PUBLIC INTEREST LITIGATION – BOON OR BANE

COMPARITIVE PUBLIC LAW

Submitted by:

MANVESH VATS

2019LLM011

SEMESTER 1

Submitted to:

Prof (Dr.) C.M Rao,

Associate Professor, DSNLU

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM

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 ACKNOWLEDGEMENT

I have taken efforts in this project. However it would not have been possible without the kind
support and help of many individuals. I would like to extend my sincere thanks to all of them.
I am highly indebted to Prof (Dr.) C.M Rao, for his guidance and constant supervision as well as
for providing necessary information regarding the project.

I would like to express our special gratitude and thanks to our faculty member for their patience,
time and helping me in developing the project and people who have willingly helped us out with
their abilities.

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CHAPTER-1

Introduction

Public Interest Litigation (PIL), as the name suggests, means litigation done in the larger good of
the public. The origin of Public Interest Litigation was seen in United States of America when
Ford Foundation started taking up cases for the public interest. The pioneering judge in India,
who initiated the procedure of PIL, is Honorable Mr. Justice V.P. Krishna Iyer and later
Honorable Mr. Justice P.N Bhagwati.

The object of the concept of public interest litigation is to give a fair hearing to those poor and
destitute who have insufficient means to get represented in a court of law for adjudication and
enforcement of their basic constitutional rights. Many a times it so happens that due to some act
or activity by a private individual or a public entity, the rights fundamental to the citizens
belonging to a particular strata of the society are jeopardized. Those people are poor, unaware of
their rights and aggrieved, and have no means to put forth their grievance; they are left with little
or no choice but to dwell in their problems. At such times, public spirited people who are willing
to take the responsibility of instituting a petition in the court of law, come forward and file the
required litigation in appropriate courts, hence, expanding and broadening the locus standi of the
litigation process.

It is because of Public Interest Litigations that the Supreme Court has been able to enforce the
rights of millions of people who were aggrieved of activities violating their rights. Landmark
judgments have been pronounced which have led to milestones in judicial activism in varied
fields of law and justice, all because of the effectiveness of PILs. People who have mala fide
intentions and vested interests in subject matters, have instituted PILs and have caused the courts
in a log jam as huge number of frivolous petitions still occupy and take away a lot of the court’s
precious time. Politicians and their cronies, builders and contractors who have vested interests in
say, for example, development projects, these people only to stall the future aspects of the
particular project institute false and frivolous PILs in courts and thereby misuse this tool which
has been developed for the greater good. Therefore, the rationale of this research project is to
study the origin of public interest litigations and their advent in the Indian legal system and also,
whether this concept has been greatly misused or not.

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 Research Methodology:

Problem:

The problem chosen by the researcher is, the detailed study into the concept of Public Interest
Litigation in India and determination of the fact, whether this concept is a boon for the people of
India or has proved to be a bane for the purposes of the same. For everything in law, has its plus
points and its negatives, this Research Project aims at determining the truth and the true aspect of
the public interest litigation.

Objective:

• To study the origin of the concept of Public Interest Litigation.

• To study the evolution and development of Public Interest Litigation in India
• To discuss the instances of successful adjudication of rights of people through the advent
of Public Interest Litigations in India
• To study the cases of misuse of Public Interest Litigation in India
• To suggest measures of keeping a check on the misuse of Public Interest Litigations

Hypothesis:

The researcher dwells on the hypothesis in this research project is that the Public Interest
Litigation is a boon in the hands of the society and the purpose of introducing public interest
litigation is solving its purpose or only creating loopholes in the dispensing of justice.

Scope of the Study:

This study is limited to the prospects and boundaries of India and the Judicial Activism in the
Indian Judiciary. The Public Interest Litigation process discussed here refers only to that of
India.

Review of Literature:

Books:

1. The Constitution of India Paperback – 1 Jan 2014 by P M Bakhi-

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This book helped the researcher to widely understand the scope of Public Interest Litigation and
develop the concept of the same in a proper manner. The author has in very simple way
described the scope, objectives and importance of Public Interest Litigations which has been of
great help to the researcher.

2. Public Interest Litigation – Legal Aid and Lok Adalats, 4th Edn., 2015 by Rao, Mamta;

This book contained matter expedient to the purpose of Public Interest Litigation and has helped
the researcher to understand various principles such as that of Locus Standi and the concept of
Social Justice. The author of this book has also very profoundly explained the misuse of Public
Interest Litigations in India.

