Public Interest Litigation and Social Reformation: The Indian Perspective

Public Interest Litigation and Social Reformation: The Indian Perspective

Introduction:

“Law cannot stand aside from social changes around it.” ~ William J Brennon

Social transformation means the restructuring of all aspects of life; from culture to social
relations; from politics to economy; from the way we think to the way we live.1 Human
evolution is co-inclusive of individual growth as well as the collective development of
society. It was the view of Australian legal scholar, Sir George Paton, that the element of
human interest provides a greater sub-stratum of identity than the logical structure of the
law2. This signifies the expansion of the ambit of a legal foundation in society from that of
maintaining the natural course of order and morality, to that of becoming a harbinger of
change and reform. As society changes in its collective outlook, the law must change
accordingly to compliment and supplement this change in order to boost it in a positive
direction. However, contrary to the fluid nature of social interests, it must incorporate said
interests with its bedrock principles of public welfare, justice and equality. Thus, the law acts
as both the catalyst and the deterrent of social transformation in order to maintain a well-
balanced and carefully constructed status quo.

In terms of social transformation in India, society has seen a tremendous and mostly glorious
change in every sphere. Public sensitization to vital and fundamental issues in society has
increased due to the growing reach of conventional and unconventional media as well as the
expanding involvement of younger generations of society in moulding collective ideologies.
The Indian legal system has played an instrumental role in allowing the adapting situations to
assume the role of bringing about long-term sociological change in the country. Issues such
as rights of women and children, sexual offenses, homosexuality, unjust personal laws, labour
laws, environmental concerns and many more have been addressed or at least been brought
up as an area for potential affirmative change in the near future. The view of the judiciary and
policy-makers of our country has shifted to take into account all such issues which, on some
level, is due to the changing outlook of the people of India. Formalizing the process for the

1
Rabie M. (2013) Social Transformation. In: Global Economic and Cultural Transformation. Palgrave
Macmillan, New York
2
Paton, George - A textbook of Jurisprudence

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 Public Interest Litigation and Social Reformation: The Indian Perspective

people to address these issues before an authority in order to bring about legal and social
change, manifested itself in the form of the Public Interest Litigation.

Background of Public Interest Litigation:

As former Member of Parliament and advocate Kapil Sibal once said, “The genesis of the
Public Interest Litigation in listening to the voice of the voiceless and giving access to the
poor, the marginalized, and the weak is a unique experiment to be lauded.”

In simple terms, Public Interest Litigation means litigation for the protection of the public
interest. The concept of Public Interest Litigation (hereinafter PIL) is a derivation of Article
32 of the Constitution of India which articulates the remedies for enforcements of rights
conferred by Part III of the constitution. The first clause of this article states, “The right to
move the Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by this Part is guaranteed”.3 PIL as a legal instrument derives its legitimacy from
this clause.

In its early years, the Supreme Court of India followed the Anglo-Saxon model of
adjudication where procedural technicalities such as locus standi (the right to be heard in
court) were governed in a strict and often limited manner. Around the 1980’s, the status quo
was such that legal recourse was available only to the affluent and influential classes of
society. The complex and expensive process of seeking remedies from Indian courts had
made it nearly impossible for the economically backward, marginalized and disadvantaged
groups to avail it. Such sections faced rampant human rights violations, growing levels of
unrecognized social and informal justice, and vigilantism. Following the Emergency period
(1975-77), the Supreme Court began reforming its procedures and relaxed its rule of locus
standi to accommodate the legal needs of the oppressed sections of society.

The concept of PIL was heralded by Justice V. R. Krishna Iyer and Justice P. N. Bhagwati.
The first reported case of PIL was Hussainara Khatoon v. State of Bihar, 19804, where an
advocate, K. Hingorani, upon reading an article published in the Indian Express about scores
of undertrial prisoners suffering in Bihar prisons, filed a writ petition on their behalf in the
Supreme Court. The bench, led by Justice P. N. Bhagwati, accepted the petition and

3
Constitution of India, 1950, Art 32(1)
4
Hussainara Khatoon v. State of Bihar (1980) 1 S.C.C. 81

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 Public Interest Litigation and Social Reformation: The Indian Perspective

eventually decided that the unfair imprisonment of the undertrial prisoners violates the Right
to life and liberty enshrined under Article 21 of the Constitution. It also decided that pre-trial
detention must be changed in order to ensure ‘reasonable, just and fair procedure’. This goes
to show that from the very first instance, PIL played a vital role in the reformation of society
and was also an important example of how a popularized public sentiment was handled in a
progressive fashion and also eliminating the possibility of public discord and disruptive
justice. The judgement led to the release of over 40,000 prisoners who were wrongfully
detained. Since then, PIL turned into a whole movement which brought about countless
number of changes to the Indian society. Landmark judgements which turned meager
political debates into real change.

