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Inception of Epistolary Jurisdiction

Public Interest Litigation- The Beginning

The term ‘Public Interest Litigation’ (PIL) means the litigation which is beneficial to general public. It means action necessarily taken for public purpose. The Supreme Court of India in Janata Dal v. H.S. Chowdharv[3], observed that lexically the expression 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 a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected.

The word “Litigation” means legal action initiated in a Court of law with the purpose of enforcing right or seeking remedy. Therefore, the term public interest litigation means a legal action initiated in a Court of law for the enforcement of public interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liberties are affected.

The concept of public interest litigation had its origin in the American legal system during the period of 1960’s. The Council for Public Interest Law set up by the Ford Foundation in the United States of America stated that Public Interest Law is the name, which was able to provide legal representation to previously unrepresented groups. Such efforts had been undertaken in recognition that the ordinary market place for legal services failed to provide such services to significant segments of the population and to significant interests. Such groups and interests include the poor, environmentalists, consumer, racial and ethnic minorities and others.

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Thus, the concept of public interest litigation evolved in the American legal system was in order to provide legal representation to previously unrepresented groups. It has now been recognized in many parts of the world. The seed of the Public Interest Litigation was initially sown in India by Justice Krishna Iyer in 1976 in Mumbai Kamgar Sabha v. Abdul Bhai[4].  However, in that Judgement Justice Iyer did not use the terminology “Public Interest Litigation”. But in the celebrated case of Fertilizer Corporation Kamgar Union v. Union of India[5], the terminology “Public Interest Litigation” was used by Justice Iyer. In this particular judgement he used the expression ‘Epistolary Jurisdiction’. The Hon’ble Supreme Court held that the procedure had to be relaxed to meet the ends of justice.

The concept of Public Interest Litigation took its roots firmly in the Indian Legal System only after the period of post emergency. During the period of emergency in 1975 the rule of law suffered a partial eclipse and anyone who opposed the action of the government was susceptible to police action. This resulted in spate of petitioners in the Hon’ble High Courts and the Hon’ble Supreme Court under Articles 226 and 32 of the Constitution respectively in the form of Habeas Corpus. The Government of India argued that Article 21 of the Constitution guaranteeing right to life had been suspended for the duration of emergency. The Government of India wanted what is called a ‘Committed Judiciary’ and accordingly Justice A.N. Ray was appointed as the Chief Justice of India by superseding three senior colleagues Justice Shelat, Justice Hegde and Justice Grover. The Apex Court lost its credibility when in A.D.M. Jabalpur v. Shrikant Shukla[6], popularly known as Habeas Corpus Case, totally abandoned its responsibility towards the protection of individual liberty.

The post-emergency Court had to make a great effort to re-establish its institutional credibility.[7] During the last three decades the Indian judiciary has been playing a very creative role in the administration of justice, which is the departure from the ‘committed judiciary’ of the past to the activist judiciary of today. This has been possible due to the creative role played by some of the judges like Justice Krishna Iyer, Justice P.N.Bhagwati, Justice A.M. Ahmadi, Justice Kuldip Singh and Justice S.P. Bharusha under the principle of public interest litigation that was innovated by the Apex Court through judicial activism. The innovation of this type of litigation by the Court was a dire need in order to vindicate public interest where fundamental and other rights of the people who were poor, ignorant or in socially or economically disadvantageous position and was therefore unable to seek legal redress. The Courts have stressed the importance of non-adversarial jurisprudence, which would deal with cases relating to the ‘have-nots’.

The purpose of the Public Interest Litigation is to promote the public interest which mandates that violation of legal or constitutional rights of poor, down trodden, socially and economically disadvantaged sections of the society should not go unredressed. In this context Justice P.N.Bhagwati observed[8].

“Public interest litigation is brought before the Court not for the purpose of enforcing the right of one individual against another as happens in the case of ordinary litigation, but it is intended to promote and vindicate public interest which demands that violations of constitutional or legal rights of large number of people who are poor, ignorant or in a socially or economically backward position should not go unnoticed and unredressed”

The Court has liberalized the strict rule of Locus Standii under the principle of public interest litigation with a view to facilitating the common man who is not in a position to approach the Court for vindication of their rights owing to socially and economically disadvantaged position. The traditional rule of standing is that only the person aggrieved can move to the Court for judicial redress. With the advent of public interest litigation this traditional strict rule of standing has been broadened and liberalized. As a result of this any person acting bona fide having no personal gain or political motive can move the Court alone for the enforcement of constitutional or legal rights of socially or economically disadvantaged sections of the immunity[9]. The Supreme Court of India viewed that the strict rule of standing has adversely affected in the developmental activities and also to bring about socio-economic change. Therefore, the rule of standing needs to be liberalized in order to meet the challenges of time. The cause of justice cannot be allowed to overlook on the technical ground of Locus Standii or absence of personal loss or injury.

