The development of
Public Interest Litigation (PIL) in the country has very recently uncovered its
own pitfalls and drawbacks. The genuine causes and cases of public interest
have in fact receded to the background and irresponsible PIL activists all over
the country have started to play a major but not a constructive role in the
arena of litigation. They try to utilise this extraordinary remedy, available
at a cheaper cost, as a substitute for ordinary ones. This mini article briefly
narrates the ill effects of the emerging malady and possible remedies.
Origion
of PIL
The term "PIL" originated in the United Statesin 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.
WHAT IS PUBLIC INTEREST LITIGATION ?
- "Public interest Litigation", in simple words, means, litigation filed in a court of law, for the protection of "Public Interest", such as pollution, Terrorism, Road safety, constructional hazards etc.
- PUBLIC INTEREST LITIGATION is not defined in any statute or in any act. It has been interpreted by judges to consider the intent of public at large. Although, the main and only focus of such litigation is only "Public Interest" there are various areas where a PUBLIC INTEREST LITIGATION can be filed.
- In Indian law, public interest litigation means litigation for the protection of the public interest. It is litigation introduced in a court of law, not by the aggrieved party but by the court itself or by any other private party. It is not necessary, for the exercise of the court’s jurisdiction, that the person who is the victim of the violation of his or her right should personally approach the court. 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 a public interest and not just as a frivolous litigation by a busy body.
- Such cases may occur when the victim does not have the necessary resources to commence litigation or his freedom to move court has been suppressed or encroached upon. 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.
HISTORY OF PIL IN INDIA
- PIL had begun in India towards the end of 1970s and came into full bloom in the 80s. Justice V.R. Krishna Iyer and Justice PM. Bhagwati, honourable Judges of the Supreme Court of India. They delivered some landmark judgements which opened up new vistas in PIL.
Public Interest Litigation and Judicial Activism :
Public interest
litigation or social interest litigation today has great significance and drew
the attention of all concerned. The traditional rule of “Locus Standi” that a
person, whose right is infringed alone can file a petition, has been
considerably relaxed by the Supreme Court in its recent decisions. Now, the
court permits public interest litigation at the instance of public spirited
citizens for the enforcement of constitutional o- legal rights. Now, 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:
1. in Supreme Court under Art.32 of the Constitution;
2. in High Court under Art.226 of the Constitution; and
3. in the Court of Magistrate under Sec.133, Cr. P.C.
Justice Krishna
layer fertilizer Corporation Kamgar Union vs. Union of India, (1981) enumerated
the following reasons for liberalization of the rule of Locus Standi:-
1.
Exercise of State power to eradicate corruption may result in
unrelated interference with individuals’ rights.
2. Social justice wan ants liberal judicial review administrative
action.
3. Restrictive rules of standing are antithesis to a healthy system
of administrative action.
4.
“Activism is essential for participative public justice”.
- Therefore, a public minded citizen must be given an opportunity to move the court in the interests of the public.
- In order to ensure that FRs did not remain empty declarations, the founding fathers made various provisions in the Constitution to establish an independent judiciary. Provisions related to FRs, DPs and independent judiciary together provided a firm constitutional foundation to the evolution of PIL in India. The founding fathers envisaged ‘‘the judiciary as a bastion of rights and justice’’. An independent judiciary armed with the power of judicial review was the constitutional device chosen to achieve this objective. The power to enforce the FRs was conferred on both the Supreme Court and the High Courts—the courts that have entertained all the PIL cases.
When and how to File a PIL :
1. Make an informed decision to file a case.
2. Consult all affected interest groups who are possible allies.
3. Be careful in filing a case because
·
Litigation can be expensive.
·
Litigation can be time consuming.
·
Litigation can take away decision making capability/strength
from communities.
·
An adverse decision can affect the strength of the
movement.
·
Litigation involvement can divert the attention of the community
away from the real issues.