Public Interest Litigation and Fundamental Rights:

However, the most striking achievement brought about by the inception of PIL, was that of
the Supreme Court’s ability to interpret the Fundamental Rights5 enshrined in the
Constitution. Article 21, which states that, “no person shall be deprived of his life or personal
liberty except according to the procedure established by law”, is the most interpreted
Fundamental Right. All of these interpretations are brought about due to the changing societal
standards which present newer necessities of people, required to fall under the purview of
Article 21. Such grievances are brought to the attention of the courts through PILs.

The increasing public discourse on these matters has a hand in the widened scope of Article
21. For example, over the years, the Supreme Court has read into Article 12, inter alia, to
include - the right to live with human dignity and all that goes along with it6; right to free and
compulsory education up to the age of 14 years7; right to health8; right to livelihood9; right to
shelter10; right to clean drinking water11; right to an unpolluted environment12; right to legal
aid13; right to privacy14 and many more. Each of these landmark judgements brought about by

5
Constitution of India, 1950, Art 12-35
6
Francis Coralie v Union Territory of Delhi AIR 1981 SC 746, 753
7
Unni Krishnan v State of AP (1993) 1 S.C.C. 645
8
Parmanand Kataria v Union of India AIR 1989 SC 2039
9
Olga Tellis v Bombay Municipal Corp AIR 1986 SC 180
10
Gauri Shankar v Union of India (1994) 6 S.C.C. 349
11
A.P. Pollution Control Board II v M V Nayudu (2001) 2 S.C.C. 62
12
M.C Mehta v Union of India (1996) 6 S.C.C. 750
13
Khatri v State of Bihar AIR 1981 SC 928
14
K S Puttaswamy v. Union of India (2018) 1 S.C.C. 809

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 Public Interest Litigation and Social Reformation: The Indian Perspective

the promulgation of PIL in India, serves as a means for society to continue transforming. The
modern interpretations of these Fundamental Rights open the doors for whole array of
wrongs in society to be corrected. It sets into motion a movement of continuous development
in society, and by the people’s initiative themselves.

Besides right to life PILs, one noteworthy judgement regarding Article 14 of the Constitution
which states, “The State shall not deny to any person equality before the law or the equal
protection of laws within the territory of India.” The case, Joseph Shine v. Union of India,
201815, was regarding the decriminalization of adultery under Section 497 of the Indian Penal
Code, 1860 (hereinafter IPC Section 497). Section 497 stated, “Whoever has sexual
intercourse with a person who is and whom he knows or has reason to believe to be the wife
of another man, without the consent or connivance of that man, such sexual intercourse not
amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished
with imprisonment of either description for a term which may extend to five years, or with
fine, or with both. In such case the wife shall not be punishable as an abettor.” In a unique
approach, the case was argued on the principle that the Section portrays a woman to be the
property of her husband which violates her right to equality, and that in the process of
proving adultery, the right to privacy of the accused is violated. The Constitutional bench of 5
judges, were in favour of those principles and struck down IPC Section 497. This goes to
show that even the approaches taken to arguing cases have metamorphosized in lieu of
growing societal awareness about gender justice, equality and the awareness that regressive
legislations such as that of IPC Section 497.

Yet another noteworthy judgement based on Fundamental Rights is that of Navtej Singh
Johar v. Union of India, 201816, which dealt with Section 377 of the Indian Penal Code, 1860
(hereinafter IPC Section 377). Section 377 stated that, “Whoever voluntarily has carnal
inter-course against the order of nature with any man, woman or animal, shall be punished
with 1[imprisonment for life], or with impris-onment of either description for a term which
may extend to ten years, and shall also be liable to fine.” The issue with the section was that
it criminalized sexual acts between people of sexual orientations besides heterosexuality. It
was argued that IPC Section 377 was violative of the right to privacy under Article 21 of the
Constitution. The acts committed in the privacy of two consenting adults could not be proved
without violating that privacy and the section was ultra vires of Fundamental Rights. The

15
Joseph Shine v. Union of India (2018) 3 S.C.C. 39
16
Navtej Singh Johar v. Union of India (2018) 1 S.C.C 791

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 Public Interest Litigation and Social Reformation: The Indian Perspective

Constitutional Bench of 5 judges proceeded to read down IPC Section 377 and
decriminalized homosexuality. This judgement serves as a beacon of the progressive stance
held by the Supreme Court. It also signifies the growing tolerance of Indian society and how
the law can be a way of guiding society in the right direction of inclusiveness and equality. In
her judgement Justice Indu Malhotra goes to the extent of saying, “History owes an apology
to the members of this community and their families, for the delay in providing redressal for
the ignominy and ostracism that they have suffered through the centuries."

