“Public Interest Litigation (PIL) is a lawsuit, filed in a court of law i.e. Supreme Court and High Court as a writ or otherwise, used as a strategy to combat the atrocities prevailing in society and deliver quick social justice with the help of law, for the protection of public interest”. __ Dr. Md. Usmangani Ansari
The emergence of Public Interest Litigation has motivated the judicial system to extend its protection to new social, public and group interests.
- Public interest litigation is the power given to the public by courts through judicial activism. However, the person filing the petition must prove to the satisfaction of the court that the petition is being filed for public interest and not just as a frivolous litigation by a busy body.
- The court can itself take cognizance of the matter and proceed suo motu or cases can commence on the petition of any public-spirited individual.
Although Public interest litigation is not defined in any statute or any act. It has been interpreted by judges to consider the intent of the public at large. However, according to Black’s Law Dictionary1–
“Public Interest Litigation 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 interest or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as a mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, state or national government…”
HISTORY OF PUBLIC INTEREST LITIGATION (PIL)
The term ‘Public Interest Litigation’ originated in the United States in the mid1980s. The phrase ‘public law litigation’ was first prominently used by American academic, Abram Chayes, to describe the practice of lawyers or public-spirited individuals who seek to precipitate social change through court-ordered decrees that reform legal rules, enforce existing laws and articulate public norms.2 Since the nineteenth century, various movements in that country had contributed to public interest law, which was part of the legal aid movement.
PIL in India has been a part of the constitutional litigation and not civil litigation.3Therefore, to appreciate the evolution of Public Interest Litigation in India, it is desirable to have a basic understanding of the constitutional framework and the Indian judiciary4.
PIL in United Kingdom
The use of Public Interest Litigation in the United Kingdom (England) has been comparably limited. The limited development in PIL has occurred by broadening the ‘rules of standing’. In Re. Reed, Bowen, and Co. case (1887),5 to facilitate vindication of public interest, the English judiciary prescribed ‘broad rules of standing’. Under the ‘traditional rule of standing’, judicial redress was only available to a ‘person aggrieved’ i.e. one ―who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something. However, the traditional rule no longer governs standing in the English Courts.
PIL IN INDIA
There is a disillusionment with the formal legal system of India where it is no longer demanded by law to do justice, if justice perchance (or) possibly is done, we believe ourselves of being fortunate. In such a passive legal system of the country, one of the best things that have happened in the late 1970s and early 1980s is the process of social reform through an active legal initiative known as “Public Interest Litigation or Social Action Litigation”. In Indian law, public interest litigation means litigation for the protection of the public interest to advance social justice.
The words ‘Public Interest’ means “the common wellbeing also public welfare”6 and the word ‘Litigation‘ means “a legal action including all proceedings therein, initiated in a court of law to enforce a right or seek a remedy”.
Pioneer of PIL in India — Justice P.N. Bhagwati
THE HINDU- NEW DELHI, DECEMBER 13, 2012
President Pranab Mukherjee on Dec. 12, 2012, described “Justice P.N. Bhagwati as a pioneer of Public Interest Litigation (PIL) in the country and a promoter of the right to legal aid and emissary of Lok Adalats”.
Mr. Mukherjee who received a copy of Justice Bhagwati’s memoir ‘My Tryst with Justice’, presented to him by the Chief Justice of India, Altamas Kabir at a function held in Rashtrapati Bhavan here said, Mr. Justice Bhagwati converted the courtroom into a site of people’s struggle in humanising law.
Mr. Justice Bhagwati epitomises how a judge can be instrumental in espousing the cause of justice to the millions of deprived Indians who are standing in the waiting room of history to become the subjects of justice, Mr. Mukherjee said.
The President said the book will be a guiding light and an inspiration for not just law students, legal practitioners, and judges but also every common person concerned about social justice in our country.
The book would be a prized possession for every Indian who wants to make a difference to the world and who aspires for a world more just, he added.
