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Published : June 19, 2015 | Author : Manmeet Singh
Category : Constitutional Law | Total Views : 11911 | Rating :

Manmeet Singh
I am B.A.LL.B (Hon's) final year of LL.M at Himachal Pradesh University

 Public Interest Litigation - A Critical Evaluation


Public Interest Litigation (PIL) has a vital role in the civil justice system in that it could achieve those objects which could hardly be achieved through convictional private litigation. PIL, for instance, offers a ladder to justice to disadvantaged section of society, provides an avenue to enforce diffused or collect rights, and enables civil society to not only spread awareness about human rights but also allows them to participate in government decision making. PIL could also contribute to good governance by keeping the government accountable.

Public interest litigation has historically been an innovative judicial procedure for enhancing the social and economic rights of disadvantaged and marginalized groups in India. In recent years, however, a number of criticisms of public interest litigation have emerged, including concerns related to separation of powers, judicial capacity, and inequality. These criticisms have tended to abstraction, and the sheer number of cases has complicated empirical assessments. This paper finds that public interest litigation cases constitute less than 1 percent of the overall case load. The paper argues that complaints related to concerns having to do with separation of powers are better understood as criticisms of the impact of judicial interventions on sector governance. On the issue of inequality, the analysis finds that win rates for fundamental rights claims are significantly higher when the claimant is from an advantaged social group than when he or she is from a marginalized group, which constitutes a social reversal, both from the original objective of public interest litigation and from the relative win rates in the 1980s.

One of the overarching aims of law and legal systems has been to achieve justice in the society and public interest litigation (PIL) has proved to be a useful tool in achieving this objective. For example, PIL—in which the focus is not on vindicating private rights but on matters of general public interest—extends the reach of judicial system to disadvantaged sections of society. It also facilitates an effective realization of collective, diffused rights for which individual litigation is neither practicable nor an efficient method.

Nevertheless, PIL has generally received peripheral attention in debates on civil justice reforms around the world.1 This is not to suggest that the evolution of PIL in various jurisdictions has missed the attention of scholars.2

To continue this tradition, this article aims to critically examine the evolution and development of PIL in Indian Judicial System. The main objective of this examination is to highlight the dark side of PIL so that other jurisdictions could learn useful lessons from the Indian experience. The choice of India—a democracy of over 1 billion people governed by a common law system, rule of law and independent judiciary—for learning lessons in the area of PIL is an obvious one given the contribution of India to the PIL jurisprudence.

Although this article aims to highlight the dark side of PIL, it will not be fair if the positive contributions of PIL are not acknowledged. After all, the dark side could only be discussed in the backdrop of a bright side. The section on Positive contributions, therefore, briefly highlights the positive contributions that the PIL project has made within and outside India. The dark side then offers critical insights into various aspects of PIL, which together constitute its dark side. Here again, before mapping these facets of the dark side, I will take readers to a quick tour of some recent PIL cases in India. The conclusion will sum up the discussion and also throw some light on how other jurisdictions could benefit from the Indian PIL experience.

Public Interest Litigation Defined

The phrase ‘Public interest Litigation’ relates to the very term ‘Public Interest’. Generally the litigation by someone for the interest of the public is the Public Interest Litigation. It does not mean that mere a stranger can move to court for a Public Interest litigation and that’s why it is a carving need to define ‘Public Interest’.

In Stround’s Judicial Dictionary3, ‘Public Interest’ is defined as, ‘a matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement; but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected.’

Much wider definition has been given by the American Bar Association. According to this definition, Public Interest Law Means;

“Legal services provide without fee or a substantially reduced fee which falls into one or more of the following areas:
1) Property Law;
2) Civil Rights Law;
3) Public Rights Law;
4) Charitable Organization Representation;
5) Administration of Justice.”4

In fact, a PIL is generally instituted for the enforcement of the Constitutional and Legal Rights of the poor and Excluded groups as well as ensuring accountability of concerned government and public authorities towards issues of public importance. Persistent efforts by the NGOs and social action groups through PIL has, in many occasions, prompted the High Court Division to issue directives and orders that in turn addressed the socio-economic concerns of the poor and the marginalized groups.

Historical Background of the Origion of Public Interest Litigation

The initial inspiration for PIL came from the American concept of Public Interest Litigation and the class actions of the 1960’s.5 In U.S.A. it is called the ‘Public Interest Law’ whereas in the Indian Subcontinent it is known as ‘Public Interest Litigation’. In fact, it is the U.S.A., the real pioneer in the path of PIL which influenced some PIL activist of some countries of the world to work for PIL in 1960s and 70s.6 Commentators frequently date the emergence of Public Law Litigation (in USA Public Interest Litigation is named as Public Law Litigation) in the U.S.A. to the celebrated campaign that resulted in the decision in Brown Vs. Board of Education,7 in which U.S. Supreme Court declared unconstitutional a stste’s segregation of public school students by race. Brown includes many procedural features since associated with Public Law Litigation: the defendant was a public institution; the claimants comprised a self-constituted group with membership that changed over time; relief was prospective, seeking to reform future action by government agents; and the judge played a leadership role complemented by the parties effort at negotiation. The literature distinguishes this form of litigation from the classical model of adjudication, which is conceptualized as a private, bipolar dispute marked by individual participation and the imposition of retrospective relief involving a tight fit between right and remedy.8

Brown provided inspiration to a generation of lawyers who saw law as a source of liberation as well as transformation for marginalized groups. Courts, mostly federal but state as well, became involved in a broad range of social issues, including voting and apportionment, contraception and abortion, employment and housing discrimination, environmental regulation, and prison conditions. Prison reform litigation illustrates the extent of the judiciary’s involvement in Public Law cases: after years of taking a “hands off” approach to prison conditions, courts imposed remedial decrees in 48 of the nation’s 53 jurisdictions (the 50 states, the District of Columbia, Puerto Rico and the Virgin Island).9

Evolution of Public Interest Litigation In India

It should be noted at outset that PIL, at least as it had developed in India, is different from class action or group litigation. Whereas the latter is driven primarily by efficiency consideration, the PIL is concerned at providing access to justice to all societal constituents. PIL in India has been a part of the constitutional litigation and not civil litigation.10 Therefore, in order to appreciate the evolution of PIL in India, it is desirable to have a basic understanding of the constitutional framework and the Indian Judiciary.11

After gaining independence from the British rule on August 15, 1947, the people of India adopted a Constitution in November 1949 with the hope to establish a “sovereign socialist secular democratic republic”.12 Among others, the Constitution aims to secure to all its citizens justice (social, economic and political), liberty (of thought, expression, belief, faith and worship) and equality(of status and of opportunity).13 These aims were not merely aspirational because the founding fathers wanted to achieve a social revolution through the Constitution.14 The main tool employed to achieve such social change were the provisions on Fundamental Rights (FRs) and the Directive Principles of State Policy (DPs). Which Austin Described as the “conscience of the Constitution”.15 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. As we will see below, provisions related to FRs, DPs and independent judiciary together provided a firm constitutional foundation to the evolution of PIL in India.