Articles Referred:

i. AIR Journals; 1994, 1999, 2001, 2004, 2005, 2008, 2010

ii. Manupatra
iii. Lawyer’s Update

Sources of Data:

The researcher has referred to two basic sources of data; Primary and Secondary sources.

Primary Sources:

i. Constitution of India
ii. International Covenant on Civil and Political Rights

Secondary Sources:

i. Supreme Court Cases

ii. M.P Jain and S.N Jain; Principles of Administrative Law
iii. Manupatra
iv. Anurag Datar; Commentaries on the Constitutional Law
v. P.N. Bhagwati; My Tryst with Justice

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Chapterization

In the first chapter, the researcher has introduced the topic of the research project and has tried to
explain the related research methodology which has been applied by her.

In the second chapter, the researcher has discussed and examined in detail, the Origin and
Development of the concept of Public Interest Litigation and determination of the principle of
locus standi.

In the third chapter, the researcher has perused the development of the concept of Public Interest
Litigation in India through various Judicial Predicaments and efforts of the Judges who played an
important and major role in determining this concept and making it a potent tool in the hands of
the public.

In the fourth chapter, the researcher has analyzed the various cases which were decided by the
higher judiciary, by means of Public Interest Litigations and the procedural innovations which
were made through Judicial Activism.

In the fifth chapter, the researcher has studied the misuse of the concept of Public Interest
Litigations and the repercussions of its misuse, along with suitable instances where the judiciary
has reprimanded the litigators for instituting false and frivolous cases through the medium of
Public Interest Litigation.

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CHAPTER-2

Origin And Development Of The Concept f Public Interest Litigation

The words `Public Interest' mean "the common well-being and also public welfare” and the
word 'Litigation' means "a legal action including all proceedings therein, initiated in a court of
law with the purpose of enforcing a right or seeking a remedy."

Thus, the expression `Public Interest Litigation' means "some litigation conducted for the benefit
of public or for removal of some public grievance." In Indian law, PIL means litigation for the
protection of public interest.

The concept of PIL had its origin in United States of America, over the march of years it has
passed through various changes and modifications in their common law based systems.

According to “Ford Foundation” of U.S.A., “Public interest law is the name that has recently
been given to efforts that provide legal representation to previously unrepresented groups and
interests. Such efforts have been undertaken in the recognition that ordinary marketplace for
legal services fails to provide such services to significant segments of the population and to
significant interests. Such groups and interests include the proper environmentalists, consumers,
racial and ethnic minorities and others.

The efforts to provide legal representation to unrepresented groups or interests go back to as

early as 1876 when the first Legal Aid Office was established in New York City.

Certain stages in the development of Public Law are:

• The Legal Aid Movement:

In the United States, an organized Legal Aid Movement for the poor started in 1876 with the
establishment for an organization for providing legal assistance for the then recently arrived
immigrants by the German Society of New York1. From the very outset, the rationale behind
Legal Aid is the supposition that in every society there are individuals who are unable to
participate in the legal system.
• The Progressive Decade:

1
M. Cappilletti: the emergence of a modern theme; Gordley and Johnson

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 From the 1890s to the first decade of the twentieth century was a period when the crucial
changes were taking place in the institutions of Government and Law. There were rapid social
and economic changes. The country shifted from its agricultural, economic and social base to
the urban and industrial form. By this time, it was the government’s perspective to make sure
that the public’s rights were not being violated by any means of development and it secured
general acceptance. This actually laid down the foundation for the public interest lawyers of
later coming generations.
• The American Civil Liberties Union:
In 19162 the American Civil Liberties Union (ACLU) began its functioning with its incertitude
over Government abuses. The ACLU was the first public interest legal organization which took
up many cases of constitutional rights, in the period of mid-sixties. In the early 1960s, a series
of experimental programmes in legal services to the poor were taken up.

2
Robin: “Lawyeering for Social Change: Perspectives on Public Interest Law”, Stan Law Review, pp. 207-14
(1976)

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 CHAPTER-3

Origin And Development Of Public Interest Litigation In India; Social Justice Vis-À-Vis
Liberal Rule Of Locus Standi

