Introduction PIL in Indian Legal System
PUBLIC INTEREST LITIGATION
INTRODUCTION
Public
Interest Litigation which means "litigation in the interest of
public". The undeveloped concept of public interest litigation can be
traced in the system of ‘actio popularis’ of Roman law which
permitted anyone in the society to initiate an action for a public delict in
the court of law or to bring an action of restitution or injunction for the
protection of public property or a religious charitable property. Thus the
system of ‘actio popularis ‘of Roman law can be described as historical
basis of the present form of public interest litigation. The Bhopal Gas
Disaster (Processing of claims) Act, 1985 which enabled the Union Government to
file claims for damages on behalf of the gas victims exhibits a good example of
Roman actio popularis in modern times. Different terminologies have been used
for it in modern times such as class litigation, representative action, public
interest litigation, social action litigation etc. out of all of them the term
"public interest litigation" is most popular.[1]
MEANING AND DEFINITION OF PUBLIC INTEREST LITIGATION
In Black's
law Dictionary "Public interest litigation" means a legal action
initiated in a Court of law for the enforcement of public interest or general
interest in which the public or a class of community have pecuniary interest of
some interest by which their legal rights or liabilities are affected ".
In other words, public interest litigation means any public spirited citizen
can approach the Supreme Court or High Courts for public cause or public
interest by filing a petition under Articles 32 or 226 of the constitution of
India respectively
ORIGIN OF PUBLIC INTEREST LITIGATION
United
States is said to be the originator of Public Interest Litigation. In view of
the decision of Gideon vs. Wainwright,[2]
the first legal aid officer was established in New York city in the year 1876.
Pursuant to the decision of the said case, relating to USA, the basis for the
concept of PIL was formed. In U.S.A. the real pionear in the path of PIL which
influenced some PIL activities of some countries of the world to work for PIL
in1960s and 70s.[3]
CHARACTERISTICS OF PUBLIC INTEREST LITIGATION
The
characteristics of Public Interest Litigation are as under -
(I)
Petitions in PIL are filed on behalf of a group or class of persons.
(ii) Petitions are on behalf of such
group or class of persons, who are unable to knock the door of court for
redressing their grievance on account of their social, economic or other
obstacles.
(iii) Action is initiated in PIL against
irresponsible, illegal acts of Government.
(iv) It is a new concept of jurisprudence
and is a law proposed and propounded by Judges.
(v) Any public spirited person or member of
an organization, can initiate PIL to protect the interest of the largest
section of the society.
REASONS FOR THE GROWTH OF PIL IN INDIAN LEGAL SYSTEM
There are
several factors, which lead to the growth of PIL as an instrument of remedial
justice in India and they can be described as under -
1. Art. 38
of the Constitution ensures social, Political and economic justice and Art. 39
embodies the doctrine of distributive Justice. In order to achieve these
objectives Art. 39A directs the state to provide free legal aid by suitable
legislation. The state must provides free legal assistance to the vulnerable
section of the society and the Supreme Court has held that to provides free
legal aid under Art. 39A is state's responsibility not Government's charity.
2.The new dimensions of the maxim "ubi
jus ibi remedium" have been discovered, which necessitated the filing of
petitions bye public spirited person for the protection of public interest.
3. Public Interest Litigation is a strategic
arm of the legal aid movement, through which infringement of legal or
fundamental rights of the poor could be redressed at the court of law.
4. In modern
times judicial process and proceedings of the court are complex, formalistic,
time consuming in nature. It takes a long time to finally dispose of the
matter. By adopting the system of PIL courts are trying to simplify the process
of justice.
5. The
liberalisation of locus standi rule is the foundation of Public Interest
Litigation.
DEVELOPMENT OF PUBLIC INTEREST
LITIGATION IN INDIA
The seeds of the concept of Public
interest litigation was initially shown in India by Justice Krishna Iyer in the
year of 1976(without assigning the terminology) in Mumbai Kamgar Sabha v/s
Abdulbhai[4]
after the germination of the seeds of the concept of Public Interest Litigation
in the soil of our judicial system, it was nourished, nurtured and developed by
the Apex Court by a series of outstanding decisions.
