The Public Interest Litigation Law Constitutional Administrative Essay

Published Date: 02 Nov 2017

By-

Kunal Goyal

C:\Users\Kunal Goyal\Desktop\upes_logo.JPG

Year of Submission: 2012-2013

Submitted To:

Arvind Anandan

Assistant Professor 

College Of Legal Studies

University Of Petroleum And Energy Studies

Introduction

Public Interest litigation (PIL), is a litigation1 for protection of public interest2.PIL may be introduced in a court of law by the court itself , rather than the aggrieved party or another third party. In PIL, the right to file suit is given to a member of the public by the courts through judicial activism.

Public Interest Litigation as it has developed in recent years marks a significant departure from traditional judicial proceedings. PIL was not a sudden phenomenon. It was an idea that was in the making for some time before its vigorous growth in the early eighties. It now dominates the public perception of the Supreme Court. The Court is now seen as an institution not only reaching out to provide relief to citizens but even venturing into formulating policy which the State must follow.

At the time of Independence, court procedure was drawn from the Anglo-Saxon system of jurisprudence3. The bulk of citizens were unaware of their legal rights, and much less in a position to assert them. The guarantees of fundamental rights and the assurances of directive principles, described as the ‘conscience of the Constitution4’, would have remained empty promises for the majority of illiterate and indigent citizens under adversarial proceedings. PIL has been a conscious attempt to transform the promise into reality.

A litigation is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy.

Any act for the benefit of public.

Bandhu Mukti Morcha v Union of India (1984) 3 SCC 161 at 188.

Granville Austin, The Indian Constitution: The Cornerstone of a Nation, Oxford University Press, New Delhi, 1999, p. 50.

Background

A number of disparate factors, legal and political, led to the development of PIL.

1. Judicial Review as Basic Structure

In the early years, the Supreme Court interpreted the role of the judiciary merely as determining the list before it in accordance with narrow procedural rules. In A.K. Gopalan v State of Madras5, the Supreme Court remarked,

In India the position of the judiciary is somewhere in between the Courts in England and the United States. But our Constitution, unlike the American Constitution, does not recognise the absolute supremacy of the Court over the legislative authority in all respects, for outside the restricted old age of constitutional limitations our Parliament and the State Legislatures are supreme in their respective legislative old ages and in that wider old age there is no scope for the Court in India to play the role of the Supreme Court of the United States.

This perception changed by the time of Golak Nath case6, where the Supreme Court declared that fundamental rights could not be derogated from even by an amendment to the Constitution. Six years later, in Kesavananda Bharati’s case7, while overruling Golak Nath, the Court evolved another far-reaching doctrine under which Parliament was denied the power to amend the Constitution in a manner that violated its ‘basic structure’. The Supreme Court also identied the power of judicial review as being part of such basic structure. Thus the legislature could not deny judicial review even by a constitutional amendment.

2.Introduction to the notion of ‘Due Process’

The broadening of the contents of Fundamental Rights had to wait the period following the Emergency of 1975-77. Initially the Court took a narrow view of the wording of Article 216 to mean that as long as there was some statute made by the legislature taking away a person’s liberty, it could not be challenged as being viola-tive of fundamental rights.8 In a significant reversal, in Maneka Gandhi v Union of India,9 decided soon after the emergency, the Court asserted the doctrine of substantive due process as being integral to fundamental rights on the ground that it emanated from the scheme underlying Articles 14, 19 and 21. The Court’s power to strike down legislation was now expanded to include a critical examination of a statute, even on the basis of the substantive element of due process.

A.K. Gopalan v State of Madras (1950) SCR 88 at 286-7.

Golak Nath v State of Punjab (1967) 2 SCR 762.

Kesavananda Bharati v State of Kerala (1973) 4 SCC 225.

No person shall be deprived of his life or personal liberty expect according to procedure established by law.

Maneka Gandhi v Union of India (1978) 2 SCC 248.