4. If you have taken the decision
·
Collect all the relevant information
·
Be meticulous in gathering detail for use in the case. If you
plan to use photographs, retain the negatives and take an affidavit from the
photographer. Retain bills.
·
Write to the relevant authorities and be clear about your
demands.
·
Maintain records in an organized fashion.
·
Consult a lawyer on the choice of forum.
·
Engage a competent lawyer. If you are handling the matter
yourself make sure you get good legal advice on the drafting.
·
A PIL can be filed only by a registered organization. If you are
unregistered, please file the PIL in the name of an office bearer/member in
his/her personal capacity.
·
You may have to issue a legal notice to the concerned
parties/authorities before filing a PIL. Filing a suit against the government
would require issuing a notice to the concerned officer department at least two
months prior to filing.
ISSUES RELATED TO PIL :
Issues relating to the following matters
can be taken in to PIL
1. Basic amenities such as roads, water, medicines, electricity, primary
school, primary health centre, bus service, etc,
2. Rehabilitation of displaced persons.
3. Identification and rehabilitation of bonded and child labourers.
4. Illegal detention of arrested persons.
5. Torture of persons in police custody.
6, Custodial deaths.
7, Protection of prisoner's rights.
8. Jail reform.
9. Speedy trials of under trials.
10. Ragging in colleges.
11. Atrocities by police.
12. Atrocities against SCs/STs.
13. Neglect of inmates of government welfare homes,
14. Children in custody.
15. Adoption of children.
18, Corruption charges against public servants.
17. Maintenance of law and order,
18. Payment of minimum wages.
10. Legal aid to the poor.
20. Starvation deaths.
21. Indecent television programmes.
22. Prohibition.
23. Environmental pollution.
24. Unauthorised eviction,
25. Protection of pavement and slum dwellers.
28. Dowry deaths.
27. Implementation of welfare laws.
28. Reform of illegal social customs such as sati, child marriage,
devdasi system, etc.
29. Violation of fundamental rights of the weaker sections.
DEVELOPMENT OF PIL :
1. Peoples Union for Democratic Rights v. Union of India :-
(A.I.R.. 1982, S
C 1473). The court now permits Public Interest Litigation or Social Interest
Litigation at the instance of “Public spirited citizens" for the
enforcement of constitutional & legal rights of any person or group of
persons who because of their socially or economically disadvantaged position
are unable to approach court for relief. Public interest litigation is a part
of the process of participate justice and standing in civil litigation of that
pattern must have liberal reception at the judicial door steps.
2. In the Judges Transfer Case -
AIR 1982, SC
149: Court held Public Interest Litigation can be filed by any member of public
having sufficient interest for public injury arising from violation of legal
rights so as to get judicial redress. This is absolutely necessary for
maintaining Rule of law and accelerating the balance between law and justice.
It is a settled
law that when a person approaches the court of equity in exercise of
extraordinary jurisdiction, he should approach the court not only with clean
hands but with clean mind, heart and with clean objectives.
3. Shiram Food & Fertilizer case
AIR (1986) 2 SCC
176 SC through Public Interest Litigation directed the Co. Manufacturing
hazardous & lethal chemical and gases posing danger to life and health of
workmen & to take all necessary safety measures before re-opening the
plant.
4. In the case of M.C Mehta V. Union of India (1988) 1 SCC 471 -
In Public
Interest Litigation brought against Ganga water pollution so as to prevent any
further pollution of Ganga water. Supreme court held that petitioner although
not a riparian owner is entitled to move the court for the enforcement of
statutory provisions, as he is the person interested in protecting the lives of
the people who make use of Ganga water.
5. Parmanand Katara V. Union of India -
AIR 1989, SC 2039
:- Supreme Court held in the Public Interest Litigation filed by a human right
activist fighting for general public interest that it is a paramount obligation
of every member of medical profession to give medical aid to every injured
citizen as soon as possible without waiting for any procedural formalities.
