Public Interest Litigation (PIL) – Supreme Court on PIL and

Comparative study of PIL.

1
 ABSTRACT

By studying the practice of the Courts of India, the concept of PIL in India has been a
marked departure from its American counterpart. In India, it has given voices to many,
especially the poor and underprivileged, and has helped them establish their Fundamental
Rights and various other legal rights governed by the laws of the country. However, PIL in
India substantially differs from that in the USA. The prime focus of American PIL was not so
much on state repression or governmental lawlessness as on public participation in
governmental decision making. And since the Indian notion of PIL has assumed the
character of more of a moral and humane process in providing justice to the victim as in
individual or to a group in matters relating to infringement of fundamental rights or denial of
civil privileges on the basis of caste, colour or creed, therefore, insisted that the Indian
phenomenon described as PIL should be termed as “Social Action Litigation.”

This paper focuses on by relaxing the requirements of locus standi, and permitting any
person who has sufficient interest in a matter to file a suit, the concept of PIL as developed
by the Supreme Court of India has added breath and life to the Constitution and transformed
it into a living document for Indians. This paper focuses on the contribution of the
Emergency Period which, in fact, helped guarantee a greater number of rights to Citizens of
India in its aftermath when various questions of law were brought up before the Courts for
their interpretation.

Keywords- Supreme Court, Constitutional law, Public Interest Litigation, Writ petitions.

2
 TABLE OF CONTENTS

S.NO PARTICULARS PAGE.NO

1 INTRODUCTION 04-06
1.2 RESEARCH PROBLEM
1.3 RESEARCH QUESTIONS
1.4 RESEARCH METHODOLOGY
1.5 HYPOTHESIS
2 THE ACCEPTANCE OF LOCUS STANDI VIA PIL BY THE 06-10
JUDICIARY
2.1 THE EMERGENCE OF EPISTOLARY JURISDICTION IN
THE LIGHT OF VARIOUS CASE LAWS

2.2 SUNIL BATRA VS DELHI ADMINISTRATION

2.3 GIDEON V WAINWRIGHF

3 PRAGMATIC DIMENSIONS OF JUDICIARY IN THE 10-14
LIGHT OF PIL filed in SUPREME COURT
3.1 THE DELHI VEHICULAR POLLUTION CASE- A
POLITICAL DIMENSIONAL ASPECT

4 A STING ON JUSTICE WHICH TRANSFORMED THE 14-16

SUPREME COURT’S ROLE PLAYED THROUGH PIL
4.1 M. C. MEHTA & ANOTHER V. UNION OF INDIA &
OTHERS AIR 1987 SC 1086 
4.2 PIL AS JUDICIAL POPULISM

5 SUGGESTIONS AND CONCLUSION 16

6 BIBLIOGRAPHY 17

1. INTRODUCTION

3
 “PUBLIC LAW LITIGATION TO PIL- An American perspective”

In the American struggle for social justice, public interest litigation has played an
indisputably important role. Yet over the past three decades, critics from both the left and
right have challenged its capacity to secure systemic change 1. The role of law as an
instrument of social change rests on a fundamental assumption about its relative autonomy
from politics: decision makers are to some extent bound by legal rules irrespective of
their political consequences2. The public interest law movement that emerged in the 1960s
and 1970s advanced this vision of court-centered social change, 3 drawing on models from
civil rights and civil liberties groups, particularly the test-case strategy of the NAACP Legal
Defense and Educational Fund4. Early litigation victories brought status-resources to
developing public interest organizations, which enlisted courts in progressive social
reform5. A number of structural factors encouraged this strategy: a federal judiciary
receptive to civil rights claims; centralized administrative agencies susceptible to
reform through impact lawsuits; and a system of welfare entitlements open to enforcement
and expansion6.

Federal agencies, long criticized as inefficient and unaccountable, lost authority in the
trend toward decentralization and deregulation.7 Core federal entitlements, particularly those
involving welfare, were curtailed.8 In addition, public interest lawyers faced new
procedural and financial constraints: Congress prevented federally-funded legal services
lawyers from bringing class actions, lobbying, collecting attorney’s fees, and engaging in
political advocacy; the Supreme Court limited attorney’s fee awards in civil rights and
environmental cases; and some states capped attorney’s fees and damage awards, and

1
Cummings, S. L, & Rhode, D. L. (2009). Public Interest Litigation: Insights from Theory and Practice.  UCLA:
School of Law. Retrieved from https://escholarship.org/uc/item/0mj8r4hc (last visited Oct 28, 2021).
2
Ann Southworth, Conservative Lawyers and the Contest over the Meaning of Public Interest Law, 52
UCLAL.REV. 1223 (2005).
3
LAURA KALMAN, THE STRANGE CAREER OF LEGAL LIBERALISM (1996) (referring to the use of
courts promote liberal social change to as “legal liberalism”).
4
Louise G. Trubek, Crossing Boundaries: Legal Education and the Challenge of the “New Public Interest
Law”, 2005 WIS.L.REV.455 (2005).
5
JOEL F. HANDLER, SOCIAL MOVEMENTS AND THE LEGAL SYSTEM:ATHEORY OF LAW
REFORM AND SOCIAL CHANGE 1 (1978)
6
Michael McCann & Jeffrey Dudas, Retrenchment...and Resurgence? Mapping the Changing Context of
Movement Lawyering in the United States, in CAUSE LAWYERS AND SOCIAL MOVEMENTS 37
(Austin Sarat & Stuart Scheingold eds., 2006)
7
Jody Freeman, The Private Role in Public Governance, 75 N.Y.U.L.REV. 543 (2000).
8
JOEL F. HANDLER &YEHESKEL HASENFELD, WE THE POOR PEOPLE:WORK,POVERTY,AND
WELFARE (1997).