The Supreme Court and the High Courts throughout various judgments’ have widely enlarged the scope of public interest litigation by relaxing the rule of standing. The Court even proceeded without clear framework. In Sunil Batra v. Delhi Administration[10], the Supreme Court accepted a letter written by one Sunil Batra, a prisoner from Tihar Jail complaining inhuman torture by the Jail Warden to another prisoner serving life term in the same jail. The Court treated the letter as Writ Petition under Article 32 of the Constitution. Delivering the judgement the Court issued directions inter alia for taking suitable action against the erring official.

The most important pronouncement of the Supreme Court in the field of public interest litigation involving the question of Locus Standii is S.P. Gupta v. Union of India[11], popularly known as ‘Judges Transfer Case’.

In this case the Locus Standii of the petitioners was challenged. Delivering the judgement the Court held that,

“Where a legal wrong or legal injury is caused to a person or to a determinate class of persons and such persons are unable to approach the Court due to socially or economically disadvantaged position, any member of the public acting bona fide and having sufficient interest in the matter can maintain an application for appropriate directions or orders.”[12]

The decision of this case had made a far-reaching impact on the question of Locus Standii. Similarly, the Supreme Court gave historic judgments’ in Akhil Bhartiya Soshit Karmachari (ABSK) Sangh v. Union of India[13], People’s Union for Democratic Rights v. Union of India[14] and Bandhua Mukti Morcha v. Union of India[15] conferring standing to the petitioners.

The scope and ambit of public interest litigation is to assure socio-economic justice to the poor and weaker sections of the community. It is the powerful weapon in the hands of poor masses that constitute low visibility area of humanity Tor combating exploitation and injustice. Public interest litigation is not in the nature of adversary character, which is totally different from the ordinary traditional litigation. In public interest litigation it is intended to promote and vindicate public interest contrary to ordinary litigation where enforcement of the right of one individual against another is intended. Hence, it can be stated that the public interest litigation is a highly effective weapon in the armory of the judiciary to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them socio-economic justice.[16]

It has been stated above that the public interest litigation is the out­come of judicial activism. The need for innovation of public interest litigation in India arose due to failure of discharging the constitutional obligations as well as the voluntary abdication of powers by the executive and the legislature. In such a situation judicial pronouncements have brought a sense of relief to people even at times when the executive and the legislature appeared to have approached a dead end. Activism in the Court has taken on new dimensions through public interest litigation. Judges have begun to enter realms of decision making previously reserved for the legislative or executive wings of the government. This assumption of powers by the judiciary was not for vain glory. Self-abdication of powers and the rampant corruption among the executive and the legislature forced the people to bring the issues before the Court. The Court had no option but to interfere in the day to day affairs of the executive and the legislature through the principle of public interest litigation.

The subject matter of the public interest litigation initially began with the conditions of prisoners where the Court took steps in broadening the scope of jurisdiction and relaxing procedural barriers. Lack of access to justice had been the major obstacle preventing those confined illegally or in terrible conditions from approaching the Court. By invoking Article 39A of the Constitution and discussing the need for legal aid, the Court responded to the horrific situations brought before it[17]. The first public interest litigation order in the Supreme Court came in a habeas corpus case[18] filed by an advocate on the basis of a news report in the matter of speedy trial of under trial prisoners who had been imprisoned for longer than the maximum sentence that could be imposed upon conviction. On being apprised of the facts of the use the Supreme Court relaxed the procedural rule that a habeas corpus petition can only be filed with a power of attorney or by a close relative. The distinction between a letter petition and public interest litigation has never been fully clarified because of the connection between habeas corpus petitions and public interest litigation[19]. The Courts have always allowed letters to be sent for habeas corpus matters, but it is only with the advent of public interest litigation that the letter – petition was admitted for all kinds of relief. The letter became the key to gaining access to the Court, and often the Court was urged to give orders covering a whole class, be they prisoners or under trials.