Part III of the Constitution lays down various FRs and also specifies grounds for limiting these rights. As a right without a remedy does not have much substance,16 the remedy to approach the Supreme Court directly for the enforcement of any of the Pt III rights has also been made a FR.17 The holder of the FRs cannot waive them.18 Nor can the FRs be curtailed by an amendment of the Constitution if such curtailment is against the basic structure of the Constitution.19

Some of the Some of the FRs are available only to citizens20 while others are available to citizens as well as non-citizens,21 including juristic persons. Notably, some of the FRs are expressly conferred on groups of people or community.22 Not all FRs are guaranteed specifically against the state and some of them are expressly guaranteed against non-state bodies.23 Even the state is liberally defined in art.12 of the Constitution to include,

the Government and Parliament of India and the Government and the legislature of each of the states and all local or other authorities within the territory of India or under the control of the Government of India.

The expression other authorities has been expansively interpreted, and any agency or instrumentality of the state will fall within its ambit.24
The DPs find a place in Pt IV of the Constitution. Although the DPs are not justiciable,25 they are,
nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws.24

After initial deviation,27 the Supreme Court accepted that FRs are not superior to DPs on Account of the latter being non-justiciable: rater FRs and DPs are complementary and the former are a means to achieve the goals indicated in the latter.28 The issue was put beyond any controversy in Minerva Mills Ltd v Union of India where the Court held that the, harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution.29 Since then the judiciary has employed DPs to derive the contents of various FRs.30

The founding fathers envisaged the judiciary as a bastion of rights and justice.31 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 Courts32 —the courts that have entertained all the PIL cases. The judiciary can test not only the validity of laws and executive actions but also of constitutional amendments. It has the final say on the interpretation of the Constitution and its orders, supported with the power to punish for contempt, can reach everyone throughout the territory of the country. Since its inception, the Supreme Court has delivered judgments of far-reaching importance involving not only adjudication of disputes but also determination of public policies and establishment of rule of law and constitutionalism.33

Public Interest Litigation And Judiciary

A very interesting PIL relating to first ever strike by the judges of Punjab and Haryana high court on 19.4.2004led the Supreme Court to strikingly contradictory stand. The PIL was filed on the same day praying that the judges should return to their duties immediately in public interest. In Vikas Vashisht v. Punjab and Haryana High Court3 a division bench of the Supreme Court consisting of R.C. Lahoti CJ and G.P. Mathur J dismissed a PIL on July 2004 on the ground that what purported to have been filed by way of PIL was nothing more than a publicity interest litigation as it was filed on the basis of a newspaper report. It was argued in this case thatproceeding on en masse casual leave by 25 judges amounted to “strike” by the judges. In September 2004 in S.S. Dahiya v. Punjab and Haryana High Court35 a bench of S.N. Vairava and H.K. Sema JJ held that the facts alleged by the petitioner were not based on newspaper report but on the personal knowledge of the petitioner and it was genuine PIL and there was a need to lay down guidelines pertaining to judicial propriety and hence this was a matter of public interest. On 3.12.2004 the same bench dismissed the PIL as “infructous”. The reason: the court realized only then that the judges had already resumed their duties on 20.4.2004, just a day after they went on en masse casual leave to protest against the direction of their Chief Justice to desist from accepting any freebies such as membership of a club. In its one para order, the Vairava bench said that the court had issued notice on 26.4.2004 without noticing that the judges had already resumed their judicial work.36

Before the judiciary a set of questions arises, such as; whether courts should be involved in environmental, social, and economic matters at all: Are not the legislative and executive branches better equipped to address these matters, and does not “judicial activism,” precisely because the courts do not and cannot enforce many of their broad directives in these areas, erode the legitimacy of the courts? Are not PIL cases draining substantial resources from an already overburdened legal system in which ordinary civil cases can languish in courts for many years? Since many PIL cases are patently frivolous and many others never enforced, is not PIL a device for the judiciary to expand its own powers and autonomy under the mantle of a popular social justice agenda? A separate set of questions involves the beneficiaries of PIL: Do PIL cases continue to benefit the poor and disadvantaged, or have not lifestyle issues and middle class concerns become predominant in PIL cases? Are not judges manifestly less disposed to the interests of the poor and marginalized than they were two decades ago, during the “heroic” years when PIL originated?

These queries regarding PIL are fundamentally normative claims, and are based on principled understandings of the role of judges and courts in India’s democracy. At the same time, the validity of some of them rests on facts, albeit complex ones. For instance, the challenge related to separation of powers raises questions about judicial capacity – critics charge that courts cannot monitor and supervise complex “polycentric disputes”37, whereas others respond that they can, or at least as well as parliaments can.38 The relative effectiveness of judicial supervision, if observed accurately and at scale, could help resolve this disagreement, at least for a subset of cases and in certain contexts. Similarly, whether or not PIL cases still address the concerns of the poor, and whether decisions are as supportive of their interests as in the past, are empirical questions. To date, the debate over PIL has largely been abstract (with some exceptions, to be described below). It has helped generate a set of normatively significant questions, but at this stage of the research cycle, empirical work may be more pressing. This paper contributes to that task by assessing PIL with empirical data.

The next section of this paper analyzes the argument that PIL constitutes a case of judicial overreach. The contention that PIL weakens policy formulation and implementation in the legislative and executive branches is typically “dressed up” as a separation of powers concern, but a more apt framework involves an assessment of the impact of PIL on sectoral governance, which is fundamentally an empirical matter, not a doctrinal one. The following section describes the charge that PIL favors middle class interests rather than the concerns of the poor and marginalized. That section than presents estimates, based on original data taken from Supreme Court records an online legal database, to assess that claim.

1.1.Public Interest Litigation: Is The Judiciary Overreaching?

An old-fashioned view of legal rights holds that most social and economic matters do not involve genuine right because they require positive action, not merely restraint, and have no single, identifiable duty holder. Positive obligations, moreover, entail significant expenditures that are the purview of the other branches of government. Courts, therefore, should steer clear of the social, economic, and environmental concern at the heart of PIL. More contemporary views39 hold that “for their fulfillment all rights require restraint, protection, and aid from the entity from whom rights are claimed, and that a reasonably effective and well funded state is a sine qua non for all rights.”40

Most of the criticisms of PIL in the Indian Courts have not taken this somewhat old-fashioned form perhaps became in a country where the scale of needs is so large it is hard to say that social and economic priorities are less commanding that civil and political ones. They have rather argued that the social and economic domain should be largely the prerogative of the other branches of government, which are better equipped to analyze, formulate, and implement complex policies, and that much of PIL is inappropriate judicial “activism” or “adventurism.” For instance, in an assessment of the activities of the Supreme Court in the Delhi Vehicular Pollution and Municipal Solid Waste case, Rajamani admonishes that “policy, environmental and social, must emerge from a socio political process and must be considered in a legitimate forum not a judicial one.”41 Citing cases in which courts formulated explicit guidelines, such as cases related to vehicular pollution, the management of the Central Bureau of Investigation, adoption by foreign nationals, custodial torture, and sexual harassment, Desai and Muralidhar note that “while in some cases, the Court has expressed its reluctance to step into the legislative field, in others it has laid down detailed guidelines and explicitly formulated policy”42 In their 2003 article, Rosencranz and Jackson welcome the environmental and health impact of the Supreme Court’s 2001 decision requiring the Delhi government to convert its commercial vehicles to a fleet running on compressed natural gas (CNG), but then plead for leadership on the part of the regulatory and legislative authorities: “Some of the roadblocks to CNG implementation could have been avoided, or at least minimized, had the conversion been originally mandated through the normal legislative process.”43 Thiruvengadam documents a spate of similarly motivated criticism of PIL as an incursion into lawmaking from sitting and former judges on India’s Supreme and High Courts, including comments from Justice Hidyatullah in 1984, Justice Srikrishna in 2005, and, perhaps most intemperately, Justice Kaju in 2008, who said PIL “has developed into an uncontrollable Frankenstein.”44

A motivation for some of this criticism is a suspicion that the courts have used their post-Emergency popularity, to which PIL has significantly contributed, to expand their own powers and shield themselves from scrutiny and accountability. To some, it appears as though the courts may be spending time on frivolous and ineffectual PIL cases at the expense of the real administration of justice, and choose to do so because PIL burnishes their popularity. Reported instances of frivolous PIL include prayers to rename India “Hindustan,” rename the Arabian Sea “Sindhu Sagar,” and replace the national anthem for one offered by the petitioner (and partly sung before the Chief Justice).45 At the same time, the systems of civil and criminal justice suffer enormous delays and arbitrary pre-trial detentions.