4
restricted the ability of law school clinics to undertake controversial cases 9. Lawyers in
Latin America, Eastern Europe and Africa are seeking to implement international laws
through domestic litigation; the results are still unfolding but their educational value must be
recognized along with the outcome of cases10

PIL has not been defined in any Indian statute. However, Courts have interpreted and defined
PIL. The Hon’ble Supreme Court of India has, in the case of Janata Dal v. H.S.Chaudhary,
held that lexically, the expression ‘PIL’  means a legal action started in a court of law for the
enforcement of public/general interest where the public or a particular class of the public
some interest (including pecuniary interest) that affects their legal rights or liabilities 11.
Through creating new laws and enforcing existing ones, by changing attitudes and creating a
culture which respects human rights, public interest litigation has helped to improve the lives
of disadvantaged groups in Latin America, Asia, Africa, the Middle East and Eastern
Europe12

1.2 RESEARCH PROBLEM

Since the inception of the Supreme Courts often the Judiciary faced certain legal
malfunctions that used to happen between the Judiciary and the public. This created a tension
between the Indian Judiciary and the legal system and as a result with enormous efforts
Justice Bhagwati and Justice Krishna Iyer introduced the PIL which was supposed to act as a
guardian angel for all the public issues and violations. Thereby, the PIL started to gain its
attention through the very first PIL filed in the case of Hussainara Khatoon v. State of Bihar
(1979). As such this paper analyses the period from when the PIL came into existence and
paper also focuses on the journey of the PIL until now.

1.3 RESEARCH QUESTIONS:

Q1. What were the requirements considered in constructing the PIL in India?

9
David Luban, Taking Out the Adversary: The Assault on Progressive Public Interest Lawyers, 91
CAL.L.REV. 209 (2003)
10
McCutcheon, A. and Hershkoff, H. 2000, 'Public Interest Litigation: An International Perspective' in M.
McClymount and S Golub (eds.) The Law-related Work of Ford Foundation Grantees Around the World, Ford
Foundation, New York.
11
AIR 1993 SC 892, 1993 CriLJ 600, 1992 (3) Crimes 199 SC, JT 1992 (5) SC 213, 1992 (2) SCALE 338,
(1992) 4 SCC 305, 1992 Supp 1 SCR 226
12
McCutcheon, A. and Hershkoff, H. 2000, 'Public Interest Litigation: An International Perspective' in M.
McClymount and S Golub (eds.) The Law-related Work of Ford Foundation Grantees Around the World, Ford
Foundation, New York.

5
 Q2. Does the Supreme Court’s action towards PIL serve the purpose?
1.4 RESEARCH METHODOLOGY-

The methodology adopted for the purpose of conducting research on this paper is purely
doctrinal. The data has been collected from various primary and secondary sources
comprising of various international law books, articles and other primary sources like treaties,
conventions and reports of various organizations. It is purely an interpretative and analytical
study.

For the purpose of convenience this paper has been divided into five chapters.

 The first chapter would basically deal with the introduction of the entire topic and would
go on to identify the research problem and the existing legal scenario of the same.

 The second chapter deals with how are the locus standi accepted and dealt in the court of
law and analysis on various case law in relation to epistolary jurisdiction.

 The third chapter would discuss the different dimensions of judiciary on how they have
regarded the PIL in various cases especially the cases relating to much of public
importance.

 The fourth chapter would discuss about the issued which the supreme court had to deal
with in various PIL and about the role of judiciary in serving justice via PIL.

 The concluding chapter would sum up the entire discussion in the chapters above and
would contain certain possible recommendations for resolving the issues and challenges
in the Indian judiciary.

1.5 HYPOTHESIS-

PIL is an undisputed pillar of our Indian Democracy.

2. THE ACCEPTANCE OF LOCUS STANDI VIA PIL BY THE JUDICIARY

6
In this Fertilizer Corp. Kamnagar Union v Union of India, the court held that; when the
power of bureaucracy increases, misuse of legal standing is inevitable. The only solution is
the expansion and flexibility of locus standi to expand the scope of justice. 13 Locus Standi
means the legal capacity to sue or approach courts. Under both the inquisitorial and
adversarial system, the parties approaching the courts must have been aggrieved or deprived
of their rights. Thus, in any legal process, the existence of locus standi is necessary. In
S.P.Anand v. H.D.Deve Gowda, the Hon'ble Supreme Court, held that "It is of utmost
importance that those who invoke this Court's jurisdiction seeking a waiver of the locus
standi rule must exercise restraint in moving the Court by not plunging in areas wherein they
are not well-versed14.

