“Public interest litigation has become the people’s
tool fashioned by judges to enforce the obligations of the state, its
institutions, and its functionaries to explore and discover ways and means of
giving life and soul to the preambular assurances via the judicial process.”
-Justice O.Chinnappa
Reddy
What
is Public Interest Litigation?
Public Interest Litigation (PIL) or ‘Pro bono public
litigation’ is a litigation at the instance of a Public spirited citizen
espousing cause of others. It is a strategic arm of the legal aid
movement and which is intended to bring justice within the reach of poor masses
who constitute the low visibility area of humanity.[1] Public
Interest litigation is essentially a co-operative or collaborative effort on
the part of the petitioner, the State or Public Authority and the court to
secure observance of the constitutional or legal rights, benefits or privileges
conferred upon the vulnerable sections of the community and to reach social
justice to them.
Justice Krishna Iyer, one of the pioneering
judges who legitimized and popularized the Public Interest Litigation in India
considers Public Interest Litigation as the product of creative judicial
engineering. According to the eminent judge, “the jurisdiction of the Indian
Supreme Court is the widest in the world; the challenges of India’s social
changes are the sharpest; the dynamics of a functional jurisprudence is the
creative expression of judicial response to the crisis of hunger for justice.
Public Interest Litigation is the off spring of these social forces. This
burgeoning process, seminal and innovative, makes the court a catalyst of
social justice, a defender of the constitutional faith and the protagonist in
the drama of human rights for the common man. Justice Iyer views Public
Interest Litigation as a part of the participative justice[2].
In India, Public Interest Litigation is an
innovative strategy which has been invented by the Supreme Court for the
purpose of providing easy access to justice to the weaker sections of Indian
humanity and it is a powerful tool in the hands of public spirited individuals
and social action groups for combating exploitation and injustice and securing
for the under privileged segments of society, their social and economic
entitlements. It is a highly effective weapon in the armory of the
law for reaching social justice to the common man.[3]
The Public Interest Litigation is concerned
primarily with the constitutional remedies sought under Article 32 or Article
226 of the Constitution of India. The Public Interest Litigation in India is a
consequence of the relaxation of ‘locus standi’ principle which is an
inherent part of the adversarial system of justice. Its main aim is to provide
justice within the reach of the needy, irrespective of their back-ground like
the status, literacy and other factors. That is the precise reason, why the
Public Interest Litigation has been called an arm of the legal aid movement in
India. In United States of America , it is popularly known as the ‘Public
Interest Law’ where the law firms , environmentalists , consumer activists and
social scientists play an important role in protecting the rights of the
unrepresented sections of the citizens who are not in a position to do the
same. Apart from legal interest, in the U.S.A. the rights of persons to move
the Court challenging the governmental or its agency action, on the basis of
‘general interest criteria’, statutory standing, competitor and consumer
standing and also environmental standing are recognized.
Thus, Public interest litigation (PIL) is important
facet of participative justice. It is a signpost which signals the decent of
the judiciary from the confines of the ivory towers to the crowded mud huts and
the littered pavements, flowing drains and the World of naked street walkers,
street urchins, and ragamuffins. With the advent of public interest litigation,
realisation is appearing to drawn on the poor, the oppressed, and the exploited
that they too have a place under the some and a right to live with dignity,
that the constitution protects their rights with the Supreme Court as the
custodian of such rights, and their weapon is the new invention called public
interest litigation, described by some as 'social action litigation'.
First
case of PIL filed in India
Among the memorable legal cases fought by the way of
PIL was by the People's Union for Democratic Rights (PUDR), a petition
concerning the Asiad 1982 construction workers in the Supreme Court. The case
had not been filed by the workers but by the PUDR which technically was not an
aggrieved party. Yet considering the fact that the workers themselves were not
in a position to file a case, the court agreed to accept the locus standi of
the PUDR.