In a developing society such as ours where around 50% of the people are living below the
poverty line, around 70% are illiterate and a large number are living a life of misery and
suffering, the subject of social justice and public interest litigation assumes importance. With
such a backdrop after independence, India endeavored to frame a constitution for herself.
Constitution making is the culmination of the aspirations of an emancipated people and a grand
finale to the freedom struggle of an enslaved nation. The constitution of a country will be in the
nature of law emanating directly from the inherent authority of the people themselves, binding
all organs of the government and the people together.3 Total commitment was given by the
constitution of India to ensure liberty, equality, fraternity and social justice to the people of India.
The constituent assembly, therefore being a staunch believer in constitutionalism and adopting
perfectly constitutional means to bring about the much needed social change, the constituent
assembly decided to bring about social change and write into the constitution JUSTICE in capital
letters, included in the Preamble. Though, by itself it is not enforceable in a court of law4, the
preamble to any written constitution while stating the objects which the constitution seeks to
establish and promote, aids the legal interpretation of the constitution where the language found
to be ambiguous.5

Hence, seeking to establish JUSTICE- social, economic and political is clearly laid down in the
Preamble as the guiding principle of the Constitution. Social Justice being the main plank on
which our Constitutional edifice is built. In a certain case6 Justice Desai, speaking for the
unanimous bench:

“Recall at this stage, the Preamble, the flood light illuminating the path to be pursued by the
State to set up a Sovereign Socialist Secular Democratic Republic. The principal aim of a

3
Rao, Mamta,9(Eastern Book Company 2nd Edn Lucknow,2004)
4
Gopalan v. State of Madras, AIR 1950 SC 27
5
Berubari Union, re, AIR 1960 SC 845
6
D.S Nakara v. Union of India AIR 1983 SC 130

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Socialist State is to eliminate inequality in income and status and standards of life to the working
people and especially provide security from cradle to grave.”

Justice V.R Krishna Iyer, the harbinger of the Public Interest Litigation in India, puts the
violation of Social Justice in India in the following words7:

“The blunt truth is the hard human condition. Social Justice is enshrined in the constitution. ‘We
the people of India’ stand out in the Preamble. Periodic pooja is offered to them in election
manifestos, occasional legislation and judicial pronouncements do verbal homage to them but the
bitter truth is that we, the elite are indifferent to them. The worst sin towards our fellow creatures
is not to hate them, but be indifferent to them.”

The concept of social justice which prevails in our culture has now been partly defined.
According to this concept, a society is without justice insofar as it is without rules , In both its
formal and informal aspects, must treat similar cases similarly. A conception of social justice,
observes John Rawls8, is to be regarded as providing in the first instance a standard whereby the
distributive aspects of the basic structure of the society are to be assessed. This standard is
however not to be confused with the principles defining the other virtues, for the basic structure
and social arrangements generally may be efficient or inefficient, liberal or illiberal and many
other things as well as just or unjust. The essentially subordinate status of social justice as a goal
of rational political discontent is illustrated by the principle that any group will find it eventually
unprofitable to redistribute income toward itself at the cost even of the smallest decline in the
rate of economic development. Social justice and guaranteeing social justice to the people of
India, is an aspect which has to be kept in mind by all the three organs of the Constitution and in
order to ensure the same, the judiciary evolved the concept of Public Interest Litigation. It was
the effort and creativity of the judges of the Supreme Court which led to the development of this
potent tool in the hands of the society.

Access to Justice is an intrinsic problem facing a majority of third world countries today.
Poverty, ignorance and inaccessibility of vast masses in these countries posed a problem of
justice before them forcing the judiciary to evolve a new statesman as it was realized that unless

7
Justice V.R Krishna Iyer; Some Half-hidden Aspects of Social Justice
8
John Rawls; A Theory of Justice, 9( Universal Law Publishing Co. Pvt. Ltd) Delhi (2000)

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justice was ensured to them by the society, freedom will have no relevance and social justice will
have no meaning.9 In this cause, one of the most important legal issues confronting the judicial
community is the rule of standing or locus standi. In the context of growing demand to protect
the weaker sections of the society, to conserve public resources to direct and, if necessary, to
correct the exercise of public power and ensure just and fair working of the executive
government, relaxation in the rule of locus standi proved unavoidable.

In defining the rule of locus standi in PIL no ‘rigid litmus test’ can be applied since the broad
contours of PIL are still developing apace seemingly with divergent views on several aspects of
the concept of this newly developed law and discovered jurisdiction leading to a rapid
transformation of judicial activism with a far-reaching change both in the nature and form of the
judicial process. The dominant object of PIL is to ensure observance of the provisions of the
Constitution or the law which can be best achieved to advance the cause of community or
disadvantaged groups and individuals or public interest by permitting any person, acting bona
fide and having sufficient interest in maintaining an action for judicial redress for public injury to
put the judicial machinery in motion like actio popularis of Roman Law whereby any citizen
could bring such an action in respect of a public delict. The Supreme Court has widely enlarged
the scope of PIL by relaxing and liberalizing the rule of standing by treating letters or petitions
sent by any person or association complaining violation of any fundamental rights and also
entertaining writ petitions filed under Article 32 by public-spirited and policy-oriented activist
persons or journalists or of any organization rejecting serious challenges made with regard to the
maintainability of such petitions and rendered many virtuosic pronouncements and issued
manifold directions to the Central and the State Governments, all local and other authorities
within the territory of India or under the control of the Government of India for the betterment of
the public at large in many fields in conformity with constitutional prescriptions of what
constitutes the good life in a socially just democracy.10 Justice Bhagwati in one pronouncement
said11