These concerns are echoed widely enough that there is now visible a clear backlash against this perceived usurpation of powers by the courts, including a bill tabled in the Rajya Sabha in 1996 to regulate PIL, a 2007 statement by Prime Minister warning against judicial overreaching46, recent calls from the bench to set parameters for PIL (Times of India, December 12, 2007), and efforts to establish the National Judicial Council, a body to investigate complaints against judges. Some of these complaints involve corruption: there have been allegations that some 20% of Judges are corrupt.47 Related complaints include the use of the law of privileges and contempt on the part of courts to shield themselves from criticism, resistance to efforts to require sitting judges to disclose their financial assets, and the uncomfortably close relationship between some members of the judiciary and the Bar.48 Roy goes so far as to assert that judicial accountability is so low that “we live in a sort of judicial dictatorship.”49

A few comments about separation of powers are in order. First, policy formulation by the courts or its agents is, to some extent, inevitable. Judicial review of any sort requires ongoing commentary on laws and policies, including guidelines regarding their proper content. Because dispute resolution entails an elaboration and application of the normative structures of society as the necessary ground for the dispute resolver’s decision, judges inevitably involve themselves in rule making, which is a form of lawmaking whether in common law or civil law jurisdictions.50 Courts have not traditionally been significant actors in the area of social and economic policy; and resistance to public interest litigation and the court directives it prompts in these areas may stem more from the novelty of the phenomenon than from anything like a real “judicial dictatorship.” Reluctance on the part of the Indian judiciary to be held accountable for performance and probity is certainly problematic – from the point of view of democratic theory it limits the power of the people to review public action. The expansion of judicial power in the area of social and economic concerns, on the other hand, catalyzes legislative and executive activity more often than it paralyzes it. That is because, as an empirical matter the world over, public interest litigation typically spurs judicial dialogue with the other branches: rarely do courts issue all or nothing demands, backed with common law contempt power or its civil law counterparts, in a way that requires the state to restructure its policy framework. “Courts’ decisions do not so much stop or hijack the policy debate as inject the language of rights into it and add another forum for debate.”51 As Fredman puts it, PIL allows the judicial forum to become, potentially, a space for democratic deliberation among equal citizens, rather than a place of interest group bargaining, which prevails in the legislature.52

In addition, an important use of public interest litigation is to make public and scrutinize hidden or obfuscatory information, including cost of potential social programs, which the state and corporate entities on occasion have reasons to exaggerate or hide. In India, PIL during droughts in Rajasthan and Orissa in 2001 disclosed the extent of unreleased government grain stocks, and subsequent PIL disclosed that state governments could in fact afford to widen several statutory food and nutrition programs, including the midday meals scheme in schools, despite official protests to the contrary. In the Delhi vehicular pollution debate, the Delhi Health Minister claimed that air pollution did not increase the risks of heart or lung disease, the Delhi government said that the timely installation of CNG stations would be impossible, the Ministry of Petroleum and Natural Gas argued that CNG bus conversion would not be sustainable in the long run, producers of commercial vehicles stated that the conversion to CNG was not economically costeffective, and other argued that CNG is explosive. The court, largely by empowering certain technical committees, played a significant role in helping to ascertain accurate information on these issues. It was, moreover, not an instance of judicial fiat but rather a judicial-executive branch collaboration: “Government experts essentially became advisors to the Court as it drove policy implementation forward.”53

The argument that PIL constitutes judicial overreach, resulting in poor or inefficient decision making, is not really a separation of powers claim. The balance of power among government organs, as Madison conceived it, was not primarily about a strict separation of powers but “the partial interpenetration of relatively autonomous and balanced powers.” (O'Donnell, 2003) In other words, the separation of powers was not conceived as a design for the promotion of efficient decision making by preventing undue encroachment from one institution upon the prerogatives of another, but rather a check on the ability of any group or faction to dominate government from its enclave in a specific organization. The doctrine of separation of powers seeks to accomplish this precisely by opening certain governmental tasks to competing competences and concurrent powers of review. Despite occasionally hyperbolic claims on the part of critics, Indian judges and their professional social classes are not using the courts as a staging ground to threaten the Indian state. There have been specific rulings, such as Kesavananda Bharati or Advocates-on-Record, or the ruling on the Jharkhand legislative procedures, in which courts assumed powers not delineated in the Constitution. Even in those cases, it arguable that in so doing the Court restored a constitutional balance because the executive and legislature had themselves been engaging in extra-constitutional activities.

These criticisms regarding separation of powers are better cast as concerns related to the impact of judicial intervention on sectoral governance. Does judicial involvement through PIL improve state performance in a given sector. Is forest policy, for example, more equitable, efficient, and effective as a result of court involvement? That is an empirical question, but most treatments of the issue do not take the empirical challenge seriously. (A. Rosencranz & Lélé, 2008) believe that the Supreme Court’s intervention following the TN Godavaraman vs Union of India case (1996) “hurts the process of governance,” but adduce little evidence about the capacity and authority of central and state executive agencies prior to and after the court’s assumption of powers. Writing in 2003 on the Delhi vehicular pollution case, Rosencranz and Jackson speculated that strengthening the pollution control boards (PCBs), rather than Supreme Court action, “would seem to provide the most effective long-term solutions [to air pollution in India]” and worried that “the Court’s action seems likely to impede capacity building in the pollution control agencies, and thereby to compromise the development of sustained environmental management in India.”54 This is a fundamentally an empirical claim, and one can examine whether PCBs are weaker now than they were before the Court got involved in the Delhi pollution case. A cursory review suggests that it is not obvious that they are weaker – the budget of the Central Pollution Control Board has nearly tripled since the year of the Court’s order in 2002, and a number of efforts are underway to strengthen them and fill staffing vacancies in central and state PCBs.5 Another problem with criticisms like these is that they compare an ideal or hypothetical legislative intervention to a real judicial one when it is often the real-world failings of the other branches that prompted litigation in the first place. Thiruvengadam describes the deliberative failings of India’s Parliament, noting that of the total 36 Bills passed in 2008, “16 were passed in less than 20 minutes, most without any debate whatsoever.”55

