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Published : December 16, 2012 | Author : krishnaa
Category : Constitutional Law | Total Views : 15304 | Unrated

Sunita Saran I am a law student.

Changes in Indian legal System with the introduction of Public Interest Litigation

The emergency of 1976 marked not just a political watershed in this country, but a judicial one as well. In the euphoria of the return to democracy and in an attempt to refurbish its image that had been tarnished by some emergency decisions, the Supreme Court of India opened the flood gates to PIL. Under PIL, courts take up cases that concern not the rights of the petitioners but of the public at large. In the last two decades, PIL has emerged as one of the most powerful tools for promoting social justice and for protecting the rights of the poor.

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 rights and liabilities are affected.

Public Interest Litigation’s explicit purpose is to alienate the suffering off all those who have borne the burnt of insensitive treatment at the hands of fellow human being. Transparency in public life and fair judicial action are the right answer to check increasing menace of violation of legal rights. Traditional rule was that the right to move to the Supreme Court is only available to those whose fundamental rights are infringed. But this traditional rule was considerably relaxed by the Supreme Court in its ruling in Peoples Union for Democratic Rights V. UOI

The Supreme Court of India gave all individuals in the country and the newly formed consumer groups or social action groups, an easier access to the law and introduced in their work a broad public interest perspective.

Public Interest Litigation (PIL)-The legal history:

Public Interest Litigation popularly known as PIL 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 and seek remedy for his grievance and any other person who was not personally affected could not 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.

However, all these scenario gradually changed when the post emergency Supreme Court tackled the problem of access to justice by people through radical changes and alterations made in the requirements of locus standi and of party aggrieved. The splendid efforts of 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 into 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 interests of general public or a section of public are at stake. Further, public interest cases could be filed without investment of heavy court fees as required in private civil 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.

Just as a weapon meant for defence can be used equally effectively for offence, the lowering of the locus standi requirement has permitted privately motivated interests to pose as public interests. The abuse of PIL has become more rampant than its use and genuine causes either receded to the background or began to be viewed with the suspicion generated by spurious causes mooted by privately motivated interests in the disguise of the so-called public interests.

Guidelines given by Supreme Court in order to regulate the abuse of PIL:
With the view to regulate the abuse of PIL the apex court itself has framed certain guidelines (to govern the management and disposal of PILs.)

Ø The court must be careful to see that the petitioner who approaches it is acting bona fide and not for personal gain, private profit or political or other oblique considerations.

Ø The court should not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain political objectives. Political pressure groups who could not achieve their aims through the administrative process or political process may try to use the courts (through the means of PILs) to further their closely vested aims and interests.

There may be cases where the PIL may affect the right of persons not before the court, and therefore in shaping the relief the court must invariably take into account its impact on those interests and the court must exercise greatest caution and adopt procedure ensuring sufficient notice to all interests likely to be affected.

At present, the court can treat a letter as a writ petition and take action upon it. But, it is not every letter which may be treated as a writ petition by the court. The court would be justified in treating the letter as a writ petition only in the following cases-

(i) It is only where the letter is addressed by an aggrieved person or

(ii) a public spirited person

(iii) A social action group for enforcement of the constitutional or the legal rights of a person in custody or of a class or group of persons who by reason of poverty, disability or socially or economically disadvantaged position find it difficult to approach the court for redress.

Even though it is very much essential to curb the misuse and abuse of PIL, any move by the government to regulate the PIL results in widespread protests from those who are not aware of its abuse and equate any form of regulation with erosion of their fundamental rights. Under these circumstances the Supreme Court of India is required to step in by incorporating safe guards provided by the civil procedure code in matters of stay orders /injunctions in the arena of PIL.

In the landmark case of Raunaq International Limited v/s 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.

Yet critiques of PIL also point to the limitations of the use of law as an instrument of social change and of the court’s role in promoting development goals. Such critiques have been made by both commentators on the PIL phenomenon in India and also law and development scholars in general.

Tamanaha has referred to the dangers of urging an instrumental view of law on developing countries.