3.The Emergency

The differential role of the Supreme Court during the emergency10 contributed significantly to an opposite swing in the judiciary’s view of its own role after the 1977 elections. The emergency witnessed large-scale violations of basic rights of life and liberty. These were facilitated by the enactment of a draconian statute, the Maintenance of Internal Security Act (MISA) and suspension of basic fundamental rights. An overwhelming number of high courts ensured that the state scrupulously followed the terms of the detention law. This obvious approach was however reversed by the Supreme Court in A.D.M. Jabalpur v Shivkant Shukla11 which granted virtual immunity to any action of the executive affecting the life and liberty of the citizen. The judgment can best be described, in the words of Professor C.K. Allen,12 as the contribution of the Supreme Court to the emergency. The judgement brought into question the role of the Supreme Court as the guardian of citizens’ liberties. The vigorous growth of PIL was in some measure a reaction to this criticism.

4.Executive Interference in Judicial Appointments

Another development during the post-Kesavananda phase was the increase in executive interference with judicial appointments to the higher courts. The independence of the judiciary was seriously jeopardized when the executive of the day used the weapon of supersession twice in the appointment of the Chief Justice of India. The first was in 1973 when Justice A.N. Ray was appointed Chief Justice superseding Justices Shelat, Grover, and Hegde, each of whom had concurred with the majority view in Kesavananda. In 1976, Justice Khanna, who had dissented in A.D.M. Jabalpur was superseded and Justice Beg took over as the Chief Justice.

Declared by the President under Article 352 of the Constitution on the advice of the Prime Minister Indira Gandhi and in force between 26 June 1975 and 21 March 1977.

(1976) 2 SCC 521.

C.K. Allen, Law and Orders, 3rd edn, 256, while commenting on Liversidge v Anderson 1942 AC 206.

5.Reports on Legal Aid

In the meantime there were developments relating to legal aid to provide easier access to justice. In a report on legal aid in 1971, Justice Bhagwati13 observed even while retaining the adversary system, some changes may be effected whereby the judge is given greater participatory role in the trial so as to place the poor, as far as possible, on a footing of equality with the rich in administration of justice’.14 Similarly, the report of the Committee on Legal Aid presided by Justice Krishna Iyer15 in 1973 dealt with the nexus between law and poverty, and spoke of PIL in this context. It emphasized the need for an active and widespread legal aid system that enabled law to reach the people, rather than requiring people to reach the law.16The two judges joined forces as a two-member committee on judicature, which released its nil report in August 1977. The report, while emphasizing the need for a new philosophy of legal services programme, cautioned that it ‘must be framed in the light of the socio-economic conditions prevailing in our country’.17 It further noted that ‘the traditional legal services programme which is essentially court or litigation oriented, cannot meet the specific needs and the peculiar problems of the poor in our country’.18The report also included a draft legislation for legal services and referred to Social Action Litigation, a synonym for PIL. PIL was seen as a strategic arm of the legal aid movement intended to bring justice within the reach of those who, on account of their illiteracy and lack of resources, were unable to reach the courts.

6.Post-Emergency Period

It is discernible that the strength of a judiciary is proportionate to the weakness of the executive. The Janata Party which came to power in 1977 and subsisted till 1979 , was a weak government at a point in time when the judiciary consciously began to develop PIL. How the Court viewed its transformation during this phase is enunciated in a decision given a decade later, where it said: Article 32 does not merely confer power on this Court to issue a direction, order or writ for enforcement of the fundamental rights but also lays down a constitutional obligation on this Court to protect the fundamental rights of the people and for that purpose this Court has all incidental and ancillary powers including the power to forge new remedies and fashion new strategies designed to enforce the fundamental rights. It is in realization of this constitutional obligation that this Court has in the past innovated new methods and strategies for the pur-pose of securing enforcement of the fundamental rights, particularly in the case of the poor and disadvantaged who are denied their basic human rights and to whom freedom and liberty have no meaning.19

Gujarat High Court.

