Remedies – Public Interest Litigation (PIL) – Part: 1
We briefly dealt with Public Interest Litigation in the earlier Project on “Knowledge of Law Essential for Public Servants”. For your beneift the biref is reproduced hereunder:
A Public Interest Litigation (PIL) can be filed in any High Court or directly in the Supreme Court. It is not necessary that the petitioner has suffered some injury of his own or has had personal grievance to litigate. PIL is a right given to the socially conscious member or a public spirited NGO to espouse a public cause by seeking judicial for redressal of public injury. Such injury may arise from breach of public duty or due to a violation of some provision of the Constitution. Public interest litigation is the device by which public participation in judicial review of administrative action is assured. It has the effect of making judicial process little more democratic.
According to the guidelines of the Supreme Court any member of public having sufficient interest may maintain an action or petition by way of PIL provided: –
» There is a personal injury or injury to a disadvantaged section of the population for whom access to legal justice system is difficult,
» The injury must have arisen because of breach of public duty or violation of the Constitution or of the law,
It must seek enforcement of such public duty and observance of the constitutional law or legal provisions.
» This is a powerful safeguard and has provided immense social benefits, where there is essentially failure on the part of the execute to ameliorate the problems of the oppressed citizens. Considering the importance of ths subject, three articles from the web on the subject are reproduced hereunder.
The Emergency of 1976 marked not just a political watershed in this country, but a judicial one as well. In the euphoria of the return to democracy and in an attempt to refurbish its image that had been tarnished by some Emergency decisions, the Supreme Court of India opened the floodgates to public interest litigation (PIL). under PIL, courts take up cases that concern not the rights of the petitioner but of the public at large. In the last two decades, PIL has emerged as one of the most powerful tools for promoting social justice and for protecting the rights of the poor.
Among the numerous factors that have contributed to the growth of PIL in this country, the following deserve special mention:
» The character of the Indian Constitution. Unlike Britain, India has a written constitution which through Part III (Fundamental Rights) and Part IV (Directive Principles of State Policy) provides a framework for regulating relations between the state and its citizens and between citizens inter-se.
» India has some of the most progressive social legislation to be found anywhere in the world whether it be relating to bonded labor, minimum wages, land ceiling, environmental protection, etc. This has made it easier for the courts to haul up the executive when it is not performing its duties in ensuring the rights of the poor as per the law of the land.
» The liberal interpretation of locus standi where any person can apply to the court on behalf of those who are economically or physically unable to come before it has helped. Judges themselves have in some cases initiated suo moto action based on newspaper articles or letters received
» Although social and economic rights given in the Indian Constitution under Part IV are not legally enforceable, courts have creatively read these into fundamental rights thereby making them judicially enforceable. For instance the “right to life” in Article 21 has been expanded to include right to free legal aid, right to live with dignity, right to education, right to work, freedom from torture, barfetters and hand cuffing in prisons, etc.
» Sensitive judges have constantly innovated on the side of the poor. for instance, in the Bandhua Mukti Morcha case in 1983, the Supreme Court put the burden of proof on the respondent stating it would treat every case of forced labor as a case of bonded labor unless proven otherwise by the employer. Similarly in the Asiad workers judgment case, Justice P.N. Bhagwati held that anyone getting less than the minimum wage can approach the Supreme Court directly without going through the labor commissioner and lower courts
» In PIL cases where the petitioner is not in a position to provide all the 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 it before the bench.
When and how to File a PIL
1.Make an informed decision to file a case.
2.Consult all affected interest groups who are possible allies.
3.Be careful in filing a case because
i.Litigation can be expensive.
ii.Litigation can be time consuming.
iii.Litigation can take away decision making capability/strength from communities.
iv.An adverse decision can affect the strength of the movement.
v.Litigation involvement can divert the attention of the community away from the real issues.
4.If you have taken the decision
i.Collect all the relevant information
ii.Be meticulous in gathering detail for use in the case. If you plan to use photographs, retain the negatives and take an affidavit from the photographer. Retain bills.
iii.Write to the relevant authorities and be clear about your demands.
iv.Maintain records in an organized fashion.
v.Consult a lawyer on the choice of forum.
vi.Engage a competent lawyer. If you are handling the matter yourself make sure you get good legal advice on the drafting.
vii.A PIL can be filed only by a registered organization. If you are unregistered, please file the PIL in the name of an office bearer/member in his/her personal capacity.
viii.You may have to issue a legal notice to the concerned parties/authorities before filing a PIL. Filing a suit against the government would require issuing a notice to the concerned officer department at least two months prior to filing.