“Procedure is but a handmaiden of justice and the cause of justice can never be allowed to be
thwarted by any procedural technicalities”

9
Supra, see footnote 11
10
(http://aldeilis.net/english/principles-of-public-interest-litigation-and-locus-standi/) accessed on 29.9.14
11
S.P Gupta v. Union of India (AIR 1982 SC 189)

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The idea behind liberalization of locus standi was to make it easier for the lesser represented
class to be able to get their violated rights adjudicated by means of a person who is in position to
fend for their rights.

For example, in the case of violation of fundamental human rights and violation of the Right to
Life and personal liberty where there were many people engaged in Bonded Labor, it was
accepted that those laborers were incapable of coming forward to fend for their violated rights
and had no means and also were not aware of their rights.

It was a public spirited organization of people by the name of “Bandhua Mukti Morcha’ which
took up the case and filed a Public Interest Litigation in the Supreme Court of India12 and the
Supreme Court gave a land mark judgment which decided and adjudicated the violation of
human rights of all those hundreds of bonded laborers who could not represent themselves in the
court.

Public interest litigation or social interest litigation today has great significance and drew the
attention of all concerned.
The traditional rule of "Locus Standi" that a person, whose right is infringed alone can file a
petition, has been considerably relaxed by the Supreme Court in its recent decisions. Now, the
court permits public interest litigation at the instance of the so-called “PUBLIC-SPIRITED
CITIZENS” for the enforcement of Constitutional and Legal rights. Now, any public spirited
citizen can move/approach the court for the public cause (in the interests of the public or public
welfare) by filing a petition:
1. In the Supreme Court under Article 32 of the Constitution of India;
2. In the High Court under Article 226 of the Indian Constitution
3. In the Court of Magistrate under Section 133 of the Code of Criminal procedure.

Justice Krishna Iyer in the Fertilizer Corporation Kamgar Union v. Union of India13 enumerated
the following reasons for liberalization of the rule of Locus Standi:-

1. Exercise of State power to eradicate corruption may result in unrelated interference with
individuals’ rights.

12
Bandhua Mukti Morcha v. Union of India (AIR 1984 SC 802)
13
AIR 1981 SC 344

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2. Social justice wan ants liberal judicial review administrative action.

3. Restrictive rules of standing are antithesis to a healthy system of administrative action.

4. Activism is essential for participative public justice.

Therefore, a public minded citizen must be given an opportunity to move the court in the
interests of the public. Further, Bhagwati J., known as one of the pro-poor and activist judges of
the Supreme Court in S.P. Gupta14 popularly known as “Judges Transfer Case”, firmly
established the validity of the public interest litigation.

Since the wide interpretation of the concept of Locus Standi was recognized by the Supreme
Court, a number of Public Interest Litigations were filed by different means. The Supreme Court
in Sunil Batra (II) v. Delhi Administration15 had accepted a letter addressed to it by one Sunil
Batra, an inmate of Tihar Jail, Delhi, complaining that the Jail Warden had subjected another
prisoner serving life term in the same jail to inhumane torture. The Court treated this as a public
spirited action and issued certain directions for taking suitable action against the erring official.
Through the medium of a liberalized locus standi, the Supreme Court has exercised its duty of
being the sentinel of the Constitution as it guarantees Social Justice to one and all in the territory
of India.’

The first case in India, decided as a Public Interest Litigation was the Fertilizer Corporation
Kamgar Union (regd.) v. Union of India16. It was after this case, which was decided by Mr.
Justice V.P.K Iyer that this concept of Public Interest Litigation was further propounded by Mr.
Justice P.N Bhagwati and this process continues till today.