Why do analysts tend to describe issues of sectoral governance with the language of the separation of powers? The motivation stems in part from a belief, sometimes inarticulate, that governance should look similar the world over. In this case, courts, in order to be courts properly understood, must limit their tasks to interpreting laws, rather than writing or enforcing them. But it is a mistake to speak of “courts” as such. The task of judicial institutions depends on the way they interact with the other institutions of their society. It is less useful to assess judicial activity against a preconceived institutional design than to evaluate, using “normative benchmarks,” the (positive or negative) contribution of courts to the key tasks of governance in any specific sector.56 In the same way that careful studies of the institutional foundations of economic growth in East Asia have challenged the rule of law orthodoxy, showing that successful market-sustaining institutions need not take the specific form that courts, corporate boards, and bureaucratic agencies have taken in, say, the United States or the United Kingdom57, studies of public interest litigation should recognize that courts may play a variety of roles in different settings. There is less institutional convergence in the world than believed, and it is important “not to confuse institutional function and institutional form” (emphasis in original).58

What, then, are the normative benchmarks that should be used to assess the contribution, or lack thereof, courts toward sectoral governance? Those depend on the sector, of course – they would look different in health than in forestry. But, generalizing, one can identify three key elements of governance for the broad category of tasks in government service delivery: the capacity and authority of the organizations charged with delivery or oversight, the availability of information and transparency regarding service delivery, and state accountability for performance. An empirically minded assessment of PIL in India, then, would take the form of a series of case studies based on those normative benchmarks. The case studies would focus on these questions:

Did the capacity and authority of institutions tasked with addressing the social problems increase or decline as a result of PIL?
Was accurate information on sectoral concerns more widely available before or after judicial intervention?
Were mechanisms of accountability, including legal and hierarchical oversight, markets and the power of actors to pursue their own interests, and social assessments of the motives of public officials, functioning more effectively before or after judicial intervention?

The Dark Side

PIL has, however, led to new problem such as an unanticipated increase in the workload of the superior courts, lack of judicial infrastructure to determine factual matter, gap between the promise and reality, abuse of power, friction and confrontation with fellow organs of the government, and dangerous inherent in judicial populism.59 before elaborating these problems, let me take to a quick tour of some recent PIL cases that would offer an indication of this dark side.

A quick tour of some recent PIL cases
In the last three decades, the Indian Supreme Court and High Courts have been approached through PIL to redress a variety of issues, not all of which related to alleged violation of FRs. The judiciary, for instance, has addressed issues such as60: the constitutionality of the Government’s privatization61 and disinvestment policies,62 defacing of rocks by painted advertisements,63the danger to the Taj Mahal from a refinery,64 pollution of reviers,65 relocation of industries out of Delhi,66 lack of access to food,67 deaths due to starvation,68 use of environment-friendly fuel in Delhi buses69 and regulation of traffic,70 out of- turn allotment of government accommodation,71 prohibition of smoking in public places,72 arbitrary allotment of petrol outlets,73 investigation of alleged bribe taking,74 employment of children in hazardous industries,75 rights of children and bonded labours,76 extent of the right to strike,77 right to health,78 right to education,79 sexual harassment in the workplace,80 and female foeticide and infanticide through modern technology.81

Although a review of the above sample of PIL cases may surprise those who are not familiar with PIL in India, it should be noted that in all the above cases the judiciary did actually entertain the PIL and took these cases to their logical conclusion. But there have been instances of more blatant misuse of the process of PIL. For instance, the courts were approached to call back the Indian cricket team from Australia after the controversial Sydney test match.82 PILs were initiated to regulate the treatment of wild monkeys in Delhi and the practice of private schools to conduct admission interviews for very young children.83

A PIL was also filed in the Supreme Court to seek ban on the publication of allegedly obscene and nude photographs in newspapers.84 Some so-called public-spirited lawyers knocked at the door of the courts against: (i) Richard Gere’s public kissing of an Indian actress, Ms Shilpa Shetty; (ii) an alleged indecent live stage show on New Year’s Eve; and (iii) the marriage of former Miss World, Ms Aishwarya Rai, with a tree to overcome certain astrological obstacles in her marriage.85

More recently, the PIL discourse was employed to request the Indian government to send technical experts to work with the Nepal government in strengthening the Bhimnagar barrage to prevent recurrence of flood86 and to challenge the constitutional validity of the Indo–US civil nuclear agreement.87

The Dark Side
It seems that the misuse of PIL in India, which started in the 1990s, has reached to such a stage where it has started undermining the various purpose for which PIL was introduced. In other words, the dark side is slowly moving to overshadow the brighter side of PIL project.

Ulterior purpose: public in PIL stands substituted by private or publicity
One major rationale why the courts supported PIL was its usefulness in serving the public interest. It is doubtful, however, if PIL is still wedded to that goal. As we have seen above, almost any issue is presented to the courts in the guise of public interest because of the allurements that the PIL jurisprudence offers (e.g. inexpensive, quick response, and high impact). Of course, it is not always easy to differentiate “public” interest from “private” interest, but it is arguable that courts have not rigorously enforced the requirement of PILs being aimed at espousing some public interest. Desai and Muralidhar confirm the perception that;

PIL is being misused by people agitating for private grievances in the grab of public interest and seeking publicity rather than espousing public causes. 88

It is critical that courts do not allow “public” in PIL to be substituted by “private” or “publicity” by doing more vigilant gate-keeping.

Inefficient use of limited judicial resources
If properly managed, the PIL has the potential to contribute to an efficient disposal of people’s grievances. But considering that the number of per capita judges in India is mushLower than many other countries and given that the Indian Supreme Court as well as High Court are facing a huge backlog of cases,89 it is puzzling why the courts have not done enough to stop non-genuine PIL cases. In fact, by allowing frivolous PIL plaintiffs to waste the time and energy of the courts, the judiciary might be violating the right to speedy trial of those who are waiting for the vindication of their private interests through conventional adversarial litigation.

A related problem is that the courts are taking unduly long time in finally disposing of even PIL cases. This might render “many leading judgments merely of [an] academic value”.90 The fact that courts need years to settle cases might also suggest that probably courts were not the most appropriate forum to deal with the issues in hand as PIL.

Judicial populism
Judges are human beings, but it would be unfortunate if they admit PIL cases on account of raising an issue that is (or might become) popular in the society. Conversely, the desire to become people’s judges in a democracy should not hinder admitting PIL cases which involve an important public interest but are potentially unpopular. The fear of judicial populism is not merely academic is clear from the following observation of Dwivedi J. in Kesavnanda Bharathi v Union of India:

The court is not chosen by the people and is not responsible to them in the sense in which the House of People is. However, it will win for itself a permanent place in the hearts of the people and augment its moral authority if it can shift the focus of judicial review from the numerical concept of minority protection to the humanitarian concept of the protection of the weaker section of the people.91

It is submitted that courts should refrain from perceiving themselves as crusaders constitutionally obliged to redress all failures of democracy. Neither they have this authority nor could they achieve this goal.

Symbolic justice
Another major problem with the PIL project in India has been of PIL cases often doing only symbolic justice. Two facets of this problem could be noted here. First, judiciary is often unable to ensure that its guidelines or directions in PIL cases are complied with, for instance, regarding sexual harassment at workplace (Vishaka case) or the procedure of arrest by police (D.K. Basu case). No doubt, more empirical research is needed to investigate the extent of compliance and the difference made by the Supreme Court’s guidelines.92 But it seems that the judicial intervention in these cases have made little progress in combating sexual harassment of women and in limiting police atrocities in matter of arrest and detention.