The traditional rule of locus
standi has now considerably relaxed by the Supreme Court in its recent ruling
in A. B. S. K. Sangh(Rly) v/s Union of India[5]
it was held that access to justice through 'class action's', 'public interest litigation' and
'representative proceedings' is the present constitutional jurisprudence.
In S. P. Gupta and others vs President
of India and others[6]
(Judges Transfer Case), a seven member Bench of the Supreme Court has firmly
established the rule that any member of the public having 'sufficient interest'
can approach the court for enforcing constitutional or legal rights of other
persons and redressal of a common grievance.
The entire development of Public interest
litigation in India till today can be attributed to the following four
proccdures:-
(I) liberalisation of the rule of locus
standi,
(ii) treating letters as writ petitions,
(iii) suo motu intervention by the
judge,
(iv)
adoption of non-adversarial procedure of justice and appointment of commission.
While expanding the
scope of the ' locus standi' rules his lordship Justice Bhagwati expressed a
note of caution also. He observed we must be careful to see that the member of
the public, who approaches the court in a case of such kind is acting bona fide
and not for personal gain or private profit or political motivation. Public
interest litigation in no case be converted into publicty interest litigation.[7]
In People Union for
Democratic Rights vs Union of India[8] petition was filed by public spirited organization to
protect the interest of the person employed in the construction work of various
project connected with the Asian Games Complaining of violation of various
provision of labour law was held maintainable
In D. S. Nakara vs Union
of India[9] it was held that a registered co-operative society
consisting of public spirited citizens raised their voice to redress the
demands of old and retived infirm pensiones unable to seek redress through
expensive judicial procedur can approach the court by filing a petition.
In D. K. Basu vs state
of west Bengal[10] the police authority were asked to take certain steps
before effecting any arrest or detention of any individual.
In Bandhua Mukti morcha vs
Union of India[11] it was held public spirited organization intitle to
move court release of bonded laboures working in stone quarries.
PIL AND INDIAN CONSTITUTION
Public Interest Litigation is the litigation for the protection of the
public interest. In Indian law, Art. 32 of the constitution contains a tool
which directly joins the public with judiciary. A PIL may be introduced in a
Court of law by the court itself (suo motu), rather than the aggrieved party or
another third party. For the exercise of the court's jurisdiction, it is not
necessary for the victim of the violation of his or her rights to personally
approach the court. In a PIL, the right to file suit is given to a member of
the court through Judicial Activism. The member of the public may be a Non-Governmental Organization (NGO), an
institution or an individual. Subodh Markandeya, a well known Senior Advocate
of a Supreme Court of India and Judicial Activists believes that Public
Interest Litigation is the principle legal remedy for a common man and it is
main weapon of judicial activist.
In the Fertilizer Corporation Manager
Union Vs. Union of India [12]
the eminent jurists V.R. Krishna Iyer, the initiator of this innovative process
of PIL, described law as “a social auditor and this audit function can be put
into action only when someone with real public interest ignites the
jurisdiction of the court”.
AGAINST WHOM PUBLIC INTEREST LITIGATION CAN BE FILED
A Public Interest Litigation can be filed against a State/Central Government,
Municipal Authorities, and not any private party. According to Article 12, the
term “State” includes the Government and Parliament of India and the Government
and the Legislatures of each of the states and all local or other authorities
within the territory of India or under
the control of the Government of India. Thus the authorities and
instrumentalities specified under Article 12 are-
-The government and
Parliament of India .
-The Government and
Legislature of each of the States.
-All local
authorities.
-Other authorities
within the territory of India or Under the Government of India .
In Electricity Board,
Rajasthan Vs. Mohan Lal the Supreme Court held that “other authorities would
include all authorities created by the Constitution of India or Statute on whom
powers are conferred by law”. However, ‘Private Party’ can be included in the
PIL as “Respondent” after making concerned state authority, a party.
GUIDELINES GIVEN BY THE SUPREME COURT
Hon’ble Apex Court given some guide lines to regulate
the abuse of PIL:-
(1)
The court must be
careful to see that the petitioner who approache it is acting bona fide and not
for personal gain, private profit or political or other oblique considerations
.
(2)
The court should
not allow its process to be abused by politicians and others to delay
legitimate administrative action organizations to gain political objectives.