The nature and philosophy of public interest
litigation was expounded byJustice P.N.Bhagwati in this case (well-known
as Asaid Case)[4] in the
following manner:
“Public interest litigation which is a strategic arm
of the legal aid moment and which is intended to bring justice within the reach
of the poor masses, who constitute the low visibility area of humanity, is a
totally different kind of litigation from the ordinary tradition litigation
which is essentially of an adversary character. Public interest litigation is
brought before the court not of the purpose of enforcing the right of one
individual against other, but it is intended to promote and vindicate public
interest which demands that violations of constitutional or legal rights of
larger number of people who are poor, ignorant or in a socially or economically
disadvantaged position should not go unnoticed and un redressed. That would be
destructive of the rule of law which forms one of the essential elements of
public interest in any democratic form of government. The rule of law does not
mean that the protection of the law must be available only a fortunate few or
that the law should be allowed to be prostituted by the vested interests for
protecting and upholding the status quo under the guise of enforcement of the
civil and political rights. The poor too have civil and political rights and
the rule of law is meant for them also, though today it exists only on paper
and not in reality.”
Concept
of locus standi in PIL
Public Interest Litigation is very closely linked
with the relaxation of ‘locus standi’ and providing easy access to
justice. It is also concerned with the protection of the countless and unrepresented
masses of India, a third world country, who are not in position to protect
their rights due to poverty, illiteracy, indigence and other social,
economic and political factors.
As regards the civil remedies, the courts recognize
the ‘locus standi’ of only the aggrieved persons, to seek a remedy in
a civil court. A minor concession is made under the Code of Civil Procedure,
providing for class or representative action. Under the Criminal Procedure,
only an affected or aggrieved person is competent to maintain an accusation or
complaint, and generally not a stranger. As regards the Constitutional remedies
provided under Article 32 before the Supreme Court and under Article 226 before
the High Courts there is nothing contained in these two Articles to suggest
that the ‘locus standi’ of only the aggrieved person is to be
recognized, while issuing appropriate orders, directions or writs. In
spite of glaring silence, the Constitutional Courts in India have followed the
traditional principle of‘locus standi’ and permitted only the aggrieved
person to initiate proceedings under Article 32 and 226. Probably this is due
to the influence of the Anglo Saxon jurisprudence which has had a sway over the
Indian judicial system in almost all the areas of administration of justice. ‘Locus
standi’ concept was not an exception to this phenomenon. This rigid
procedural barricade has been broken by the Supreme Court of India only in the
1980’s through the concept of Public Interest Litigation, popularized by judges
like Justice V.R.Krishna Iyer and Justice P.N. Bhagwati.
The above traditional rule of locus standi that a
petition under Art. 32 can only be filed by a person whose fundamental right is
infringed has now been considerably relaxed by the Supreme Court in its recent
rulings. The court now permits public interest litigations (PIL) or social
interest litigation at the instance of ''public spirited citizens'' for the
enforcement of Constitutional and other legal rights of any person or group of
persons who because of their poverty or socially or economically disadvantaged
position are unable to approach the Court for relief. The same also applied to
writ petitions filed in the High Courts under the Art. 226.
Rule
laid down in the Judges Transfer Case
A seven member bench of the Supreme Court has firmly
established the rule of public interest litigation in the Judges Transfer
Case[5]. The court held
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
common grievance.
In another landmark judgment in the case of M.
C. Mehta vs. Union of India[6] the
Supreme Court further widened the scope of PIL and :
1) The court held that
the poor in India can seek enforcement of their fundamental rights from the
Supreme Court by writing a letter accompanied by an affidavit addressed to any
judge.
2) The court held that
under Art. 32 it has the power to grant remedial relief which includes the
power to grant compensation in appropriate cases where the fundamental rights
of the poor and disadvantaged person are violated.
Guidelines
for entertaining letters/ petitions received as PIL.
a) No petition
involving individual/ personal matter shall be entertained as a PIL matter
except as indicated hereinafter.
b) Letter-petitions
falling under the following categories alone will ordinarily be entertained as
Public Interest Litigation:-
1) Bonded Labour
matters.
2) Neglected
Children.
3) Non-payment of
minimum wages to workers and exploitation of casual workers and complaints of
violation of Labour Laws (except in individual cases).
4) Petitions from jails
complaining of harassment, for (pre-mature release) and seeking release after
having completed 14 years in jail, death in jail, transfer, release on personal
bond, speedy trial as a fundamental right. For example, Petitions for
premature release, parole etc. are not matters which deserve to be treated as
petitions under Article 32 as they can effectively be dealt with by the
concerned High Court. To save time, Registry may simultaneously call for
remarks of the jail Superintendent and ask him to forward the same to High
Court. The main petition may be forwarded to the concerned High Court for
disposal in accordance with law.