Though India had to wait till 1986 when the then 17th Chief Justice of India Prafullachandra Natwarlal (P.N.) Bhagwati (July 1985 – Dec. 1986) introduced public interest litigation (PIL) to the Indian judicial system. However, the seed of the concept of Public Interest Litigation was initially shown in India by Krishna Iyer, J. In 1976 (without assigning the terminology) in Mumbai Kamgar Sabha v/s Abdulthai (AIR 1976 SC 1455; 1976 (3) SCC 832),7 he while disposing of an industrial dispute regarding the payment of bonus, has observed (Para 7 of AIR):
“Our adjectival branch of jurisprudence, by and large, deals not with sophisticated litigants but the rural poor, the urban lay and the weaker societal segments for whom the law will be an added terror if technical misdescriptions and deficiencies in drafting pleadings and setting out the cause-title create a secret weapon to non-suit a part. Where a foul play is absent and fairness is not faulted latitude is a grace of processional justice… Public interest is promoted by a spacious construction of locus standi in our socio-economic circumstances and conceptual latitudinarianism permits taking liberties with individualisation of the right to invoke the higher courts where the remedy is shared by a considerable number, particularly when they are weaker. Less litigation, consistent with a fair process, is the aim of adjective law.”8
- She becomes the first woman barrister/lawyer to get a portrait in the Supreme Court Library.
- She was the first Indian woman to graduate from Cardiff Law School in the U.K.
- She was born in Nairobi in 1927 and died on Dec. 31, 2013, in India.
January 1979 will remain a memorable month in Indian legal history. It was the dates 8 & 9 January 1979 when the PIL as a revolution started with The Indian Express10(Delhi edition) publication of two articles by K.F. Rustamji, then Member of the National Police Commission, based on his Tour Note No. 10 in which he gave 19 instances of prisoners along with Hussainara Khatoon, some of whom had been in jail awaiting trial for periods …
Nirmal Hingorani, a Supreme Court lawyer, happened to read Rustamji’s second article published on 9 January 1979. He and the author, Kapila Hingorani, moved the Supreme Court on Jan. 11, 1979 through a habeas corpus petition under Article 32 of the Constitution, a move that neither Rustamji nor The Indian Express expected. However, neither Nirmal Hingorani nor the author had a power of attorney to approach the Court, nor were they the close relatives or ‘next of kin’ of the undertrials. Though Supreme Court rules do not permit the filing of a habeas corpus petition based on newspaper reports, the author, as a citizen of the country and officer of the Court, filed the petition on 11 January 1979, prepared by her lawyer husband Nirmal Hingorani, on behalf of 19 undertrial prisoners mentioned in the articles.
The Supreme Court of India, after hearing arguments, passed historic orders revolutionising the criminal justice system of the country. While all the above-named undertrial prisoners were released by its six Orders of 12, 19, 26 February and 9 March, 19 April and 4 May 1979 went on to read a right to a speedy trial as being implicit in the right to life and personal liberty enshrined in Article 21 of the Constitution.
Thus, as result of ‘Hussainara Khatoon Vs Home Secretary, Bihar’ case, the Supreme Court bench led by Justice P.N. Bhagwati went on to release, through interim orders, over 40,000 undertrial prisoners out of the estimated 120,000 from various jails nationwide within four months of filing of the first petition11.
“The success of the Khatoon case was so widespread that the Supreme Court in the 1980s opened a new section in the Registry devoted to PILs. Officers used to sift through the incessant bombardment of letters or petitions from citizens every day and choose the ones which should be brought to the court’s attention,” says Hingorani, who was born at the Kenyan Capital Nairobi into an Arya Samaj family.
“The Supreme Court held in the Hussainara Khatoon case that speedy trial and legal aid to the poor are the two essentials of a PIL. Today, as a woman who gave birth to PIL, I get hurt when people misuse it or judges do not understand the public problem laid before them,” she says.