Reproduced in Jagga Kapur (ed.), Supreme Court on Public Interest Litigation, Vol. 1, SCALE, A-43 at A-53.

Kerala High Court.

Report of the Expert Committee on Legal Aid: Procedural Justice to the People, May 1973, 208-10. Thereafter Justice Krishna Iyer developed this theme in Mumbai Kamgar Sabha v Abdulbhai were he said: ‘Test litigation, representative actions, pro bono public and like broadened form of legal proceedings are in keeping with the current accent on justice to the common man’. ((1976) 3 SCC 832 at 857).

Report on National Judicature: Equal Justice-Social Justice, August 1977, 128. Also see People’s Union for Democratic Rights v Union of India (1982) 3 SCC 235 at 240.

Ibid.

M.C. Mehta v Union of India (1987) 1 SCC 395 at 405.

Facts of PIL

1.Access and Standing

In a developing country, the legal process tends to intimidate the litigant, who feels alienated from the system. A poor person who enters the legal stream, whether as a claimant, a witness or a party, may well and the experience traumatic.20 Lawyers have not done much to alleviate this. The way the Bar has developed gives issues of legal aid and legal awareness a low priority, thus ensuring that the lawyer is the only route of access to the legal system. The traditional rules of procedure in the adversarial system of law permit only a person whose rights are directly affected to approach the Court. Under the Common Law, a person claiming the writ of mandamus had to show that he was enforcing his own personal right.21

2.Relaxation of Procedural Requirements

In order to permit fuller access to Courts, PIL has been marked by a departure from procedural rules extending to the form and manner of ling a writ petition, appointment of commissions for carrying out investigation, and giving a report to Court, and the appointment of lawyers as amicus curiae to assist the Court.

The exibility of PIL procedure can best be illustrated by what is termed as ‘epistolary jurisdiction’. Taking a cue from the American Supreme Court’s decision in Gideon v Wainwright,22 where a postcard from a prisoner was treated as a petition, the Supreme Court said in the Judges’ case,23 that a public-spirited person could move the Court even by writing a letter. The Court has accepted letters24 and telegrams as petitions. The danger of such ease of access leading to the apprehension that a litigant could indulge in forum-shopping and address a particular judge was expressed by Pathak J, in the Bandhua Mukti Morcha case:

When the jurisdiction of the Court is invoked, it is the jurisdiction of the entire Court. No such communication can be properly addressed to a particular judge. Which judge or judges will hear the case is exclusively a matter concerning the internal regulation of the business of the Court, interference with which by a litigant or a member of the public constitutes the grossest impropriety.Many of the early PILs, including Sunil Batra (II) v Delhi Administration,25 Dr Upendra Baxi v State of UP,Veena Sethi v State of Bihar26, and People’s Union for Democratic Rights v Union of India commenced with the petitioners sending letters to the Supreme Court.

This is brought out in the film Aakrosh by Govind Nihalani, in which the accused is too afraid to speak to even the well-meaning lawyer provided to him.

Charanjit Lal v Union of India (1950) SCR 869; D. Nagaraj v State of Karnataka (1977) 2 SCC 148.

(1963) 372 U.S. 335.

Supra n. 23.

As in Ram Kumar Misra v State of Bihar (1984) 2 SCC 451. This case related to minimum wages not being paid to labourers employed in two ferries.

(1980) 3 SCC 488. This was a PIL concerning the rights of prisoners to humane treatment within prison walls.

(1983) 2 SCC 308. This was a PIL concerning the functioning of the Agra Protective Home, constituted under the Immoral Traffic (Prevention) Act, 1956, to shelter and rehabilitate women rescued from prostitution.