From the underlying principle of public interest litigation it transpires that the concept of Public Interest Litigation innovated by the Court to give relief to the poor and vulnerable sections only. The Court intended that public interest litigation will be the mechanism through which the grievances of the poor and down trodden could be redressed. But in practice public interest litigation has evolved beyond these parameters. Cases involving broad public interest issues began to come within the scope of public interest litigation. It has now entered into the domain of general public interest issues like environmental pollution, complaint relating to consumer, governmental accountability and the conduct of examinations that fall within the category of civic participation rather than the issues of direct concern for the poor.

The Court is now engaged in public interest cases and more and more lawyers, non-governmental organizations, journalists, social activists are corning to the Court with grievances of the poor and illiterate. The Court is not only giving relief to the poor litigants but also provides an effective check against governmental apathy and negligent attitude of the executive officials by making them accountable for their lapses or arbitrary acts. Further the Court pronounced judgments’ giving effective orders in the area of environmental pollution and degradation, violation of human rights, preservation of historical monuments, directing the eviction of unauthorized occupation of government bungalow which was brought before the Court by way of public interest litigation[20]. The Court in many cases has entertained petitions without court fees or affidavit or taken suo motu action on the basis of news items published in the news papers. The Court has taken a goal-oriented approach in the interest of justice. In this context Professor Upendra Baxi observed that the Supreme Court of India for the first time became a Court for Indians. He preferred to describe this legal phenomenon as “Social Action Litigation”.

However, the Court has got to be careful at the time of entertaining petitions for Public Interest Litigation so that busy bodies, meddlesome interlopers or officious interveners cannot take the opportunities of personal gain in the name of public interest. The judges and the lawyers must be careful towards avoiding over-use of Public Interest Litigation. Though the decision of the Courts relaxing the strict rule of Locus Standii have been welcome greatly at the same time the Court must not get involved in non-justifiable issues like policy making which is reserved for the legislature. The Court is not only showing positive response in all Public Interest Litigation brought before it by the petitioners, there are instances of dismissal of public interest litigation by the Supreme Court and the High Courts. The judgement in Sachidanand Pandey[21] by the Apex Court has had far-reaching effects in support of the dismissal of a petition as unsuitable for adjudication by the Court. Similarly, the Apex Court in S.P. Anand v. H.D. Devegowda[22] observed that in public interest litigation the petitioner is not entitled to withdraw his petition at his sweet will unless the Court sees reasons to permit withdrawal.[23]

The author has only selected the topic for research considering the fact that public interest litigation has been able to bring justice within the easy reach of poor and disadvantaged sections of the community. The Court has innovated the concept timely which has made an indelible effect on the Indian judicial process. The Court has given new and liberal dimension to the law of standing with a view to bring the law into service of the poor and the down trodden. Many cases relating to poor and vulnerable sections of the community would have gone unredressed without public interest litigation. It emerged as a boon to them to high light their sufferings[24]. Though procedure existed in the Civil and Criminal Codes for presentation of petitions but endemic problems of long pending cases, high costs and lengthy process have discouraged the people. Therefore, the people have started to invoke the jurisdiction of public interest litigation through which efficient and expeditious justice have been achieved. But the public interest litigation is not an alternative to the existing system. It is an input which ameliorates some of the evil of the mainstream system thereby alleviating the suffering of the litigating public.

Conclusion

Indeed, the Court has innovated the strategy of Public Interest Litigation for the purpose of providing access to justice to mass people who are denied their basic human rights. Public Interest Litigation provides a means through which the voices of people are heard on the Judicial Forum. Since the Constitution of India has not expressly provided for the concept of Public Interest Litigation the judiciary, particularly the Supreme Court of India has innovated the concept of Public Interest Litigation while exercising the jurisdiction for dispensing justice to the poor and the down trodden. It is primarily the judges who have innovated this type of litigation through the concept of Judicial Activism. This has opened new vistas for taking the justice nearer to common man.

In India the need for judicial activism evolved in order to activate the executive and the legislature due to voluntary abdication of their powers as well as failure to discharge their constitutional obligations. Therefore, the judiciary had to interfere in day to day affairs of the executive and the legislature for their wrong doings. This exercise of authority of the judiciary is not for vain glory but it is in discharge of the constitutional obligation. When the executive and the legislature were apathetic and failed to discharge their constitutional obligations the judiciary had no option but to direct the two organs to perform their duties. If the other wings of Indian democracy perform their duties and obligations, then there will be no need for judiciary to advise them.