Even in regard
to petitions containing allegations against Jail Authorities there is no reason
why it cannot be dealt with by the High Court. But petitions complaining of
torture, custody death and the like may be entertained by Supreme Court
directly if the allegations are of a serious nature.
5) Petitions against
police for refusing to register a case, harassment by police and death in
police custody.
6) Petitions against
atrocities on women, in particular harassment of bride, bride-burning, rape,
murder, kidnapping etc. In such cases where office calls for police
report if letter petitioner asks for copy the same may be supplied, only after
obtaining permission of the Hon'ble Judge nominated by
the Hon'ble Chief Justice of India for PIL matters.
7) Petitions
complaining of harassment or torture of villagers by co- villagers or by police,
from persons belonging to Scheduled Caste and Scheduled Tribes and economically
backward classes.
8) Petitions
pertaining to environmental pollution, disturbance of ecological balance,
drugs, food adulteration, maintenance of heritage and culture, antiques, forest
and wild life and other matters of public importance.
9) Petitions from
riot -victims.
10) Family Pension.
All letter-petitions received in the PIL Cell will
first be screened in the Cell and only such petitions as are covered by the
above mentioned categories will be placed before a Judge to be nominated by
Hon'ble Chief Justice of India for directions after which the case will be
listed before the Bench concerned.
If a letter-petition is to be lodged, the orders to
that effect should be passed by Registrar (Judicial) (or any Registrar
nominated by the Hon'ble Chief Justice of India), instead of Additional
Registrar, or any junior officer.
To begin with only one Hon'ble Judge may be assigned
this work and number increased to two or three later depending on the workload.
Submission of notes be put up before the Hon'ble
Judge nominated for such periods as may be decided by the Hon'ble Chief Justice
of India from time to time.
If on scrutiny of a letter petition, it is found
that the same is not covered under the PIL guidelines and no public interest is
involved, then the same may be lodged only after the approval from the
Registrar nominated by the Hon'ble Chief Justice of India.
It may be worthwhile to require an affidavit to be
filed in support of the statements contained in the petition whenever it is not
too onerous a requirement.
The matters which can be dealt with by the High
Court or any other authority may be sent to them without any comment whatsoever
instead of all such matters being heard judicially the Supreme Court only.
c) Cases falling under
the following categories will not be entertained as Public Interest Litigation
and these may be returned to the petitioners or filed in the PIL Cell, as the
case may be:
1) Landlord-Tenant
matters.
2) Service matter and
those pertaining to Pension and Gratuity.
3) Complaints against
Central/ State Government Departments and Local Bodies except those
relating to item Nos. (1) to (10) above.
4) Admission to medical
and other educational institution.
5) Petitions for early
hearing of cases pending in High Courts and Subordinate Courts.
d) In regard to the petitions
concerning maintenance of wife, children and parents, the petitioners may be
asked to file a Petition under sec. 125 of Cr. P.C. or a Suit in the Court of
competent jurisdiction and for that purpose to approach the nearest Legal Aid
Committee for legal aid and advice.
Conclusion
The jurisprudential philosophy and the need for
public interest litigation has been summarised by Justice Krishna
Iyer in an extrajudicial writing as follows;
“Class actions, public interest litigation, test
cases, interventions by public organisations and the like in civil and criminal
cases are facets of participate justice on behalf of the poor. This involves
jurisprudential changes including redefinition of 'cause of action', 'aggrieved
person' and many other concepts. For instance, the horrendous escalation
of automobile accidents causes indescribable misery, and no-fault liability,
now that insurance is nationalised, is simple social justice. And yet Callous
governments and docket crowded courts with no regard to human relief, leave
this principle in the code, despite a long ago report of the law commission for
its partial acceptance. Therefore, if the poor are to have a stake in the rule
of law we may now to create a new jurisprudence. Shall I call it people
oriented jurisprudence so necessitous in the third world conditions?
Public interest litigation is, of course, an
important and vital branch of public law and the Supreme Court has ruled that
in a public law proceeding, there is constitutional obligation imposed on the
court to forge new tools necessary to give relief for doing complete justice
and to preserve and protect the rule of law. The court is ready to invoke the
power available to the Supreme Court under article 142 of the constitution[7].”
------------------------------------------------------------------------------------------------------------
[ Published in Corporate Secretary of ICSI, February, 2011]
[ Published in Corporate Secretary of ICSI, February, 2011]
No comments:
Post a Comment
Thank you for your comments