Karnataka, AIR 1986 SC 825; S.P. Gupta v. President of India, AIR 1982 SC 149; Satyam Reddy v. Union of India, AIR 1996 A.P. 175; Mc Whirter v. Independent Broadcasting Authority, (1973) 1 All ER 689; R v. Commissioner of Police, (1973) 1 WB 629.

119. S.P. Anand v. H.D. Deve Gowda, Supra note 104; Gyani Davender Singh Sant Sepoy Sikh v. Union of India, AIR 1995 SC 1847; Kazi Landup Dorji v.Central Bureau of Investigation, 1994 Supp (2) SCC 116; K.R. Srinivas v. R.M. Premchand, (1994) 6 SCC 620; K. Hanumantha Rao v. Prl. Sub-Judge, 1997 (4) ALT 444; Jasbhai Motibhai Desai v. Roshan Kumar Haji Bashir Ahmad, AIR 1976 SC 578; State of Himachal Pradesh v. Umedh Ram, AIR 1986 SC 847; Fertilizer Corpn. Kamagar Union v. Union of India, AIR 1981 SC 344.

120. Upendra Bakshi, Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India, available at http://www.governance. developmentgateway.org/ THE% 20CULTURE % 20 OF % 20 PUBLIC % 20 INTEREST %20.pdf (last seen 4^th April, 2012 at 10.30 A.M.).

121. AIR 2000 SC 3751; Kanhaiya Lal Sethia v. Union of India, AIR 1998 SC 365.

122. AIR 2002 SC 350.

123. State of Himachal Pradesh v. A Parent of a Student of Medical College, Shimla, AIR 1985 SC 910.

124. M. C. Mehta v. Union of India, AIR 2008 SC 180.

125. Krishna Swami v. Union of India, AIR 1993 SC 1407.

126. Simranjit Singh Mann v. Union of India, AIR 1993 SC 280.

127. Dr. Duryodhan Sahu and others v. Jitendra Kumar Mishra and others, AIR 1999 SC 114; Dattaraj Nathuji Thaware v. State of Maharashtra, AIR 2005 SC 540; Gurpal Singh v. State of Punjab, AIR 2005 SC 2755; and Neetu v. State of Punjab, AIR 2007 SC 758.

128. Dr. Sopan Ivare, Redefining The Scope Of Public Interest Litigation - Judicial Perspectives, http://airwebworld.com/articles/index.php?article =962&phrase_id=296589, accessed on 7thApril, 2012 at 8:24 P.M.

129. AIR 2008 SC 913.

130. Hon’ble Mr. Justice A.S. Anand, M.C. Bhandari Memorial Lecture on Public Interest Litigation as Aid to Protection of Human Rights, (2001) 7 SCC (J) 1.

131. Royappa E.P. v. State of Tamil Nadu, AIR 1974 SC 555.

132. Maneka Gandhi v Union of India, AIR 1978 SC 597.

133. Hon’ble Mr. Justice A.S. Anand, Supra note 110.

134. Dr. Nirupama, Public Interest Litigation: A Need of Society, AIR 2011 Journal 38.

135. Dr. S.N. Jain, Standing and PIL.

136. AIR 2002 SC 2112.

137. I.P. Massey, Administrative Law 447 (7^th Ed., Eastern Book Company, Lucknow, 2008) (1980).

138. AIR 1985 Del 268.

139. Dr. G.B. Patil, Public Interest Lawyering and Social Transformation in India, AIR 2011 Journal 217.

Received on 07.05.2013 Modified on 22.06.2013

Int. J. Ad. Social Sciences 2(1): Jan. –Mar., 2014; Page 47-55