PIL STRATEGY IN ADVANCING THE RIGHTS OF HAVE-

NOTS’ IN INDIA: ISSUES AND CHALLENGES

Himangshu Ranjan Nath*

ABSTRACT:

The Supreme Court of India, in the last quarter of 1970’s realising its
dismay that the poorest of the poor, downtrodden, deprived, women, children,
who are handicapped by ‘ignorance, indigence and illiteracy’ have either no
access to justice or had been denied justice; evolved a new branch of proceedings
known as ‘Public Interest Litigation’ with a view to render complete justice to the
aforementioned classes of persons (which the author summarily termed as have-
nots’). Through the strategy of PIL, the Court while relaxing the strict rule of
standing in pro bono publico granted several reliefs to the needy and oppressed. It
has been witnessed that the strategy of PIL adopted by the higher judiciary in
India facilitates much greater power and responsibility to the Court for rendering
the concept of justice available to the disadvantaged sections of the society and to
destroy the wicked and protect the virtuous so that ‘justice’ shall triumph.
However, at this juncture, the Court while entertaining PIL had to face some
difficulties. It has been argued that PIL became a tool of misuse of Courts time by
some so called public spirited persons. It has also been criticised that the invasion
of the court through entertaining the PIL cases into the jurisdiction allotted to the
other two organs of the state hampers the effective working of the government.
The author, in this present work tries to analyse the working of PIL as an effective
weapon to protect the rights of have-nots’ in India and to highlight the issues and
challenges pertaining to it.

INTRODUCTION:

After gaining independence from the British rule, on 26 th November, 1949 people of
India adopted its supreme law of the land i.e., the Constitution and declared itself as a
‘Sovereign Socialist Secular Democratic Republic’ where every citizen are allowed to taste
the real fruit of democracy through accessing social, economic and political justice. 1 This
great document inter alia, also guaranteed many rights which aims to secure to all its citizens
Justice, Liberty and Equality.2 These aims were not mere aspiration because the founding

1
Published in the Journal of Juridical and Social Science, Vol.5 No.2: April-June 2015, ISSN 2231-4636
* LL.M, NET, Assistant Professor, National Law University Assam. Email: hrnath@nluassam.ac.in
Through the Preamble to the Constitution of India
2
Part III of the Constitution of India
fathers wanted to achieve a social revolution through the Constitution. The main tools
employed to achieve such social revolution are the provisions on Fundamental Rights and the
Directive Principles of State Policies, which Austin described as the ‘conscience of the
Constitution’.3 As a right without a remedy does not have much substance, 4 the remedy to
approach the Supreme Court directly for the enforcement of any of the rights mentioned in
Part III has also been made a fundamental right5.

Undoubtedly, our Constitution provides a lot of rights and liberties to its citizens
which were not available to them before independence. In order to ensure the freedom and
democratic temper intact, that the mentioned rights did not remain empty declarations, the
founding fathers, many of whom were greatest constitutional lawyers of their time made
various provisions in the Constitution to establish an independent judiciary who can monitor
as a bastion of such rights and liberties.

To approach a court the first requirement is Locus Standi – right to approach the Court
for enforcement of one’s right. It means only the aggrieved person can approach the court and
others have no right to bring the matter before the court. Due to this requirement the majority
of the people, who are illiterate, poor, vulnerable and socially and economically
disadvantaged (summarily, have-nots’), were far from ‘justice’ which is characterised as one
of the basic objective of the Constitution of India. These people only could hear about justice
but due to their adverse socio-economic conditions were not able to taste it. Thus, the entire
Constitutional framework to achieve justice, for the downtrodden was proved to be only a day
dream.