She has over the past 30 years done nearly 100 PILs, free of cost, including the Bhagalpur Blinding case of 1981 and Rudul Sah case of 1983. Her personal favorite among the PILs she did was one in which the Delhi Development Authority (DDA) agreed to pay Rs 1,000 to lepers (persons affected with leprosy) to build their jhuggies.
A new era of the PIL movement was heralded by Justice P.N. Bhagawati in the case of S.P. Gupta vs. Union of India.
In this case, it was held that “any member of the public or social action group acting bonafide” can invoke the Writ Jurisdiction of the High Courts under article 226 or the Supreme Court under Article 32 seeking redressal against violation of legal or constitutional rights of persons who due to social or economic or any other disability cannot approach the Court.
- By this judgment, PIL became a potent weapon for the enforcement of “public duties” where executive action or misdeed resulted in public injury. And as a result, any citizen of India or any consumer groups or social action groups can now approach the apex court of the country seeking legal remedies in all cases where the interests of the general public or a section of the public are at stake.
- Justice Bhagwati did a lot to ensure that the concept of PILs was enunciated. He did not insist on the observance of procedural technicalities and even treated ordinary letters from public-minded individuals as writ petitions.
The Supreme Court in Indian Banks’ Association, Bombay & Ors. vs. M/s Devkala Consultancy Service and Ors (2004)held: “In an appropriate case, where the petitioner might have moved a court in her private interest and for redressal of the personal grievance, the court in furtherance of Public Interest may treat it a necessity to enquire into the state of affairs of the subject of litigation in the interest of justice.” Thus, a private interest case can also be treated as a public interest case.
What are aims and objectives of PIL?
According to eminent Judges, Jurists, activist Lawyers, outstanding scholars, Journalists and Social scientists, public interest litigation (PIL) is meant for 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 or economic background. Such litigation can be initiated only for redressal of a public injury, enforcement of a public duty or vindicating interest of public nature. It is necessary that the petition is not filed for personal gain or private motive or other extraneous consideration and is filed bona fide in the public interest. The following are the subjects which may be litigated under the head of Public Interest Litigation:
Subjects Litigated under PIL
What are the guideline of Supreme Court for entertaining Letters/Petitions as PIL?
(Based on full Court decision dated 1.12.1988 and subsequent modifications).
No petition involving individual/ personal matter shall be entertained as a PIL matter except as indicated hereinafter.
Letter-petitions falling under the following categories alone will ordinarily be entertained as Public Interest Litigation:
A. The matters of public interest
1. Bonded Labour matters.
2. Neglected Children.
3. Non-payment of minimum wages to workers and exploitation of casual workers andcomplaints of violation of Labour Laws (except in individual cases).
4. Petitions from jails complaining of harassment, for (pre-mature release)*and seekingrelease after having completed 14 years in jail, death in jail, transfer, release onpersonal bond, speedy trial as a fundamental right.
*$ Petitions for premature release, parole, etc. are not matters which deserve to betreated as petitions u/Article 32 as they can effectively be dealt with by the concernedHigh Court. To save time Registry may simultaneously call for remarks of the jailSuperintendent and ask him to forward the same to High Court. The main petitionmay be forwarded to the concerned High Court for disposal in accordance with law.Even in regard to petitions containing allegations against Jail Authorities there is noreason why it cannot be dealt with by the High Court. But petitions complaining otorture, custody death and the like may be entertained by this Court directly if theallegations are of a serious nature.
5. Petitions against police for refusing to register a case, harassment by police and deathin police custody.
6. Petitions against atrocities on women, in particular, harassment of bride, bride-burning, rape, murder, kidnapping, etc.
+In such cases where office calls for a police report if letter petitioner asks for copy thesame may be supplied, only after obtaining permission of the Hon’ble Judgenominated by the Hon’ble Chief Justice of India for PIL matters.
7. Petitions complaining of harassment or torture of villagers by co- villagers or by police frompersons belonging to Scheduled Caste and Scheduled Tribes and economically backward classes.
8. Petitions pertaining to environmental pollution, disturbance of ecological balance, drugs, foodadulteration, maintenance of heritage and culture, antiques, forest and wild life and other matters of public importance.
