WHAT IS PUBLIC INTEREST LITIGATION?

As Lord Diplock said in the English House of Lords:

“There would be a grave lacuna in our system of public law if a pressure group, like the
Federation, of even a single public spirited tax-payer, were prevented by out-dated
technical rules of locus standi from bringing the matter to the attention of the court to
vindicate the rule of law and get unlawful conduct stopped.” [2]

This dictum was adopted in Malaysia in the leading public interest litigation case,
Mohamed bin Ismail v Tan Sri Haji Othman Saat in these terms:

“… if they (public authorities) transgress any law or constitutional directive, then any
public- spirited citizen, even if he has no greater interest than a person having regard for
the due observation of the law, may move the courts and the courts may grant him the
appropriate legal remedy in its discretion” [3]

TECHNICAL DEFINITION OF PIL [4]

The term Public Interest Litigation (PIL) is composed of two words; ‘Public Interest’ and
‘Litigation’.

The words ‘Public Interest’ mean “an expression which indicates something in which the
general public or the community at large has some pecuniary interest, or some interest by
which their legal rights or liabilities are affected.” The word ‘litigation’ on the other hand
means “a legal action, including all legal proceedings initiated in a Court of Law with the
purpose of enforcing a right or seeking a remedy.” [5]

Hence, lexically the expression ‘Public Interest Litigation’ denotes a legal action initiated
in a court of law for the enforcement of public interest where the rights of an individual
or a group have been affected.

PIL IN INDIA
The concept of Public Interest Litigation first emerged in USA.  The American concept of
PIL is clarified by a statement made by “The Council for Public Interest Law” an
organisation setup by the “Ford Foundation” in USA, “Public Interest Law is the name that
has been given to efforts to provide legal representations to previously unrepresented
groups and interests. Such groups and interest include the poor, environmentalists,
consumers, racial and ethnic minorities, and others.”
However PIL in India substantially differs from that in the USA. Prof: Upendra Baxi in his
published opinion “Social Action Litigation in the Supreme Court of India” has pointed
out that the prime focus of American PIL was not so much on state repression or
governmental lawlessness as on public participation in governmental decision making.
And since the Indian notion of PIL has assumed the character of more of a moral and
humane process in providing justice to the victim as in individual or to a group in
matters relating to infringement of fundamental rights or denial of civil privileges on the
basis of caste, color or creed, Prof. Baxi, therefore, insisted that the Indian phenomenon
described as PIL should be termed as “Social Action Litigation.”

CONCEPT OF PIL
According to the jurisprudence of Article 32 of the Constitution of India, “The right to
move the Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by this part is guaranteed.” Ordinarily, only the aggrieved party has the right to
seek redress under Article 32.

In 1981, Justice P. N. Bhagwati, articulated the concept of PIL as follows, “Where a legal

wrong or a legal injury is caused to a person or to a determinate class of persons by
reason of violation of any constitutional or legal right or any burden is imposed in
contravention of any constitutional or legal provision or without authority of law or any
such legal wrong or legal injury or illegal burden is threatened and such person or
determinate class of persons by reasons of poverty, helplessness or disability or socially
or economically disadvantaged position unable to approach the court for relief, any
member of public can maintain an application for an appropriate direction, order or writ in
the High Court under Article 226 and in case any breach of fundamental rights of such
persons or determinate class of persons, in this court under Article 32 seeking judicial
redress for the legal wrong or legal injury caused to such person or determinate class of
persons.” [7]

The rules of locus standi have been relaxed and a person acting in a bonafide manner
and having sufficient interest in the proceedings of an Public Interest Litigation will
alone have the requisite locus standi and can approach the Courts to wipe out any
violation of fundamental rights and genuine infraction of statutory provisions, but not
for personal gain, or private profit, or political motive, or any oblique consideration. [8]

The Supreme Court of India, in a case has iterated that “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 public interest case.”[9]
In Guruvayur Devaswom Managing Commit. And Anr. Vs. C.K. Rajan and Ors, [J.T. 2003
(7) S.C. 312], the Supreme Court held, “The Courts 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, children, handicapped by ‘ignorance,
indigence and illiteracy’ and other down trodden have either no access to justice or had
been denied justice. A new branch of proceedings known as ‘Social Interest Litigation’ or
‘Public Interest Litigation’ was evolved with a view to render complete justice to the
aforementioned classes of persona. It expanded its wings in course of time. The Courts
in pro bono publico granted relief to the inmates of the prisons, provided legal aid,
directed speedy trial, maintenance of human dignity and covered several other areas.
Representative actions, pro bono publico and test litigations were entertained in keeping
with the current accent on justice to the common man and a necessary disincentive to
those who wish to bypass the real issues on the merits by suspect reliance on peripheral
procedural shortcomings… Pro bono publico constituted a significant state in the present
day judicial system. They, however, provided the dockets with much greater responsibility
for rendering the concept of justice available to the disadvantaged sections of the
society. Public interest litigation has come to stay and its necessity cannot be
overemphasized. The courts evolved a jurisprudence of compassion. Procedural propriety
was to move over giving place to substantive concerns of the deprivation of rights. The
rule of locus standi was diluted. The Court in place of disinterested and dispassionate
adjudicator became active participant in the dispensation of justice.”