In these circumstances, during the last quarter of 1970’s the concept of Public Interest
Litigation (hereafter, PIL), a court-driven approach in producing significant social reform
came into existence.6 Through diluting the legal formalities as well as the concept of
aggrieved person and locus standi; PIL started to provide relevant, quick, effective and
expeditious remedy to the grievances of have-nots’. Under this new legal mechanism, any
public spirited person could bring up a case before the High Court and Supreme Court about
the violation of others legal or Constitutional rights. After the deployment of PIL mechanism
3
Granville Austin, ‘The Indian Constitution: Cornerstone of a Nation’, Clarendon Press, Oxford, 1966,
p.27.
4
M.P. Jain, ‘The Supreme Court and Fundamental Rights’ in S.K. Verma and Kusum (eds), ‘Fifty Years of
the Supreme Court of India—Its Grasp and Reach’, Oxford University Press, 2000, New Delhi, page.1.
5
Article 32 of the Constitution of India
6
Helen Hershkoff, ‘Public Interest Litigation: Selected Issues and Examples’, available at
http://www.worldbank.org/publicsector/legal/PubliclnterestLitigation.doc. (Accessed on 03-09-2013)
in the late 1970’s and in the beginning of 1980’s through a series of decisions issued by two
activist Indian Supreme Court Judges7, whose goal was to “promote and vindicate public
interest (and) which demands that violations of Constitutional or legal rights of large numbers
of people who are poor, ignorant or in a socially or economically disadvantaged position
should not go unnoticed and unredressed” 8; the whole scenario changed. This strategy (PIL)
proved, in fact, as a potent weapon for the protection of unheard and untouched rights of the
have-nots’ in India. In the words of noted scholar Prof. Upendra Baxi9:

“….People now knows that the Court has constitutional power of

intervention, which can be invoked to ameliorate their miseries arising from
repression, governmental lawlessness or administrative deviance. Under-trial as
well as convicted prisoners, women in protective custody, children in juvenile
institutions, bonded and migrant laborers, unorganized laborers, untouchables and
scheduled tribes, landless agricultural laborers who fall prey to faulty
mechanization, women who are bought and sold, slum dwellers and pavement
dwellers, kin of victims of extrajudicial executions –– these and many other
groups –– now flock to the Supreme Court seeking justice. They come with
unusual problems, never before confronted so directly by the Supreme Court.”

RESEARCH METHODOLOGY:

The research methodology adopted for this Article is primarily doctrinal and analytical.
The investigation is based on analysis of relevant case laws, statutes, analytical publication etc.
The source of materials for this investigation comprises of various books, commentaries, law
journals, newspapers and periodicals, and the vast materials available in the website of
Supreme Court of India concerning the area. Apart from these, the author took recourse to
literatures of eminent personalities, governmental and non-governmental organisation’s
document, relevant case laws, and elaborate internet archives sources that generate the latest
online ideas.

PUBLIC INTEREST LITIGATION:

The term ‘Public Interest Litigation’ was first used by Professor Abram Chayes of the
Harvard Law School in 1976 to refer to the practice of lawyers in the United States seeking to
7
Justice V. R. Krishna Iyer and Justice P. N. Bhagwati
8
Peoples Union for Democratic Rights v. Union of India, AIR 1982, SC 1473
9
Upendra Baxi, ‘Taking Suffering Seriously, Social Action Litigation in the Supreme Court of India’ from
Rajeev Dhwawan et al. (eds.), ‘Judges and the Judicial Power’, Sweet and Mazwell, London, 1985
precipitate social change through Court-ordered decrees that reform legal rules, enforce
existing laws, and articulate public norms.10
In Peoples Union for Democratic Rights v. Union of India11 the Supreme Court of India
defined PIL as litigation at the instance of “Public spirited citizens” for the enforcement of
constitutional and legal rights of any person or group of persons who because of their socially
or economically disadvantaged position are unable to approach the Court for relief.
In the Judges Transfer Case (I),12 Supreme Court held that PIL can be filed by any
member of public having sufficient interest for public injury arising from violation of legal
rights so as to get judicial redress. The court also observed that it is absolutely necessary for
maintaining Rule of law and accelerating the balance between law and justice.
The term ‘Public Interest Litigation’ is not defined in any statute in India. It has been
interpreted by judges to consider the intent of public at large. The main and only focus of such
litigation is only “public interest”. However, the Supreme Court in Indian Banks’ Association,
Bombay v. M/s Devkala Consultancy Service13, held that in an appropriate case, where the
petitioner might have moved to the Court in his private interest and for redressal of his personal
grievance, the court in furtherance of ‘public interest’ may treat it as a PIL if to enquire into the
state of affairs of the subject of litigation is necessary in the interest of justice.

