According to Black's Law Dictionary- "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 legal rights or liabilities are affected."
Judiciary, being the sentinel of constitutional statutory rights of citizens has a special role to play in the constitutional scheme. It can review legislation and administrative actions or decisions on the anvil of constitutional law. For the enforcement of fundamental rights one has to move the Supreme Court or the High Courts directly by invoking Writ Jurisdiction of these courts. But the high cost and complicated procedure involved in litigation, however, makes equal access to jurisdiction in mere slogan in respect of millions of destitute and underprivileged masses stricken by poverty, illiteracy and ignorance.
The Supreme Court of India, pioneered the Public Interest Litigation (PIL) thereby throwing upon the portals of courts to the common man. Till 1960s and seventies, the concept of litigation in India was still in its rudimentary form and was seen as a private pursuit for the vindication of private vested interests. Litigation in those days consisted mainly of some action initiated and continued by certain individuals, usually, addressing their own grievances/problems. Thus, the initiation and continuance of litigation was the prerogative of the injured person or the aggrieved party. Even this was greatly limited by the resources available with those individuals. There was very little organized efforts or attempts to take up wider issues that affected classes of consumers or the general public at large.
However, all these scenario changed during Eighties with the Supreme Court of India led the concept of public interest litigation (PIL). 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 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.
What is the adversarial system?
A trial does not involve the pursuit of truth by any means. The adversary system is the means adopted and the judge's role in that system is to hold the balance between the contending parties without himself taking part in their disputations. It is not an inquisitorial role in which he seeks himself to remedy the deficiencies of the case on either side.
In the words of S.C. in People’s Union for Democratic Rights v. Union of India1, “We wish to point out with all the emphasis at our command that public interest litigation is a totally different kind of litigation from the ordinary traditional litigation which is essentially of an adversary character where there is a dispute between two litigating parties, one making claim or seeking relief against the other and that other opposing such claim or resisting such relief”.
Non-adversarial litigation has two aspects:
1. Collaborative litigation; and
2. Investigative Litigation
In collaborative litigation the effort is from all the sides. The claimant, the court and the Government or the public official, all are in collaboration here to see that basic human rights become meaningful for the large masses of the people. PIL helps executive to discharge its constitutional obligations. Court assumes three different functions other than that from traditional determination and issuance of a decree.
The court receives citizen complaints and brings the most important ones to the attention of responsible government officials.
(ii) Forum –
The court provides a forum or place to discuss the public issues at length and providing emergency relief through interim orders.
(iii) Mediator –
The court comes up with possible compromises.
It is investigative litigation because it works on the reports of the Registrar, District Magistrate, comments of experts, newspapers etc. Procedural Innovations In Non-adversarial Litigation: Some Examples The ‘new methods and the tools to meet out justice’ that has been referred to above can be shown by some examples of cases before the courts. Where a letter addressed to the court showed wide spread exploitation of migrants’ workman in violation of various welfare laws, the letter was treated as a writ petition under article 32 of constitution of India . direction was issued to the Labour commissioner to enquire into and submit a report and to the central government to file an affidavit. After receipt and the affidavit the court found that the assertions in the letter petition were correct and directions were given accordingly. This decision has been held to be an authority for proposition that a public interest litigation is not of adversary character, but one of performance of constitutional duties . This was because a new procedure was adopted for collecting evidence from acceptable sources. Likewise in the Bandhua Mukti Morcha2 case on the plight of the bounded laborers, the court had evolved new procedure supplementing the existing procedure to meet the new position and to render justice in public interest litigation. It directed the commissioner Labour to investigate into and collect the evidence and submit the report to the court. In the case of a letter in a writ petition to
release bounded labuorers in the country the supreme court felt necessary to depart from adversarial procedure and to evolve a new procedure which would make it possible for the poor and weak to bring the necessary material before the court for the purpose of securing enforcement of their fundamental rights. Similarly, in other PIL to release and rehabilitate the bonded laborers, the court obtained a report from the committee appointed by the court.
It accepted the report and then gives direction to implement the committee’s recommendations to the state government for rehabilitation of the bounded laborers. The justification for departing from adversarial procedure and evolving new procedures to deal with the problems of the bonded laborers specifically and the poor generally was provided by the Supreme Court in the words quoted below:
Where one of the parties to a litigation belongs to a poor and deprived section of the community and does not possess adequate social and material resources, he is bound to be at a disadvantage as a strong and powerful opponent under the adversary system of justice, because of his difficulty in getting competent legal representation and more than anything else, his inability to produce relevant evidence before the court. The problems of poor are qualitatively different from others and they need different kind of lawyering skill and a different kind of judicial approach. Therefore, when the poor come before the court, particularly for enforcement of their fundamental rights, it is necessary to depart from the adversarial procedure and to evolve a new procedure which will make it possible for the poor and the weak to bring the necessary material before the court for the purpose of securing enforcement of their fundamental rights.
Non-adversarial Procedures Not Compromising Judicial Tenets
While resorting to a non-adversarial procedure some notes of cautions were identified by Pathak J in the above mentioned “Bandhua Mukti Morcha” case3. In a separate though concurring judgment, he observed: “……the court must exercise the greatest caution and adopt procedures ensuring sufficient notice to all interests likely to be affected….whatever the procedure adopted by the Court it must be procedure known to judicial tenets and characteristic of a judicial proceeding.”
There are methods and avenues of procuring material available to executive and legislative agencies, and often employed by them for efficient and effective discharge of the tasks before them. Not all these methods and avenues are available to the court. The Court must remind itself that one of indicia identifying it as a court is the nature and the character of the procedure adopted by it in determining a controversy.