EVOLUTION OF PIL [10]

Prior to the 1980s, only the aggrieved party could approach the courts for justice.
However, post 1980s and after the emergency era, the apex court decided to reach out
to the people and hence it devised an innovative way wherein a person or a civil society
group could approach the Supreme Court seeking legal remedies in cases where public
interest is at stake. And thus Public Interest Litigation was formed.

The Indian PIL is an improved version of PIL of USA. “Public interest law is the name that
has recently been given to efforts that provide legal representation to previously
unrepresented groups and interests. Such efforts have been undertaken in the recognition
that ordinary marketplace for legal services fails to provide such services to significant
segments of the population and to significant interests. Such groups and interests
include the proper environmentalists, consumers, racial and ethnic minorities and
others.”[11]

The emergency period (1975-1977) witnessed a somewhat colonial nature of the Indian
legal system. During the period of emergency, state repression and governmental
lawlessness was widespread. Thousands of innocent people including political
opponents were sent to jails and there was complete deprivation of civil and political
rights. The post emergency period provided an occasion for the judges of the Supreme
Court to openly disregard the impediments of Anglo-Saxon procedure in providing
access to justice to the poor.

Notably, two Justices of the Supreme Court, Justice V. R. Krishna Iyer and P. N.
Bhagwati recognized the possibility of providing access to justice to the poor and
exploited people by relaxing the rules of standing. In the post-emergency period, when
the political situations had changed, investigative journalism also began to expose gory
scenes of governmental lawlessness, repression, custodial violence, drawing attention
of lawyers, judges, and social activists. PIL emerged as a result of an informal nexus of
pro-active judges, media persons and social activists. This trend showed a stark
difference between the traditional justice delivery system and the modern informal
justice system where the judiciary is performing an administrative judicial role. PIL is a
necessary rejection of laissez faire notions of traditional jurisprudence.

The first reported case of PIL, in 1979, focused on the inhuman conditions of prisons
and under trial prisoners. In Hussainara Khatoon v. State of Bihar (AIR 1979 SC 1360)
the PIL was filed by an advocate on the basis of the news item published in the Indian
Express, highlighting the plight of thousands of undertrial prisoners languishing in
various jails in Bihar. These proceeding led to the release of more than 40, 000
undertrial prisoners. Right to speedy justice emerged as a basic fundamental right
which had been denied to these prisoners. The same set pattern was adopted in
subsequent cases.

In 1981, the case of Anil Yadav v. State of Bihar (AIR 1982 SC 1008) exposed the
brutalities of the Police. Newspaper reports revealed that about 33 suspected criminals
were blinded by the police in Bihar, by putting acid into their eyes. Through interim
orders, the Supreme Court directed the State Government to bring the blinded men to
Delhi for medical treatment. It also ordered speedy prosecution of the guilty policemen.
The court also read right to free legal aid as a fundamental right of every accused. Anil
Yadav signalled the growth of social activism and investigative litigation.

In Citizen for Democracy v. State of Assam (1995) 3SCC 743), the Supreme Court
declared that handcuffs and other fetters shall not be forced upon a prisoner while
lodged in jail or while in transport or transit from one jail to another or to the court or
back.

Filing a PIL is not as cumbersome as any other legal case and there have been
instances when even letters and telegrams addressed to the court have been taken up
as PILs and heard by the court.
ASPECTS OF PIL
1) Remedial in nature:  Remedial nature of PIL departs from the traditional locus standi
requirements. It indirectly incorporated the principles enshrined in the Part IV of the
Constitution of India into Part III of the Constitution. By riding the aspirations of part IV
into part III of the Constitution, the Indian Judiciary had changed the procedural nature
of the Indian law into a dynamic welfare one. Bandhu Mukti Morcha v. Union of India,
Unnikrishnan v. State of A.P., etc were the obvious examples of this change in nature
of 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 concept. 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 SC, in People’s Union for Democratic
Rights v. Union of India (AIR 1982 S.C. 1473) “We wish to point out with all the emphasis
at our command that public interest litigation…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”. Non-
adversarial litigation has two aspects.”

IMPORTANT FEATURES OF PIL [12]

Through the mechanism of PIL, the courts seek to protect human rights in the following
ways:

1) By creating a new regime of human rights by expanding the meaning of fundamental
right to equality, life and personal liberty. In this process, the right to speedy trial, free
legal aid, dignity, means and livelihood, education, housing, medical care, clean
environment, right against torture, sexual harassment, solitary confinement, bondage
and servitude, exploitation and so on emerge as human rights. These new
reconceptualised rights provide legal resources to activate the courts for their
enforcement through PIL.
2) By democratization of access of justice. This is done by relaxing the traditional rule
of locus standi. Any public spirited citizen or social action group can approach the court
on behalf of the oppressed classes. Courts attention can be drawn even by writing a
letter or sending a telegram. This has been called epistolary jurisdiction.