PIL STRATEGY IN PROTECTING THE RIGHTS OF THE HAVE-NOTS:

Judiciary must be dynamic enough to interfere on matters resulting from the lapse of
constitutional or statutory duties on part of the government. The invention of PIL is a glaring
example of such dynamics of the Indian judiciary. PIL, also popular by the name of Social
Action Litigation or Class Litigation is a potent weapon through which poor, helpless or
disabled can seek judicial redress by filing an application to the High Court under Article 226
or to the Supreme Court under Article 32 of the Constitution of India.
The saga of protecting the rights of the have-nots’ through PIL was started from the first
reported case of PIL in 1979 in Hussainara Khatoon v. State of Bihar14, a case focused on the
inhuman conditions of prisons and under trial prisoners. In this case the PIL was filed by two
Supreme Court advocate15 on the basis of a news item published in the Indian Express,
highlighting the plight of thousands of under-trial prisoners languishing in various jails in
10
Chayes, “The Role of the Judge in Public Law Litigation”, Harvard Law Review, 1976, p.1281
11
Supra on note 8
12
S. P. Gupta v. Union of India AIR 1982, SC 149
13
2004 (4) SC 587
14
AIR 1979 SC 1360
15
Kapila Hingorani and N. K. Hingorani
Bihar. These proceeding led to the release of more than 40,000 under-trial prisoners. In this
case P. N. Bhagwati, J. has observed as under:
“[T]oday, unfortunately, in our country the poor are priced out of the
judicial system with the result that they are losing faith in the capacity of our legal
system to (sic) about changes in their life conditions and to deliver justice to
them. The poor in their contact with the legal system have always been on the
wrong side of the line. They have always come across ‘law for the poor’ rather
than ‘law of the poor’. The law is regarded by them as something mysterious and
forbidding always taking something away from them and not as a positive and
constructive social device for changing the social economic order and improving
their life conditions by conferring rights and benefits on them. The result is that
the legal system has lost its credibility for the weaker section of the community.”
Subsequently, in Anil Yadav v. State of Bihar16, where a newspaper report revealed that
about 33 suspected criminals were blinded by the police in Bihar by putting the acid into their
eyes, the Supreme Court directed the State government to bring the blinded men to Delhi for
medical treatment. It also ordered speedy prosecution of the guilty policemen. The court in this
case also observed right to free legal aid as a fundamental right of every accused.17
In Dr. Upendra Baxi (I) v. State of U.P. & Another 18, two distinguished law Professors
of the Delhi University addressed a letter to Supreme Court regarding inhuman conditions
which were prevalent in Agra Protective Home for Women. The court heard the petition on a
number of days and gave important directions by which the living conditions of the inmates
were significantly improved in the said Home.
These incidents witnessed that the sort of remedies sought from the court in the PIL
goes beyond award of remedies to the have-nots’. In suitable cases, the court has also given
guidelines and directions. In some case the court also took suo-moto contingence to redress the
plight of have-nots’. For example, in Labourers Working on Salal Hydro Project v. State of
Jammu & Kashmir19, the Supreme Court took suo-moto contingence on the basis of a news
item published in the Indian Express regarding the petty condition of the construction workers.
The court observed that the construction work is a hazardous employment and no child below
the age of 14 years can therefore be allowed to be employed in construction work.