If there is a statue prescribing a judicial procedure governing the particular case of the court must follow such procedure. It is not open to the court to bypass the statue and evolve a different procedure at variance with it. Where, however, the procedure prescribed by statue is incomplete or insufficient, it will be open to the court to supplement it by evolving its own rules. Nonetheless, the supplement procedure must conform at all stages to the principle of natural justice, and other accepted procedural norms characteristic of judicial proceeding. It has been pointed out that since writ proceedings are not ‘civil proceedings’, the provisions of the Code of
Civil Procedure 1908 do not strictly apply to the petition instituted in h Supreme Court or in high courts. At the same time, however, such proceeding is ‘original’ proceedings which require material facts to be stated in petition. No doubt, public interest litigation is not adversarial in nature and strict rules of pleading may not apply. Nevertheless, the general principles of proceedings apply to public interest litigation also and all necessary and material facts must be placed before the court and on the basis of such facts, decision ought to be taken by the court.
The Basis for Non-Adversarial Procedure: Article 32 and 226
The provision conferring on the Supreme Court and the High Courts the power to enforce the fundamental rights is in the widest terms. The Constitution of India confers the power on the Supreme Court under article 32 to ‘issue the directions or orders or writs including the writs on the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for enforcement of any of the fundamental rights.’ The High Courts under article 226 can enforce fundamental rights as well as the legal rights. The insertion of the provision of widest possible terms shows the anxiety of the Constitution makers not to allow any procedural technicalities to stand in the way of enforcement of fundamental rights. The Supreme Court, while elaborating upon this position, added “For effectively safeguarding the fundamental rights guaranteed by the Constitution, the court in appropriate cases in the interests of justice will certainly be competent to treat a proceeding, though not in the conformity with the procedure prescribed by the rules of the court, as appropriate proceedings under Article 32 and entertain the same. A mere technicality in the matter of form or procedure which may not in any way affect the substance of any proceeding should not stand in the way of the exercise of the very wide jurisdiction and powers conferred on the Supreme Court under Article 32 for enforcement of fundamental rights guaranteed under the Constitution. Procedural law which also forms a part of the law and has to be observed, is however, subservient to substantive law and the laws of procedure are prescribed for promoting and furthering the ends of justice. The above decision shows that it is not at all obligatory that an adversarial procedure must be followed in a proceeding under art 32 for enforcement of a fundamental right.
2. Relaxation of strict rule of Locus Standi
The strict rule of locus standi has been relaxed by way of :
(a) Representative standing, and
(b) Citizen standing.
In D.C.Wadhwa v. State of Bihar4, S.C. held that a petitioner, a professor of political science who had done substantial research and deeply interested in ensuring proper implementation of the constitutional provisions, challenged the practice followed by the state of Bihar in repromulgating a number of ordinances without getting the approval of the legislature. The court held that the petitioner as a member of public has ‘sufficient interest’ to maintain a petition under Article 32. The rule of locus standi have been relaxed and a person acting bona fide and having sufficient interest in the proceeding of Public Interest Litigation will alone have a locus standi and can approach the court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration…court has to strike balance between two conflicting interests:
i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and
ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive and the legislature .
It is depressing to note that on account of trumpery proceedings initiated before the courts, innumerable days are wasted, which time otherwise could have been spent for the disposal of cases of genuine litigants.
Though the Supreme Court spares no efforts in fostering and developing the laudable concept of PIL and extending its arm of sympathy to the poor, ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go unnoticed, unrepresented and unheard.
Subjects Of Public Interest Litigation5
I) Matters relating to general public :
i) bonded labour matters
ii) matters of neglected children
iii) exploitation of casual labourers and non-payment of wages to them (except in individual cases)
iv) matters of harassment or torture of persons belonging to Scheduled Castes, Scheduled Tribes and Backward Castes, either by Police or by co-villagers
v) matters relating to environmental pollution, disturbance of ecological balance, drugs, food adulteration, maintenance of heritage and culture, antiques, forests and wild life.
vi) petitions from riot victims and
vii) Petitions against police for refusing to register a case, harassment by police, death in police custody.
viii) Petitions against atrocities on women, in particular harassment of bride, bride-burning, rape, murder, kidnapping etc
ix) other matters of public importance.
II) Matters of private nature that can’t be brought through PIL are
i) threat to or harassment of the petitioner by private persons,
ii) seeking enquiry by an agency other than the local police,
iii) seeking police protection,
iv) land lord tenant dispute,
v) service matters
Against Whom Pil Can Be Filed
A PIL can be filed against a State/ Central Govt., Municipal Authorities, not any private party. The definition of State is the same as given under Article 12 of the Constitution.
# The Government and Parliament of India
# The Government and Legislatures of each of the respective States.
# All local Authorities
# Other Authorities within the territory of India or under the Government of India
Private party can be included in PIL as “Respondent”, after making concerned State Authority a party. PIL can’t be filed against a party alone.
Factors That Have Contributed To The Growth Of PIL
# The character of the Indian Constitution. Part III (Fundamental Rights) and part IV (Directive Principles of State Policy) provide framework for regulating relations between the state and its citizens inter-se.
# India has some of the most progressive social legislations in the world relating to bonded labour, minimum wages, land ceiling, environmental protection, etc. This has made the court haul up the executives when they are not performing their duties in ensuring rieghts of the poor as per the law.
# The liberal interpretation of the locus standi where any person can apply to the court on Judges can take sou moto action based on the newspaper articles and letters.