Public Interest Litigation: Boon or Bane?

The judiciary has emphasised that PIL is not an adversarial but a collaborative and
cooperative project in which all concerned parties should work together to realise the human
rights of disadvantaged sections of society. Despite the championed efforts of the Supreme
Court in working towards social justice and public welfare, there are certain perceived
disadvantages to the way PIL has been progressing over the years. Among many, this paper
will discuss three primary cons of Public Interest Litigation.

The first, PIL has allowed the practice of judicial activism to be blown out of proportion. The
subjective factor of many PILs that are brought before the apex court is a matter of grave
concern, as the decision on not only the admissibility but also the judgements and
considerations given to the submissions are somewhat of an opinionated nature. This has
disturbed the doctrine of separation of powers of the State. The jurisdiction of the court might
apply on the subject matter of the PIL before it. However, the administrative and legislative
nature of certain judgements has infringed upon the functions of the legislature17. One could
also argue on the contrary that the nature of judgements in these PILs serve as a modern
method of keeping government in check and reminding them of their duties and
responsibilities, giving the public functionaries an opportunity to fix their lapses. However,
the courts are still digressing from their primary functions in its process of maintaining that
check. In some cases, they have also tried to enforce certain aspects of their judgement,
which on a primary level, is not their task and on a secondary level, is bound to be less
effective since the courts do not possess the functionality of exercising such enforcement.

17
Singh, P. (2010). PROMISES AND PERILS OF PUBLIC INTEREST LITIGATION IN INDIA. Journal of
the Indian Law Institute, 52(2), 172-188.

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 Public Interest Litigation and Social Reformation: The Indian Perspective

This could potentially cause unwarranted conflict between the three organs of State and
disrupt the carefully constructed balance of power.

The second, the flood of PILs brought to the courts is acting as a detriment to its smooth
functioning. The criteria set by the courts for the constitution of a PIL is too open-ended to
narrow the number of PILs that can be filed. A simple letter to the court is also admissible as
a PIL. In Miss Veena Sethi v. State of Bihar, 198218, the court accepted a letter addressed to
one of the judges of the court as a PIL. While this was circumstantially done to address a
genuine issue, there is now the problem of thousands of letters being addressed to High courts
and the Supreme Court. This is an impediment to the courts striving to achieve speedy justice
and the decisions on the admissibility is only prolonging the hearing of genuine PILs and is
also a waste of the court’s time and resources. Liberal access to justice has led to chaos and
indiscipline causing an overload for the judiciary. The Supreme Court said, “The sanctity of
the judicial process will be seriously eroded if such attempts are not dealt with firmly. A
litigant who takes liberties with the truth or with the procedures of the court should be left in
no doubt about the consequences to follow.” The courts have now been directed to impose
exemplary fines for petitioners who bring unnecessary and frivolous PILs before them19. PILs
such as those for the banning of ‘sardar jokes’ and the retrieval of the Kohinoor diamond
have been accepted by the courts. Such interests have no legal basis and the implausibility of
them are adding to the lag in clearing the mammoth number of pending cases in the courts.

The last issue that presents itself, is the very intent behind the filing of a PIL. The courts have
allowed a ‘public spirited individual’ to file a PIL on a matter that concerns the public at
large. However, due to the media boom that popular PIL cases have caused, the parties to
such PILs have inevitably gained a substantial amount of popularity. Consequentially, people
or organizations filing PILs now, are not doing it so much for the public interest, but rather
for personal gain in terms of popularity or as somewhat of a Public Relations stunt.
Concomitantly, it is also being used to defame other persons or organizations by using the
august courts as a means to shift public focus toward or against something. This goes against
the very fibre of the Public Interest Litigation system as it is deviating from its purpose.

18
Miss Veena Sethi v. State of Bihar (1982) 2 S.C.C. 583
19
‘Exemplary costs will be imposed for frivolous PILs: HC’, Economic Times, February 17, 2018

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Analysis and Suggested Measures:

In the words of Justice P. N. Bhagwati, “The court has to provide new methods and strategies
to provide access to justice to large masses of people who are denied basic human rights, to
whom freedom and liberty have no meaning.”

The instrument of Public Interest Litigation was founded for a reason. The reason was for
improving the nature of social justice and providing a platform for the people to have a voice.
This has been done in the true spirit of democracy. The social changes that Public Interest
Litigation has brought about is undeniable. However, beyond a certain extent, the limitations
in the ability of the law in influencing or even keeping up with social change must be
acknowledged. The whole reason behind the landmark cases and PILs on matters such as
adultery, homosexuality, sexual and domestic abuse, gender justice etcetera even exist in the
first place, is because outdated legislations and formerly majoritarian customs and traditions
still exist in the laws of the country. It is only through the existence of concepts such as PIL
that these legislations and even the institutions of governance can be reformed. Likewise, the
institutions also reform the social structures and public morality of India. These two aspects
work in harmony to raise the nation on a higher pedestal of social transformation. As a
country that works on the principles of secularism, equality and justice, seeing the public
actively trying to bring about change is a heartening glimpse of the future of this country and
the redefinition of democracy in India.