14
Supra 20
15
AIR 1980 SC 1579
16
Supra; see 22

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CHAPTER- 4

The Boon Of Public Interest Litigation; Judicial Creativity Through This Mechanism

Every concept introduced by the Supreme Court or by any other organ of the Government tends
to have a process initiated. Public Interest Litigation was one such concept which was evolved by
the Apex Court and it slowly transformed and modified itself into a very potent tool in the hands
of the public. Also, not only the public, but made a difference to the adjudicating process as well
as a number of advantages were discovered. The Supreme Court, through the method of PILs
brought about radical change in the justice delivery system of the country such as certain
Fundamental Rights were interpreted in a way which largely affected the lives of all the citizens
in a drastically positive manner. Also, certain doctrines and principles were laid down after
public interest litigation was filed and it drew the attention of the judiciary towards it. Before
stepping into the evolutionary process of PIL, it is expedient to throw light on to the guidelines
which were laid down by the Supreme Court in recognizing what matters are to be regarded as
Public Interest. It was in Pranatosh Roy v. State of Assam17, a decision by the Guwahati High
Court which was subsequently confirmed by the Supreme Court. To keep a check on frivolous
letters/petitions, the following guidelines were laid down which helps in the scrutiny of whether
the petitions or letters fall into the category of PIL or not.

The guidelines are as follows:

i. Bonded labour matters

ii. Neglected children
iii. Non-payment of minimum wages to workers and exploitation of casual workers
iv. Petitions from jail complaining of harassment for premature release and seeking release
after having completed 14 years in Jail, custodial deaths, speedy trial as a right etc.
v. Petitions against police officials refusing to register complaints
vi. Petitions against atrocities against women, bride burning, rape, murder, kidnapping etc.
vii. Torture of villagers by co-villagers, police officials, harassment related to Schedule Caste
or Schedule Tribe or Economically Backward community

17
AIR 2000 Gau 33

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viii. Petitions pertaining to environment pollution and degradation, drugs, food adultration,
maintenance of heritage and culture, antiques, forests and wildlife and other matters of
public importance
ix. Petitions for riot victims
x. Family pension

Matters which are not to be entertained as PIL are indicated below:

i. Land lord- tenant matters

ii. Service matters and those pertaining to pension and gratuity
iii. Complaints against Central/State Governments, Departments and Local Bodies except
those before mentioned.
iv. Admissions to medical colleges and other educational institutions
v. Petitions for early hearing of cases pending in High Courts and Subordinate Courts

In this regard Justice Bhagwati said in People’s Union for Democratic Rights v. Union of India18

“We wish to point out with all the emphasis at our command that Public Interest Litigation which
is a strategic arm of the legal aid movement and which is intended to bring justice within the
reach of the poor masses, who constitute the low visibility area of humanity, 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 practices, one making claim or
seeking relief against the other and that other opposing such claim or resisting such relief. Public
Interest Litigation is brought before the Court not for the purpose of enforcing the right of one
individual against another as happens in the case of ordinary litigation, but is intended to
promote and vindicate public interest which demands that violations of constitutional or legal
rights of large number of people who are poor, ignorant or in a socially or economically
disadvantaged position should not go unnoticed and un-redressed.”

From here, started the chain of evolution of Justiciability of fundamental rights of the people
who could not represent themselves in a court of law and whose rights were violated, that lacuna
happened to affect the general public at large. Under various heads, the judiciary showed

18
Supra; see 22

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creativity and implemented various rights of the people and evolved important principles which
have proved to be expedient and now inalienable for comfortable human existence.

Bonded Labour:

There were subsequent important judgments of the Supreme Court on the subject and one that
closely followed it was the Asiad Labour Case19 where the law court accepted the view that
social workers and voluntary organizations interested in public administration are entitled to file
petition on behalf of aggrieved persons.

In Bandhua Mukti Morcha v. Union of India20 the Supreme Court of India entertained a matter
concerning release of bonded labours of quarry workers raised by an organization dedicated to
the release of bonded labours and challenged the governmental inaction in not implementing the
provisions of the ‘Bonded Labour System (Abolition) Act, 1976 in Haryana. The Court however
in this case went on to emphasize that public interest litigation is not in the nature of adversary
litigation but is like a challenge and an opportunity to the government and its officers to m ake
basic human rights meaningful to the deprived and the vulnerable sections and to ensure social
and economic justice.21

Equal pay for Equal work:

In Dhirendra Chamoli v. State of Uttar Pradesh22 the court committed to giving effect to Article
39 of the Directive Principles of State Policy enshrining equal pay for equal work, entertained a
letter addressed to the Supreme Court by two employees of Nehru Yuva Kendra, Dehradun. It
was alleged in the letter that there were a large number of persons who were employed by the
Nehru Yuva Kendra as casual workers, on daily wages and they were doing the same work as
was performed by the regular workers of class four employees but were not being paid the
salaries and allowances as was being paid to the class four employees. Chief Justice Bhagwati
and Justice A.N Sen held that equal pay for equal work was implicit in the Equality guaranteed
under Article 14, which could not be denied by the government or public undertaking to their
works as long as they were performing the same duties.

