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Public Interest Litigation (PIL): Eficacy and Dangers by Chintamani Rout

Introduction

Public Interest Litigation, Advocacy for public interest and free legal aid, all are for the protection of poor, illiterate and weaker sections of the society. The Constitution of India emphasises on the equal justice to all persons. The Public Interest Litigation in India is comparatively a recent innovation of the judiciary, initiated primarily to provide access to justice and equal justice to the disadvantaged sections of the society who are not possessed of adequate means or sufficient awareness to enforce their fundamental rights guaranteed under the constitution. Till 1960 and seventies, the concept of litigation in India was still in rudimentary form and was seen as a private pursuit for the vindication of private vested interests. Litigation in those days consisted mainly of some action initiated and continued by certain individuals, usually, addressing their own grievances or problems. Thus, the initiation and continuance of litigation was the prerogative of the injured person or the aggrieved party. Even this was greatly limited by the resources available with those individuals. There were very little organised efforts or attempts to take up wider issues that affected classes of consumers or the general public at large. This form of the judicial process also relaxed the rule of locus standi to enable a social activist, individual or group of persons to bring to the Supreme Court any issue of public interest wherein violation of any fundamental right is alleged, for its protection by resort to constitutional remedy under article 32 of the constitution. This is the underlying principle in Article 39A of the constitution. The procedure for PIL is extension of the principle on Order 1 Rule 8 of Civil Procedure Code, 1908 for representative action.

Meaning and Object:

Public Interest Litigation popularly known as PIL and can be broadly defined as litigation in the interest of that nebulous entity: the public in general. Prior to 1980s’ only the aggrieved party could personally knock the doors of justice as a proxy for the victim or the aggrieved party. In other words, only the affected parties had the locus standi (standing required in law) to file a case and continue the litigation and the non affected persons had no locus standi to do so. And as a result, there was hardly any link between the rights guaranteed by the Constitution of Indian Union and the laws made by the legislature on the one hand and the vast majority of illiterate citizens on the other.

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However, all these scenario gradually changed when the post emergency Supreme Court tackled the problem of access to justice P N Bhagwati and Justice V R Krishna Iyer were instrumental of this juristic revolution of eighties to convert the apex court of India in to a Supreme Court for all Indians. And as a result any citizen of India or any consumer groups or social action groups can approach the apex court of the country seeking legal remedies in all cases where the interest of general public or a section of public are at stake. Further, public Interest cases could be filed without investment of heavy court fee as required in private civil litigation. PIL may be taken to mean a legal action initiated in a court of law for the enforcement of the public interest or general interest in which the public or a class of the community has pecuniary interest or have some interest because it will affect their legal right or liabilities. In Janata Dal v H.S. Choudhury, AIR 1993, Public Interest Litigation has been defined as a legal action initiated in a court of law for the enforcement of public interest or general interest in which public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected.

In Sheela Barse v Union of India, AIR 1988 SC 2211, The Supreme Court has cleared that in public interest litigation, unlike traditional dispute resolution mechanism; there is no discrimination or ad-judication of individual rights. The proceedings in a public Interest Litigation are intended to vindicate and effectuate the public interest by prevention of violation of the rights, constitutional or statutory or sizeable segments of the society while owing to poverty, ignorance, social and economic disadvantages cannot themselves assert and quite often not even aware of those rights. The technique of Public Interest Litigation serves to provide an effective remedy to enforce these groups rights and interests.

PIL- A Boon:

In public Interest Litigation (PIL) vigilant citizens of the country can find an expensive legal remedy because there is only a normal fixed court fee involved in it. Further the litigations can focus attention on and achieve results pertaining to larger public issues, especially in the fields of human rights, consumer welfare and environment. Ordinarily, the person whose fundamental or other right has been violated may file petition under Article 32 or 226, whichever is applicable to move the court or enforcement thereof. The Public Interest Litigation is exception to the general rule. The Court entertains the public interest litigation at the instance of public spirited citizens acting confide for the enforcement of fundamental right of a person in custody or of a class or group of persons who by reason of poverty or disability or socially or economically disadvantaged position find it difficult to approach the court for redress. Any member of the public acting bonafide can move the court for relief under article 32 and 226, so that the fundamental right may become meaningful not only for the rich and the well-to-do who have the means to approach the court but also for the large masses of people who are living a life of want and destitution and who are by reason of lack of awareness, assertiveness and resources unable to seek judicial redress..