# Although social and economic rights given in the Constitution under part IV are not legally enforceable, courts have creatively read these into Fundamental Rights. For instance Right to Life under Article 21 has been expandedto include free legal aid, right to live with dignity, right to education, right to work.
# Sensitive judges have constantly innovated on the side of the por. For instance, in the Bandhua Mukti Morcha6 case in 1982, the Supreme Court put the burden of proof on the respondents stating it would treat every forced labour cases as bonded labour unless proven otherwise by the employer.
# In PIL cases where the petitioner is not in a position to provide all necessary evidence, either because it is voluminous or because the parties are weak socially or economically, courts have appointed commissions to collect information on facts and present them before the bench.
Private Litigation When May Take The Form The Form Of Public Litigation:
In Shivajirao Nilangekar Patil v. Mahesh Madhav Gosavi8, where allegations were made in the petition disclosed a lamentable state of affairs in one of the premier University of India, the Supreme Court laid down that the petitioner might have moved in his private interest but enquiry was ordered into the conduct of examiners of the Bombay University as one of the highest medical degrees was a matter of public interest. In this case Chief Minister tried to get MD for his degrees.
Some Important Recent Cases Of Public Interest Litigation In The Supreme Court Of India
1. PIL against removal of governors; Decided On: 07.05.2010
B.P. Singhal v. Union of India (UOI) and Anr.8
Hon'ble Judges: K.G. Balakrishnan, C.J., S.H. Kapadia, R.V. Raveendran, B. Sudershan Reddy and P. Sathasivam, JJ.
The case was related to Constitution dealing with removal of Governors. Maintainability of Petition was challenged based upon the interpretation of Article 156 of the Constitution of India. Whether the instant petition against the Presidential Order for removal of Governors maintainable?
Holding of the Court:- With regard to question of public importance touching upon the scope of Article 156(1) of the Constitution and the limitations upon Doctrine of Pleasure the Petitioner has necessary locus.
What is the scope of “Doctrine of pleasure”? Held, Doctrine of Pleasure means that the holder of an office under pleasure can be removed at any time, without notice, without assigning cause, and without there being a need for any cause.
But where rule of law prevails, there is nothing like unfettered discretion or unaccountable action. Constitution of India provides that some offices will be held during the pleasure of the President, without any express limitations or restrictions, it should however necessarily be read as being subject to the “fundamentals of constitutionalism”.
Doctrine of pleasure, however, is not a licence to act with unfettered discretion to act arbitrarily, whimsically, or capriciously. Withdrawal of pleasure cannot be at the sweet will, whim and fancy of the Authority, but can only be for valid reasons.
Governors to be apolitical person like the President to discharge purely constitutional functions, irrespective of their earlier political background.
Whether there are any express or implied limitations/restrictions upon the power under Article 156(1) of the Constitution of India? Held, doctrine of pleasure under Article 156(1) is subject to the express restrictions — Article 310(2) and the restrictions in Article 311(1) and (2) implies restriction on “Doctrine of Pleasure — Clause (2) of Article 311 which provides that no such employee shall be dismissed or removed from service except after an inquiry in which he has been informed of the charges levelled against him and given a reasonable opportunity of being heard in respect of those charges. Only limitation on the exercise of the power under Article 156 is that it should be for valid reasons. What constitute valid reasons would depend upon the facts and circumstances of each case.
Judicial review of withdrawal of President’s pleasure — Whether the removal of Governors in exercise of the doctrine of pleasure is open to judicial review? Held, As there is no need to assign reasons, any removal as a consequence of withdrawal of the pleasure will be assumed to be valid and will be open to only a limited judicial review — If prima facie the removal was either arbitrary, malafide, capricious or whimsical, the Court will call upon the Union Government to disclose, the material upon which the President had taken the decision to withdraw the pleasure. If Union Government is unable to disclose then Court can interfere. However, Court will not interfere merely because different view possible or that material reasons insufficient.
Petition Disposed accordingly.
“Power under Article 156(1) cannot be exercised in an arbitrary, capricious or unreasonable manner and only in rare and exceptional circumstances for valid and compelling reasons.”
“Court can call upon the Union Government to disclose, the material upon which the President had taken the decision to withdraw the pleasure if prima facie the removal was either arbitrary, mala fide, capricious or whimsical.”
2. PIL against dissolution of Bihar Assembly in 2005 ; Decided On: 24.01.2006
Rameshwar Prasad and Ors. v. Union of India (UOI) and Anr.9
JUDGMENT given by Y.K. Sabharwal, C.J.
The challenge in the present petitions is to the Constitutional validity of Notification dated 23rd May, 2005 ordering dissolution of the Legislative Assembly of the State of Bihar — Whether the proclamation dated 23rd May, 2005 dissolving the Assembly of Bihar is illegal and unconstitutional.
Hold of the Court - If political party with support of other political party stakes claim to form government and satisfies the Governor about its majority to form stable government, Governor cannot refuse formation of Government and override the majority claim because of his subjective assessment that majority was cobbled by illegal and unethical means. Grounds of mal-administration by State Government enjoying majority is not available for invoking power under Article 356. Hence, impugned proclamation was unconstitutional.
Immunity to Governor under Article 361 of the Constitution of India. What is the scope of Article 361 granting immunity to the Governor. Governor enjoys complete immunity. Governor is not answerable to any Court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties. Immunity granted by Article 361(1) does not, however, take away the power of the Court to examine the validity of the action including on the ground of mala fides.