PIL AS AN INSTRUMENT OF SOCIAL CHANGE
PIL is working as an important
instrument of social change. It is working for the welfare of every section of
society. The innovation of this legitimate instrument proved beneficial for the
developing country like India. PIL has been
used as a strategy to combat the atrocities prevailing in society. It’s
an institutional initiative towards the welfare of the needy class of the
society.
In Bandhua Mukti
Morcha Vs. Union of India [13]
the supreme court ordered for the release of bonded labouress.
In Murli S. Dogra
Vs. Union of India [14]Court
banned smoking in public places.
In a landmark
judgment of Delhi Domestic Working Women’s Forum Vs. Union of India , Supreme
Court issued guidelines for rehabilitation and compensation for the rape on
working women.
In Vishaka Vs. state
of Rajasthan [15]
the supreme Court had laid down exhaustive guidelines for preventing sexual
harassment of working women in place of their work.
STEPS NECESSARY
At present , the court
can treat a letter as a Writ petition and take action upon it. But ,it is not
every letter which may be treated as a writ petition by the court. The court
would be justified in treating the letter as a writ petition only in the
following cases:-
(1)
It is only where the letter is addressed by an
aggrieved person , or
(2)
A public spirited individual, or
(3)
A social action group for enforcement of the
Constitutional or the legal rights of a person in custody of a class or group
of persons who by reason of poverty, disability or socially or economically
disadvantaged petition find it difficult to approach the court for redress
Even though it is
very much essential to curb the misuse
and abuse of PIL , any move by the government to regulate the PIL results in
widespread protests from those who are not aware of its abuse and equate any
form of regulation with erosion of their fundamental rights. Under these
circumstances the Supreme Court of India
is required to step in by incorporating safe guards provided by the civil
procedure cide in matters of stay/injunction in the arena of PIL.
CRITICISM OF PIL
The debatea over the
limits of Judicial Activism in the area of PIL , have been vigorous . A private
members bill entitled “Public Interest Litigation(Regulation) Bill,1996” was
tabled in the Rajya Sabha . The statement of objectives and reasons stated that
PIL was misused in the name of providing justice to the poor sections of the society and also that PIL cases were given more priority over other
cases” in the Court for years. However the bill was not passed.
Bearing in mind the power
and importance of PIL in making the Constitution a living reality for every
citizen and also the efforts channeled through the medium of PIL .
Jurisprudence in providing justice to
the deprived , the process is positively succeeding , following the logic of
its nature. In a country characterized by numerous “Variable Ethnicity” and
religious diversity. Working via the pattern through a comprehensive
bureaucracy, a grieved, poor, deprived citizen does find it hard to seek
justice because of economic disability or lack of “Know-How” or even due to
red-tapism. The only option left before the deprived next to a miracle is a PIL
petition.
CONCLUSION
Public Interest
Litigation is a revolutionary stream which helps the common man to reach the
remedy which is beneficial for public at large which was not earlier available
to them even before actual damage is done. We should thank our judiciary who
have coined this new concept which is very useful for public at large because
there are many examples present with us which shown that it really helped the
common person in field of pollution, environment , bonded labour, scam
corruption etc. By filing the Public Interest Litigation one can assure the
justice to the aggrieved people.
[1]
Prof.U.P.D. KESARI,LECTURES ON ADMINISTRATIVE LAW,CENTRAL LAW PUBLICATION
,Allahabad,2005,p366
[2] 372
NS 335,
[3]
https://en.wikipedia.org/wiki/Public_interest_law visited on 25/10/2017
[4]
AIR1976 SC1455
[5]
AIR1981 SC298
[6]
AIR1982 SC149
[7]
DR.J.N.PANDEY, Constitutional Law of India, CENTRAL LAW
AGENCY,ALLAHABAD,2012,p377
[8]
AIR 1983 SC 339
[9]
AIR 1983 SC 130
[10] AIR
1997 SC 610
[11]
AIR 1984 SC 803
[12]
AIR 1981 SC 434
[13]
AIR 1984 SC 803
[14]
AIR 2002 SC 40
[15]
AIR 1997 SC 2814
This is a good side.
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