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. These aspects were highlighted
in The Janta Dal v. H.S.Chowdhary 15. The anglo-indian model of adjudication was insisted
upon observance of procedural technicalities such as locus standi and adherence to
adversarial system of litigation16. The limited effectiveness of both the executive and
administrators has promoted the judiciary into a de facto role as caretaker of the environment.
The creation and usage of public interest litigation allows the rules of locus standi to be used
by those claiming either ‘representative standing’ or ‘citizen standing’17. The judges also
wanted to refurbish the image of the Supreme court tarnished by the judgement given during
the emergency period18. Few proactive judges recognised the possibility of providing wider
access to justice to the poor and the oppressed by relaxing the rule of locus standi 19. The
courts have, time and again, reiterated this fact as in the case of Kushum Lata v. Union of
India Courts are extremely cautious to ensure that PILs are not misused as the misuse of
13
1981 AIR 344, 1981 SCR (2) 52
14
1996 (6) SCC 734,
15
[1992 (4) SCC 305]
16
Singh, Parmanad. “PROMISES AND PERILS OF PUBLIC INTEREST LITIGATION IN INDIA.” Journal
of the Indian Law Institute, vol. 52, no. 2, Indian Law Institute, 2010, pp. 172–88,
http://www.jstor.org/stable/43953493
17
Gill GN. Human Rights and the Environment in India: Access through Public Interest Litigation.
Environmental Law Review. 2012;14(3):200-218. doi:10.1350/enlr.2012.14.3.158
18
ADM Jbalpur V. Shiva Kant Shukla AIR 1976 SC 1207
19
Singh, Parmanad. “PROMISES AND PERILS OF PUBLIC INTEREST LITIGATION IN INDIA.” Journal
of the Indian Law Institute, vol. 52, no. 2, Indian Law Institute, 2010, pp. 172–88,
http://www.jstor.org/stable/43953493.

7
PILs would defeat the very purpose for which it was conceived i.e. to come to the rescue of
the poor and the downtrodden. 20 In the case of V.Annaraja vs The Secretary To The Union
Of India21it must also be borne in mind that no one has a right to the waiver of the locus
standi rule and the court should permit it only when it is satisfied that the carriage of
proceedings is in the competent hands of a person who is genuinely concerned in public
interest and is not moved by other extraneous considerations22.

2.1 THE EMERGENCE OF EPISTOLARY JURISDICTION IN THE LIGHT OF

VARIOUS CASE LAWS

India adopted epistolary jurisdiction as a means of lobbying and advocating for the right of
persons living in poverty to access justice 23. Human rights jurisprudence shows bold steps
either as judicial activism, public interest or social action litigation or epistolary jurisdiction.
The premise on which the notion of epistolary jurisdiction and associated notions emerged is
the distinction often made between judicial activism and judicial conservatism24. The
Supreme Court while exercising its epistolary jurisdiction has often treated letters written to it
as writ petitions, granting remedies to that aggrieved strata of the society, who are otherwise
incapable or procuring justice for themselves. However, malicious and vexatious petitions are
dismissed with heavy costs25. Thus, the procedure for moving the court by just addressing a
letter on behalf of the disadvantaged class of persons, evolved into what is now popularly
known as epistolary jurisdiction in Indian human rights jurisprudence.26 R.L. & E. Kendra,
Dehradun v. State of Uttar Pradesh, popularly known as the Doon Valley Case, the Court
ordered the registry to treat the letter as writ petition under Article 32 of the Constitution
(epistolary jurisdiction). Furthermore, not only the top judiciary 27 i.e. The High Courts and
the Apex Court but entire hierarchy of Indian Judicial system plays an active and pivotal role

20
(2006) 6 SCC 180
21
WP.No.3822 of 2019 and WMP No.4247 of 2019
22
WP.No.3822 of 2019 and WMP No.4247 of 2019
23
Namawejje, Barbra Justine, Epistolary jurisdiction: a means of making courts responsive to the needs of the
poor in Uganda, http://hdl.handle.net/11071/9571
24
Kunbor B, 'Epistolary Jurisdiction of the Indian Courts and Fundamental Human Rights in Ghana's 1992
Constitution: Some Jurisprudential Lessons', Refereed article, Law, Social Justice & Global Development
(LGD), 2001 (2) <http://elj.warwick.ac.uk/global/issue/2001-2/kunbor.html>. New citation as at 1/1/04:
<http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2001_2/kunbor/>
25
Prashad, Garima, Indian Judicial Activism on the 'Right to Environment': Adjudication & Locus Standi (June
29, 2018). Available at SSRN: https://ssrn.com/abstract=3391846 or http://dx.doi.org/10.2139/ssrn.3391846
26
Bhagwati, P N (1987), 'Social Action Litigation: The Indian Experience', in Trivetelram and Coomaraswany
(eds.), The Judiciary in Plural Societies.
27
(1985)[4]