Status quo ante (Restoration of) If the notification dated 23rd May 2005 is declared as invalid, is it necessary to direct status quo ante as on 7th March, 2005 or 4th March, 2005? Held, status quo ante cannot be directed. Reasons are the larger public interest, keeping in view the ground realities and taking a pragmatic view. As a result of the impugned Proclamation, the Election Commission of India had announced election which had reached on an advanced stage. Hence, the court permitted the completion of the ongoing election process with the fond hope that the electorate may again not give fractured verdict and may give a clear majority to one or other political party.
3. PIL against removal of MPs; Decided On: 10.01.2007
Raja Ram Pal v. The Hon'ble Speaker, Lok Sabha and Ors.10
Y.K. Sabharwal, C.J., K.G. Balakrishnan, C.K. Thakker R.V. Raveendran and D.K. Jain, JJ.
C.K. Thakker, J.
Parliamentary Privileges: Meaning
The interpretation of Article 105 of Constitution of India is in issue in these matters. The question is whether in exercise of the powers, privileges and immunities as contained in Article 105, are the Houses of Parliament competent to expel their respective Members from membership of the House. If such a power exists, is it subject to judicial review and if so, the scope of such judicial review.
The unfortunate background in which the aforesaid questions have arisen is the allegation that the Members of Parliament (MPs) indulged in unethical and corrupt practices of taking monetary consideration in relation to their functions as MPs.
A private channel had telecast a programme on 12th December, 2005 depicting 10 MPs of House of People (Lok Sabha) and one of Council of States (Rajya Sabha) accepting money, directly or through middleman, as consideration for raising certain questions in the House or for otherwise espousing certain causes for those offering the lucre. This led to extensive publicity in media. The Presiding Officers of each Houses of Parliament instituted inquiries through separate Committees. Another private channel telecast a programme on 19th December, 2005 alleging improper conduct of another MP of Rajya Sabha in relation to the implementation of Member of Parliament Local Area Development Scheme ('MPLAD' Scheme for short). This incident was also referred to a Committee. The majority Report recommended expulsion of the 10 members from the membership of Lok Sabha finding that their continuance as Members of the House would be untenable.
Power of Parliament to expel a Member –
Held, Members of the Constitution wanted Parliament to retain power and privileges to take appropriate action against any individual member for "anything that has been done by him" which may bring Parliament or Legislative Assembly into "disgrace" - Therefore, it cannot be said that the Founding Fathers of the Constitution were not aware or never intended to deal with individual misdeeds of members - It cannot be said that no action can be taken by the Legislature under Article 105 or 194 of the Constitution of India.
The appropriate course in case of allegation of corruption against a Member of Parliament, is to prosecute the member in accordance with law (The immunity under Article 105(2) may not be available, recognizes immunity to a member who is a bribe taker only where the 'bribe' is taken in respect of a 'vote' given by him in Parliament and not otherwise). Such cases can be fast tracked. Pending such criminal proceedings, the member can be suspended temporarily, if necessary, so as to prevent him from participating in the deliberations of the Houses. On being tried, if the member is convicted, he becomes disqualified for being or continuing as a Member under Article 102(1)(e). If he is acquitted, he is entitled to continue as a member. Though it may sound cumbersome, that apparently is what the Constitution intends.
Therefore, there is no power of expulsion in the Parliament, either inherent or traceable to Article 105(3). Expulsion by the House will be possible only if Article 102 or Article 101 is suitably amended or if a law is made under Article 102(1)(e) enabling the House to expel a member found unworthy or unfit of continuing as a member.
In view of the above, I hold that the action of the two Houses of Parliament, expelling the petitioners is violative of Articles 101 to 103 of the Constitution and therefore invalid. Petitioners, therefore, continue to be Members of Parliament (subject to any action for cessation of their membership). Petitions and transferred cases disposed of accordingly.
RAVEENDRAN J. gave dissenting Judgment
Legislature posses plenary powers controlled by the basic concepts of written constitution conferring powers on the legislature to function.
Act of illegality or unconstitutionality will not save the Parliamentary proceedings from the scope of judicial review, as in case of gross illegality or violation of constitutional provisions the Court has the jurisdiction to examine the procedure adopted.
4. PIL for improving the conditions of quarry workers; Decided On: 13.08.1991
Bandhua Mukti Morcha v. Union of India (UOI) and Ors11
Ranganath Misra, C.J., M.M. Punchhi and S.C. Agrawal, JJ.
A letter addressed to this Court complaining about prevalence of bonded labour system in Cutton, Anangpur and Lakkarpur areas of Faridabad District in Haryana State wherein the stone quarries workers are living in most inhuman conditions, was treated as a writ petition under Article 32 of the Constitution. this Court appointed two Advocates as Commissioners to inquire into the working conditions of the stone quarry workers with particular reference to the cases mentioned in the writ petition. this Court finding the necessity of an in-depth investigation into social and legal aspects of the problem also appointed Dr. S.B. Patwardan and Mr. Krishan Mahajan to study the working conditions prevailing in the various quarries within the Faridabad district with particular reference to violation of provisions of the Bonded Labour System (Abolition) Act of 1976 and Inter-State Migrant Workmen (Regulation of Employment & Conditions of Service) Act. The Commissioners furnished their report to the Court on 28th of June, 1982.
Several questions were raised before the Court apart from merit of the dispute; the important ones being (i) whether an application under Article 32 of the Constitution was maintainable, particularly when no allegation of infringement of petitioner's fundamental right was made; (ii) whether a letter addressed to the Court could be treated as a writ petition and be proceeded with in the absence of support by affidavit or verification; and (iii) whether the Court had power to appoint Commissioners or an investigative body to inquire into allegations made in the petition and by affidavits and require reports to be made to the Court for facilitating exercise of its jurisdiction under Article 32 of the Constitution.