9. Petitions from riot -victims.
10. Family Pension.
All letter-petitions received in the PIL Cell will first be screened in the Cell and only such petitions as are covered by the above mentioned categories will be placed before a Judge to be nominated by Hon’ble the Chief Justice of India for directions after which the case will be listed before the Bench concerned.
If a letter-petition is to be lodged, the orders to that effect should be passed by Registrar (Judicial) (or any Registrar nominated by the Hon’ble Chief Justice of India), instead of Additional Registrar, or any junior officer.
To begin with only one Hon’ble Judge may be assigned this work and number increased to two or three later depending on the workload.
*Submission Notes be put up before an Hon’ble Judge nominated for such periods as may bedecided by the Hon’ble Chief Justice of India from time to time.
**If on scrutiny of a letter petition, it is found that the same is not covered under the PILguidelines and no public interest is involved, then the same may be lodged only after theapproval from the Registrar nominated by the Hon’ble the Chief Justice of India.
**It may be worthwhile to require an affidavit to be filed in support of the statements contained in the petition whenever it is not too onerous a requirement
**The matters which can be dealt with by the High Court or any other authority may be sent to them without any comment whatsoever instead of all such matters being heard judicially in this Court only.
Cases falling under the following categories will not be entertained as Public Interest Litigation and these may be returned to the petitioners or filed in the PIL Cell, as the case may be:
B. The matters of private interest
(1) Landlord-Tenant matters.
(2) Service matter and those pertaining to Pension and Gratuity.
(3) Complaints against Central/ State Government Departments and Local Bodies except those relating to item Nos. 1 to 10 above.
(4) Admission to medical and other educational institutions.
(5) Petitions for early hearing of cases pending in High Courts and Subordinate CourtsIn regard to the petitions concerning maintenance of wife, children and parents, the petitioners may be asked to file a Petition under sec. 125 of Cr. P.C. Or a Suit in the Court of competent jurisdiction and for that purpose to approach the nearest Legal Aid Committee for legal aid and advice.
$ Added based on Order dated 19.8.1993 of the then Chief Justice of India.
+ Added as per Order dated 29.8.2003 of the Hon’ble Chief Justice of India.
* As per Order dated 29.8.2003 of the Hon’ble the Chief Justice of India.
** Modified keeping in view the directions dated 29.8.2003 of the Hon’ble Chief Justice of India
C. Other Petitions
- Petitions received by post even though not in the public interest can be treated as writ petitions if so, directedby the Hon’ble Judge nominated for this purpose.
- Individual petitions complaining harassment or torture or death in jail or by police, complaints of atrocities on women such as harassment for dowry, bride burning, rape, murder and kidnapping, complaints relating to family pensions and complaints of refusal by police to register the case can be registered as writ petitions, if so, approved by the concerned Hon’ble Judge.
- If deemed expedient, a report from the concerned authority is called before placing the matter before the Hon’ble Judge for directions. If so, directed by the Hon’ble Judge, the letter is registered as a writ petition and is thereafter listed before the Court for hearing.
WHAT ARE THE Types and Aspects of PIL?
(1) Remedial in Nature
The remedial nature of PIL departs from traditional locus standi rules. It indirectly incorporated the principles enshrined in Part IV (DP) into Part III (FR) of the Constitution. By riding the aspirations of Part IV into Part III of the Constitution had changed the procedural nature of the Indian law into a dynamic welfare one. For example, Bandhua Mukti Morcha vs. Union of India,12 and Unni Krishnan vs. State of A.P.13, etc. were the obvious examples of this change in the nature of the judiciary.
(2) Representative Standing
Representative standing can be seen as a creative expansion of the well-accepted standing exception which allows a third party to file a habeas corpus petition on the ground that the injured party cannot approach the court himself. And in this regard, the Indian concept of PIL is much broader in relation to the American. Here, PIL is a modified form of class action.