As Justice J.S Verma rightly says, ‘‘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.’’20 It is unfair to attribute the administrative difficulties
of handling the growing numbers of PILs to the usefulness of the system itself. The social
benefits of PILs outweigh the instances of misuse of Public Interest Litigation. PILs have
allowed women entry into the Sabarimala Temple21, directed doctors to provide immediate
care to accident victims22, paved the path for women safety and prevention of sexual offenses
in the workplace23 and against children, declared practices such as that of instant Triple Talaq
in Islamic law as unconstitutional24 etcetera. Many of these judgements were also followed

20
‘‘The Constitutional Obligation of the Judiciary’’ (1997) 7 SCC (Jour) 1
21
Indian Young Lawyers Association v. State of Kerala (2017) 10 S.C.C. 689
22
Parmanand Katara v. Union of India (1995) 3 S.C.C. 248
23
Vishaka v. State of Rajesthan (1997) 6 S.C.C. 241 and Medha Kotwal Lele v. Union of India (2013) 1 S.C.C.
312
24
Shayara Bano v. Union of India (2017) 9 S.C.C. 1

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 Public Interest Litigation and Social Reformation: The Indian Perspective

by strong legislations such as that of the Protection of Children from Sexual Offences
(POCSO) Act, 2012 and The Muslim Women (Protection of Rights on Marriage) Bill, 2019.

A few of the reforms that the courts can implement in improving the concept of PIL in India
is by laying down strict guidelines as to the admissibility of PILs in courts. Additionally, only
the Chief Justice and the next senior-most Judge in a court hear PILs two days a week. If
more judges were assigned to the hearing of PILs, the backlog and pending cases could be
cleared quicker. The courts should also exercise restraint in prevention of judicial activism
and impose exemplary fines on repeat petitioners bringing frivolous suits.

Conclusion:

To conclude, Public Interest Litigation is the future of social change in India. It incorporates
all sections of society and also serves as a way to involve the government in answering for its
lapses and mishaps. The courts have exercised this power in the best possible fashion and
played an instrumental role in bettering the situations for various oppressed sections of
society and sensitize the country to various social, political, economic, regional and
environmental issues. It had fuelled debate and discussion and, in a way, brought the country
together in solving all these issues. With a few reforms, the concept of PIL could become one
of the defining aspects of the Indian judiciary. However, in a few aspects, the pillars of
democracy are being questioned; the separation of powers have more blurred lines than ever.
This leaves the people wondering, what could be the long-term social effects of the continued
working of Public Interest Litigation in its current trends?

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 Public Interest Litigation and Social Reformation: The Indian Perspective

Bibliography and Webliography:

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 The Indian Penal Code, 1860
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 Jurisprudence and Legal Theory – V.D Mahajan
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 Rabie M. (2013) Social Transformation. In: Global Economic and Cultural
Transformation. Palgrave Macmillan, New York
 Singh, P. (2010). PROMISES AND PERILS OF PUBLIC INTEREST LITIGATION
IN INDIA, Journal of the Indian Law Institute, 52(2), 172-188
 Walia, Ivneet Kaur, Public Interest Litigation: An Expression of Voice for the
Sufferers of Silence (November 20, 2009)
 Brickley, Stephen, The Role of Law in Social Transformation: Is a Jurisprudence of
Insurgency Possible?, Canadian Journal of Law and Society, Vol. 2, pp. 97-120
 ‘‘The Constitutional Obligation of the Judiciary’’ (1997) 7 SCC (Jour) 1
 Cunningham, Clark D. “PUBLIC INTEREST LITIGATION IN INDIAN SUPREME
COURT: A STUDY IN THE LIGHT OF AMERICAN EXPERIENCE.” Journal of
the Indian Law Institute, vol. 29, no. 4, 1987, pp. 494–523.
 Dhavan, Rajeev. “LAW AS STRUGGLE: PUBLIC INTEREST LAW IN INDIA.” Journal of
the Indian Law Institute, vol. 36, no. 3, 1994, pp. 302–338.
 Rabboni, Ansuman, and P. Kingsley Alfred Chandrasekaran. “ACTIO POPULARIS - A
PERSPECTIVE ANALYSIS ON PUBLIC INTEREST LITIGATION OF INDIA.” The Indian
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