16
AIR 1982 SC 1008
17
This case is also prominent for signalling the growth of social activism and investigative litigation in
India.
18
1983 (2) SCC 308
19
AIR 1984 SC 177
 Expressing its notion towards the crime against women in Delhi Domestic Working
Women’s Forum v. Union of India20, the Supreme Court expressed serious concern about the
violence against women. The court gave significant directions and observed that compensation
for victims of rape shall be awarded by the court on conviction of the offender and by the
Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board
will take into account pain, suffering and shock as well as loss of earnings due to pregnancy
and the expenses of child birth if this occurred as a result of the rape.
In Consumer Education and Research Centre v. Union of India 21, the Supreme Court, in
a PIL case, tackled the problem of health of workers in the asbestos industry. Noticing that long
years of exposure to the harmful substance could result in debilitating asbestosis, the court
mandated the provision of compulsory health insurance for every worker as enforcement of the
worker’s fundamental right to health. Other health-related issues that have been considered in
PILs include the quality of drugs and medicines being marketed in the country, the rights of the
mentally ill, and the minimum standards of care to be observed in mental hospitals.
In Bandhua Mukti Morcha v. Union of India 22, where a PIL has been filed by an NGO
seeking intervention of the court regarding the abolition of heinous practice of bonded labour
prevailed in different parts of the country, the Supreme Court ordered for the release of bonded
labourers as it is a violation of Constitutional mandate of liberty23.
In M. C. Mehta v. State of Tamil Nadu24, the Supreme Court was dealing with the cases
of child labour and the court found that the child labour emanates from extreme poverty, lack
of opportunity for gainful employment and intermittency of income and low standards of
living. The Court observed that it is possible to identify child labour in the organized sector,
which forms a minuscule of the total child labour, the problem relates mainly to the
unorganized sector where utmost attention needs to be paid.
In Prajwala v. Union of India25, a petition was filed in Supreme Court in which it was
realized that despite commencement of the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995, disabled people are not given
preferential treatment. The Court directed the State Governments/local authorities to allot land
for various purposes indicted in Section 43 of the Act and various items indicated in Section
43, preferential treatment be given to the disabled people and the land shall be given at
20
(1995) 1 SCC 14
21
(1995) 3 SCC 42
22
AIR1984 SCR 67
23
Article 21and Article 23 of the Constitution of India.
24
(1996) 6 SCC 756
25
(2009) 4 SCC 798
concessional rates. The percentage of reservation may be left to the discretion of the State
Governments. However, total percentage of disabled persons shall be taken into account while
deciding the percentage.
In Munna & Others v. State of U.P.26, where the allegation was that the juvenile under-
trial prisoners have been sent in the Kanpur Central Jail instead of Children’s Home in Kanpur
and those children were sexually exploited by the adult prisoners. Supreme Court ruled that in
no case except the exceptional ones mentioned in the Act, a child can be sent to jail. The Court
further observed that the children below the age of 16 years must be detained only in the
Children's Homes or other place of safety. The Court also observed that “a Nation which is not
concerned with the welfare of the children cannot look forward to a bright future”.
Thus, the adoption of PIL strategy by our judiciary paved the way for multifaceted legal
developments in India. From the above, we can assume that how much potentiality
encapsulated with PIL to protect the rights of have-nots’. Also, during the last few decades,
Judicial Activism has opened up a new dimension for the judicial process through PIL and has
given a new hope to the millions who starve for their untouched claims. The Supreme Court
realising its proper role in welfare state by using its new strategy for the development of a
whole new corpus of law for effective and purposeful implementation of PIL has done
tremendous work in protecting the life, limb, environment and many more of the ‘little
Indians’.

