Chapter – I

INTRODUCTION

Public Interest Litigation (PIL) is a legal action which is taken in a

court of law for legal right of the community. The phrase “Public Interest

Litigation” refers to particular human claim made in a politically

organized society or political institution. The concept of human rights

has assumed importance globally during the past few decades ever since

the announcement of the Universal Declaration of Human Rights. Human

rights are the important element of philosophical, social and political

debates of the twentieth century. Number of people around the world

suffers from their basic needs. They are also refrained from the

enjoyment of the basic economic, social, cultural, civil as well as political

rights. This challenge is the basic issue not only concern with the one

country but also universal and global.

The idea of the term “human rights” is older and not the invention

of the twentieth century. The genesis of human rights is the utopian

concept of natural rights traceable from the days of the Greek or even

earlier. The period of renaissance witnessed the basic changes in the

belief of society. People thought that an idea of human right is to be a

general, social need and reality. The real foundation of human rights was

truly laid when resistance to religious intolerance and political economic

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bondage began. The Magna Carta (1215), The petition of Rights (1628),

and the English Bill of Right (1689) were proof of the human rights.

The scientific and intellectual achievement of liberal thinkers

Galileo, Newtion, Francis Bacon, John Lock, Montesquieu, Voltair and

Rosseau had a profound influence on the western world of the late 18 th

and early 19th centuries. Similarly, the French Declaration of the Rights

of Man (1789), emphasized that “men are born and remain free and equal

in rights” which are “liberty, property, safety, and resistance to

oppression.” It defined “liberty” so as to include the right to religious

freedom, freedom of association, right to free speech, and freedom from

arbitrary arrest and confinement. The most serious philosophical blow to

natural rights theory came particularly under the influence of Edmund

Burke, David Hume, Jeremy Bentham, J.S. Mill, Friedrich Karl Von

Savigny, Sir Henry Maine, John Austin and Hegel.

The world community realized for the first time, the need to

establish some institutional mechanism to protect and preserve the rights

of man after the First World War. The idea of human rights came truly

into its own after the rise and fall of Nazism in Germany. The world

institution was established after the First World War. However, after

Second World War in 1945, the important development took place i.e. the

establishment of the League of Nation for the protection of all individuals

against all forms of injustice and human rights violations after the UN
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 charter was signed in 1945. The Charter of the United Nations, which

stressed the urgency of international co-operation for human rights, social

Justice, peace and fundamental freedoms.

The word ‘Public interest’ according to the Oxford English

Dictionary (2nd edition Vol. XII) mean “The common well being also

public welfare” and the word ‘litigation’ means “a legal action including

all proceedings the reeling, initiated in a court of law with the purpose of

enforcing a right or seeking a remedy.” In Strouds Judicial Dictionary,

Volume 4 (IV edition) and in Black Law Dictionary (sixth Edition) also

defined the meaning of “Public interest”. Jeffrey M. Berry pointed out:

“Public interest Law” has been a uniquely American

development. It has been defined in many ways”1

The Council for public interest law set up by the Ford Foundation

in the USA in its report has opted for a broad definition.

“Public interest Law’ is the name that has recently been

given to efforts to provide legal representation to

previously unrepresented groups and interest such efforts

have been undertaken in recognition of the fact that the

ordinary market place for legal services fails to provide

such services to significant segments of the population

and to significant interest. Such groups and interest

1
Jeffrey M.Berry: 1977 lobbying the people (The Political Behaviour of Public Interest Groups) Princeton
University press, New Jerely,p.6

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 include the poor, environ, consumers, racial and ethnic

minorities and others.2

Social Justice is main aspect of Indian Constitution. Social Justice,

political Justice and economical justice is clearly laid down in the

preamble as the guiding principal of the Constitution of India. The

makers of constitution had taken most care to provide social, economical

and political justice to all sector of society. Therefore, justice is most

positive aspect of social and political philosophy. According to the

Aristotelian “Common good” as the basis of social order based on the

principal of justice could not applied in India. Due to the Indian social,

political, and economic problems it is difficult to take social reform. The

Constitution of India is the most important factors allowing social reform.