(3) Citizen standing
The doctrine of citizen standing thus marks a significant expansion of the court’s rule, from protector of individual rights to guardian of the rule of law wherever threatened by official lawlessness.
(4) Non-adversarial Litigation
In the words of the Supreme Court in People’s Union for Democratic Rights vs. Union of India, “We wish to point out with all the emphasis at our command that public interest litigation (PIL)…is a totally different kind of litigation from the ordinary traditional litigation which is essentially of an adversary character where there is a dispute between two litigating parties, one making claim or seeking relief against the other and that other opposing such claim or resisting such relief.”14
Non-adversarial Litigation has two aspects
(a) Collaborative Litigation
In collaborative litigation, the effort is from all the sides. The claimant, the court and the Government or the public official, all are in collaboration here to see that basic human rights become meaningful for the large masses of the people. PIL helps the executive to discharge its constitutional obligations. The court assumes three different functions other than that from traditional determination and issuance of a decree.
(i) The ombudsman—The court receives citizen complaints and brings the most important ones to the attention of responsible government officials.
(ii) Forum—The court provides a forum or place to discuss the public issues at length and providing emergency relief through interim orders.
(iii) Mediator—The court comes up with possible compromises.
(b) Investigative Litigation
It is investigative litigation because it works on the reports of the Registrar, District Magistrate, comments of experts, newspapers, etc.
(5) Crucial Aspects
The flexibility introduced in the adherence to procedural laws. In Rural Litigation and Entitlement Kendra vs. State of U.P.15 Supreme Court rejected the defense ofres judicta. Court refused to withdraw the PIL and ordered compensation too. To curtail custodial violence, the Supreme Court in Sheela Barse vs. the State of Maharashtra16 issued certain guidelines. Supreme Court has broadened the meaning of the Right to live with human dignity available under Article 21 of the Constitution of India to the greatest extent possible.
(6) Relaxation of the strict rule of Locus Standi
The strict rule of locus standi has been relaxed by way of
(i) Representative standing, and
(ii) Citizen standing.
In D.C. Wadhwa vs. State of Bihar17, Supreme Court held that a petitioner, a professor of political science, who had done substantial research and deeply interested in ensuring proper implementation of the constitutional provisions, challenged the practice followed by the state of Bihar in re-promulgating several ordinances without getting the approval of the legislature. The court held that the petitioner as a member of the public has ‘sufficient interest’ to maintain a petition under Article 32.
(7) Epistolary Jurisdiction
Judicial activism gets its highest bonus when its orders wipe some tears from some eyes. This jurisdiction is somehow different from collective action. The number of PIL cells was open all over India for providing the footing or at least platform to the needy class of the society.
WHAT ARE DIFFERENCES BETWEEN WRIT PETITION, PIL AND SLP?
What is Writ Petition?
The Writ18 is an instrument or order of the Court by which the Supreme Court or High Courts under Article 32 or Art. 226 directs an individual or official or authority to do an act or abstain from doing an act through the writs like habeas corpus, mandamus, prohibition, quo warranto and certiorari.
- The Constitution of India, under Articles 32 and 226 confers writ jurisdiction on Supreme Court and High Courts, respectively, for enforcement/protection of fundamental rights of an individual.
- The Writ Petitions under Article 32 or Art-226 of the Constitution filed before the Supreme Court of India or High Courts are not refused on technical grounds.
- The Courts are rather pleased to entertain simple letters written to the Courts as Writ Petition.
- At times, the Courts even proceed suo moto based on the information received by them through electronic and print media.
- Writ jurisdiction of the High Courts of various states & the Hon’ble Supreme Court of India can be classified as Original, Extra Ordinary, Constitutional & Inherent; & Appellate Jurisdiction.
- A writ petition can be entertained against a show-cause notice or a summon to appear in person to submit an explanation, only if the same is issued by an authority having no jurisdiction or competency or an allegation of mala fide is raised or if the same violates the statutory rules in force.
Writ matters can be categorized as follows:
Civil Writ Petition Civil—Challenging virus & seeking striking down of Acts, Statutes, statutory Rules, & By-Laws, etc.; Seeking damages & compensation.