ISSUES AND CHALLENGES:

Nevertheless, PIL that emerged in India as Robin Hood of justice for the have-nots’ has
generally received peripheral attention in debates on civil justice reforms around the world.
However, with the course of time, some undemocratic, unrealistic and dangerous tendency has
built up within the mind-set of fellow Indians which is likely to damage our judicial attitude in
general and PIL in particular. The credibility of PIL process is now adversely affected by the
criticism that the judiciary is overstepping the boundaries of its jurisdiction and that it is unable
to supervise the effective implementation of its orders. It has also been increasingly felt that
PIL is being misused by the people agitating for private grievance in the grab of public interest
and seeking publicity rather than espousing public cause.27

Abuse of PIL:

26
(1982) 1 SCC 545
27
State of Uttaranchal v. Balwant Singh Chaufal & Others AIR 2010 SC 431(567)
 The yardstick of PIL was propounded by the Supreme Court of India to encourage
litigation concerning the interests of the poor and marginalized section of the society. It has
been in existence in our country for more than six decades, and has a glorious record. The
conditions of marginalized and vulnerable section of society have significantly improved on
account of Courts’ directions in the PIL cases. Unfortunately, of late, it has been noticed that
such an important jurisdiction which has been carefully carved out, created and nurtured with
great care and caution by the Courts, is being blatantly abused by filing some petitions with
oblique motives.28
In PILs, abuse comes in various forms. Publicity, private interest, political rivalry, or
other oblique motives can be a reason for its abuse or misuse 29. The Supreme Court very
recently in Arun Kumar Agrawal v. Union of India 30 held that Test of utmost good faith
required to maintain PIL petitions. The tragedy is that it retards the flow of justice delivery
system. Former Chief Justice A. S. Anand, cautioning the abuse of PIL emphasized that, 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. 31 It is
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.32
The Supreme Court of India also issued guidelines for regulating the abuse of PIL
mechanism in various cases. In BALCO Employees’ Union (Regd.) v. Union of India33, the
Court recognized that there have been, in recent times, increasing instances of abuse of public
interest litigation. Accordingly, the Court has devised a number of strategies to ensure that the
attractive brand name of Public Interest Litigation should not be allowed to be used for
suspicious products of mischief.
In Holicow Pictures Pvt. Ltd. v. Prem Chandra Mishra34, the Supreme Court observed:
“It is depressing to note that on account of such trumpery proceedings initiated before the
Courts, innumerable days are wasted, the time which otherwise could have been spent for
disposal of cases of the genuine litigants.” In the instant case, the Supreme Court also observed
that while entertaining a PIL case the Court has to be satisfied about: (a) the credentials of the
28
Supra on Note 27
29
Common Cause v. Union of India (II) AIR 1999 SC 2979
30
(2014) 2 SCC 609
31
Chandra Sekhar Mishra, “PIL: An Instrument of Social Change”, et; ‘Law, Justice, and Social Change’,
Dr R. Saxena (Edited), Deep & Deep, p. 429
32
S. P. Gupta v. Union of India AIR 1982 SC
33
AIR 2002 SC 350
34
AIR 2008 SC 913
applicant; (b) the prima facie correctness or nature of information given by him; and (c) the
information being not vague and indefinite.
The Supreme Court, recently, in Jaipur Shar Hindu Vikas Samiti v. State of Rajasthan
& Others35 held that the judiciary should deal with the misuse of PIL with iron hand. However,
despite of such activist approach of our Apex Judiciary the Courts are not able to restrict the
free flow of fake PILs cases for which traditional litigation has suffered a lot.
Separation of Powers:
Another issue which tries to check the fruitful working of the PIL in India is the
criticism that PIL detracts from the constitutional principle of ‘separation of powers’ by
allowing the Courts to arbitrarily interfere with policy-choices made by the legislature and pass
orders that may be difficult for the executive agencies to implement. The legislative or
executive nature of some judicial orders through PIL cases has sparked this criticism that the
Court is violating the separation of powers doctrine by ‘trespassing’ into the jurisdictions of
other branches ‘under the guise of PIL’36. Critics caution that unrestrained judicial activism
could ‘boomerang’ and ultimately make the Court a less powerful institution.
Although, the Constitution of India does not follow the principle of ‘separation of
powers’ in its absolute rigidity 37, it still embodies the doctrine of checks and balances, which
even the judiciary should respect. The Supreme Court itself in State of H.P. v. Students’ Parent,
Medical College, Shimla38 has observed that “PIL is a weapon which has to be used with great
care and circumspection and that the judiciary has to be careful to see that under the guise of
redressing a public grievance it does not encroach upon the sphere reserved by the Constitution
to the executive and the legislature.”
However, it is noticed that the judiciary on several PIL cases did not exercise self-
restraint and moved on to legislate, settle policy questions, take over governance, or monitor
executive agencies. Prof. M. P. Jain cautions against such tendency as: “PIL is a weapon which
must be used with great care and circumspection; the Courts need to keep in view that under
the guise of redressing a public grievance PIL does not encroach upon the sphere reserved by
the Constitution to the executive and the legislature.”39