Because of the Indian constitution one must pursue the goals of social

development. The constitution was written with consciousness that there

should not be inequalities in the goals of social, economical and political

development.

Post independence Indian democracy has created a most important

role for the state that is, on whole strongly developmental. There exists a

powerful commitment to the achievement of social democracy using state

power to walk in the interest of social equality. A special feature of

Indian constitution practice is the growing importance of the Judiciary.

2 “Balancing the scales of justice Financing public interest law in America. A report by the council for public
interest law (1976) pp 6-7”

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The Judiciary is helpful to society’s most disadvantaged groups. Indian

society has long been blessed with variety but cursed with conflict. Many

of Indians social problems have continued due to cast, class, religion and

gender. Central government and state government have devoted a great

deal of effort to try to find the remedy for the situation of inequality.

Government of state and central provided opportunities to lower casts in

terms of reservations for position in education and Jobs. Therefore,

services such as health care, schooling and food subsidies made available

to the economically disadvantaged people. Indian public policy has long

been closely linked with development policy, and the main interests of

policy have been in the improvement of quality of life.

The fact is that India has been able to successfully sustain its

democratic system for sixty five years under circumstances that can be

best labeled inhospitable to democratization.

So for this system Diamons pointed out:

Most democratization literature links

democratization with the increased incidence of

economic growth and industrialization; however,

India’s democracy has survived under conditions

of dire poverty and illiteracy. Democracy in a

developing country must create conditions of its

sustainability by generating wider and deeper

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 bases of support from diverse segments of its

population.3

Indian democracy is ideal democracy based on equality in political

decision making. It can be only by symbolic rather than strong action. So

Kymlika argues:

That, it is legitimate and indeed unavoidable to

supplement traditional human rights with minority

rights. A comprehensive theory of justice in a

multicultural state will include both universal

rights, assigned to individuals regardless of group

membership, and certain group differentiated

rights or ‘special status’ for minority cultures. A

liberal theory of minority rights, therefore, must

explain how minority rights are limited by

principal of individual liberty, democracy, and

social justice.

According to Lawrence Friedman social change is expected only

through violent revolution, but some degree of real change is expected

through the law only. While discussing social change through law, this

can be done via adjudication or via legislation. The way is crucial for real

change which is effective for implementation, which involves funding,

3
Diamond, Larry J, Linz, and Seymour Martin Lipset, eds. 1989. Democracy in Developing Countries : Asia,
Boulder, Co. Lynne Rienner Publishers. P. 52.

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proper administration and judicial and legislative follow up. Yehezkel

Dror argues:

The most fascinating and “extreme example of the

use of changing The Law as a device to bring

about social change from which can hope to study

its processes and problems are provided by those

cases where a revolutionary or intellectual

minority obtains legislative power and uses it in its

efforts to bring about extensive changes in social

structure and culture.

India has been consistently concerned with the protection of human

rights, and pursues of socio-economic development. All three branches of

government have been actively concerned with this issue but the focus is

only on the role of the judicial branch in particular i.e. The Supreme

Court. Public Interest Litigation (PIL) is can be directly filed in the

Supreme Court. The Indian Supreme Court is extremely active in

delivering judgment for public Interest Litigation cases. Through the

Supreme Court this type of activity runs to bring out social change. In its

work the Court was at one time, grounding breaking and utterly

optimistic about its abilities to create change. It is now cognizant of its

limitations but is also aware of the influential position it holds; one which

can be used to aid in the creation of real social change.

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 The nation was in misery and in a state of depression because of

the wake of Priminister, Indira Gandhi’s Suspension of democracy during

the Emergency period 1975-77. At the time of said emergency period,

government was in a state of lawlessness and thousands of innocent

people and also political opponents were sent to Jail. Therefore, The

Supreme Court took on this challenge by creating a very “Pro-people”

plan and brings back some credibility. Public interest litigation became

the upper judiciary to protect the rights of the most disadvantaged

members of the Indian Public.