The second instance of symbolic justice is provided by the futility of over-conversion of DPs into FRs and thus making them justiciable. Not much is gained by recognizing rights which cannot be enforced devalues the very notion of rights as trump.93 Singh aptly notes that,

“a judge may talk of right to life as including right to food, education, health, shelter and a horde of social rights without exactly determining who has the duty and how such duty to provide positive social benefits could be enforced.”94

So, the PIL project might dupe disadvantaged sections of society in believing that justice has been done to them, but without making a real difference to their situation.

Disturbing the constitutional balance of power
Although the Indian Constitution does not follow any strict separation of power, it still embodies the doctrine of checks and balances, which even the judiciary should respect. However, the judiciary on several occasions did not exercise self-restraint and moved on to legislate, settle policy questions, take over governance, or monitor executive agencies. Jain cautions against such tendency:

PIL is a weapon which must be used with great care and circumspection; the courts need to keep in view that under the guise of redressing a public grievance PIL does not encroach upon the sphere reserved by the Constitution to the executive and the legislature.95

Moreover, there has been a lack of consistency as well in that in some cases, the Supreme Court did not hesitate to intrude on policy questions but in other cases it hid behind the shield of policy questions.96 Just to illustrate, the judiciary intervened to tackle sexual harassment as well as custodial torture and to regulate the adoption of children by foreigners, but it did not intervene to introduce a uniform civil code, to combat ragging in educational institutions, to adjust the height of the Narmada dam and to provide a humane face to liberalisation-disinvestment polices. No clear or sound theoretical basis for such selective intervention is discernable from judicial decisions.97

It is also suspect if the judiciary has been (or would be) able to enhance the accountability of the other two wings of the government through PIL. In fact, the reverse might be true: the judicial usurpation of executive and legislative functions might make these institutions more unaccountable, for they know that judiciary is always there to step in should they fail to act.

Overuse-induced non-seriousness
PIL should not be the first step in redressing all kinds of grievances even if they involve public interest. In order to remain effective, PIL should not be allowed to become a routine affair which is not taken seriously by the Bench, the Bar, and most importantly by the masses:

The overuse of PIL for every conceivable public interest might dilute the original commitment to use this remedy only for enforcing human rights of the victimised and the disadvantaged groups.98

If civil society and disadvantaged groups lose faith in the efficacy of PIL, that would sound a death knell for it.

Checking The Dark Side

One might ask if the dark side of PIL is so visible, why has something not been done about this by the government or the judiciary? An attempt to curb the misuse of the PIL was made, though not strictly on the part of the Government, in 1996 when a private member Bill was introduced in the Rajya Sabha, the Upper House of the Indian Parliament. The Public Interest Litigation (Regulation) Bill had proposed that petitioners filing frivolous PIL cases should be put behind bars and pay the damages.99 However, the Bill—which raised concerns of interfering with judicial independence—could not receive the support of all political parties. As the Bill lapsed, this attempt to control the misuse of PIL failed.

On the other hand, the judiciary too is well-aware of the problems associated with PIL and has responded to the dark side of PIL in two ways. First, the Indian Supreme Court as well as High Courts have tried to send strong messages on a case-to-case basis whenever they noticed that the process of PIL was misused. In some cases, the courts have gone to the extent of imposing a fine on plaintiffs who abused the judicial process.100 On a few occasions, the Supreme Court also expressed its displeasure on how the High Courts have admitted PIL cases.101

The second, and a more systematic, step that the Supreme Court has taken was to compile a set of Guidelines to be Followed for Entertaining Letters/Petitions Received by it as PIL. The Guidelines, which were based on the full-court decision of December 1, 1988, have been modified on the orders/directions of the Chief Justice of India in 1993 and 2003. The Guidelines provide that ordinarily letter/petitions falling under one of the following 10 categories will be entertained as PIL:
a. Bonded labour matters;
b. Neglected children;
c. Non-payment of minimum wages;
d. Petitions from jails complaining of harassment, death in jail, speedy trial as a fundamental right, etc.;
e. Petitions against police for refusing to register a case, harassment by police and death in police custody;
f. Petitions against atrocities on women, in particular harassment of bride, bride-burning, rape, murder, kidnapping, etc.;
g. Petitions complaining harassment or torture of persons belonging to scheduled caste and scheduled tribes;
h. Petitions pertaining to environmental pollution, disturbance of ecological balance, drugs, food adulteration, maintenance of heritage and culture, antiques, forest and wildlife and other matters of public importance;
i. Petitions from riot-victims; and
j. Family pensions.

The Guidelines also prescribe that petitions related to certain matters—such as related to landlord-tenant matters, service matters and admission to educational institutions—will not be admitted as PIL.102 The PIL Cell has been entrusted the task of screening letters/petitions as per these Guidelines and then placing them before a judge to be nominated by the Chief Justice of India. As noted before, in view of the epistolary jurisdiction developed by the courts, PIL petitions need not follow the required format; a mere postcard could suffice. However, in order to balance this exceptional power/procedure, the Guidelines were amended in 2003 to provide that it,

may be worthwhile to require an affidavit to be filed in support of the statements contained in the petition whenever it is not too onerous a requirement.103

Despite the twin-strategy employed by the judiciary to curb the misuse of PIL, it seems that still many frivolous PIL cases reach before the courts. For example, while hearing a bunch of PILs seeking guidelines on premature release of convicts serving life imprisonment in various prisons, the Supreme Court recently expressed its frustration on the misuse of the PIL device. Noting that around 95 per cent PILs are frivolous, the Court observed that PIL has become a nuisance and that time has come to impose a penalty on those who file PIL for frivolous reasons.104

One possible explanation why it has proved difficult to curb the misuse of PIL could be that because the very notion of PIL is based on flexibility (i.e. relaxing the general procedures as to standing, form and evidence), it is not easy for the courts to keep the door open and at the same time stop busybodies at the gate. For instance, the judiciary might not like to roll-back the PIL project so as to lose its power to intervene as guardian of the interests of disadvantaged sections or to make the Government accountable in selected cases.105 It might prefer a situation in which no single genuine PIL case is excluded, even if that results in some non-serious PIL cases being entertained. This approach is arguably reflected in the broad ambit of the above Guidelines, which seem more like facilitating rather than curtailing PIL cases. This perhaps also explains why, for example, the Supreme Court Rules do not yet deal with the PIL cases.

PIL has an important role to play in the civil justice system in that it affords a ladder to justice to disadvantaged sections of society, some of which might not even be well-informed about their rights. Furthermore, it provides an avenue to enforce diffused rights for which either it is difficult to identify an aggrieved person or where aggrieved persons have no incentives to knock at the doors of the courts. PIL could also contribute to good governance by keeping the government accountable. Last but not least, PIL enables civil society to play an active role in spreading social awareness about human rights, in providing voice to the marginalized sections of society, and in allowing their participation in government decision making.

As I have tried to show, with reference to the Indian experience, that PIL could achieve all or many of these important policy objectives. However, the Indian PIL experience also shows us that it is critical to ensure that PIL does not become a back-door to enter the temple of justice to fulfill private interests, settle political scores or simply to gain easy publicity. Courts should also not use PIL as a device to run the country on a day-to-day basis or enter the legitimate domain of the executive and legislature.