8
in safeguarding the most precious fundamental right of its citizens and non citizens i.e. "Right
to Life", enshrined under Article 21 of the Indian Constitution 28. The court justified such
extension of standing in order to enforce rule of law and provide justice to disadvantaged
sections of society29. Furthermore, the Supreme Court observed that the term ‘‘appropriate
proceedings’’ in art.32 of the Constitution 30 does not refer to the form but to the purpose of
proceeding: so long as the purpose of the proceeding is to enforce a FR, any form will do 31.
This interpretation allowed the Court to develop epistolary jurisdiction by which even letters
or telegrams were accepted as writ petitions32.
2.2 SUNIL BATRA VS DELHI ADMINISTRATION

Epistolary jurisdiction was introduced in India as part of judicial activism in Sunil Batra v
Delhi Administration (AIR 149 SC 1982) where the Supreme Court, upon receiving a letter
from a prisoner stating the Jail Authority's inhumane treatment to the prisoners, took
cognizance of the said letter and treated it as a petition33. In this case KRISHNA IYER, J.-
This, writ petition originated, epistolary fashion in a letter by a prisoner, Batra, to a Judge of
this’ Court (one of us), complaining of a brutal assault by a Head Warder on another prisoner,
Prem Chand34. The issue before the court was has the court jurisdiction to consider prisoner’s
grievance, not demanding release but, within the incarcerator circumstances, complaining of
ill-treatment and curtailment short of Illegal detention? 35 In such cases, Court cannot sit idle.
In a grave case of violation or a case involving environmental matter which requires
immediate attention, epistolary jurisdiction should be exercised as a timely weapon to address
the cause and in such a case it should be seen not as a Court's being overenthusiastic but
being active in fulfilling its constitutional obligation36.
28
Prashad, Garima, Indian Judicial Activism on the 'Right to Environment': Adjudication & Locus Standi (June
29, 2018). Available at SSRN: https://ssrn.com/abstract=3391846 or http://dx.doi.org/10.2139/ssrn.3391846
29
It is suggested that the way a judge applies the rule of standing corresponds to how she sees her judicial role
in the society. Aharon Barak, ‘‘Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy’’
(2002) 116 Harvard Law Review 16, 107–108.
30
‘‘The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights contained
in this Part is guaranteed.’’ Constitution of India 1950 art.32(1).
31
Singh, Constitution of India, pp.278–279.
32
, Sunil Batra v Delhi Administration AIR 1980 SC 1579; Dr Upendra Baxi v State of UP (1982) 2 S.C.C. 308.
33
Md. Ikra, Procedural waiver in writ jurisdiction: Should Tayeeb case be followed as general standard?,
https://www.thedailystar.net/, Law & Our Rights, Judgment Review.
34
1980 AIR 1579 1980 SCR (2) 557 1980 SCC (3) 488
35
Palak singh,’Sunil Batra v. Delhi Administration (1980) - Fundamental Rights of Prisoners’,
lawyersclubindia, https://www.lawyersclubindia.com/judiciary/sunil-batra-v-delhi-administration-1980-
fundamental-rights-of-prisoners-4831.asp last accessed on 29.10.2021.
36
Md. Ikra, Procedural waiver in writ jurisdiction: Should Tayeeb case be followed as general standard?,
https://www.thedailystar.net/, Law & Our Rights, Judgment Review.
1980 AIR 1579 1980 SCR (2) 557 1980 SCC (3) 488

9
2.3 GIDEON V WAINWRIGHF

Epistolary jurisdiction was first developed in the United States in the case of Gideon v
Wainwrighf when a prisoner’s postcard was accepted by the court as a petition, however, the
principle of epistolary jurisdiction has by large been developed in India where its resultant
form has been adapted and adopted in other South Asian countries including Pakistan and
Bangladesh37. The courts in India have successfully adopted this interpretation of Article 32
and consequently epistolary jurisdiction38.
More so, in preserving fairness, the court acknowledging that it would not be right to expect
these public-spirited individuals or social action groups to cater from their own coffers the
legal costs and court fees when instituting cases for the poor and downtrodden, it allowed for
such cases to be instituted through letters sent to the Supreme Court. Thus, the court
developed a new procedure to be known as ‘Epistolary Jurisdiction 39 The basis of selecting
India as a country of choice for the comparative study lies with its vibrant, human rights
centered judiciary that has correctly and instructively advanced the concept of epistolary
jurisdiction within its judicial process40.