35
CIVIL APPEAL NOs.4593-4594 of 2014
36
Manmohan Singh, Prime Minister of India, Address at the Conference of Chief Ministers & Chief
Justices of High Courts, Mar. 11, 2006. (full text of speech available at OutlookIndia.com)
37
Ram Jaywa Kapur v. State of Punjab AIR 1955 SC 549
38
AIR 1985 SC 910
39
M.P. Jain, ‘Indian Constitutional Law’, 6th Edn., Reprint 2012, LexisNexis Butterworths Wadhwa,
Nagpur,p.1450
 Moreover, there has been a lack of consistency as well. In some cases, the Supreme
Court did not hesitate to intrude on policy questions but in other cases it hid behind the shield
of policy questions. To be precise, the judiciary intervened to tackle sexual harassment at work
place40 as well as custodial torture41 and to regulate the adoption of children by foreigners 42
through entertaining PIL petitions; but the same Court did not intervene to introduce a uniform
civil code43, to adjust the height of the Narmada dam and to provide a humane face to
liberalised disinvestment polices44. Importantly, the cases of the latter category also come
through PIL petitions where the Court was reluctant to invade the policy-questions. Thus, it is
suspected that in the coming days, if the judiciary will deliver its judgments violating the
separation of power doctrine in the name of enhancing the accountability of the other two
wings of the government through PIL on the basis of such selective intervention there might be
reverse action. Also, the judicial usurpation of executive and legislative functions might make
these institutions more unaccountable, for they knew that judiciary is always there to step in
what they fail to act.
Judicial Pro-Activism:
In respect of the present consideration, the challenge that hinders the smooth operation
of PIL strategy in India revolves around the behaviour of the Courts entertaining PIL petitions.
Numerous instances have come where the Judiciary has shown their pro-activeness with their
decisions in PIL cases. It is quite well that the Court realising its proper role in a ‘Welfare-
State’, using the PIL petitions not only to help the have-nots’ by enforcing their rights but also
for the transformation of the whole society into a regimented one. But, still, there should be
some limit or self-restraint on the part of the Court. In the opinion of the author, through PIL
petitions the judiciary should give top most priority for the cases that greatly affect the society
and human life system rather pronouncing some controversial decisions in the wake of
enhancing the right to life and personal liberty. 45 There is a twofold reason in this respect;
firstly, the execution of such decisions may create a vacuum in the society and secondly, it is
highly impossible to implement such a decision in a country like ours.
The Supreme Court in Narmada Bachao Andolan v. Union of India46, held that the
Constitution of India casts a higher role on judiciary with a great obligation as the sentinel to