Public interest litigation allows the judiciary to protect the

fundamental rights, in particular, the “right to life” guaranteed by the

Indian constitution. The court has been broadly interpreted “Right to life”

as the right to shelter, health, food, equality, dignity, and a host of other

elements, PIL allows the judiciary to purse the goals of Socio-economic

development by relaxing the rules of standing. The Supreme Court allows

straight a petition without having to deal with lower courts and lengthy,

expensive appeals processes. When the executive and legislative wings of

government have failed in their duties, public interest litigation was just

beginning to take hold carry in 1980. The judges thought that they were

revolutionary forces, and at the top real social change would surely

follow.

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 Publicity is the key as to how the Supreme Court does promote

some degree of social change. Publicity may come in two different forms.

It may simply social activists and public interest lawyers better known.

Publicity may be served to highlight social problems and the higher

judiciary is the most trusted branch of government in our country. The

Supreme Court justices and High Court justices are most trusted. In India

many social activist and non-governmental Organization (NGOs) credit

the reporting of the higher judiciary’s judgments. In PIL, the nature of

proceedings is that of described under Article 32 i.e. writ jurisdiction of

Supreme court of India and under Article 226 i.e. writ jurisdiction of

various High courts as contemplated in the Constitution of India. Justice

Bhagwati and Justice Krishna Iyer played a significant and vital role in

the development of public interest litigation in the Indian Judicial system.

Both judges worked on improvement of public interest litigation. Justice

Bhagwati and Justice Krishna Iyer have referred the term ‘social action

litigation’, a similar term for public interest litigation. The terms justice

and injustice may also refer to the actions of individuals, but our concern

is with their social application. Social justice will be considered not

simply a property or virtue of such society in its formal or legal aspect

what is called the state. According to John Rawls in A Theory of justice :

“The primary subject of justice is the basic

structure of the society or more exactly, the way in

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 which major social institutions distribute

Fundamental Rights and duties and determine the

division of advantage from social cooperation. By

major institutions is meant the political

constitution and the principal economic and social

arrangement. Thus the legal protection of freedom

of thought and liberty of conscience competitive

markets. Private property in the means of

production and the monogamous family and

examples of major social institution”.4

The concept of social justice has been partly defined. According to

this concept, a society is without justice as it is without rules, it is formal

and informal aspects. It also treats human beings equally. Such type of

difference to treat people’s unequally in certain respect, so qualifying The

Prima Facie requirement of equality. Many other differences in blood or

color, are not just making. The recognition of capacity and the

recognition of contribution are not the only principles of justice but it

may qualify the principles of equality. PIL main purpose is to give justice

to weaker section of society. Most of the times, the Supreme Court and

High courts have taken assistance of advocates by appointing them as

‘amicus curie’ in a particular case. The role of amicus curie is to assist the

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4
John Rawls 2000. A Theory of Justice. Universal Law Publishing co-pvt. ltd. New Delhi P. 7.

1
court and to verify the information supplied by petitioner in a case. In the

Supreme Court and in High Courts, senior advocates work as amicus

curie. In Supreme Court, senior advocates work as Amicus curie to verify

the cases of bonded labours, police excesses, forest and public

accountability and cases related to environmental issues. The judges of

Supreme Court and High courts have appreciated the role of amicus curie

carried out effectively and honestly by advocates without charging any

fees and by giving their valuable time to the matter from their busy

schedules.

The term Locus Standi can be understood as a legal capacity to an

act or a decision. This is one of the most debated subject of administrative

law. A party who has no Locus Standi but files a petition therefore it need

not be heard on merits. The concept of Locus Standi is being liberalize of

where as the scope of the concept is being expanded day by day. When

the first public interest litigation was filed at that time the need for

liberalization of Locus Standi was being felt. The Government of India

appointed a high power committee of Supreme Court of India including

justice P.N. Bhagawati and justice V. R. Krishna Iyer for the need for

making the Rule of Locus Standi. In the committee’s own words ;

“Each one being driven to court on his separate

cause of action is itself a public wrong…. The rule

of Locus Standirequires to be broad based and any

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 organization or individual must be able to start

such legal action”.