  3. PRAGMATIC DIMENSIONS OF JUDICIARY IN THE LIGHT OF PIL filed in

SUPREME COURT
Expansion of judicial authority was witnessed in the post emergency phase, which saw the
growth of the phenomenon of Public Interest Litigation (PIL), wherein the court reinterpreted
the provisions of the fundamental rights liberally, in order to maximize the rights of the
people, especially those of the disadvantaged sections of the society. The access to courts was
facilitated by relaxing the technical rules of locus standi, along with other procedural and
institutional innovations41. Since the intent was to ensure redressal to those who were too
37
Robert Fedrick, EPISTOLARY JURISDICTION AS A MEANS OF ENHANCING ACCESS TO JUSTICE
IN KENYA, PART 4, https://www.lawyersnjurists.com/article/epistolary-jurisdiction-as-a-means-of-enhancing-
access-to-justice-in-kenya-part-4/, last accessed on 29.10.2021.
38
Sunil Batra v Delhi Administration (1978) 4, 494.
39
S.P Gupta v Union of India (where Justice P.N Bhagwati led the court in stating that epistolary jurisdiction
would allow the court to readily respond even to a letter addressed by an individual acting pro bono public and
treat it as a formal writ petition for Public Interest Litigation purposes.)
40
Robert Fedrick, EPISTOLARY JURISDICTION AS A MEANS OF ENHANCING ACCESS TO JUSTICE
IN KENYA, PART 4, https://www.lawyersnjurists.com/article/epistolary-jurisdiction-as-a-means-of-enhancing-
access-to-justice-in-kenya-part-4/, last accessed on 29.10.2021.

41
SARBANI SEN, PUBLIC INTEREST LITIGATION IN INDIA: IMPLICATIONS FOR LAW AND
DEVELOPMENT, 8 (Mahanirban Calcutta Research Group, 2002).

10
poor to move the court or were unaware of their legal rights and entitlements, the Court
allowed actions to be brought on their behalf by social activists and lawyers alike 42. The
Supreme Court of India pioneered the PIL movement, thereby throwing open the portals of
courts to the common man43.
Furthermore, a host of guidelines were also issued by the Court in diverse cases of PIL like
the Ratlam Municipality Case44, Taj Trapezium Case45, Ganga Pollution Case etc. In Rural
46
Litigation and Entitlement Kendra v. State of U.P., the Supreme Court rejected the
defence of res judicata, thereby refusing to withdraw the PIL and accordingly ordered
compensation. In Sheela Barse I v. State of Maharashtra,47 the Supreme Court issued
guidelines to curtail custodial violence. The meaning of right to life with human dignity
available under Article 21 of the Constitution of India has been widened to the greatest
possible extent.

3.1. THE DELHI VEHICULAR POLLUTION CASE - A POLITICAL DIMENSIONAL

ASPECT
Writ Petition (Civil) 13029/1985, better known as the Delhi vehicular pollution case, was to
lead to a complete overhaul of public and private transport in the city. Its impact started to be
felt with a series of orders in the mid-1990s48.T Union Territory of Delhi has a total
population of 96 lakhs. Out of this population approximately 90 lakh people reside in urban
areas. At the time of independence the population of Delhi was around 5 lakh. In nearly 40
years, it multiplied by 19 times. This writ petition was filed by M.C. Mehta requesting the
court to pass appropriate orders for the reduction of Vehicular Pollution in Delhi49.
his five-member committee was initially composed of a representative from the Central
Pollution Control Board, the Automobile Manufacturers Association of India, the Centre for

42
K.G. Balakrishnan, Judicial Activism under the Indian Constitution, Address Delivered at Trinity College,
Dublin (Oct. 14, 2009).
43
P.N. Bhagwati & C.J. Dias, The Judiciary in India: A Hunger and Thirst for Justice, 5 NUJS L. REV. 171
(2012).
44
Municipal Council, Ratlam v. Vardhichand and Ors,1980 A.I.R. 1622, 1981 S.C.R. (1) 97.
45
M.C. Mehta v Union of India,1988 A.I.R. 1115, 1988 S.C.R. (2) 530
46
Rural Litigation and Entitlement Kendra, 1989 A.I.R. 594 1989 S.C.C. Supl. (1) 537 JT 1988 (4) 710 1988
S.C.A.L.E. (2) 1574
47
Sheela Barse, A.I.R. 1983 S.C. 378.
48
Anuj Bhuwania, The Case that Felled a City: Examining the Politics of Indian Public Interest Litigation
through One Case, https://journals.openedition.org/, https://doi.org/10.4000/samaj.4469
49
Dhruval, M.C. Mehta Vs. Union of India, 1991; Vehicular Pollution Case – Case Summary,
lawtimesjournal.in, https://lawtimesjournal.in/m-c-mehta-vs-union-of-india-1991-vehicular-pollution-case/.

11
Science and Environment (an environmental NGO) and the Transport Department of Delhi,
in addition to the Chairman50.
While a class-based ideologically inflected worldview among appellate judges is hardly new
and indeed is part and parcel of any realist understanding of judicial behavior, PIL empowers
judges to take their predilections much further than ordinary adjudication. Another glaring
instance of the Court’s skewed sense of priorities in this case was when it did follow EPCA
recommendations and directed (on the same day as the CNG order) to augment the number of
public transport buses in Delhi up to 10,000 by April 1, 2001 But the Court did not make any
significant effort to implement this order (while its other orders were wreaking havoc) and
even in 2015, Delhi has much less than 10,000 public buses in its fleet 51. Environmental
public interest litigation and the resultant judicial activism in India during the late 1980s and
1990s have played the role of indirect market-based instruments of pollution management.
While a purely judicial approach to environmental management is neither effective nor
efficient, PIL has played a significant role in defining India's pollution management system 52.
As a result of this case, Delhi has become the first city in the world to have complete public
transportation running on CNG.
This was a milestone judgment as for Vehicular contamination in India. Later the Supreme
Court likewise passed orders for the arrangement of Lead-free petroleum in the nation and for
the utilization of natural gas and other method of powers for use in the vehicles. Lead free
petroleum was presented in four metropolitan urban communities in 1995. All vehicles
produced after 1995 were fitted with synergist convertors to diminish emanations53.