In Bandhua Mukti Morcha v Union of India, AIR 1984 SC 802, an organisation dedicated to the cause of release of bonded labourers gave a letter to the Supreme Court and thereby informed it about the existence of the bonded labourers in Faridabad District of State of Haryana for the issue of writ for the release of bonded labourers and for the proper implementation of the various provisions of the constitution and statutes with a view to end suffering and helplessness of such labourers. The court treated the letter as writ petition and entertained it and appointed a commission to make inquiries and report to the court about the existence of bonded labourers in the said area. The Court expressed view that Public Interest Litigation should not be taken to be in the nature of adversary litigation. It is a challenge and opportunity to the government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social and economic justice which is the rigid tune of the Constitution. In case of S.P.Gupta v Union of India, AIR 1982 SC 149, a letter given by the public spirited individuals or social action group is treated as writ petition by the Court and Court readily responded to it. Public Interest Litigation has been evolved with a view to bring justice within the easy reach of the poor and the disadvantaged section of the community.

Abuse of the PIL

The Public Interest Litigation has been criticised much. There is a danger of misuse. The development of PIL has also uncovered its pitfalls and drawbacks. As a result, the Apex Court itself has been compelled to lay down certain guidelines to govern the management and disposal of public interest litigation and the abuse of PIL is also increasing along with its extended and multifaceted use. In some cases the affected parties addressed letters directly in the name of judges of the Supreme Court and they used to convert the letters in to the writ petitions. This practice has been criticised on the ground that there would be a danger of litigations choosing a judge and in turn judges choosing their litigants. To avoid this defect now the practice developed by the court is that the judges passes the letter to the registrar for being dealt with according to the normal practice of the court. The suo-motu action by judges based upon the news papers has been criticised on the ground that thereby the judge assumes the role of advocate as well and thus, acting against the judicial precept, no- body should be a judge in his own case.

It is also criticised on the ground that it can be misused for private motive or political ends. To avoid this defect the court has expressed the view that the persons who moves the Court for judicial redress must be acting confide with a view to vindicating the causes of justice and if he is acting for personal gain or private profit or out of political motivation or other oblique consideration, the Court should not allow itself to be activated at the instance of such person and must reject it. To avoid the danger of persons dressing up their personal grievance in public interest garb, the Court has adopted the view that it is not meant for correcting individual wrong or injury. The view of the Court has been that as far as possible it should not entertain cases of individual wrong or injury at the instance of a third party.

Public Interest Litigation has also been criticised on the ground that it would result in the tremendous increase in the litigation and it would develop uncertainty as to the admission of the petition for hearing. It is said that there is no guideline as to the cases which should be admitted and the cases which should not be admitted. Due to this the Public Interest Litigation has become unpredictable. To avoid this defect the Supreme Court has framed certain guidelines for entertaining letters/petitions as public interest litigation.

The petition involving individual or personal matter shall not be entertained as public Interest Litigation matter except as indicated hereinafter. Ordinarily the letter or petition falling under the following categories should be entertained as Public Interest Litigation, (a) neglected children, (b) bonded labour matters, (c) non-payment of minimum wages to workers and exploitation of casual workers and also complaints relating to the violation of labour laws, (d) petitions from prisons, complaining of harassment or for premature release, death in prison, transfer, release on personal bond, speedy trial, (e) petitions against atrocities on women, bride burning, rape murder etc. , (f) petitions against police for refusing to register a case and also for harassment or torture of villagers by co-villagers or by police from persons belonging to the Scheduled Castes and Scheduled Tribes and economically backward classes, (h) petitions from riot victims, (i) petitions from family pensions, (j) petitions pertaining to the environment pollution, disturbance of ecological balance, maintenance of forest and wild life, maintenance of heritage and culture and other matters of public importance; petitions for early hearing of cases pending in Courts, petitions relating to service matters, pension and gratuity, petitions pertaining to the land lord-tenant matters and petitions relating to the admission to the medical college and other Educational Institutions will not be entertained as Public Interest Litigation.