40
Vishaka v. State of Rajasthan AIR 1997 SC 3011
41
D. K. Basu v. State of West Bangal (1997)1 SCC 416
42
Lakshmi Kant Pandey v. Union of India (1984) 2 SCC 244
43
Sarala Mudgal v. Union of India (1995) 3 SCC 635
44
Narmada Bachao Andolan v. Union of India AIR 2000 SC 3751
45
J. Markandey Katju, “Lessons in judicial restraint”, The Hindu, July 20, 2012
46
Supra on note 42
defend the values of the constitution along with the rights of the Indians and for that Courts
must act within their judicially permissible limitations to uphold the rule of law and harness
their power in public interest. However, it has been witnessed that sometimes the Court took
opposite role play through entertaining PIL petitions and cross its limits set-up by it.
Judicial activism is not an aberration. It is an essential aspect of the dynamics of a
constitutional Court. However, it does not mean governance by the judiciary. It also must
function within the limits of the judicial process. As Professor Upendra Baxi 47 says, “[J]udicial
activism makes sense only when its performers remain recognisable as judges. When seen
otherwise, say as politicians in judicial robes or as partisans of social and even human rights
movements, unburdened by the craft and task of adjudication, they forfeit their legitimacy.”
Symbolic Justice:
Another major challenge against PIL strategy which practically hindered its smooth
operation in India has been that, the PIL cases often doing only symbolic justice. To understand
this issue, the author wants to bring light on two facets of the problem. First, judiciary is often
unable to ensure that its guidelines and directions in PIL cases are complied with, for instance,
guidelines regarding ban on smoking at public places 48 or the direction regarding abolition of
child labour49. For surprise, the judiciary’s direction given in the above PIL cases seems to be
only a symbolic one because at the present juncture, anyone can see the wholesale violation of
such a holistic approach. The judiciary is often unable to ensure that its guidelines or directions
in PIL cases are complied with. Their effectiveness depends entirely upon good-faith
compliance efforts. As a result, many times, well-intentioned guidelines or directions remain
only on paper.
The second instance of symbolic justice is provided by the futility of over-conversion of
Directive Principles into Fundamental Rights and thus making them justiciable. Not much is
gained by recognising rights which cannot be enforced or fulfilled. It is arguable that creating
rights which cannot be enforced devalues the very notion of rights as trump. 50 A judge may talk
of right to life as including right to food, education, health, shelter and a horde of social rights
without exactly determining who has the duty and how such duty to provide positive social
benefits could be enforced.51
47
Upendra Baxi, Taking Suffering Seriously, Social Action Litigation in the Supreme Court of India from
Rajeev Dhwawan et al. (eds.), Judges and the Judicial Power, Sweet and Mazwell, London, 1985.
48
Murali S. Deora v. Union of India AIR 2000 SC 40
49
M. C. Mehta v. State of Tamil Nadu AIR 1996 SCC 756
50
Ronald Dworkin, ‘Taking Rights Seriously’, 2ndIndian Reprint, 1999, Universal Law Publishing House,
New Delhi, p. xi.
51
M. P. Jain, ‘The Supreme Court and Fundamental Rights’, in Verma and Kusum (Eds.), “Fifty Years of
the Supreme Court of India”, Universal Law Publishing House, New Delhi, p.86.
 A further concern is that as the judiciary enters into the policy making arena it will have
to fashion new remedies and mechanisms for ensuring effective compliance with its orders. A
judicial system can suffer no greater lack of credibility than a perception that its order can be
flouted with impunity. So, the Court must refrain from passing orders that cannot be enforced,
whatever the fundamental right may be and however good the cause.
Thus, these are some issues and challenge which in the opinion of the author, hold back
the smooth operation of PIL strategy in India in protecting the rights of the have-nots’.
CONCLUSION:

Constitutional remedies in present day context will prove only rhetoric unless their
implementation is effectively checked. As one of the special role of judiciary to ensure the
effective implementation of government policy in the case of individual citizens, the necessary
corollary is that it devises the mechanisms to ensure that such implementation is taking place.
And yet, the mechanisms should not result in the judiciary acquiring a coercive, executive role.
For that, it was then obligatory on the judiciary to evolve a mechanism which will ensure
government compliance and implementation. PIL is such a noble invention by the Indian
Judiciary which will ensure government compliance and implementation concerning the
interests of the poor and marginalized sections of the society.
One of the overarching aims of law and legal systems has been to achieve justice in the
society and PIL has proved to be a useful strategy in achieving this objective. PIL, in which the
focus is not on vindicating private rights but on matters of general public interest, extends the
reach of judicial system to disadvantaged sections of society. It also facilitates an effective
realisation of collective, diffused rights for which individual litigation is neither practicable nor
an efficient method. It is such a noble invention by the Indian Judiciary which will ensure
government compliance and implementation concerning the interests of the have-nots’.
To sum-up, the judiciary-driven movement of PIL in India seems to be way beyond
mere pursuit of constitutional and statutory rights and freedoms. It is a transformative strategy
that is energetically pursued to change existing disparities in social, economic and cultural
aspects of life of Aam-Aadmi in the society to a better and more equitable state by transforming
formal commitments and constitutional ideals into enforceable and practical judicial
pronouncements.
SELECT BIBLIOGRAPHY:

ARTICLES

1. Avani Mehta Sood, ‘Litigating Reproductive Rights: Using Public Interest

Litigation and International Law to Promote Gender Justice in India’, (2006),
available at: http/www.papersssrn.com
2. Ashok H. Desai & S. Muralidhar, ‘Public Interest Litigation: Potential and
Problems’; ‘Supreme But Not Infallible: Essays in Honour of the Supreme Court
of India’; Inter-science Management Review (IMR), ISSN: 2231-1513, Volume-
2, Issue- 3, 2012
3. Chandra Sekhar Mishra, “PIL: An Instrument of Social Change”; ‘Law, Justice,
and Social Change’, Dr R. Saxena (Edited), Deep & Deep.
4. J. Markandey Katju, “Lessons in judicial restraint”, The Hindu, July 20, 2012
5. Helen Hershkoff, ‘Public Interest Litigation: Selected Issues and Examples’,
available at
http://www.worldbank.org/publicsector/legal/PubliclnterestLitigation.doc.
(Accessed on 03-09-2013)
6. M.P. Jain, ‘The Supreme Court and Fundamental Rights’; S.K. Verma and
Kusum (eds), ‘Fifty Years of the Supreme Court of India—Its Grasp and Reach’,
Oxford University Press, 2000, New Delhi
 7. P.N. Bhagwati, Judicial Activism and Public Interest Litigation, 23 COLUM. J.
TRANSNAT’L L. 561, 569-70 (1985).

8. Upendra Baxi, Taking Suffering Seriously, Social Action Litigation in the

Supreme Court of India from Rajeev Dhwawan et al. (eds.), Judges and the
Judicial Power, Sweet and Mazwell, London, 1985.

BOOKS

1. Abram Chayes, ‘The role of the judge in Public Law litigation’, 89 thHarvard Law
Review 1281 (May 1976).
2. B. L. Wadehra, ‘Public Interest Litigation: A Hand Book’; (2003), Universal Law
Publishing Co. P. Ltd., New Delhi.

3. D.D. Basu, Human Rights in Constitutional Law (Second Edition (First Reprint),

Justice B.P. Bannerjee and Dr. A.K. Massey, eds., New Delhi: Wadhwa, 2005)
(1994).

4. H.M. Seervai, Constitutional Law of India Volume 1 (Fourth Edition (Fifth

Reprint), Delhi: Universal, 2005) (1967).
5. Granville Austin, ‘The Indian Constitution: Cornerstone of a Nation’, Clarendon
Press, Oxford, 1966,
6. Justice R.C. Lahoti, Preamble: The Spirit and Backbone of the Constitution of
India (First Edition, Lucknow: Eastern Book Company, 2004).
7. M. J. Anthony, Social Action Through Courts: Landmark judgments in PIL, ISI,
New Delhi, 1993.
8. Ronald Dworkin, ‘Taking Rights Seriously’, 2ndIndian Reprint, 1999, Universal
Law Publishing House, New Delhi.