4. A STING ON JUSTICE WHICH TRANSFORMED THE SUPREME COURT’S

ROLE PLAYED THROUGH PIL 
The Supreme Court of India is one of the most potent judicial organs in the world today, and
it plays a fundamental role in determining constitutional jurisprudence in India54. In the early

50
The members of this committee were DK Biswas, Chairman of the Central Pollution Control Board, Anil
Aggarwal of the Centre for Science and Environment, Shri Jagdish Khattar of Maruti Udyog Limited, and Ms.
Kiran Dhingra, Transport Commissioner of Delhi.
51
Anuj Bhuwania, The Case that Felled a City: Examining the Politics of Indian Public Interest Litigation
through One Case, https://journals.openedition.org/, https://doi.org/10.4000/samaj.4469
52
Aparna Sawhney. “Managing Pollution: PIL as Indirect Market-Based Tool.” Economic and Political Weekly, vol.
38, no. 1, Economic and Political Weekly, 2003, pp. 32–37, http://www.jstor.org/stable/4413042.
53
Dhruval, M.C. Mehta Vs. Union of India, 1991; Vehicular Pollution Case – Case Summary,
lawtimesjournal.in, https://lawtimesjournal.in/m-c-mehta-vs-union-of-india-1991-vehicular-pollution-case/.
54
K. G. Balakrishnan, Judicial Activism and the Enforcement of SocioEconomic Rights - The Indian
Experience, Address Delivered at Dr. B.R. Ambedkar Memorial Lecture, (Jun. 13, 2009),
http://www.supremecourtofindia.nic.in/speeches/speeches_2009/br_a mbedkar_lecture_-_london_june_2009.pd

12
phases of post-independence, the Supreme Court in State of West Bengal v. Bella Banerjee 55,
grappled with the problem of striking an equilibrium between programmes of economic and
social reform (for example, the land reform and land redistribution policy during the late
1950‟s and 1960‟s) on one hand and instituting the credibility of the Indian State in terms of
strengthening the rule of law and respecting the rights vested under the laws that preceded
independence, and the very Constitution itself, on the other 56. The Indian judiciary has
sustained tremendous changes over the years and is still in the process of development in
order to effectively administer justice in consonance with the government’s general policy 57.
In addition to the setting up of courts and the enactment of legislation, electronic services
have facilitated litigation process in the courts in an unprecedented manner resulting in faster
dispensation of justice and case resolution, despite the heavy workload58.    

4.1 M. C. MEHTA & ANOTHER V. UNION OF INDIA &  OTHERS AIR 1987 SC
1086 
By analysing the need to modify the 19th century rule of Strict Liability the apex court of
India in M.C. Mehta case stated that "Moreover the principle so established in Ryland v.
Fletcher of strict liability cannot be used in the modern world, as the very principle was
evolved in 19th century, and in the period when the industrial revolution has just begun, this
two-century old principle of tortuous liability cannot be taken as it is in the modern world
without modifications59. The term 'Absolute Liability', as misnomer. - In his judgement,
Blackburn, judge, referred the liability as 'absolute'. But the liability in fact is strict and in no
way absolute. The rule in Rylands v. Fletcher is subject to so many exceptions that in fact
very little of the rule is left60.The recent trend is to limit the scope of the rule, and to bring it
adjacent to the modern theory that there will be no liability without any fault. In view of these
reasons, the term 'absolute liability' is misnomer and the appropriate term is 'Strict Liability'61.
The difference between Strict and Absolute liability rules was laid down by Supreme Court in
M.C. Mehta v. Union of India, where the court explains as: Firstly, In Absolute Liability
only those enterprises shall be held liable which are involved in hazardous or inherently

55
A.I.R. 1954 S.C. 170
56
Shankari Prasad Singh Deo v. Union of India, A.I.R. 1951 S.C. 458
57
Y.K. Sabharwal, Role of Judiciary in Good Governance, Address Delivered at Barrister B. M. Patnaik
Memorial Lecture (Nov. 19, 2006).
58
Kishor Talukdar, eCourts - The Renaissance in Indian Judiciary, http://kamrupjudiciary.gov.in/e- journal.htm
(last visited on Mar. 22, 2015).
59
W.V.H Rogers, WINFIELD AND JOLOWICZ TORTS, 8th ed. 2010 pp. 248
60
St Anne's well Browery v. Roberts. (1829) 141 LT at p.6, per Scrutton, L.J
61
Dr.S.K.Kapoor on Law of Torts 7th Edition pg.272