It has now become a tendency of the government to avoid to take decision on a politically sensitive issue by passing it to another wing, the latter not being expected to make that decision. The issues remain unresolved forcing the people to bring it to the Court. The Court does not seek an expanded role for itself; rather it has been forced to pronounce judgements on some of the gravest politico-legal and socio-economic issues like Mandal agitation and the Ayodhya crisis.

Rampant corruption in high places stands as a great menace in India. Many executives, bureaucrats and influential politicians have been found involved in various scams and scandal as unearthed by the premier investigating agency in the country. The Court had to intervene to curb corruption in life. Had the judiciary also been inactive, even the sensitivity that has got aroused against corruption would have ended. Critics of judicial activism have raised their voices that the judiciary by becoming over active has entered into the domain of the executive and the legislature. Intervention in the everyday administrative affairs demoralizes the executive wing of the government. It is alleged that the judiciary is running the country by proxy.

However, it should be kept in mind that the need of the hour is cooperation, and not confrontation among the three organs – the legislature, the executive and the judiciary. In India it is the Constitution which is supreme. The above three organs are the creation of the Constitution. Therefore, they should act harmoniously. Though the Supreme Court of India has a place of primacy in the constitutional scheme, it can be rendered ineffective by the Parliament or even by the executive. The Supreme Court only passes judgements and orders but it has got no agency of own to enforce these. It has to depend upon the executive for this purpose who may delay in executing the orders of the Court. The Parliament also can give retaliatory answer to the Supreme Court by means of amending the Constitution under Article 368 as provided by the Constitution. In fact, Judicial Activism is need of the hour. The executive inaction and ill action have come to such a sorry state that them is no option but to intervention by the judiciary. The judiciary through Judicial Activism has rendered commendable service to the nation. Indeed, it can be asserted that Judicial Activism is not a bane but a boon to the people of India.

In fact, public spirited citizens having faith in rule of law are rendering a great social and legal service under the principle of Public Interest Litigation. They cannot be overlooked on the technical ground of Locus Standii or absence of personal loss or injury. The view of the Courts in this branch of jurisprudence is highly appreciable. The Court has come forward to relieve the people, those who are subjected to denial of access to justice owing to their social and economic disadvantaged position. The Court has conferred Locus Standii to a person or body of persons acting pro bono publico and having sufficient interest in the proceedings to approach the Court for vindication of the rights of poor and the down trodden.

During the last three decades the Supreme Court and the High Courts have tried their best to bring law into the service of the poor. The Courts have acknowledged that the judiciary too has accountability towards the people of the country like the executive and the legislature. The Court does not insist upon the old rule of Locus Standii so that the administration of justice is done in the interest of all. The Court viewed that the rule of standing has to be liberalized in order to meet the challenges of time and need. Though the decisions of the Courts relaxing the strict rule of Locus Standii have been welcomed greatly, at the same time judges and the lawyers have to be careful towards avoiding over use of Public Interest Litigation.

About the Author

Abhimanyu Chopra
Advocate
Supreme Court of India
abhimanyu.chopra@hotmail.com

References:

[1][1976] SC 1455 (AIR).

[2] [1981] SC 344 (AIR).

[3] [1993] SC 892 (AIR)

[4] [1976] SC 1455 (AIR)

[5] [1981] SC 344 (AIR)

[6] [1976] SC 1207 (AIR)

[7] ibid 2.

[8] (People’s Union for Democratic rights and Others v. Union of India and others) [1982] SC 1473 (AIR)

[9] ibid 3.

[10] [1980] SC 1579 (AIR)

[11] [1982] SC 149(AIR)

[12] ibid 5.

[13] [1981] SC  212 (AIR)

[14] [1982] SC 1473 (AIR)

[15] [1984] SC 802 (AIR)

[16] ibid 1.

[17] Sangeta Ahuja, People, law and Justice (Volume-I, New Delhi 1997) pg. 20-21.

[18] (Hussainara Khatoon and others v. Home Secretary, State of Bihar) [1980] 1 SCC 91

[19] ibid 5.

[20] ibid 7.

[21] (Sachidanand Pandey v. State of West Bengal) [1987] SC 1109 (AIR)

[22] [1996] 6 SCC 734

[23] ibid 4.

[24] ibid 7.

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July 19, 2016

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