6. Council For Environment Legal Action V. Union Of India -
- (1996)5 SCC 281: Public Interest Litigation filed by registered voluntary organisation regarding economic degradation in coastal area. Supreme Court issued appropriate orders and directions for enforcing the laws to protect ecology.
- A report entitled "Treat Prisoners Equally HC" published in THE TRIBUNE, Aug 23 Punjab & Haryana High Court quashed the provisions of jail manual dividing prisoners into A , B & C classes after holding that there cannot be any classification of convicts on the basis of their social status, education or habit of living .This is a remarkable ruling given by High Court by declaring 576-A paragraph of the manual to be " Unconstitutional".
7. State V. Union Of India -
AIR 1996 Cal
181 at 218: Public Interest Litigation is a strategic arm of the legal aid
movement which intended to bring justice. Rule of Law does not mean that the
Protection of the law must be available only to a fortunate few or that the law
should be allowed to be abused and misused by the vested interest. In a recent
ruling of Supreme Court on " GROWTH OF SLUMS" in Delhi through Public
Interest Litigation initiated by lawyers Mr. B.L. Wadhera & Mr. Almitra
Patel Court held that large area of public land is covered by the people living
in slum area . Departments despite being giving a dig on the slum clearance, it
has been found that more and more slums are coming into existence. Instead of
"Slum Clearance", there is "Slum Creation" in Delhi. As
slums tended to increase; the Court directed the departments to take
appropriate action to check the growth of slums and to create an environment
worth for living.
Merits:
1. In Public Interest Litigation (PIL) vigilant citizens of the
country can find an inexpensive legal remedy because there is only a nominal
fixed court fee involved in this.
2. Further, through the so-called PIL, the litigants can focus
attention on and achieve results pertaining to larger public issues, especially
in the fields of human rights, consumer welfare and environment.
Demerits:
1. The genuine causes and cases of public interest have in
fact receded to the background and irresponsible PIL activists all over the
country have started to play a major but not a constructive role in the arena
of litigation. Of late, many of the PIL activists in the country have
found the PIL as a handy tool of harassment since frivolous cases could be
filed without investment of heavy court fees as required in private civil
litigation and deals could then be negotiated with the victims of stay orders
obtained in the so-called PILs.
2.The framers of Indian constitution did not incorporate a strict
doctrine of separation of powers but envisaged a system of checks and balances.
Policy making and implementation of policy are conventionally regarding as the
exclusive domain of the executive and the legislature.Vishaka v State of
Rajasthan which was a PIL concerning sexual harassment of women at work
place.The court declared that till the legislature enacted a law consistent
with the convention on the Elimination of All Forms of Discrimination Against
Women which India was a signatory, the guidelines set out by the court would be
enforceable.
3.The flexibility of procedure that is a character of PIL has
given rise to another set of problems. It gives an opportunity to opposite
parties to ascertain the precise allegation and respond specific issues.
4.The credibility of PIL process is now adversely affected by the
criticism that the judiciary is overstepping the boundaries pf its jurisdiction
and that it is unable to supervise the effective implementation of its orders.
It has also been increasingly felt that PIL is being misused by the people
agitating for private grievance in the grab of public interest and seeking
publicity rather than espousing public cause.
Conclusion: Public Interest
Litigants, all over the country, have not taken very kindly to such court
decisions. They do fear that this will sound the death-knell of the people
friendly concept of PIL. However, bona fide litigants of India have nothing to
fear. Only those PIL activists who prefer to file frivolous complaints will
have to pay compensation to then opposite parties. It is actually a welcome move
because no one in the country can deny that even PIL activists should be
responsible and accountable. In any way, PIL now does require a complete
rethink and restructuring. Anyway, overuse and abuse of PIL can only make it
stale and ineffective. Since it is an extraordinary remedy available at a
cheaper cost to all citizens of the country, it ought not to be used by all
litigants as a substitute for ordinary ones or as a means to file frivolous
complaints.
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