Also, a number of criticisms of PIL have been voiced in recent years, including concerns related to separation of powers, judicial capacity, and inequality. While critics have been persuasive when pointing to particular cases, the sheer number of cases, as well as the variation in tendencies over time and among court benches, have made reaching a general conclusion difficult. This paper has argued that complaints related to separation of powers concerns are better understood as criticisms of the impact of judicial interventions on sectoral governance, and that structured case studies of sectoral governance are necessary to assess those criticisms. On the issue of inequality, this paper contributes to an overall assessment by systematically examining the relative magnitude, case composition, and geographical origins of, as well as legal representation and the claimant’s social class in, PIL and Fundamental Rights cases that reached the Indian Supreme Court.
1 See, for example, the attention that PIL has received in recent civil justice reforms in the UK, India and Hong Kong.

2 S.P. Sathe, Judicial Activism in India (New Delhi: OUP, 2002); Upendra Baxi, Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India (1985) Third World Legal Studies 107; C.D. Cunningham, Public Interest Litigation in Indian Supreme Court: A Study in the Light of the American Experience (1987) 29 Journal of Indian Law Institute 494; Bhagwati J., Judicial Activism and Public Interest Litigation (1984) 23 Columbia Journal of Transnational Law 561; Christine M. Forster and Vedna Jivan, Public Interest Litigation and Human Rights Implementation: The Indian and Australian Experience (2008) 3(1) Asian Journal of Comparative Law; Parmanand Singh, Human Rights Protection through Public Interest Litigation in India (1999) XLV Indian Journal of Public Administration 731; Susan S. Susman, Distant Voices in the Courts of India Transformation of Standing in Public Interest Litigation (1994) Wisconsin International Law Journal 57; Helen Hershkoff, Public Interest Litigation: Selected Issues and Examples, http://siteresources.worldbank.org/ INTLAWJUSTINST/Resources/PublicInterestLitigation[1].pdf [Accessed October 8, 2008].

3 Vol. 4, 4th Edition.
4 Mamata Rao, Public Interest Litigation, Legal Aid and Lok Adalats, 2nd Edition, Eastern Book Company, p.10.
5 Jurist’s India Correspondents Pradip K. Ghosh, Senior Advocate, Calcutta, and Pawan Duggal, Advocate, (President of Cyberlaws.net, New Delhi) Public Interest Litigation.
6 Sarat & Scheingold, ‘Cause Lawyering and the Reproduction of Professional Authority; An Introduction, in CAUSE LAWYERING’: Political Comments and Professional Responsibilities (Sarat & Scheingold eds., 1998).

7 Brown Vs. Board of Education,347 U.S. 483 (1954)
8 Fuller, The Forms and Limits of Adjudication, 92 HARV. L. REV. 353 (1978).
9 Feely & Rubin, Judicial Policy Making and the Modern State: How the Courts Reformed America’s Prisons (1998).

10 The Indian Code of Civil Procedure though allows for class action: ord.1 r.8 of the Code of Civil Procedure 1908. Furthermore, s.91 of the Code provides: In the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted . . . with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act.

11 See Sheetal B. Shah, Illuminating the Possible in the Developing World: Guaranteeing the Human Right to Health in India (1999) 32 Vanderbilt Journal of Transnational Law 435, 463.

12 Constitution of India 1950 Preamble. Although the term “socialist” and “secular” were inserted by the 42nd amendment in 1976, there were no doubt that the Constitution was both socialist and secular from the very beginning.

13 Constitution of India 1950 Preamble.
14 Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford: Clarendon Press, 1966), p.27. The social revolution meant, ‘to get (India) out of the medievalism based on birth, religion, custom, and community and reconstruct her social structure on modern foundations of law, individual merit, and social education’. (Austin, Cornerstone of a Nation, p.26, quoting K. Santhanam, a member of the Constituent Assembly.)

15 Austin, Comerstone of a Nation, p. 50
16 M.P. Jain, The Supreme Court and Fundamental Rights in S.K. Verma and Kusum (eds), Fifty Years of the Supreme Court of India—Its Grasp and Reach (New Delhi: Oxford University Press, 2000), pp.1, 76.
17 Constitution of India 1950 art.32.

18 Basheshar Nath v CIT AIR 1959 SC 149; Nar Singh Pal v Union of India AIR 2000 SC 140

19 The judiciary is the sole and final judge of what constitutes basic structure of the Constitution. Over a period of time, various provisions have been given the higher pedestal of basic structure or basic features of the Constitution, e.g. independence of judiciary, judicial review, rule of law, secularism, democracy, free and fair elections, harmony between FRs and DPs, right to equality, and right to life and personal liberty. See Mahendra P. Singh (ed.), Shukla’s Constitution of India, 10th edn (Lucknow: Eastern Book Co, 2001), pp.884–97; Jain, The Supreme Court and Fundamental Rights in Verma and Kusum (eds), Fifty Years of the Supreme Court of India, pp.8–13.

20 See, for example, Constitution art.15(2) (right of non-discrimination on grounds only of religion, race, caste, sex, place of birth or any one of them to access and use of public places, etc.); art.15(4) (special provision for advancement of socially and educationally backward classes of citizens or the scheduled castes and the scheduled tribes); art.16 (equality of opportunity in matters of public employment); art.19 (rights regarding six freedoms); art.29 (protection of interests of minorities).

21 See, for example, Constitution art.14 (right to equality); art.15(1) (right of non-discrimination on grounds only of religion, race, caste, sex, place of birth or any one of them); art.20 (protection in respect of conviction of offences); art.21 (protection of life and personal liberty); art.22 (protection against arrest and detention); art.25 (freedom of conscience and right to profess, practice and propagate religion).

22 See, e.g. Constitution arts 26, 29 and 30.

23 Austin cites three provisions, i.e. Constitution arts 15(2), 17 and 23 which have been designed to protect the individual against the action of other private citizen: Austin, Cornerstone of a Nation, p.51. However, it is reasonable to suggest that the protection of even arts 24 and 29(1) could be invoked against private individuals. See also Vijayashri Sripati, Toward Fifty Years of Constitutionalism and Fundamental Rights in India: Looking Back to See Ahead (1950–2000) (1998) 14 American University International Law Review 413, 447–48.

24 See AjayHasia v Khalid Mujib AIR 1981 SC 487; Pradeep Kumar v Indian Institute of Chemical Biology (2002) 5 S.C.C. 111. In the application of the instrumentality test to a corporation, it is immaterial whether the corporation is created by or under a statute. Som Prakash Rekhi v Union of India AIR 1981 SC 212.

25 The FRs are judicially enforceable whereas the DPs are unenforceable in the courts. For the relevance of this difference, see Mahendra P. Singh, The Statics and the Dynamics of the Fundamental Rights and the Directive Principles—A Human Rights Perspective (2003) 5 Supreme Court Cases (Jour) 1.

26 Constitution art.37.
27 State of Madras v. Champakam Dorirajan AIR 1951 SC 226

28 CB Boarding & Lodging v State of Mysore AIR 1970 SC 2042; Kesvananda Bharti v State of Kerala AIR 1973 SC 1461; Minerva Mills Ltd v Union of India AIR 1980 SC 1789; Unni Krishnan v State of AP (1993) 1 S.C.C. 645. See also Rajiv Dhavan, Republic of India: The Constitution as the Situs of Struggle: India’s Constitution Forty Years On in Lawrence W. Beer (ed.), Constitutional Systems in Late Twentieth Century Asia (Seattle: University of Washington Press, 1992), pp.373, 382–383, 405 and 413–416.