19
ibid
20
Supra; see 21
21
Supra; see 11
22
(1986)1 SCC 637

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Rights of Accused and Prisoners:

The Supreme Court has always been very sensitive to the rights of the accused and prisoners and
has held that they are entitled to all fundamental rights unless constitutionally curtailed.23

In Hussainara Khatoon(I) v. Home Secretary., State of Bihar24, it was held that a procedure
which keeps such large number of people behind the bar without trial so long cannot possibly be
regarded as just, fair and reasonable so as to be in conformity with the requirements of Article
21.
In Hussainara Khatoon(II) case25 the court again emphasized the expeditious review for
withdrawal of cases against under trials for more than two years.

Right to Life:
The right to life as guaranteed under Article 21 is the basic fundamental right which is
inalienable and indispensable for every citizen of the country. the mechanism of Public Interest
Litigation has n many a ways tried to protect this right and the same has been highlighted by the
Supreme Court.
In State of Himachal Pradesh v. Umed Ram Sharma26, R.S Pathak, V.D Tulzapurkar and
Sabyasachi Mukherjee, JJ., held that the right to life in Article 21 of the Constitution embraced
not only the physical existence but also the quality of life.

Ecological Balance:
Pursued with the object of the Directive Principle contained in Article 48-A, the Supreme Court
in recent years has entertained various petitions regarding control of environmental pollution and
safeguarding of wildlife.

Displaying its role in controlling the environmental pollution the Supreme Court in M.C
Mehta(I) v. Union of India27 entertained a petitioned moved by Advocate M.C Mehta relating to
a oleum gas leak in Sriram Fertilizer Factory in Delhi which severely affected many people and

23
State of Maharashtra v. P.P. Sazgiri, AIR 1966 SC 424
24
(1980)1 SCC 81
25
(1980)1 SCC 91
26
(1986)2 SCC 68
27
(1986)2 SCC 176

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one advocate practicing in the Tis Hazari Courts of Delhi died. Considering that Shriram Food
and Fertilizers was in the business of manufacture and handling to hazardous substances,
injurious to public health the onus of prevention and caution should have been entirely upon
them .The court decided apt to use the concept absolute liability against Shriram Food and
Fertilizers. Citing the case of Rylands Vs. Fletcher 186828 “a person whom for his own purpose
brings onto his land, collects or keeps anything likely to do mischief must keep at his peril and if
he fails to do so is prima facie liable for the damages which is the natural consequences for its
escape.” It held Shriram responsible for all the damages and liable for paying compensation for
its reversal. The only exception for this case was that of a natural calamity or an act of a third
party. The court determined that the “leakage was caused by a series of mechanical and human
errors. This leakage resulted from the bursting of the tank containing oleum gas as a result of the
collapse of the structure on which it was mounted” and not by an act of sabotage by a third party
and hence the concept of absolute liability was applicable.29

Thus, the principle of ‘Absolute Liability’ was laid down by the Supreme Court of India, which
is now an extremely important principle in Environmental Law in India and is expedient for all
environment rights violation redressal mechanism.

28
[1868] UKHL 1
29
http://www.lawteacher.net/environmental-law/essays/environmental-law-and-policy-activism-law-essays.php
(accessed on 30.9.14)

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CHAPTER- 5

Limitations And Misuse Of Public Interest Litigation: A Bane To The Justice System

Public interest litigation is a highly effective weapon in the armory of law for reaching social
justice to the common man. It is a unique phenomenon in the Indian Constitutional Jurisprudence
that has no parallel in the world and has acquired a big significance in the modern legal concerns.
This technique is concerned with the protection of the interest of a class or group of persons who
are either the victims of governmental lawlessness, or social oppression or denied their
constitutional or legal rights and who are not in a position to approach the court for the redressal
of their grievances due to lack of resources or ignorance or their disadvantaged social and
economic position.

However with the passage of time, petitions have been filed which attempted to appropriate PIL
for corporate gain, political advantage or personal interest. It is an undemocratic, unrealistic and
dangerous tendency which is to be impeded by our judicial attitude. Former Chief Justice A.S.
Anand cautioned the over use of PIL and emphasized “Care has to be taken to see that PIL
essentially remains public interest litigation and is not allowed to degenerate into becoming
political interest litigation or private inquisitiveness litigation”. It has been held in a number of
cases that the court must not allow its process to be abused by politicians and others to delay
legitimate political objectives.