Ø The issue is whether PIL represents an unelected and unaccountable judiciary imposing its values on the political and legal system [the ‘anti-majoritarian difficulty’] and whether it has allowed the government to use the achievement of social and economic rights to restrict civil/political liberties.
It is argued that while PIL must be effective in giving remedies to those who have suffered and must be capable of changing the behaviour of those who infringe such rights, such jurisprudence has to be developed within a constitutional/legal framework that does not encroach on individual civil and political liberties and also subjects the court to self imposed restraints. The Supreme Court has shown some awareness of this critique. Justice Bhagwati, as the primary architect of PIL in India, has an openly instrumental approach to the rule of law. For example, in defining his concept of judicial activism he says, “Technical and juristic activism considered in isolation obscures our understanding of the purpose behind such activism. It is important to try to discover why a particular kind of judicial creativity has been adopted and to inquire into the purpose which it seeks to serve. It is the instrumental use of judicial activism that needs to be considered, for judicial activism cannot be divorced from the purpose its serves…We in India are trying to move away from formalism and to use juristic activism for achieving distributive justice or, as we in India are accustomed to labelling it, ‘social justice’.”In such a normative conception of a just law there is of course an inherent subjectivity which could give rise to disagreements irreconcilable by consensus or justification, resulting in conflicts over what constitutes ‘good law’ and threatens the stability of the legal order.

Yet even Justice Bhagwati feels that “judges in India are not in an uncharted sea in the decision making process. They have to justify their decision making within the framework of constitutional values. PIL is nothing but another form of constitutionalism which is concerned with substantivization of social justice.”

He refers to the court’s interpretative effort to read Parts Three (political and civil liberties) together with Part Four (social and economic rights) and to establish that the balance between the two Parts was a ‘basic feature’ which cannot be amended. The state cannot seek to infringe political and civil rights in Part Three to enforce social welfare legislation.

Moreover, PIL has an important procedure-oriented rule of law element, in terms of making the government subject to the constitution and the laws, treating citizens with human dignity, and access to a fair and neutral judiciary. Justice Bhagwati’s opinion is that the primary purpose of PIL is to “ensure that the activities of the state fulfill the obligations of the law under which they exist and function”.

Even the judiciary has to approach PIL within a system of rules. While it is true that he advocated judicial activism and a departure from Anglo-Saxon jurisprudence, nevertheless, the ‘new strategies’ of PIL are not purely products of judicial discretion, but are carefully fashioned on the basis of constitutional Articles such as Articles 32 and 21, or reasoned judicial decisions such as the Judges’ Appointments and Transfer case, and are based on judicially constructed procedural principles based on principles of due process and natural justice. Justice Pathak (who succeeded Bhagwati as chief justice) has also cautioned that while PIL claims to represent an increasing emphasis on social welfare and progressive humanitarianism, the court should not exceed the limits of its own powers and has to follow established rules of procedure. For instance, the court has to ensure that it gives notice to all who might be affected by its orders, cannot bypass statutorily required procedures and has to be careful not to trespass on legislative territory or make political decisions. It should distinguish between the public debate characteristic of legislatures and the process by which judicial decisions are reached. The court should avoid emotional appeals and rely on legal principle. “That we sit at the apex of the judicial administration and our word, by constitutional mandate, is the law of the land can induce an unusual sense of power. It is a feeling we must guard against by constantly reminding ourselves that every decision must be guided by reason and by judicial principles.”

Ø The second question is whether the court is the best actor to initiate public sector/legal reforms to secure government accountability.
Carothers refers to Type Two and Type Three reforms and feels that bringing about government obedience to law is the hardest, and demands internal movements of reform. To the extent that PIL attempts such reforms, the court has come close to confrontation with the government and has been criticized for politicization of constitutional adjudication, exceeding its institutional capacity, usurping legislative and executive functions, and violating the requirements of the very rule of law it has tried to secure.

It has been noted that PIL procedure brings polycentric cases before the court, without necessarily giving it the tools to deal with the range of issues implicated in a complex policy field. In transitioning from giving immediate relief, such as imposing merely a duty of restraint, to structural change which requires the design, institution and implementation of complex policies, the nature of PIL remedies can overtax the resources of the court. Other commentators have noted a lack of consistency in there being no clear or sound theoretical basis for selective intervention on social issues.

PIL appears the most successful when the court intervenes to require implementation of policies which have already achieved broad consensus but through disorganization or failure to prioritize have not been put into action. The court in such situations does no more than require the government to act in ways it has already committed itself to, but simply failed to honour. The “right to food” case, for example, turned existing policies into fundamental rights and elaborated on them. The court can also be effective in its intervention in cases where there is a conspicuous gap in policy-making in areas affecting most fundamental rights, such as the right to dignity and equality of mentally disabled people. Another area has been that of sexual harassment. The court has held that sexual harassment constituted a violation of women’s’ constitutional right to dignity and drafted quasi-legislative guidelines, drawing on internationally recognized norms.

However, scholars have commented that the role of the court in stepping in where government fails is more complex than it seems. Appointment of commissions can, in somecases, create a parallel structure of decision-making within the area of executive competence because they are empowered not just to find the facts, but also to consider possible solutions as a basis for positive duties to be imposed by the court.