The Supreme Court of India recognized the need for relaxing the

rule of Locus Standi in cases as well as the recommendation made by the

committee of the government of India in this regard. When there has been

a violation of constitutional or a legal right of a person who is unable to

approach the court because of his socially or economically disadvantaged

position for judicial redress and therefore in such situation, a person can

approach Supreme court of India and High Courts by filing public interest

litigation for his grievances and as such, the rule of Locus Standi has been

relaxed considerably. Even a person, who writes a letter or complain to

Chief Justice thereby stating his grievances, even in this regard, such a

letter or a complain can be converted into PIL by Chief Justice by taking

suo-moto cognizance of the matter. Thus, the rule of Locus Standi has

been considerably relaxed in the matters of PILs.

1. RESEARCH DESIGN:

A. STATEMENT OF RESEARCH PROBLEM:

Researcher in this research has dealt the problem of “Evolution and

Development of Public Interest Litigation and the Role of the Supreme

Court” and the Researcher in this research has also focused on the

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 problem of ‘Justice Delayed is Justice Denied’ in the matters of Public

Interest Litigation. Researcher has also tried his level best to give

suggestions for speedy disposal of PILS by Courts and to meet the

demand of justice.

B. REVIEW OF LITERATURE:

For the purpose of this research researcher has reviewed Several

Commentaries thoroughly both from the library and accessed through the

internet for thorough research upgrading. He has also studied and gone

through Articles of different luminaries such as Cassels Jamie, Charles F.

Sabel and William H. Simon, Dhavan Rajeev etc. Books authored by

renowned authors such as Advani P., Agarwal S. L., Dhavan R. R.

Sudarshan and Khurshid, KapurJagga, Khan A. J.Sarkar S. K. etc. he has

also reviewed various enacted laws covering Public Interest Litigation and

the Role of the Supreme Court, researcher has also reviewed several

journals i.e. American University Journal of Gender, Social and Law, Asia

Pacific Journal of Environmental Law, Humen Rights Quarterly, National

Law Journal, Supreme Court cases etc. Researcher has also reviewed

various case laws, citations of the judgments on PILs passed by the High

Courts and Supreme Court.

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C. AIMS AND OBJECTIVES:

In this research the researcher has framed following aims and objectives:

a. To discover the new methods and techniques for effective

implementation of Public Interest Litigation through court of law.

b. To analyze the fact in new theoretical frame work for solving the

problems of Public at large while exercising the discretion of High Courts

and Supreme Court in effective implementation of human rights and to

examine the consequences of new facts and new principles of law or

judicial decision this has provided a new dimension to the public at large.

c. To develop new legal concepts and dimension of functioning of High

Courts and Supreme Court their discretion for effective implementation

of public laws and to predict the consequences of new Act which has

been made for the effective implementation of Public Interest Litigation.

d. An impact analysis of Legislation may be the objective of legal research.

A study of various reported Judgments of High Courts and Supreme

Courts in Public Interest Litigations may fall within the impact analysis.

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 e. To study the reasons behind the delay caused in deciding the Public

Interest Litigations.

D. SCOPE OF STUDY:

The scope of the study is to discuss the effective implementation of

public interest litigationsby High Courts and Supreme Court for the

benefit of public at large. Researcher has also emphasized on the working

of Public Interest Litigation in other countries. However, the Researcher

in this research work has highlighted the concept of Public Interest

Litigation in other countries, its origin and its current position and the

researcher has not made any comparison of position of PILs in India and

in other countries. Further this thesis has also highlighted upon the how

the speedy disposal of cases can help the society in getting the demand of

justice. Further the Researcher in this research has also mentioned about

the land mark judgments passed by High Courts and Supreme Courts in

deciding PILs.