3.Appointment of Commissioner(s)

A difficulty often faced by a genuine PIL petitioner is lack of access to information even where he has a genuine grievance. One method by which the Court gathers facts is by the appointment of commissioners. The Court has appointed district judges, journalists, mental health professionals, bureaucrats, lawyers, and expert bodies as commissioners. In environmental matters, the Court has relied upon expert bodies like the CPCB27 and the NEERI28 to study the situation and submit a report to the Court. While the power to appoint commissioners in matters of civil nature is found in Order XXVI Civil Procedure Code (CPC) and Order XLVI Supreme Court Rules, the powers under Article 32 read with Article 142 are wide enough to permit such a course of action in any matter before the Supreme Court. Commissions have also been appointed to propose remedial relief and monitor its implementation. The Court in Indian Council for Enviro-Legal Action v Union of India, appointed NEERI as an expert body to study the situation of ground water soil pollution.

4.PIL Petitioners

A PIL petitioner is provided by the Court as one who draws its attention to a grievance requiring remedial measures and having no personal stake in the matter. It expects her/ him to be conscious of her/ his obligation to the cause being espoused and conduct herself/ himself accordingly. Thus persons bringing PILs to the Court cannot of their free will seek to withdraw the petition. The Court may take over the conduct of the matter if it feels that in the interests of justice that issue should be decided irrespective of the wishes of the petitioner. This is what happened in a case concerning children in jails brought to the Supreme Court by a letter petition from Sheela Barse, a journalist. Frustrated with the slow progress of the case, primarily due to the repeated adjournments sought and obtained by the state governments, she sought to withdraw the case.

The Central Pollution Control Board. See M.C. Mehta v Union of India 1999 (4) SCALE 196

National Environmental Engineering Research Institute, Nagpur. See S. Jagannath v Union of India (1997) 2 SCC 87 and In re Bhavani River-Shakti Sugars Ltd. (1998) 6 SCC 335.

5.Non-Adversarial

In the traditional adversarial system, the lawyers of each party are expected to present contending points of view to enable the judge to decide the issue for or against a party. In PIL there are no winners or losers and the mindset of both lawyers and judges can be different from that in ordinary litigation. The Court, the parties and their lawyers are expected to participate in resolution of a given public problem. This was explained by the Court in Dr Upendra Baxi v State of U.P29. It must be remembered that this is not a litigation of an adversary character undertaken for the purpose of holding the State Government or its offers responsible for making reparation but it is a public interest litigation which involves a collaborative and cooperative effort on the part of the State Government and its offers, the lawyers appearing in the case and the Bench for the purpose of making human rights meaningful for the weaker sections of the community.

29. (1986) 4 SCC 106

PIL in Practice

The wide reach of PIL is best demonstrated by reference to some areas in which Courts have made particularly signicant pronouncements. Although the Court has issued orders relating to a very wide range of PILs cover-ing matters such as prisons and prisoners, the police, the armed forces, children, child labour, bonded labour, urban space, environment and resources, consumer issues, education, politics and elections.

Human Rights

Judicial activism in the area of human rights has been facilitated in considerable measure by PIL. This is implied by the Court’s active concern with the rights of detenus and under trials, police excesses including arbitrary arrests, custodial violence and extra-judicial killings, conditions in prison and other custodial institutions like children’s homes, women’s homes, mental asylums, encounter killings in Punjab, and the rights of victims of crime. In the early years of PIL, the Court focused on the rights of prisoners and the conditions of prisons. The Court acted upon postcards, letters, articles in newspapers, press reports, and petitions from a wide cross-section of citizens including lawyers and journalists to open the doors of the Courts to the millions of under trials living in inhuman conditions in the country’s prisons. First, the Court would convert the facts brought before it into a petition under Article 32. It would then issue directions to the state agency concerned to provide information, and if this was not forthcoming, it would appoint a commissioner to elicit the facts. Once convinced that the matter required its intervention, the Court would issue a mandamus to state agencies to carry out its directives within a specified time-frame. This would include release of persons unlawfully detained, ensuring the closure of their cases if found to be pending for an unduly long time, and even directing that the detenus be compensated and rehabilitated. The Court also took the opportunity to give directions to state agencies to minimize further violations of human rights. In the rest PIL on prisoners’ rights, Hussainara Khatoon v State of Bihar (I to VI),30the attention of the court was drawn to the incredible situation of Bihar under trials who had been detained pending trial for periods far in excess of the maximum sentence for the offences they were charged with. The Court not only proceeded to make the right to speedy trial the central issue of the case but passed an order of general release of under trials who had undergone detention beyond such maximum period.