13
dangerous activities, this implies that other industries not falling in the above ambit shall be
covered under the rule of Strict liability 62. Secondly, the escape of a dangerous thing from
one’s own land is not necessary; it means that the rule of absolute liability shall be applicable
to those injured within the premise and person outside the premise. Thirdly, the rule of
Absolute liability does not have an exception, whereas as some exceptions were provided in
rule of Strict Liability. Also, in the case of Union of India V. Prabhakaran Vijay Kumar63
the view of constitutional bench was that the rule of MC Mehta is not subject to any type of
exception. "The rule laid down in MC Mehta was also approved by the Apex Court in
Charan Lal Sahu v Union of India64 The Court pointed out that that this rule is 'absolute and
non-delegable' and the enterprise cannot escape liability by showing that it has taken
reasonable care and there was no negligence on its part.

  4.2 PIL AS JUDICIAL POPULISM

PIL is rooted in a “judicial populism” that rejects procedural safeguards and institutional
controls in favour of substantive rationality and “just” outcomes. This purely consequentialist
thrust and disregard for process has provided judges with unchecked power which they
deploy in very capricious ways65. The post emergency phenomenon the transformation is
characterised as judicial populism66. The judicial populism of PIL allows for a radical
instability that continually pushes the limits of what a court can do 67. PIL has, however, led to
new problems such as an unanticipated increase in the workload of the superior courts, lack
of judicial infrastructure to determine factual matters, gap between the promise and reality,
abuse of process, friction and confrontation with fellow organs of the government, and
dangers inherent in judicial populism68

62
Bharat Parmar & Aayush Goyal, ‘Absolute Liability: The Rule of Strict Liability in Indian Perspective’,
Published in Articles section of www.manupatra.com,
http://docs.manupatra.in/newsline/articles/Upload/2D83321D-590A-4646-83F6-9D8E84F5AA3C.pdf
63
(2008) 9 SCC 527: (2008) 2 KLT 700
64
AIR 1990 SC 1480
65
Aparna Chandra, Courting the People: Public Interest Litigation in Post-Emergency India, International
Journal of Constitutional Law, Volume 16, Issue 2, April 2018, Pages 710–718,
66
Upendra baxi, Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India, 1985 Third
World Legal Stud. 107 (1985)
67
Bhuwania, Anuj, Competing Populisms: Public Interest Litigation and Political Society in Post-Emergency
India’ Columbia University. ProQuest Dissertations Publishing, 2013. 3561923.
68
Desai and Muralidhar in Kirpal et al., Supreme but not Infallible, pp.176–183; Upendra Baxi, ‘‘The Avatars
of Indian Judicial Activism: Explorations in the Geographies of [In]justice’’ in Verma and Kusum (eds), Fifty
Years of the Supreme Court of India, pp.156, 161–165; and generally Arun Shourie, Courts and their Judgments
—Premises, Perquisites, Consequences (New Delhi: Rupa & Co. 2001)

14
The fear of judicial populism is not merely academic is clear from the following observation
of Dwivedi J. in Kesavnanda Bharathi v Union of India69: ‘‘The court is not chosen by the
people and is not responsible to them in the sense in which the House of People is. However,
it will win for itself a permanent place in the hearts of the people and augment its moral
authority if it can shift the focus of judicial review from the numerical concept of minority
protection to the humanitarian concept of the protection of the weaker section of the people70.
This characteristic feature is reminiscent of the fact that the Indian tinge on PIL has a
concentrated effect on its institutional framework leading many scholars to believe that it has
become more of ‘populism’ than ‘activism’ on the part of the courts in India. Of a multitude
of factors behind this play, few have gained larger notoriety including the excessive workload
on the courts, lack of judicial infrastructure, procedural abuse of power and the rift that it has
created with the other organs of the government 71. One of the foremost scholars on Indian
PIL regime, Prof. Upendra Baxi reaffirms that “Social Action Litigation marked the advent
of judicial populism that is, the Supreme Court (in the memorable phrase of Justice
Goswami) began to imagine itself as the ―last resort of the bewildered and oppressed
Indians72. The essence of this observation lies in the core of ‘judicial populism’ and how it
should be avoided at all costs. To sum up this dark nature of the Public Interest Litigation, the
celebrated case of S.P Gupta v. Union of India 73must be discussed wherein the Court laid
down that “Where the contest is between those who are socially or economically unequal, the
judicial process may prove disastrous from the point of view of social justice, if the Judge
adopts a merely passive or negative role and does not adopt a positive and creative approach.
Hence, judicial populism has to be circumvented with extreme rationality by restricting the
ambit of PIL. It will also be foolish to disregard the fact that with the inception of PIL, there
has been an unprecedented increase in the number of pending cases in the judiciary due to the
frivolous filing of such petitions which is highly detrimental in the process of delivering
justice to the ones who require it the most74.
69
(1973) 4 S.C.C. 225, 948–949
70
Kesavnanda Bharathi v Union of India (emphasis added), as quoted in Baxi, ‘‘Taking Suffering Seriously’’
(1985) Third World Legal Studies 107, 112. Baxi also mentions how Bhagwati J. ensured that PIL letters
accepted as writ petitions came to his court: ‘‘Taking Suffering Seriously’’ (1985) Third World Legal Studies
107, 120.
71
Manvendra Singh, THE ROLE OF PUBLIC INTEREST LITIGATION IN SHAPING UP THE PUBLIC
POLICY REGIME IN INDIA: OVER-REACHING OR JUSTIFIED AND THE WAY AHEAD, Research
Student, National Law University and Judicial Academy
72
4Satinder Kumar, Abuse of public interest litigation in India need of legal safeguards, 2015,
http://shodhganga.inflibnet.ac.in/handle/10603/39837 (last visited Mar 6, 2018).
73
Justice Krishna Iyer observed, “Every judge is an activist either on the forward gear or the reverse.”
74
Manvendra Singh, THE ROLE OF PUBLIC INTEREST LITIGATION IN SHAPING UP THE PUBLIC
POLICY REGIME IN INDIA: OVER-REACHING OR JUSTIFIED AND THE WAY AHEAD, Research