E. SIGNIFICANCE:

“JUSTICE DELAYED IS JUSTICE DENIED”

A Legal maxim.

a. With the rapid growth of filing Public Interest Litigations and other

petitions in High Courts and Supreme Court, it is just and necessary to

1
 deal with public issue involved in such cases and to deliver the justice

to the persons affected by adopting the measures of speedy disposal of

cases and by increasing the number of judges in High Court and

Supreme Court as compare to number of cases.Role of Judiciary in

delivering delayed justice is the justice denied in Public Interest

Litigations.

b. It is necessary to look into the issues raised by Media, Press relating to

any scams and scandals and to take the sue-moto cognizance of such

cases by initiating the Sue-Moto Public Interest Litigations on larger

scales, so that the fear our judicial system should reach in the mind of

such persons, who are responsible for such scams and scandals and the

other person will hesitate to do so.

c. Due delay caused in hearing the Public Interest Litigations, not only

the public but the Non – Governmental Organizations are trying to

find out other ways to resolve the issue involved rather than

approaching the Court of Law.

F. SOURCE OF DATA COLLECTION:

The data has been collected from both - Primary and Secondary

sources. The primary data has been collected with the help of personal

1
 interviews and distributing questionnaire amongst Advocates,

Government pleaders and Public Prosecutors and Advocates of High

Courts as well as Supreme Court. Further the researcher has collected

primary data through Books, Journals, Articles, Judgments of High Court

and Supreme Courts, various Acts etc.

Secondary data has been gathered from various sources including

review of literatures, web sites, annual reports, reports of various national

and international institutes, news papers, etc.

G. SAMPLE:

Random sampling technique has been used in this thesis. The

samples have been collected from the Bombay High Court at Bombay

Aurangabad and Nagpur Bench and from the Supreme Court at Delhi.

Discussion on the topic of PIL held with various Advocates and

Government pleaders of BombayHigh Court at Bombay, Aurangabad and

Nagpur Bench and Supreme Court.

H. HYPOTHESIS:

Every scientific research is a step with the statement of noble problem.

Science addresses itself only to solve problems. An investigator suggests

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 tentative solution of problems in the form of testable proposition that is

called a hypothesis. According to A. K. Singh:

“Therefore, a hypothesis is nothing but suggested

testable answer to a problem. Enlarging this

meaning of hypothesis; a hypothesis is a testable

relationship between two or more than two

variable”5

Webeister defines hypothesis as “The guesses made by the

researcher which either solve the problem or guide him in further

investigation.” Goode and Halt Observe: “A hypothesis states what we

are looking for. A hypothesis is looks forward. It is proposition which can

be put to a test to determine its validity. It may prove to be correct or

incorrect”. According to John W. Best “Hypothesis is a shrewd guess or

inference that is formulated and personally adopted to explain observed

fact or condition and to guide in further investigation.” M. C. Guigan has

defined hypothesis as “a testable statement of a potential relationship

between two (or more) variables, that is advanced as potential solution to

problem”. Barr and Seates define “A hypothesis is a statements

temporarily accepted as true in the light of what is, at the time, known

about a phenomenon and it is employed as a basis for action in search for

new truth, when the hypothesis is fully established, it may take the form
5
Sing A. K. 2004. Tests Measurement and Research Method in Behavioural Science Patna : Bharti Bhawan. P.
356.

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 of facts, principles and theories.” In short one can say a hypothesis is

testable statement and displays the relation between two variables.

Word hypothesis is combination of two words ‘hypo and thesis’,

‘Hypo’ means under or less than or tentative and ‘thesis’ means general

opinion or statement about solution of a problem. Therefore Dr. Mona

Purohit described:

“Hypothesis means tentative statement about the solution

of problem or hypothesis means the guesses to solve the

problems.”6

An important premise of law and economics is that the common

law (i.e., judge made law) is the result of an effort, conscious or not to

induced efficient outcomes. This is known as the efficiency of the

common law hypothesis. According to this hypothesis common law rules

attempt to allocate resources efficiently typically in a efficient manner.