30. (1980) 1 SCC 81. Kadra Pahadiya v State of Bihar (1981) 3 SCC 671 was another case that dealt with the issue of speedy trial. The conditions of life convicts in Tihar jail attracted the Court’s concern in a petition sent to it by a prisoner. The Court introduced humaneness into the penitentiary system by requiring exceptional circumstances and adequate precautions for solitary confinement.

2.The Judiciary

Under the scheme of the Constitution, issues concerning appointment and transfer of judges, their terms and conditions of service and their removal were initially thought to be predominantly within the domain of Parliament and the executive. In a series of PILs, the Supreme Court has, however, articulated a dominant role for the judiciary in this area. S.P. Gupta v Union of India31 was a PIL by a senior advocate practising in Allahabad. It challenged the transfer of judges from one high court to another. The Supreme Court declared that the executive had the nil say in the matter of appointment of judges to the high court and the Supreme Court. More than a decade later, pursuant to a PIL led by another lawyer, the correctness of this declaration was referred to a larger Bench.32 The resultant decision in Supreme Court Advocates-on-Record Association (SCAORA) v Union of India33 saw a larger Bench of the Supreme Court reverse the view in S.P. Gupta and declare that the word ‘consultation’ occurring in Article 124(3) of the Constitution should be read to mean ‘concurrence’, thereby vesting the Chief Justice of India with the nal say in the matter of appointments.

3.Environment

The area in which PIL’s contribution has been significant is environmental law. M.C. Mehta, as a petitioner in person, was a pioneer in bringing a larger number of issues to the Court concerning environmental and ecological degradation. These included the issues arising out of the leak of oleum gas from a factory in Delhi,34 pollution in Delhi,3536 regulation of traffic in Delhi,37the danger of the Taj Mahal from the Mathura refinery, 38and the degradation of the Ridge area in Delhi. The Court’s engagement with these matters has resulted in activating the statutory machinery established under various environmental laws. The Court’s activism in this area has, however, also attracted criticism. For instance, when the Court ordered the closure of industries, it neither heard all the industries affected nor their workmen before passing the order. This has resulted in these parties approaching of Court with a series of interlocutory applications, taking up an inordinate amount of the Court’s time, even while leaving the aggrieved parties dissatisfied.

31. Supra n. 23

32. Subhash Sharma v Union of India (1991) Supp 1 SCC 574.

33. (1993) 4 SCC 441. The other issue in SCAORA was that by keeping unfilled a large number of vacancies in judges’ posts the right to judicial review was being violated even while the independence of the judiciary was being challenged.

34. Ibid. (1996) 4 SCC 750.

35. Ibid. (1996) 4 SCC 351 and 750.

36. Ibid (1997) 8 SCC 770

37. 1996 (1) SCALE SP-22. Mehta, who is an Advocate, has brought to the Court the issue of child labour. See M.C. Mehta v State of Tamil Nadu (1996) 6 SCC 756. Mehta also appears as counsel for PIL petitioners.