29 Minerva Mills Ltd v Union of India AIR 1980 SC 1789, 1806.
30 See the cases cited below in fnn.35–49. See also Jain, The Supreme Court and Fundamental Rights in Verma and Kusum (eds), Fifty Years of the Supreme Court of India, pp.65–76.
31 Austin, Cornerstone of a Nation, p.175.
32 Constitution of India 1950 arts 32 and 226.
33 See, for an analysis of some of the landmark judgments delivered by the Apex Court during these years, Gobind Das, The Supreme Court: An Overview in B.N. Kirpal et al. (eds), Supreme but not Infallible: Essays in Honour of the Supreme Court of India (New Delhi: OUP, 2000), pp.16–47.
34 Vikas Vashisht v. Punjab and Haryana High Court, 2004(8) SCALE 233
35 S.S. Dahiya v. Punjab and Haryana High Court, 2004(8) SCALE 235
36 Indian Express, 10.12.2004
37 Fuller & Winston, 1978, The forms and limits of adjudication, Harvard Law Review, p. 304
38 Thiruvengadam, A.K., 2009 "Evaluating contemporary criticisms of 'Public Interest Litigation': A progressive conception of the role of a Judge," In Paper presented at the 2009 inaugural LASSNET Conference. New Delhi.
39 Holmes, S., & Sunstein, C.R. (1999) The cost of rights: why liberty depends on taxes 1st ed. New York: W.W. Norton; Shue, H. (1996) Basic rights: subsistence, affluence, and U.S. foreign policy 2nd ed. Princeton University Press.
40 Gauri, V. (2004) "Social Rights and Economics: Claims to Health Care and Education in Developing Countries," World Development, 32: 465-477.
41 Rajamani, L. (2007) "Public Interest Environmental Litigation in India: Exploring Issues of Access, Participation, Equity, Effectiveness and Sustainability," Journal of Environmental Law, 19: 293-321.
42 Desai, A. H., & Muralidhar, S. (2000) "Public Interest Litigation: Potential and Problems," In Supreme but not Infallible: Essays in Honour of the Supreme Court of India, edited by B. N. Kirpal, A. H. Desai, G. Subramanium, R. Dhavan & R. Ramachandran. New Delhi: Oxford University Press.
43 Rosencranz, A., & Jackson, M. (2003) "The Delhi Pollution Case: The Supreme Court of India and the Limits of Judicial Power," Columbia Journal of Environmental Law, 28: 21.
44 Supranote 38 at p. 22
45 Thiruvengadam, A. (2007) "Recent PIL cases decided by the Supreme Court," In Law and Other Things.
46 Shankar, S., & Mehta, P. B. (2008) "Courts and Socioeconomic Rights in India," In Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World, edited by V. Gauri & D. M. Brinks. New York: Cambridge University Press.
47 Dhavan, Rajeev. (2002) "Judicial Corruption," In The Hindu (online).
48 Baxi, U. (2006) "Structural Admustment of Judicial Activism, Inaugural Lecture," West Bengal National Academy of Juridical Sciences.
49 Roy, A. (2007) "Scandal In the Palace," In Z-space: The Spirit of Resistance Lives.
50 Stone Sweet, A. (1999) "Judicialization and the Construction of Governance," Comparative Political Studies, 32: 147-184.
51 Brinks, D. M., & Gauri, V. (2008) "A New Policy Landscape: Legalizing Social and Economic Rights in the Developing World," In Courting Social Justice, edited by V. Gauri & D. M. Brinks. New York: Cambridge University Press, p. 304.
52 Fredman, S. (2008) Human rights transformed: positive rights and positive duties: Oxford University Press, p.149
53 Bell, R. G., Kuldeep Mathur, Urvashi Narain, and David Simpson. (2004) "Clearing the Air: How Delhi Broke the Logjam on Air Quality Reforms," Environment, 46: p. 35.
54 Supranote 43 at p. 21, 23
55 Supranote 44 at p. 32
56 Trebilcock, M. J., & Daniels, R. J. (2008) Rule of Law Reform and Development: Charting the Fragile Path of Progress. Northampton, MA: Edward Elgar.
57 Ginsburg, T. (2003) Judicial Review in New Democracies: Constitutional Courts in Asian Cases. Cambridge: Cambridge U. Press.
58 Rodrik, D. (2003) "Growth strategies," In NBER Working Paper Series. Cambridge: National Bureau of Economic Research.
59 See Desai and Muralidhar in Kirpal et al., Supreme but not Infallible, pp.176–183; Upendra Baxi, The Avatars of Indian Judicial Activism: Explorations in the Geographies of [In]justice in Verma and Kusum (eds), Fifty Years of the Supreme Court of India, pp.156, 161–165; and generally Arun Shourie, Courts and their Judgments—Premises, Perquisites, Consequences (New Delhi: Rupa & Co. 2001).

60 Parmanand Kataria v Union of India AIR 1989 SC 2039; Paschim Banga Khet Mazdoor Samity v State of West Bengal (1996) 4 S.C.C. 37. See also, Rudul Sah v State of Bihar (1983) 4 S.C.C. 141; Bhim Singh v State of J & K (1985) 4 S.C.C. 677; Nilabati Behra v State of Orissa (1993) 2 S.C.C. 746.