The court accordingly allowed this writ petition and issued the above directions to the Central Government and the State of Haryana and the various authorities mentioned in the preceding paragraphs of this judgment so that these poor unfortunate workmen who lead a miserable existence in small hovels, exposed to the vagaries of weather, drinking foul water, breathing heavily dust-laden polluted air and breaking and blasting stone all their life, may one day be able to realise that freedom is not only the monopoly of a few but belongs to them all and that they are also equally entitled along with others to participate in the fruits of freedom and development. These directions may be summarised as follows:
(1) The Government of Haryana will, without any delay and at any rate within six weeks from today, constitute Vigilance Committee in each sub-division of a district in compliance with the requirements of Section 13 of the Bonded Labour System (Abolition) Act, 1976 keeping in view the guidelines given by us in this judgment.
(2) The Government of Haryana will instruct the district magistrates to take up the work of identification of bonded labour as one of their top priority tasks and to map out areas of concentration of bonded labour which are mostly to be found in stone quarries and brick kilns and assign task forces for identification and release of bonded labour and periodically hold labour camps in these areas with a view to educating the labourers inter alia with the assistance of the National Labour Institute.
(3) The State Government as also the Vigilance Committee and the district magistrates will take the assistance of non-political social action groups and voluntary agencies for the purpose of ensuring implementation of the provisions of the Bonded Labour System (Abolition) Act, 1976.
(4) The Government of Haryana will draw up within a period of three months from today a scheme or programme for rehabilitation of the freed bonded labourers in the light of the guidelines set out by the Secretary to the Government of India, Ministry of Labour in his letter dated September 2, 1982 and implement such scheme or programme to the extent found necessary.
(5) The Central Government and the Government of Haryana will take all necessary steps for the purpose of ensuring that minimum wages are paid to the workmen employed in the stone quarries and stone crushers in accordance with the principles laid down in this judgment and this direction shall be carried out within the shortest possible time so that within six weeks from today, the workmen start actually receiving in their hands a wage not less than the minimum wage.
(6) If payment of wages is made on truck basis, the Central Government will direct the appropriate officer of the Central Enforcement Machinery or any other appropriate authority or officer to determine the measurement of each truth as to how many cubic ft. of stone it can contain and print or inscribe such measurement on the truck so that appropriate and adequate wage is received by the workmen for the work done by them and they are not cheated out of their legitimate wage.
(7) The Central Government will direct the Inspecting Officers of the Central Enforcement Machinery or any other appropriate Inspecting Officers to carry out surprise checks at least once in a week for the purpose of ensuring that the trucks are not loaded beyond their true measurement capacity and if it is found that the trucks are loaded in excess of the true measurement capacity, the Inspecting Officers carrying out such checks will immediately bring this fact to the notice of the appropriate authorities and necessary action shall be initiated against the defaulting mine owners and/or thekedars or jamadars.
(8) The Central Government and the Government of Haryana will ensure that payment of wages is made directly to the workmen by the mine lessees and stone crushers owners or at any rate in the presence of a representative of the mine lessees or stone crusher owners and the Inspecting Officers of the Central Government as also of the Government of Haryana shall carry out periodic checks in order to ensure that the payment of the stipulated wage is made to the workmen…………and some other guidelines.
Adversarial Procedure is Not Sacrosanct
An adversarial procedure is seen as one where each party produces his own evidence tested by cross examination by the other side and the judge sits like an umpire and decides the case only on the basis of field material before him by the both parties. There is nothing sacrosanct about the adversarial procedure, and in fact it is not followed in many other countries where the civil system law prevails. The Supreme Court has observed that it is only because we have been following adversarial procedure for over a century owing to the introduction of Anglo-Saxon system of jurisprudence under the British rule that become a major part of our conscious as well as sub-conscious thinking, that every judicial proceeding must be cast in the mould of adversarial procedure. The adversarial litigation has in fact come under severe criticism even in that country of its origin and there is increasing tendency even in that country to depart from strict norm.
The adversarial procedure reflected by evidence led by either parties and tested by cross examination by the other party has become a part of India legal system because embodied in the code of civil procedure 1908 and the Indian evidence act 1872 but these status obviously have no application where a new jurisdiction created in the supreme court for enforcement of any fundamental right. The use of the dynamics of the public interest litigation represents a creation of such a new jurisdiction for enforcing fundamental rights. In this context in a specific case the supreme court had observed that the case before us is not of the ordinary type where there are two contending parties, a claim is raised by one and denied by the other, issues are struck, evidence is led and the findings follow…the writ petition is essentially in the nature of public interest litigation and the pertitioner has attempted to voice the grievances of the community.
There has been a mindset that justice cannot be done unless the adversarial procedure is adopted. However, there is a considerable body of juristic opinion in India which believes that strict adherence of adversarial procedure can sometimes lead to injustice particularly were the parties are not even balanced in social or economical strength.
Therefore when the poor come before the court particularly for enforcement the fundamental rights, it is necessary material before the court for securing the enforcement of their fundamental rights. The Supreme Court has thus opined that the problems of the poor that are now coming before the court are qualitatively different from those that have hitherto occupied the attention of the court. They need a different kind of legal skill and a different kind of judicial approach. If we blindly follow the adversarial procedure in their case, they would never be able to enforce their fundamental rights and the result would be nothing but a mockery of the constitution. The court thus reiterated that: We have therefore to abandon the laissez faire approach in the judicial process particularly where it involves a question of enforcement fundamental rights and forge new tools, devise new methods and adopt new strategies for the purpose of making fundamental rights meaningful for large masses of people.