38. M.C. Mehta v Union of India (1997) 11 SCC 227, 312 and 327.

4.Public Accountability

Another area of abiding public concern which the Supreme Court has dealt with in PILs is good governance and the accountability of public officials. The trust reposed in persons holding public positions and exercising public power is belied when discretion is exercised irregularly and sometimes even for collateral considerations. These acts of misdemeanour get exposed through what have now been termed as ‘scams’. The Supreme Court has played a major role in not only unearthing scams but also carrying the discovery of such facts to their logical conclusion. The Court has ensured that persons exercising discretion in the distribution of public largess, whether it is petrol pumps or government accommodation, are accountable for their actions. The problem of the discretionary quota vested in the minister concerned for allotment of petrol pumps and oil and gas dealerships rest surfaced in a PIL led by the Centre for Public Interest Litigation.39 The Supreme Court requested the Attorney-General to submit draft guidelines and then set them down in its judgement as norms that would govern all future allotments of dealerships under the discretionary quota on compassionate grounds. The issue again surfaced in the Supreme Court in a PIL led by Common Cause. Here the Court, on examining the records with the government, found many officials in the office of Captain Satish Sharma, the then Minister of State for Petroleum and Gas, or their relatives had been allotted petrol pump and gas agencies out of his discretionary quota.

5.Issues and Controversies

A. The Law and Policy Divide: Where do we draw the line?

The framers of the Indian Constitution did not incorporate a strict doctrine of separation of powers but envisaged a system of checks and balances. Policy-making and implementation of policy are conventionally regarded as the exclusive domain of the executive and the legislature, with judiciary enforcing the law. The Supreme Court has itself recognised that ‘the Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another’.40 The power of judicial review cannot be used by the Court to ‘usurp or abdicate the powers of other organs’.41

39. Common Cause v Union of India (1996) 6 SCC 530 at 552, 553

40. Fertilizer Corporation Kamgar Union v Union of India (1981) 1 SCC 568 at 584.

41. (1998) 9 SCC 589.

B. The Resistance of Legislators

In the political arena too, the debate over the limits of judicial activism, particularly in the area of PIL, has been vigorous. The attempt by the judiciary through PILs to enter the area of policy-making and policy imple-mentation has caused concern in political circles. A private member’s bill, entitled ‘Public Interest Litigation (Regulation) Bill, 1996’, was tabled in the Rajya Sabha. The Statement of Objects and Reasons stated that while the objective of PIL, particularly those intended to benet the poorer sections of society was laudable, it was being misused. Moreover, PIL cases were being given priority over other cases, which had remained pend-ing in the courts for years. It was urged that if a PIL petition failed or was shown to be mala de, the petitioner should be ‘put behind bars and pay the damages’.42 Although the Bill lapsed, the debate in Parliament revealed some of the criticism and suspicion that PIL had begun to attract.

C. The Problem of Unpredictability: Judicial introspection

The emergence of PIL over the last twenty years has been a salutary development towards providing the vast majority of citizens with access to justice and effective protection of their fundamental rights. PIL has emerged as a powerful tool capable of fullling the promises that the Constitution held out. In the words of Chief Justice A.M. Ahmadi, PIL ‘is a case of citizens nding new ways of expressing their concern for events occurring at the national level and exerting their involvement in the democratic process’.43However, the credibility of the PIL process is now adversely affected by the criticism that the judiciary is over-stepping 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 people agitating for private grievances in the garb of public interest and seeking publicity rather than espousing public causes.

42. The full text of the Bill introduced by Suresh Pachouri can be found in Jagga Kapur (ed.), Supreme Court on Public Interest Litigation, Vol. I, A-145

43. Justice A.M. Ahmadi, Dr Zakir Hussain Memorial Lecture, (1996) 2 SCC (Journal) 1 at 11.

D. Problems of Procedure

The exibility of procedure that is a characteristic of PIL has given rise to another set of problems. The Court, which operates in an adversarial framework bound as it is by rules and by rules and by the pleadings of the parties concerned before it, requires delineation of issues in a legally manageable form. One method by which the Court has tackled this is to require the amicus curiae appointed by it to le, on the basis of a letter petition, a properly constituted writ petition.44This gives an opportunity to opposite parties to ascertain the precise allegation and to respond to specific issues. The PIL relating to the depletion of forest cover is a case in point.45 The petition, as originally drafted and presented, pertained to the arbitrary felling of Khair trees in Jammu & Kashmir. The PIL has now been enlarged by the Court to encompass all forests throughout India. Individual states, therefore, will not be able to respond to the original pleadings as such, since it may not concern them

at all.