In public interest litigations, misuse comes in various forms. Publicity, private interest, political
rivalry, or other oblique motives can be a motive for its misuse. The tragedy is that it retards the
flow of justice delivery system. A spirit of moderation is needed but a consistent jurisprudence is
not at all easily possible to evolve for retarding abuse. In PIL cases, the most crucial question for
the court is to measure the seriousness of the petitioner, and to see whether he is actually the
champion of the cause of the persons or groups he is representing. The effect of public interest
litigation should go beyond the sphere of the parties present in the proceedings, and it is to be
noted that public interest litigation must be accompanied by adequate judicial control so as to
prevent this technique from being used as an instrument of coercion, blackmail or for other
oblique motive. A vexatious litigation under the color of public interest litigation brought before
the court for vindicating any personal grievances, deserves rejection at the threshold . It is

19
necessary to take note of the fact that a writ petitioner who comes to the Court for relief in public
interest must come not only with clean hands like any other write petitioner but also with clean
heart, clean mind and clean objective. While tracing its growing abuse, Law commission of India
recommended a ‘Code of conduct’ for the regulation of PIL cases in India. Twice, once in 1993
and later in 1996 PIL bills were introduced for regulating Court’s Jurisdiction Bill had
particularly strong provisions in the question of locus standi. Our Supreme Court also issued
guidelines for regulating PILs.

In Ashok Kumar v State of W.B30 Court laid down certain conditions on which the court has to
satisfy itself while entertaining PILs

The Court has to be satisfied about:

a) The credentials of the applicant

b) The prima facie correctness or nature of the information given by him. The information being
not vague and in definite; the information should show gravity and seriousness involved. Court
has to strike a balance between two conflicting interest;

i) nobody should be allowed to indulge in wild and reckless allegations besmirching the
character of the others;

ii) Avoidance of public mischief and to avoid mischievous petition seeking to assail, for oblique
motives, justifiable executive actions. In such case, however, the court cannot afford to be
liberal. Although supreme court issued guidelines on entertaining letter petitions as PILs, and not
reluctant in imposing penalty on vexatious litigants, abuses on PIL Jurisdiction is on a rise. .
Now a time has come to make a sound rule on regulating abuses on PIL. Former Attorney
General Soli Sorabji opinions three basic rules for regulating abuse of PIL:

(a) Reject dubious PIL at the threshold and in appropriate case with exemplary costs.

(b) In cases where important project or socio economic regulations are challenged after gross
delay, such petitions should be thrown out the very threshold on the ground of latches. Just

30
(2004) 3 SCC 349).

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because a petition is termed as PIL does not mean that ordinary principles applicable to litigation
will not apply.

(c) PIL petitioners should be in strict terms such as providing indemnity or giving an adequate
undertaking to the court to make good the damage, if PIL is ultimately dismissed.

If the courts do not restrict the free flow of cases in the fake of PILs, traditional litigation will
suffer a lot, and that would be a threat to Indian democracy and to the entire judicial process.
From Media and lawyers, proper assistance for impeding abuse is needed. Media covers
celebrated judgments various aspects, public interest and its expanded scope. Media plays a
significant role in the formation of public opinion, so while highlighting celebrated scans and
sting operations, violence against children & women, media should not forget to highlight the
cases of abuse on PIL, deterrent punishment given to the litigants by court. Media should analyze
the impact of abuse of PIL on judicial process. Through workshops, seminars through visual
media, it can give awareness to the people. It can impede the tendency to abuse PILs through its
programs. As judge Louis Brandeis said - “Sunlight is said to be the best of disinfectant; electro
light the most efficient police man”. The media is to provide the sunlight and focus the electric
light in the area of public concern. In large of PILs petitioner through his counsel are trying to
abuse the process of the court Lawyers should discourage the tendency to abuse the process of
the court by vexatious, dishonest litigants by not defending their cause. An internal discipline
and an awareness of being the part of considerable public service may help them to discourage
fraudulent tendencies of abuses. The misuse of public interest litigation will stop only if the
courts are vigilant. In every matter, the first question that the courts must ask themselves is
whether the petitioners are bona fide, whether the concern of the petitioner is real or whether
there is something more than meets the eye. It is not being suggested that all public interest
litigations should be viewed with suspicion; far from it. Justice P B Savant once said that a judge
should develop a strong sense of smell. If something stinks, then he must be extra careful. It is
the right judicial instinct and the skill of the judiciary which will stop the misuse of public
interest litigations and restore it to its pristine and useful character.31