3) By fashioning new kinds of reliefs under the court’s writ jurisdiction. For example, the
court can award interim compensation to the victims of governmental lawlessness.
This stands in sharp contrast to the Anglo-Saxon model of adjudication where interim
relief is limited to preserving the status quo pending final decision. The grant of
compensation in PIL matters does not preclude the aggrieved person from bringing a
civil suit for damages. In PIL cases the court can fashion any relief to the victims.

4) By judicial monitoring of state institutions such as jails, women’s protective homes,

juvenile homes, mental asylums, and the like. Through judicial invigilation, the court
seeks gradual improvement in their management and administration. This has been
characterized as creeping jurisdiction in which the court takes over the administration
of these institutions for protecting human rights.

5) By devising new techniques of fact-finding. In most of the cases the court has
appointed its own socio-legal commissions of inquiry or has deputed its own official for
investigation. Sometimes it has taken the help of National Human Rights Commission
or Central Bureau of Investigation (CBI) or experts to inquire into human rights
violations. This may be called investigative litigation.

PIL AS AN INSTRUMENT OF SOCIAL CHANGE [13]

PIL is working as an important instrument of social change. It is working for the welfare
of every section of society. The innovation of this legitimate instrument proved
beneficial for the developing country like India. PIL has been used as a strategy to
combat the atrocities prevailing in society. It’s an institutional initiative towards the
welfare of the needy class of the society. In Bandhu Mukti Morcha v. Union of India, SC
ordered for the release of bonded labourers. In Murli S. Dogra v. Union of India, court
banned smoking in public places. In a landmark judgement of Delhi Domestic Working
Women’s Forum v. Union of India ((1995) 1 SCC 14), Supreme Court issued guidelines
for rehabilitation and compensation for the rape on working women. In Vishaka v. State
of Rajasthan Supreme court has laid down exhaustive guidelines for preventing sexual
harassment of working women in place of their work.

CRITICISM OF PIL [14]

The debates over the limits of Judicial Activism in the area of PIL, have been vigorous. A
private members bill entitled “Public Interest Litigation (Regulation) Bill, 1996” was
tabled in the Rajya Sabha. The statement of objectives and reasons stated that PIL was
misused in the name of providing justice to the poor sections of the society and also
that PIL cases were given more priority over other cases which led to pending of several
“general section cases” in the court for years. However the bill was not passed.

Bearing in mind the power and importance of PIL in making the Constitution a living
reality for every citizen and also the efforts channeled through the medium of PIL
jurisprudence in providing justice to the deprived, the process is positively succeeding,
following the logic of its nature. In a country Characterized by numerous “Variable
Ethnicity” and religious diversity, working via the pattern through a comprehensive
bureaucracy, a grieved, poor, deprived citizen does find it hard to seek justice because
of economic disability or lack of “Know-How” or even due to red-tapism. The only option
left before the deprived next to a miracle is a PIL petition.

CONCLUSION
It would be appropriate to conclude by quoting Cunningham, “Indian PIL might rather be
a Phoenix: a whole new creative arising out of the ashes of the old order.” PIL represents
the first attempt by a developing common law 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, including India, was the development of under develop
men. 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 as we have seen, are 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. Further, it is humbly submitted that PIL is still is in experimental stage.
Many deficiencies in handling the kind of litigation are likely to come on the front. But
these deficiencies can be removed by innovating better techniques. In essence, the PIL
develops a new jurisprudence of the accountability of the state for constitutional and
legal violations adversely affecting the interests of the weaker elements in the
community. We may end with the hope once expressed by an eminent judge “The
judicial activism gets its highest bonus when its orders wipe some tears from some
eyes.” [15]

Edited by Dhruv Malhotra

[1] Oshlack v Richmond River Council (1997) 152 ALR 83.

[2] IRC v National Federation of Self-Employed and Small Businesses Ltd, [1981] 2 All ER
93, at 105.

[3] [1982] 2 MLJ 133 at 136, per Wan Yahya J.

[4] www.scribd.com

[5] According to Black’s Law Dictionary/7th Edition states

[6] Public Interest Litigation by Videh Upadhyay

[7] S. P. Gupta v. Union of India, 1981 (Supp) SCC 87

[8] Ashok Kumar Pandey v. State of W. B., (2004) 3 SCC 349

[9] Indian Bank’s Association, Bombay and ors v. M/s Devkala Consultancy Service and
Ors., J. T. 2004 (4) SC 587

[10] www.legalserviceindia.com/article/1273

[11] According to “Ford Foundation” of U.S.A.

[12] www.wikipedia.com

[13] Constitution of India by M.P. Jain

[14] Public%20Interest%20Litigation-%20scribd.webarchive

[15] Justice Krishna Iyer