Grounds On Which A PIL Can Be Rejected
Cases :- Mohit v. District Magistrate12: In this case it was held that when a petition is filed under article 32 for writ of habeas corpus, but the detenu is released during the pendency of the case, the court dismissed it for being infrutuous.
Not impleading the necessary parties
Cases :- Krishna Swamy v. Union of India13:In this case the writ petition was concerned with the removal of a sitting Supreme Court Judge from office, but the Hon’ble Judge was not made a party to it. The petition was dismissed on this ground alone.
Misrepresentation or suppression of facts
Cases :- K Welcome Hotel v. State of Andhra Pradesh14: The petitioners have not shown that in their overall turnover they have since the promulgation of impugned orders suffered losses. And this situation never fructified because the 1978 Order was kept in suspended animation for a period of two years and when the latest order dated January 5, 1981 was promulgated, it was still-born at the hands of the Court because of the ex parte stay order obtained by the petitioners.
Means that once a case is disposed of by any competent court then no need to go to other court. The principle of res judicata, is covered under Section 11 of the Code of Civil Procedure.
Cases :- Forward Construction Co. Vs. Prabhat Mandal (AIR of SC 391), the Supreme Court, while dealing with the question of Res judicata in a PIL, held that the principle would apply to a PIL but it must be proved that the previous litigation was a PIL and not one relating to a private grievance. It has to be a bonafide likigation in respect'of a right which is common and is agitated in common with others. The court held that the onus of proving the want of bonafides in respect oGthe previous litigation, would be on the party seeking to avoid the decision
Delays or laches on the part of the petitioner
Cases :- Trilochand Motichand v. HP Munshi15: The petition was filed too late and thus rejected.
Exception:-Gyan Singh v. High Court of Punjab and Haryana16: But in this case the reasons given for delay was convincing and accepted.
Cases :- Kini v. Union of India17:
ABUSE OF PUBLIC INTEREST LITIGATION:
However, the development of PIL has also uncovered its pitfalls and drawbacks. As a result, the apex court itself has been compelled to lay down certain guidelines to govern the management and disposal of PILs. And the abuse of PIL is also increasing alongwith its extended and multifaceted use.
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.
Illustrative Cases Of Misuse Of Public Interest Litigation In The Supreme Court Of India
Negative Use Of PIL :
1. PIL for use of forest land ; Decided On: 10.04.2006
T.N. Godavarman Thirumulpad v. Union of India (UOI) and Ors.
Y.K. Sabharwal, C.J., Arijit Pasayat and S.H. Kapadia, JJ.
Topic: Environment - forest land
Under the Forest (Conservation) Act, 1980 the matter pertaining to question that whether land measuring about 15 hectares leased by State of Chattisgarh to M/s. Maruti Clean Coal and Power Limited for setting up of coal washery is part of 'forest land' . Contention was that prior approval of Central Government under Act of 1980 was necessary before setting up coal washery as land allotted to M/s. Maruti Clean Coal and Power Limited was forest land according to petitioner, but as per Central Empowered Committee (CEC) report land allotted to M/s. Maruti Clean Coal and Power Limited is not forest land so prior approval of Central Government was not required. Again contention was there that proper parameters have not been taken into account and better technology was not deliberately resorted to. But recommendations of CEC were accepted –that the land allotted to M/s. Maruti Clean Coal and Power Limited is not forest land so prior approval not required.
Matter pertaining to genuineness of public interest litigation - CEC did not exceeded its jurisdiction in pointing out facts relevant to determine bonafides of applicant. M/s. Maruti Clean Coal and Power Limited pleaded since beginning that Deepak Agarwal has been set up by their competitor and there was link between competitors of M/s. Maruti Clean Coal and Power Limited and Deepak Agarwal . The application filed by Deepak Agarwal was far from bona fide. The label of public interest given by Deepak Agarwal clearly and demonstrably camouflage since real person behind this application allegedly filed in public interest is competitor of M/s. Maruti Clean Coal and Power Limited operating in area and having monopoly. The Supreme Court strongly depreciated filing of entirely misconceived and mala fide application in grab of public interest by litigant. Thus application dismissed.
The judges observed that for the last few years, inflow of public interest litigation has increased manifold. A considerable judicial time is spent in dealing with such cases. A person acting bona fide alone can approach the court in public interest. Such a remedy is not open to an unscrupulous person who acts, in fact, for someone else. The liberal rule of locus standi exercised in favour of bona fide public interest litigants has immensely helped the cause of justice. Such litigants have been instrumental in drawing attention of this Court and High Courts in matters of utmost importance and in securing orders and directions for many under-privileged such as, pavement dwellers, bonded labour, prisoners' conditions, children, pollution of air and water, clean fuel, hazardous and polluting industries or preservation of forests. While this Court has laid down a chain of notable decisions with all emphasis at their command about the importance and significance of this newly developed doctrine of PIL, it has also hastened to sound a red alert and a note of severe warning that courts should not allow its process to be abused by a mere busybody or a meddlesome interloper or wayfarer or officious intervener without any interest or concern except for personal gain or private profit or other oblique' consideration.
2. PIL for conversion of death sentence to life imprisonment, Decided On: 18.11.2003
Ashok Kumar Pandey v. The State of West Bengal and Ors.19
Hon'ble Judges: Doraiswamy Raju and Arijit Pasayat, JJ.