15
5. SUGGESTIONS AND CONCLUSION –

I would definitely say that PIL is a successful tool to bring the poor and needy people straight
to court. With the advent of this PIL many public interested communities and many
individuals has got their rights back and justice from the court as well. This PIL has proved to
be an effective instrument to uphold the rights of certain section of people for whom the
rights were kept denied. Many legal systems particularly in common law and civil law
jurisdictions, accord litigants access to courts to the extent that such litigants have acquired
special or peculiar interest in the claim or that they have suffer or will suffer from the act to
be impugned and this is commonly known as locus standi or standing to use.

In general, public interest litigation (PIL) has been used to remedy two types of wrongs, one
is generalized grievances like pollution, where each member of society suffers from this
wrong; and other is the specific grievances like the illegal withholding of welfare benefits
where only a segment of society directly suffers the wrong. The effect of this decision is
really a crucial determining factor. Whether the action is brought by a singular individual or
an organization or as a class action, or even where the remedy sought may benefit the
applicant directly, the litigation may yet be in the public interest if the impact of the decision
will serve the wider public interest.

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KENYA, PART 4, https://www.lawyersnjurists.com/article/epistolary-jurisdiction-as-a-means-of-enhancing-
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18
Rural Litigation and Entitlement Kendra, 1989 A.I.R. 594 1989 S.C.C. Supl. (1) 537 JT 1988 (4) 710 1988
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(last visited on Mar. 22, 2015).
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http://docs.manupatra.in/newsline/articles/Upload/2D83321D-590A-4646-83F6-9D8E84F5AA3C.pdf
(2008) 9 SCC 527: (2008) 2 KLT 700
AIR 1990 SC 1480
Aparna Chandra, Courting the People: Public Interest Litigation in Post-Emergency India, International
Journal of Constitutional Law, Volume 16, Issue 2, April 2018, Pages 710–718,
Upendra baxi, Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India, 1985 Third
World Legal Stud. 107 (1985)
Bhuwania, Anuj, Competing Populisms: Public Interest Litigation and Political Society in Post-Emergency
India’ Columbia University. ProQuest Dissertations Publishing, 2013. 3561923.

19
Desai and Muralidhar in Kirpal et al., Supreme but not Infallible, pp.176–183; Upendra Baxi, ‘‘The Avatars of
Indian Judicial Activism: Explorations in the Geographies of [In]justice’’ in Verma and Kusum (eds), Fifty
Years of the Supreme Court of India, pp.156, 161–165; and generally Arun Shourie, Courts and their Judgments
—Premises, Perquisites, Consequences (New Delhi: Rupa & Co. 2001)
(1973) 4 S.C.C. 225, 948–949
Kesavnanda Bharathi v Union of India (emphasis added), as quoted in Baxi, ‘‘Taking Suffering Seriously’’
(1985) Third World Legal Studies 107, 112. Baxi also mentions how Bhagwati J. ensured that PIL letters
accepted as writ petitions came to his court: ‘‘Taking Suffering Seriously’’ (1985) Third World Legal Studies 107,
120.
Manvendra Singh, THE ROLE OF PUBLIC INTEREST LITIGATION IN SHAPING UP THE PUBLIC POLICY REGIME IN
INDIA: OVER-REACHING OR JUSTIFIED AND THE WAY AHEAD, Research Student, National Law University and
Judicial Academy
4Satinder Kumar, Abuse of public interest litigation in India need of legal safeguards, 2015,
http://shodhganga.inflibnet.ac.in/handle/10603/39837 (last visited Mar 6, 2018).
Justice Krishna Iyer observed, “Every judge is an activist either on the forward gear or the reverse.”
Manvendra Singh, THE ROLE OF PUBLIC INTEREST LITIGATION IN SHAPING UP THE PUBLIC POLICY REGIME IN
INDIA: OVER-REACHING OR JUSTIFIED AND THE WAY AHEAD, Research Student, National Law University and
Judicial Academy

20