Criminal Writ Petition—Writ of Habeas Corpus, Writ of Certiorari, Writ of Quo-Warranto & Writ of Prohibition (e.g. Crimes Against women/SC/ST/OBC, etc.)
Whereas, PIL (Public Interest Litigation) is a form of writ where an action or law is framed for the public interest. It directly joins the public with the judiciary. In PIL, the court has given the public the right to file a suit.
What are the five differences between writs and PIL?
Let us read the following five differences between a Writ and PIL to understand these legal terms:
- Writs are filed by institutions or individuals for benefit in their own cases, whereas, PIL is an application that is filed by any citizen for easing out any undue inconvenience faced by the public at large. PIL is not defined in any statute or any act. It has been interpreted by a judge to consider the intent of the public at large. Following are the various areas where a PIL can be filed against State/Central Govt./Municipal authorities or any private party.
- If there is an abuse of elementary human rights of the underprivileged.
- If there is inappropriate content or conduct of government policy.
- To force municipal authorities to accomplish a public duty.
- If there’s a violation of religious rights or any basic fundamental rights.
- Writs are issued by the Supreme Court of India under Article 32 and Article 139. Writs can be issued by the High Court of the States under Articles 226. On the other hand, PIL’s are applications/writs that are filed by any citizen for easing out inconvenience faced by the public at large and they are not defined in any Statute.
- The process of filing writ is expensive, complicated and time-consuming. But in PIL, the process is cheap and simplified. Also, in PIL the rule of locus standi, that is, the right to appear an action in a court, is relaxed, which is not the case with Writs.
- In Writs, the evidence is strictly examined, whereas, in PIL, the evidence is narrow and doesn’t involve as many technicalities as there are in the Writs. For example; PILs can be presented by anybody whether they have suffered or not. Other people can also file no matter if they have an interest in it or not. While Writs can be filed only by the aggrieved party.
- The subject for which the action is demanded is of public interest in PIL, and the judgment and view of a judge are very crucial as it concerns the national welfare. In Writ, the subject matter is of private interest, and judges’ work is just to examine the evidence.
What is Special Leave Petition (SLP)?
Special Leave Petition (SLP) is also a constitutional remedy. Under this jurisdiction, the Supreme Court may in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. Article 136 of the Constitution is, however, not a regular forum of appeal at all. The Hon’ble Supreme Court of India observed in the case, N. Suriyakala Vs. A. Mohandoss and Others (2007) 9 SCC 196, that the “Article 136 is a residual provision which enables the Supreme Court to interfere with the judgment or order of any court or tribunal in India in its discretion”.
- Black’s Law Dictionary 6th Edition
- Abraham Chaves, ―The Role of the Judge in Public Law Litigation‖, Harvard Law Review, Vol.89, 1976, p.1281
- The Indian Code of Civil Procedure though allows for class action: ord.1 r.8 of the Code of Civil Procedure 1908.
- Sheetal B. Shah, Illuminating the Possible in the Developing World: “Guaranteeing the Human Right to Health in India” (1999) 32 Vanderbilt Journal of Transnational Law 435, 463.
- (1887) 19 QBD 174.
- Oxford English Dictionary 2nd Edn. Vol. Xll
- (1976) 3 SCC 832: AIR 1976 SC 1455.
- Janta Dal v. H.S. Chowdhary, AIR 1993 SC 892 at p. 906, 907, 908: 1993 Cri LJ 600: 1993 SCC (Cri)
- AIR 1984 SC 802; 1984 SCR (2) 67.
- 13. AIR 1993 SC 2178; 1993 SCR (1) 594.
- 14. AIR 1982 SC 1473; 1983 SCR (1) 456.
- 15. AIR 1985 SC 652; 1985 SCR (3) 169.
- 16. Judgment Today 1988 (3) 15; (1988) 4 SCC 226.
- 17. AIR 1987 SC 579; 1987 SCR (1) 798.