Common law rules are said to enjoy a comparative advantage over

legislation in fulfilling this task because of the evolutionary selection of

common law rules through adjudication and the gradual increase of

precedent several important contributions provide the foundations for this

claim. However, the scholars who have advanced theories, in support of

the hypothesis are often in disagreement as to their conceptual basis.

6
Dr. Mona Purohit. 2010. Legal Education and Research Methodology. Central law Publication. Allahabad. P.
120

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 In this research work Researcher’s hypothesis is “The discretion

exercised by courts in deciding public interest litigations does not

meet to the demand of justice.”

I. METHODOLOGY:

The researcher has inclined to follow the combination of Doctrinal

and Non-Doctrinal Research Method for collecting data in the present

research.

In the Doctrinal Research the various statutory provisions, relevant

Case Laws, Commentaries, Encyclopedias, Reports of National and

International Journals, Articles in Law Journals, Speeches and Writings

of various luminaries, Periodicals, Newspapers, Web sites, reports of

various surveys conducted, Articles published in Workshops and

Seminars etc., will be perused for examination, analysis, evaluation and

critical study of the present research problem. The researcher has

collected the databy group discussion and questionnaires of the

Advocates of Bombay High Court and Supreme Court to collect data

through Non-doctrinal research.

J. SCHEME OF CHAPTERISATION:

The Researcher has divided this thesis into following seven chapters:

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Chapter I : Introduction.

This chapter deals with evolution of public interest litigation and its

importance and how it is useful to the poor to get justice. This Chapter

also gives introduction of exemption of Rule of Locus Standi in PILs.

Introductory part also consists of Research Methodology.

Chapter II : Objects of Public Interest Litigation :

This chapter deals with object of public inter litigation to safeguard and

protect constitutional and legal rights of disadvantaged section.

Chapter III : Origin of Public Interest Litigation in U.S.A., U.K. and India

This chapter deals with the origin of public interest in U.S.A., UK and

India. Public Law is used first in USA. The Researcher in this research

has tried to place the origin of PILs in U.S.A., UK and India from the

available Secondary data.

Chapter IV : Constitutional Provisions of Public Interest Litigation :

This chapter deals with the constitutional provisions of public interest

litigation i.e. Article 226 and Article 32 of the Constitution. Also this

Chapter also deals with the various articles relating to violation of human

rights in India.

Chapter V : Public Interest Litigation regarding different Countries :

This chapter deals with the origin and current position of public interest

regarding Australia, Canada, France, South Africa and Japan. Public

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interest law also helped the above countries uplifted life of downtrodden

people.

Chapter VI : Public Interest Litigation with Social change, Economic

change, Political change and Environmental change :

This chapter deals with Social Economic, Political and Environmental

change due to the public interest litigation on the weaker section of the

community.

Chapter VII :Role of the Supreme Court

In this chapter, the Researcher has highlighted the role played by

Supreme Court of India in Public Interest Litigation and the dynamic

approach of the Supreme Courtin deciding the PILs for giving justice to

public at large and for the same the rule of Locus Standiis being

exempted under Article 32, wherein a petition can be filed by the person

whose fundamental right is violated. In this Chapter, the Researcher has

also dealt with the Role of Supreme Court and Neglected Children’s,

Bonded Labor’s, Non payment of minimum wages to workers, problems

in Prison faced by prisoners, problems faced by women in India, with

Police Machinery, regarding the Scheduled cast and scheduled tribe, also

role of Supreme Court over Riot, Family pension and on environmental

issues.

Chapter VIII : Conclusion

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In this Chapter the Researcher has given various suggestions for speedy

disposal of Public Interest Litigations, for encouraging the social activist

and common man to come forward by approaching High Court and

Supreme Court by taking in hands the various issues of public at large

and weaker section of society who can’t approach the courts due to

various reasons and lastly but not the leastthe researcher has also given

the suggestionfor meeting the demand of justice with common person in

comparison of the current method of deciding public interest litigations

adopted by the Supreme Court and High Courts.