This petition under Article 32 of the Constitution of has been filed purportedly in public interest. The prayer in the writ petition is to the effect that the death sentence imposed on one Dhananjay Chatterjee @ Dhana (hereinafter referred to as 'the accused') by the Sessions Court, Alipur, West Bengal, affirmed by the Calcutta High Court and this Court, needs to be converted to a life sentence because there has been no execution of the death sentence for a long time. Reliance was placed on a Constitution Bench decision of this Court in Smt. Triveniben v. State of Gujarat.
According to the petitioner, he saw a news item in a TV channel wherein it was shown that the authorities were unaware about the non-execution of the death sentence and, therefore, condemned prisoner, the accused has suffered a great degree of mental torture and that itself is a ground for conversion of his death sentence to a life sentence. It needs to be noted here that prayer for conversion of death sentence to life sentence has already been turned down by the Governor of West Bengal and the President of India in February 1994 and June 1994 respectively as stated in the petition. When the matter was placed for admission, we asked the petitioner who appeared in-person as to what was his locus standi and how a petition under Article 32 is maintainable on such nature of information by which he claims to have come to know of it. His answer was that as a public spirited citizen of the country, he has a locus to present the petition and when the matter involved life and liberty of a citizen, this Court should not stand on technicalities. There has been violation of Article 21 of the Constitution and the prolonged delay in execution of sentence is violative of Article 21, so far as the accused is concerned.
When there is material to show that a petition styled as a public interest litigation is nothing but a camouflage to foster personal disputes, said petition is to be thrown out. Before we grapple with the issue involved in the present case, we feel it necessary to consider the issue regarding public interest aspect. Public Interest Litigation which has now come to occupy an important field in the administration of law should not be "publicity interest litigation" or "private interest litigation" or "politics interest litigation" or the latest trend "paise income 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 poke 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 public interest litigation will alone have a locus standi and can approach the Court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration. . 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 objective.
It is depressing to note that on account of such trumpery proceedings initiated before the Courts, innumerable days are wasted, which time otherwise could have been spent for the disposal of cases of the genuine litigants. Though we spare no efforts. In fostering and developing the laudable concept of PIL and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievance go unnoticed, un-represented and unheard; yet we cannot avoid but express our opinion that while genuine litigants, with legitimate grievances relating to civil matters involving properties worth hundreds of millions of rupees and criminal cases in which persons sentenced to death facing gallows under untold agony and persons sentenced to life imprisonment and kept in incarceration for long years, persons suffering from undue delay in service matters - government or private, persons awaiting the disposal of cases wherein huge amounts of public revenue or unauthorized collection of tax amounts are locked up, detenu expecting their release from the detention orders etc. etc. are all standing in a long serpentine queue for years with the fond hope of getting into the Courts and having their grievances redressed, the busy bodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private profit either of themselves or as a proxy of others or for any other extraneous motivation or for glare of publicity break the queue muffing their faces by wearing the mask of public interest litigation and get into the Courts by filing vexatious and frivolous petitions and thus criminally waste the valuable time of the Courts and as a result of which the queue standing outside the doors of the court never moves, which piquant situation creates frustration in the minds of the genuine litigants and resultantly they loose faith in the administration of our judicial system.
3. PIL against Ports Authority; Decided On: 14.05.2009
Villianur Iyarkkai Padukappu Maiyam v.Union of India (UOI) and Ors.21
Hon'ble Judges: K.G. Balakrishnan, C.J., P. Sathasivam and J.M. Panchal, JJ
Case related to Trade and Commerce regarding Development of Pondicherry port. Contract awarded to one participating party, Respondent No. 11 herein. Selection procedure was challenged by the Appellant on the on ground of it being arbitrary and done with oblique motive. It was held, Appellants could not specify either in the petitions filed before the High Court or in the memorandum of appeals as to which member of the expert committee or which official of the Government was interested in awarding Letter of Intent to Respondent No. 11 for oblique motives. Government of Pondicherry advertised three times calling for Expression of Interest from the interested firms and had identified Respondent No. 11 for development of the Port after adopting transparent procedure. Events leading to the award of Letter of Intent to the Respondent No. 11 does not indicate, in any manner that the Government had acted arbitrarily or that the Letter of Intent was issued to favour the Respondent No. 11 with oblique motives. Thus Appeals dismissed
Award of Contract to Private party for Development of Pondicherry port facilities. Applicability of Indian Major Ports Act, 1908 providing necessity of Prior approval from Central Government. Held, the Pondicherry Port is not a “major port” and as such jurisdiction and control to develop the said port vests in the Government of Pondicherry. Thus Appeal Dismissed.
Held, non-floating of tenders or not holding of public auction would not be in all cases be deemed to be the result of the exercise of the executive power in an arbitrary manner — When any State land is intended to be transferred or the State largesse decided to be conferred, resort should be had to public auction or transfer by way of inviting tenders from the people — Scope of judicial review limited in matters of policy decision and economic tests — Interference by Court only if decision contrary to staututory provision or the Constitution — No interference by court with economic decision taken by the State — Court cannot examine the relative merits of different economic policies and cannot strike down the same merely on ground that another policy would have been fairer and better — Appeal Dismissed
Maintainability of Public Interest Litigation. Selection procedure challenged by Appellant — Locus standi of Appellant questioned — Held, only ground on which the Appellants could have maintained a PIL before the High Court was to seek protection of the interest of the people of Pondicherry by safeguarding the environment — This issue was raised by the Appellants before the High Court and the High Court has issued directions regarding the same — Once direction were issued by the Court the element of public interest of the Appellants’ case no longer survived — Appellants cannot, therefore, proceed to challenge the Award of the Contract in favour of the Respondent No. 11 on other grounds as this would amount to challenging the policy decision of the Government of Pondicherry through a PIL, which is not permissible — Contract assailed by the Appellant purely commercial in nature — Neither the parties which had participated in the process of selection nor one of those who had expressed desire to develop the Port but was not selected came forward to challenge the selection procedure or selection of Respondent No. 11 — Appeals dismissed
“There is a very limited scope of judicial review in matters pertaining to policy making or economic policies can only interfere when the policies are contrary to statutory provision or the constitution of India.”