31
http://indialawyers.wordpress.com/2009/01/29/misuse-of-pil/ by Soli Sorabjee (accessed on 2.10.14)

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CONCLUSION

Public interest litigation (PIL) has a vital role in the civil justice system in that it could achieve
those objectives which could hardly be achieved through conventional private litigation. PIL, for
instance, offers a ladder to justice to disadvantaged sections of society, provides an avenue to
enforce diffused or collective rights, and enables civil society to not only spread awareness about
human rights but also allows them to participate in government decision making. PIL could also
contribute to good governance by keeping the government accountable. As the positive
contributions of PIL in India are well-known and well documented, only some of the main
contributions are noted here briefly. The most important contribution of PIL, in my view, has
been to bring courts closer to the disadvantaged sections of society such as prisoners, destitute,
child or bonded labourers, women, and scheduled castes/tribes. By taking up the issues affecting
these people, PIL truly became a vehicle to bring social revolution through constitutional means,
something that the founding fathers had hoped. Equally important is the part played by PIL in
expanding the jurisprudence of fundamental (human) rights in India. As noted before, DPs are
not justiciable but the courts imported some of these principles into the FRs thus making various
socio-economic rights as important—at least in theory—as civil and political rights. This
resulted in the legal recognition of rights as important as education, health, livelihood, pollution-
free environment, privacy and speedy trial.
PIL has an important role to play in the civil justice system in that it affords a ladder to justice to
disadvantaged sections of society, some of which might not even be well-informed about their
rights. Furthermore, it provides an avenue to enforce diffused rights for which either it is difficult
to identify an aggrieved person or where aggrieved persons have no incentives to knock at the
doors of the courts. PIL could also contribute to good governance by keeping the government
accountable. Last but not least, PIL enables civil society to play an active role in spreading social
awareness about human rights, in providing voice to the marginalized sections of society, and in
allowing their participation in government decision making.

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SUGGESTIONS

The researcher has the following suggestions post the research for the government and for the
judicial bodies which according to the researcher would help in the bringing about of the check
on the misuse of Public Interest Litigation by individuals or State Agencies.

1. The guidelines laid down by the Supreme Court in order to scrutinize the applicability of
the petition as a PIL must be formulated in the form of a Notification with the force of a
bye-law. This would make the guideline known to the public at large and the plea of
being unaware of the guideline by the Judiciary, unacceptable.
2. The Legislature must, through an amendment, include Public Interest Litigation as an
important means to achieve Social Justice in the Constitution of India.
3. The Judiciary must also interpret the statute, ‘Contempt of Court’ in such a way as to
include the misuse of PIL by miscreants and include the provision of a hefty penalty or
fine or as deemed fit in order to specifically keep a check on fraudulent litigators who
deliberately misuse the mechanism of Public Interest.
4. The organs of the government must work together in order to mitigate the tedious judicial
process and the various loopholes which scare and intimidate the common man from
approaching the courts for redressal.
5. Access to Justice must be simplified in order to be available to the poorest of poor. Most
importantly, as they say, “Justice must not only be done, but must be seem to be done”.

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BIBLIOGRAPHY

ARTICLE REFFERED

• All India Reports; Journal Articles

• http://www.globalhealthrights.org
• Upendra Baxi, 'The Avatars of Indian Judicial Activitism’ : Explorations in the
Geography of (In) justice
• S.K. Verma and Kusum (eds.), Fifty Years of the Supreme Court of India : It's Grasp
and Reach (Delhi, Oxford University Press, 2000) pp. 156-209 at 157
• S.P. Sathe, Judicial Activism in India (New Delhi, Oxford University Press, 2000)
• http://www.krishnastudyacademy.com
• http://indialawyers.wordpress.com/2009/01/29/misuse-of-pil/
• http://www.lawteacher.net/environmental-law/essays/environmental-law-and-policy-
activism-law-essays.php

BOOKS REFERED

• V.N. Shukla: p.179 Constitution of India, 10th Edn., (Eastern Book Co., Lucknow, 2001)
• http://aldeilis.net/english/principles-of-public-interest-litigation-and-locus-standi/
• S.A. de Smith: Judicial Review of Administrative Action
• Rao, Mamta,9(Eastern Book Company 2nd Edn Lucknow,2004)

REPORTS REFFERED
• The Law Reform Commission, Discussion Paper No. 4- Access to the Court

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