The court selects commissioners on the basis of its own views of who should have the appropriate standing and expertise, without being required to follow any procedure or open application process.

The court has tried to preserve constitutional limits on its powers in relation to the other branches of government and in seeking to enforce orders made by the court in PIL cases. Justice Bhagwati has stressed the need for cooperation with state agencies. Moreover, certain principles of judicial restraint have been articulated by the court.

First, while the court has acted as a critic and monitor of the government, it has acknowledged that it is beyond its powers to usurp the administration or be itself involved in continued surveillance of administrative bodies.

Second, the court can be activated only if the executive is remiss in its constitutional/statutory obligations to the disadvantaged. Next, the court will respond only if there is already in existence ameliorative legislation for the welfare of the poor and disadvantaged.

PIL cannot be used for political gain or for furthering personal interests. The court is aware of its minimal ability to reallocate public resources and of the need for popular legitimacy of its PIL jurisprudence. There is also a recognized need to ensure that remedies are clear and feasible and to secure enforcement of its orders through cooperation with the government, so that PIL can actually contribute to improving the lives of the disadvantaged.

In the Judges Transfer Case

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.

Shiram Food & Fertilizer case
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.

In the case of M.C Mehta V. Union of India
In a 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.

Parmanand Katara V. Union of India
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.

Council For Environment Legal Action V. Union Of India

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".

State V. Union Of India
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.

During the last few years, Judicial Activism has opened up a new dimension for the Judicial process and has given a new hope to the millions who starve for their livelihood. There is no reason why the Court should not adopt activist approach similar to Court in America , so as to provide remedial amplitude to the citizens of India.

Supreme Court has now realised its proper role in welfare state and it is using its new strategy for the development of a whole new corpus of law for effective and purposeful implementation of Public Interest Litigation. One can simply approach to the Court for the enforcement of fundamental rights by writing a letter or post card to any Judge. That particular letters based on true facts and concept will be converted to writ petition. When Court welcome Public Interest Litigation , its attempt is to endure observance of social and economic programmes frame for the benefits of have-nots and the handicapped. Public Interest Litigation has proved a boon for the common men. Public Interest Litigation has set right a number of wrongs committed by an individual or by society. By relaxing the scope of Public Interest Litigation, Court has brought legal aid at the doorsteps of the teeming millions of Indians; which the executive has not been able to do despite a lot of money is being spent on new legal aid schemes operating at the central and state level. Supreme Court's pivotal role in expanding the scope of Public Interest Litigation as a counter balance to the lethargy and inefficiency of the executive is commendable.

When there is material to show that a PIL petition is nothing but a camouflage to foster personal disputes, the said petition is to be thrown out. PIL which has now come to occupy an important field in the administration of law should not be ‘Publicity Interest Litigation’ or ‘Private Interest Litigation’. If not properly regulated and abuse averted it becomes also a tool in unscrupulous hands to release vendetta and wreck vengeance, as well. There must be real and genuine public interest involved in the litigation and not merely an adventure of knight errant or pokes ones into for a probe. It cannot also be invoked by a person or a body of persons to further his or their personal causes or satisfy his or their personal grudge and enmity. Courts of justice should not be allowed to be polluted by unscrupulous litigants by resorting to the extraordinary jurisdiction. A person acting bona fide and having sufficient interest in the proceeding of the public interest litigation will alone have a locus standi and approach the court to wipe out the violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit of political motive or an oblique consideration. A writ petitioner who comes to the Court for relief in public interest must come not only with clean hands like any other writ petitioner but also with a clean heart, clean mind and clean objectives.

Books Referred
1. Basu, D.D., The Constitutional Law of India, Lexis Nexis Butterworths Wadhwa, Nagpur, 2008.
2. Jain, M.P., Indian Constitutional Law, Lexis Nexis Butterworths Wadhwa, Nagpur, 2010.
3. Shukla V. N., Constitution of India, Eastern book Company, Lucknow, 2010.
4. Singh, P.M., V.N. Shukla’s Constitution of India, Eastern Book Company, Lucknow, 2008.

Articles Reffered:
# Public Interest Litigation, Adv. Aradhana singh <www.ngosindia.com/sources/PIL.php
# Definition of Public Interest Litigation according to Black’s Law Dictionary.
# AIR 1982 SC 1473
# http://www.supremecourtonline.com/articles/public-intrest-litigation.php
# AIR 1999 SC 393
# AIR 1982, SC 149
# AIR (1986) 2 SCC 176 SC
# 1988) 1 SCC 471
# AIR 1989, SC 2039
# (1996)5 SCC281
# AIR 1996 Cal 181 at 218

The  author can be reached at: krishnaa@legalserviceindia.com

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