4. PIL against construction of multi-story building; Decided on : 19.01.2005
R and M Trust v. Koramangala Residents Vigilance Group and Ors.22
Hon'ble Judges: Ashok Bhan and A.K. Mathur, JJ
Case related to Property Article 226 - Constitution of India - Articles 14, 32 - Issuance of licence by Bangalore Municipal Corporation to appellant for construction of multi storeyed/multi-apartments in IInd and IIIrd cross in III Block, Koramangala layout, Bangalore – Public interest litigation filed by respondent Association Koramangala Residents Vigilance group challenging issuance of licence as illegal, arbitrary, unjustified and violative of Article 14. Grievance of Residents Aassociation that they acquired sites and built houses in area under bonafide belief that lay out would be developed and maintained according to law. Speculators in real estate were alleged to have started their activities which are detrimental to the quality of life of the residents of the area. Multi-storeyed buildings and multi-apartment buildings were causing strain on the public amenities. Property developers by using their influence and money were getting licences against statutory prohibitions. Writ petitioners alleged that Municipal Corporation of Bangalore was not empowered to grant licences to appellant.
Special leave Petition was filed. There was absence of application of any ceiling on construction of multi-storeyed building under provisions of Karnataka Municipal Corporation Act or Karnataka Town and Country Planning Act, 1961. As grant of permission to appellant for raising construction upto third floor not in violation of any of provisions of Act and rules, no illegality committed by corporation in issuance of license to respondent. Construction started by appellant in 1987 and building coming upto three floors. Construction stopped in 1988 and in March 1991 it was resumed after permission was granted. Writ Petition filed in November 1991 when construction almost complete. Since Delay being a very important factor while exercising extraordinary jurisdiction under Article 226, delay held fatal to petition. Thus the PIL held not maintainable.
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.) 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. 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 individual or
(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 PIL for Raunaq International Limited v/s IVR Construction Ltd23, 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.
Public Interest Litigants, all over the country, have not taken very kindly to such court decisions. They do fear that this will sound the death-knell of the people friendly concept of PIL. However, bona fide litigants of India have nothing to fear. Only those PIL activists who prefer to file frivolous complaints will have to pay compensation to then opposite parties. It is actually a welcome move because no one in the country can deny that even PIL activists should be responsible and accountable. It is also notable here that even the Consumers Protection Act, 1986 has been amended to provide compensation to opposite parties in cases of frivolous complaints made by consumers. In any way, PIL now does require a complete rethink and restructuring. Anyway, overuse and abuse of PIL can only make it stale and ineffective. Since it is an extraordinary remedy available at a cheaper cost to all citizens of the country, it ought not to be used by all litigants as a substitute for ordinary ones or as a means to file frivolous complaints.
1. People’s Union for Democratic Rights v. Union of India, AIR 1982 S.C. 1473
2. Bandhua Mukti Morcha AIR1992SC38; (1991)4SCC174
4. D.C.Wadhwa v. State of Bihar, AIR 1987 SC 579
5. Based on full Court decision dated 1.12.1988 and subsequent modifications
6. supra 2
7. Shivajirao Nilangekar Patil v. Mahesh Madhav Gosavi (1987 (4) SCC 227; AIR 1987 SC 294)
8. B.P. Singhal v. Union of India (UOI) and Anr (2010)6SCC33
9. Rameshwar Prasad and Ors. v. Union of India (UOI) and Anr
10. Raja Ram Pal v. The Hon'ble Speaker, Lok Sabha and Ors (2007)3SCC184
11. supra 2
12. Mohit v. D.M, AIR 1974 SC 2237
13. Krishna Swamy v. Union of India(AIR 1993 SC 1407)
14. K Welcome Hotel v. State of Andhra Pradesh (AIR 1983 SC 1015)
15. Trilochand Motichand v. HP Munshi (AIR 1970 SC 898)
16. Gyan Singh v. High Court of Punjab and Haryana(AIR 1980 SC1894)
17. Kini v. Union of India (AIR 1985 SC 8915)
18. T.N. Godavarman Thirumulpad v. Union of India (UOI) and Ors. AIR2006SC1774,
19. Ashok Kumar Pandey v. The State of West Bengal and Ors; AIR2004SC280; (2004)3SCC349
20. Smt. Triveniben v. State of Gujarat 1990CriLJ1810
21. Villianur Iyarkkai Padukappu Maiyam v.Union of India (UOI) and Ors, Special Leave Petition (C) No. 9988 of 2007
22. R and M Trust v. Koramangala Residents Vigilance Group and Ors., Appeal (civil) 1415 of 1999
23. Raunaq International Limited v. IVR Construction Ltd., AIR 1999 SC 393
1. Videh Upadhyay, “Public interest litigation in India (Concepts, Cases, Concerns)”, Lexis Nexis
2. Mamta Rao, “Public interest litigation , Legal aid and Lok adalat”, Eastern Book Company
1. www.news.vakilno1.com/labels/Supreme Court.htm
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