Expanding Old Rights & Creating New Ones
There is an urgent need to expand old rights and create new rights. Indeed, the success of legal advocacy needs to be viewed by the social activist in these terms and not merely in terms of winning or losing cases. For instance, although Haksar and others, as part of their work on promoting human rights in Northeastern India, have been unsuccessful in their decade-long effort to get the Armed Forces Special Power Act repealed, they have succeeded in getting the provision in the criminal procedure code that women be searched only by women extended to the army.
Similarly, it is important to try and create new rights based on a vision of the future. For instance Article 14 of the Indian Constitution treat both an MNC and a citizen equally despite the inherent and yawning inequality between the two. Therefore if a citizen’s rights are to be fully protected in the wake of increasing MNC activity in the national economy, one needs to critique the concept of equality in liberal theory and develop new ideas on equality. The filing of test cases is one way of developing these new ideas.
The same holds true for individual rights vs. collective rights. The prevailing legal system recognizes only private property – where the owner has the right against the whole world – and public property, which belongs to the state. But before the imposition of the British legal system there existed a whole tradition of common property which now has no recognition in law. “Ass a result all forms of collective or shared realities whether they are in the realm of rights, relations, practices or knowledge have no place in the present legal scheme even though they are vital for human survival. They are not part of the language of legal discourse, either of the judges or lawyers and mention of these rights as ‘collective human rights’ is met with surprise, skepticism and often cynicism,” say Pradeep Prabhu of Khastakari Sanghatana. Prabhu, an advocate by training, has had some recent success in getting the Supreme Court to accept the validity of oral testimonies of poor tribals as evidence.
Given the above scenario, one of the most difficult tasks for a social activist is to find a lawyer with a vision who is able to see the bigger picture and be prepared to fight for it. This calls for activists to sensitize lawyers on an ongoing basis and not restrict this activity to the peculiarities of a specific case. Also there is a need to sensitise law students in order to build a body of public interest lawyers in this country.
Part of the reason why there are few public interest lawyers in India is due to how poorly it pays. Public interest lawyers in the US (sometimes derisively called ‘ambulance chasers’) are easier to find. They largely operate on a ‘no-win, no-fee’ basis, given the huge damages that are awarded by US courts and which are then split between the client and the lawyer. In India even where free legal aid is provided – as it is to SCs & STs, industrial workers, women, bonded laborers, etc. – public- spirited lawyers end up paying out of their pocket as the amounts that are fixed for even photocopying of documents do not cover the cost of the service, says Ravi Rebba Pragada of the NGO Samata – which works among tribals in the Vishakapatnam district of Andhra Pradesh – who has accessed free legal aid services.
In the U.K., where courts like those in India don’t award massive damages, there has been an innovation in legal aid with wealthy benefactors pitching in to underwrite legal costs. One property developer underwrote the legal costs of a large number of arthritis patients who sued- for compensation for side effects they suffered from the drug Opren. Similarly Sir James Goldsmith, billionaire financier and father-in-law of Imran Khan, set up the Goldsmith Libel Fund which provided support to a motley assortment of libel defendants. But it is debatable if such private initiative would be forthcoming, or indeed welcome, to support PIL cases involving the poor and the marginalised. Activists, however, need to seriously consider the issue of getting more public-spirited lawyers to enter the fray.
The rule of law does not mean that the protection of the law must be available only to a fortunate few or that the law should be allowed to be prostituted by the vested interests for protecting and upholding the status quo under the guise of enforcement of their civil and political rights. The poor too have civil and political rights and rule of law is meant for them also, though today it exists only on paper and not in reality. If the sugar barons and the alcohol kings have the fundamental right to carry on their business and to fatten their purses by exploiting the consuming public, have the chamars belonging to the lowest strata of society no fundamental right to earn an honest living through their sweat and toil?
Thus the court was willing to acknowledge that it had a mandate to advance the rights of the disadvantaged and poor, though this might be at the behest of individuals or groups who themselves claimed no disability. Such litigation, termed Public Interest Litigation or Social Action Litigation by its foremost advocate, Professor Upendra Baxi, has given the court “epistolary jurisdiction”.