These guidelines will, no doubt, introduce certainly in this respect and most of the defects of the PIL will be removed. In the land mark judgment of Raunaq International Limited v IVR Construction Ltd, Justice Sujata V manohar rightly enunciated that, when a stay order is obtained at the instance of a private party or even at the instance of a body litigating in public interest, any interim order which stops the project from proceeding further must provide for the reimbursement of costs to the public in case ultimately the litigation started by such an individual or body fails. In other words the public must be compensated both for the delay in the implementation of the project and the cost escalation resulting from such delay.

The Supreme Court on 7th July, 2012 dismissed a public interest litigation (PIL) seeking direction to the Central Government to conduct an inquiry against Presidential Candidate Pranab Mukharjee for canvassing votes before resigning as the Union Finance Minister. The Apex Court, a bench of Justice Aftab Alam and Justice H L Gokhale dismissing the PIL by Advocate Manohar Lal Sharma, said this Court was not a theatre for this farcical play. The Court imposed a cost of Rs.50, 000/ on petitioner which it subsequently withdraw with a warning that any such repeat of farcical PIL in future would invite heavy cost.

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, bonafide litigants of India have nothing to fear. Only those PIL activists who prefer to file frivolous complaints will have to pay compensation to the 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. It is also notable here that even the Consumers Protection Act, 1986 has been amended to provide compensation to opposite parties in cases of frivolous complaints made by consumers. In any way, PIL now does require a complete rethinking and restructuring. Overuse and abuse of Public Interest Litigation 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 to be used by all litigants as a substitute for ordinary ones or as a means to file frivolous complaints. PIL has translated the rhetoric of fundamental rights in to living reality for at least some segments of our exploited and downtrodden humanity. Under trial prisoners languishing in jails for inordinately long periods, inmates of asylums and care-homes are living in sub-human conditions, children working in hazardous occupations and similar disadvantaged sections. The development of Public Interest Litigation have in-fact receded to the background  and irresponsible PIL activist 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. The Court, is therefore, require to be vigilant to arrest this trend, stricter vigilance is required and there is need for framing of rules to regulate the PILs to prevent its misuse in any form. Judicial activism may be taken to mean the movements of judiciary to probe in to the inner functioning of the other organs of the government. The judicial activism is, no doubt, the result of inactiveness on the part of the executive and legislature. It is the function of the legislature to make law and of the executive to implement the law but both the organs have failed to discharge their functions satisfactorily. IN such circumstances, it is not the power but duty of the Court to uphold the Constitution and compel the other organs of the government to discharge their functions properly. The Supreme Court being the guardian of the Constitution cannot remain silent spectator. It can direct the legislature and executive to discharge their functions assigned to them by the Constitution. Hence any change to improve it further should be encouraged and welcomed.

References:

  1. Joshi, K.C, The Constitutional law of India, Central law publication, First edition 2011.
  2. Johari, J.C., Indian Government & politics Fourth edition 1979, Vishal publication Delhi- Jallandhar.
  3. Jain, M.P, Indian constitutional law, Wadhwa, Nagpur  2005.
  4. Pande, G.S Constitutional law of India, Eleventh edition, 2009 university Book  House,  Jaipur.
  5. Pandey ,J.N., Constitutional law of India C.L.A Allahabad,2006
  6. Pylee, M.V., An introduction to the Constitution of India, New Delhi,1998
  7. P. Bhasker Mohan, Public Interest Litigation, Published in AIR, 1993 Journal Section, p.17
  8. RAI Kailash, Public Interest Lawyering, Legal Aid and Para-Legal Services, Central Law Publication,2000
  9. Rai Kailash , The Constitutional law of India ,C.L.A Allahabad , seventh edition, 2008.
  10. Shukla, V.N., Constitutional law of India E.V.C, Lucknow , 2004
  11. BAkshi, P.M. The Constitution of India, Universal Publication, Tenth edition 2010

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