61 Delhi Science Forum V Union of India (1996)2 S.C.C. 405
62 Balco Employees Union v Union of India AIR 2001 SC 350; Center of Public Interest Litigation v Union of India AIR 2003 Sc #277
63 See “SC’s 5-cr Message: You Can’t Get Away”, The Indian Express, September 24, 2002
64 M.C. Mehta v Union of India (1996) 4 SCC 750
65 Almitra H. Patel v Union of India AIR 2000 SC 1256
66 M.C. Mehta v Union of India (1996) 4 SCC 351
67 PUCL v Union of India (2001) (7) S.C.A.L.E. 484; PUCL v Union of India (2004) (5) S.C.A.L.E. 128.
68 Kishen Pattnayak v State of Orissa (1989) Supl.(1) S.C.C. 258.
69M.C. Mehta v Union of India AIR 2002 SC 1696.
70 M.C. Mehta v Union of India (1997) 8 S.C.C. 770.
71 Shiv Sagar Tiwari v Union of India (1996) 6 S.C.C. 558.
72 Murli Deora v Union of India (2001) 8 S.C.C. 766.
73 Common Cause v Union of India (1996) 6 S.C.C. 530.
74 Vineet Narain v Union of India (1996) 2 S.C.C. 199.
75 M.C. Mehta v State of Tamil Nadu AIR 1997 SC 699.
76 Narendra Malava v State of Gujarat (2004) (10) S.C.A.L.E. 12; PUCL v State of Tamil Nadu (2004) (5) S.C.A.L.E. 690.
77 CPM v Bharat Kumar AIR 1998 SC 184; T.K. Rangarajan v State of Tamil Nadu AIR 2003 SC 3032.
78 Parmanand Kataria v Union of India AIR 1989 SC 2039; Paschim Banga Khet Mzdoor Samity v State of West Bengal (1996) 4 S.C.C. 37; Kirloskar Bros Ltd v ESIC (1996) 2 S.C.C. 682; Air India Stat. Corp v United Labour Union (1997) 9 S.C.C. 377.
79 Mohini Jain v State of Karnataka (1992) 3 S.C.C. 666; Unni Krishnan v State of Andhra Pradesh (1993) 1 S.C.C. 645.
80 Vishaka v State of Rajasthan AIR 1997 SC 3011; Apparel Export Promotion Council v A.K. Chopra AIR 1999 SC 625.
81 CEHAT v Union of India AIR 2001 SC 2007; CEHAT v Union of India AIR 2003 SC 3309.
82 PIL in SC for recalling the Indian cricket team from Australia, Chenni Online http://archives.chennaionline.com/cricket/Features/2008/01news952.aspx [January 16, 2008].
83 PIL and Indian Courts in Combat Law (November–December 2007), Vol.6:6.
84 Apex Court Dismisses PIL Seeking Ban on Obscenity in Papers in The Indian Express, December 13, 2006. Although the Court dismissed the petition, it still asked the government to, examine suggestions for amending the Press Council of India Act to rein in publications indulging in such alleged unacceptable practices.
85 Chased by the Moral Brigade in Rediff News, October 3, 2007.
86 SC Bench Sneers at PIL Filed to Strengthen Bhimnagar Barrage in The Times of India, September 3, 2008.
87 SC to hear N-Deal PIL Tomorrow in Deccan Herald, August 12, 2008.
88 Desai and Muralidhar in Kirpal et al., Supreme but not Infallible, p. 181.
89 Marc Galanter and Jayanth K. Krishnan, ‘ “Bread for the Poor’: Access to Justice and the Rights of the Needy in India” (2004) 44 Hastings Law Journal 789, 790 S.P. Sathe, Judicial Activism in India (New Delhi: OUP, 2002); Upendra Baxi, Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India (1985) Third World Legal Studies 107; C.D. Cunningham, Public Interest Litigation in Indian Supreme Court: A Study in the Light of the American Experience (1987) 29 Journal of Indian Law Institute 494; Bhagwati J., Judicial Activism and Public Interest Litigation (1984) 23 Columbia Journal of Transnational Law 561
90 Singh, Protecting the Rights of the Disadvantaged Groups through Public Interest Litigation in Singh, Goerlich and von Hauff (eds), Human Rights and Basic Need, p.326.
91 Kesavnanda Bharathi v Union of India (1973) 4 S.C.C. 225, 948–949 (emphasis added), as quoted in Baxi, Taking Suffering Seriously (1985) Third World Legal Studies 107, 112. Baxi also mentions how Bhagwati J. ensured that PIL letters accepted as writ petitions came to his court: Taking Suffering Seriously (1985) Third World Legal Studies 107, 120.

92 Sathe, Judicial Activism in India, pp. 244-245.

93 Individual rights are political trumps held by individuals. Individuals have rights when, for some reason, a collective goal is not a sufficient justification for denying them what they wish, as individuals, to have or to do. Ronald Dworkin, Taking Rights Seriously, 2nd Indian Reprint (New Delhi: Universal Law Publishing, 1999), p.xi.

94 Singh, Protecting the Rights of the Disadvantaged Groups through Public Interest Litigation in Singh, Goerlich and von Hauff (eds), Human Rights and Basic Need, p.322.

95 Jain, The Supreme Court and Fundamental Rights in Verma and Kusum (eds), Fifty Years of the Supreme Court of India, p.86. See also Sathe, Judicial Activism in India, p.308; Avani Mehta Sood, Gender Justice through Public Interest Litigation: Case Studies from India (2008) Vanderbilt Journal of Transnational Law 833, 847-850.

96 Desai and Muralidhar in Kirpal et al. (eds), Supreme but not Infallible, pp.176–179.

97 One possible explanation could be: Where, however, the PIL challenges an existing policy backed by powerful political forces, and established in the name of economic development, the Court’s grasp of its fundamental rights mission becomes more unsteady. PIL and Indian Courts in Combat Law (November–December 2007), Vol.6:6.

98 Singh, Protecting the Rights of the Disadvantaged Groups through Public Interest Litigation in Singh, Goerlich and von Hauff (eds), Human Rights and Basic Need, p.328.
99 Desai and Muralidhar in Kirpal et al., Supreme but not Infallible, p.180.
100 Janta Dal v H.S. Chowdhary (1992) 4 S.C.C. 305; S.P. Anand v H.D. Deve Gowda (1996) 6 S.C.C. 734; Raunaq International Ltd v IVR Construction Ltd (1999) 1 S.C.C. 492.

101In our view, in the facts and circumstances as recited above [filing a writ petition after 23 years], the writ petition was clearly not maintainable being barred by laches and negligence. The High Court ought not have entertained the writ petition much less granting such relief unknown to law. Zila Parishad Aurangabad v Mirza Mahamood Unreported February 28, 2008 Civil Appeal No.4065 of 2002.

102 Supreme Court of India, Compilation of Guidelines to be Followed for Entertaining Letters/Petitions Received in this Court as Public Interest Litigation, p.3.
103 Supreme Court of India, Compilation of Guidelines to be Followed for Entertaining Letters/Petitions Received in this Court as Public Interest Litigation, p.2.
104 PILs becoming nuisance, time to slap penalty: SC in The Indian Express, January 29, 2008.

105 The need is to prevent misuse of PIL and not to criticise the process. And this is what the courts will have to do so that misuse of PIL is prevented and proper use of it has not to be blunted. J.S. Verma J., The Constitutional Obligation of the Judiciary (1997) 7 Supreme Court Cases (Jour) 1.

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A major wave of economic reforms was initiated in India in the year 1991. A thrust towards economic liberalization162 led to a new era in Indian corporate governance. The year 1992 witnessed the establishment of SEBI as the Indian securities markets regulator. SEBI rapidly began ushering in securities market reforms that gradually led to corporate governance reforms as well. Curiously, the first corporate governance initiative was sponsored by industry. In 1998, a National Task force constituted by the Confederation of Indian Industry (CII) recommended a code for “Desirable Corporate Governance,” which was voluntarily adopted by a few companies. Thereafter, a committee chaired by Mr. Kumar Mangalam Birla submitted a report to SEBI “to promote and raise the standard of Corporate Governance in respect of listed companies.” Based on the recommendations of the Kumar Mangalam Birla committee the Equity Listing Agreement that was applicable to all listed companies of a certain size. India’s corporate governance norms therefore came to be governed through a clause in the listing agreement popularly referred to as “Clause 49.” Although both the CII Code as well as the Kumar Mangalam Birla Committee Report expressly cautioned against mechanically importing forms of corporate governance from the developed world, several concepts introduced by them were indeed those that emerged in countries such as the U.S. and the U.K. These include the concepts such as an independent board and audit committee. Now-a-days the role of the independent directors is drawing wide attention especially in the context of public companies. This class of directors is actually elected directors who are not executive directors and who not participate in day-tot-day activities of the company. The Kumarmangalam Birla Committee has defined an independent director as an entity who does not have a “material pecuniary relationship or transactions with the company, its promoter, its managements or its subsidiaries, which in judgment of the Board, may effect the independence of the judgment”. Three years later the Naresh Chandra committee gave governance more thought. Finally, in 2004 the Narayanmurthy committee affected changes to clause 49 of the listing agreement.

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