Public Interest Litigation’s explicit purpose is to alienate the suffering off all those who have borne the burnt of insensitive treatment at the hands of fellow human being. Transparency in public life & fair judicial action are the right answer to check increasing menace of violation of legal rights. Traditional rule was that the right to move the Supreme Court is only available to those whose fundamental rights are infringed.But this traditional rule was considerably relaxed by the Supreme Court in its recent rulings:
Peoples Union for Democratic Rights v. Union of India ( A.I.R.. 1982 , S C 1473). The court now permits Public Interest Litigation or Social Interest Litigation at the instance of ” Public spirited citizens” for the enforcement of constitutional & legal rights of any person or group of persons who because of their socially or economically disadvantaged position are unable to approach court for relief. Public interest litigation is a part of the process of participate justice and standing in civil litigation of that pattern must have liberal reception at the judicial door steps.
In the Judges Transfer Case – AIR 1982, SC 149: Court held Public Interest Litigation can be filed by any member of public having sufficient interest for public injury arising from violation of legal rights so as to get judicial redress. This is absolutely necessary for maintaining Rule of law and accelerating the balance between law and justice.
It is a settled law that when a person approaches the court of equity in exercise of extraordinary jurisdiction, he should approach the court not only with clean hands but with clean mind, heart and with clean objectives.
Shiram Food & Fertilizer case AIR (1986) 2 SCC 176 SC through Public Interest Litigation directed the Co. Manufacturing hazardous & lethal chemical and gases posing danger to life and health of workmen & to take all necessary safety measures before re-opening the plant.
In the case of M.C Mehta V. Union of India (1988) 1 SCC 471 – In a Public Interest Litigation brought against Ganga water pollution so as to prevent any further pollution of Ganga water. Supreme court held that petitioner although not a riparian owner is entitled to move the court for the enforcement of statutory provisions , as he is the person interested in protecting the lives of the people who make use of Ganga water.
Parmanand Katara V. Union of India – AIR 1989, SC 2039 :- Supreme Court held in the Public Interest Litigation filed by a human right activist fighting for general public interest that it is a paramount obligation of every member of medical profession to give medical aid to every injured citizen as soon as possible without waiting for any procedural formalities.
Council For Environment Legal Action V. Union Of India – (1996)5 SCC281 : Public Interest Litigation filed by registered voluntary organisation regarding economic degradation in coastal area. Supreme Court issued appropriate orders and directions for enforcing the laws to protect ecology.
A report entitled “Treat Prisoners Equally HC” published in THE TRIBUNE , Aug 23 Punjab & Haryana High Court quashed the provisions of jail manual dividing prisoners into A , B & C classes after holding that there cannot be any classification of convicts on the basis of their social status, education or habit of living .This is a remarkable ruling given by High Court by declaring 576-A paragraph of the manual to be ” Unconstitutional”.
State V. Union Of India – AIR 1996 Cal 181 at 218 : Public Interest Litigation is a strategic arm of the legal aid movement which intended to bring justice. Rule Of Law does not mean that the Protection of the law must be available only to a fortunate few or that the law should be allowed to be abused and misused by the vested interest. In a recent ruling of Supreme Court on ” GROWTH OF SLUMS” in Delhi through Public Interest Litigation initiated by lawyers Mr. B.L. Wadhera & Mr. Almitra Patel Court held that large area of public land is covered by the people living in slum area . Departments despite being giving a dig on the slum clearance, it has been found that more and more slums are coming into existence. Instead of “Slum Clearance”, there is “Slum Creation” in Delhi. As slums tended to increase; the Court directed the departments to take appropriate action to check the growth of slums and to create an environment worth for living.
During the last few years, Judicial Activism has opened up a new dimension for the Judicial process and has given a new hope to the millions who starve for their livelihood. There is no reason why the Court should not adopt activist approach similar to Court in America , so as to provide remedial amplitude to the citizens of India.
Supreme Court has now realised its proper role in welfare state and it is using its new strategy for the development of a whole new corpus of law for effective and purposeful implementation of Public Interest Litigation. One can simply approach to the Court for the enforcement of fundamental rights by writing a letter or post card to any Judge. That particular letters based on true facts and concept will be converted to writ petition. When Court welcome Public Interest Litigation , its attempt is to endure observance of social and economic programmes frame for the benefits of have-nots and the handicapped. Public Interest Litigation has proved a boon for the common men. Public Interest Litigation has set right a number of wrongs committed by an individual or by society. By relaxing the scope of Public Interest Litigation, Court has brought legal aid at the doorsteps of the teeming millions of Indians; which the executive has not been able to do despite a lot of money is being spent on new legal aid schemes operating at the central and state level. Supreme Court’s pivotal role in expanding the scope of Public Interest Litigation as a counter balance to the lethargy and inefficiency of the executive is commendable.