The reports given by court-appointed commissioners raise problems regarding their evidentiary value. No court can found its decisions on facts unless they are proved according to law. This implies the right of an adversary to test them by cross-examination or at least counter affidavits. Generally, even the reports of judges given under the Commission of Inquiry Act, 1952 are not proof of their contents.46 Indeed, in at least one instance, the Court did not permit even counter affidavits to be led in response to NEERI’s report, making it difficult for individual parties affected to set out their own case.47

44. This happened in Baljit Malik v Delhi Golf Club (1998) 4 SCC 624, where one of the co-authors who assisted the Court as amicus curiae drew up a petition on the basis of the letter sent by the petitioner.

45. T.N. Godavarman Tirumulkpad’s case, supra n. 63. Another example of this is the writ petition of Common Cause raising the issue of the appointment of ombudsmen – Lokpals and Lokayukts – which provided the Court with an opportunity to deal with a specific instance of abuse of discretionary powers in relation to allotment of petrol pumps by a minister. The petition itself contained no pleadings to this effect. The Court’s action proceeded entirely on the basis of a newspaper clipping: Common Cause v Union of India, supra n.120.

46. Kehar Singh v State (1988) 3 SCC 609.

47. S. Jagannath v Union of India, supra n. 98. See also the grievance of workmen and their families in cases cited at supra n. 96 and 115.

Cases Related To PIL

State Of West Bengal vs Union Of India And Others, AIR 1996 Cal 181.

It contains various provisions for securing and safeguarding the money of the small depositors, the same does not contain any provision for recovery of the money in case of such misuse and diversion of funds by the R.N.B.Cs. or to compel them to pay back the money to the small depositors and the countless small depositors, who belong to weaker section of the community arc unable to approach the Court for seeking normal remedy available under the existing law for recovery of their money and they are not even aware about the impending financial crisis and disaster. It is contended that such helplessness of the countless small depositors and their inability to approach the Court are often taken advantage of by the R.N.B.Cs. who often create such a financial crisis to avoid repayment of the money to the small depositors. It is because of the aforesaid reasons, the State as the repository of the public interest has come forward to this Court by way of public interest litigation for appropriate relief in favour of such countless small depositors against the aforesaid R.N.B.Cs. 

8. It has been contended by the petitioners that having regard to its constitutional obligation under Articles 38, 39, 39-A and 41 of the Constitution as also to the repeated observation of the Supreme Court in different cases that the State and the Reserve Bank should take appropriate steps for securing the interest of the depositors in such matters, the State of West Bengal has decided to move public interest litigation at this stage as it has come to a conclusion under the facts and circumstances of the case that if the situation is allowed to drift in its own course and allowed to be dealt with in the usual way, only the management of the aforesaid R.N.B.Cs. and better off investors will steal a march over the poor, ignorant and the helpless investors. In the prevailing situation if the aforesaid investors are left free to have their rights and obligations adjudicated upon and worked out in their separate and individual actions, there will inevitably be a situation, where the weaker sections of the people will be made to pay the more affluent sections. Under such consideration it has been decided by the State Government to beseech this Court to render justice, social and economic aforesaid point namely the State cannot have any locus standi to move public interest litigation the respondent No. 2 after adopting the submission made on behalf of the respondent No. 7, has further contended relying on the decision of the Supreme Court in the case of State of Orissa v. Madan Gopal, ; in the case of Veerappa v, Raman & Raman, ; in the case of K. S. Rashid v. Income-tax Investigation Commission, ; and in the case of Calcutta Gas Company Ltd. v. State of West Bengal, , that the petitioner has no locus standi and right to file the instant writ application or seek the reliefs sought for inasmuch as the petitioner in no way is aggrieved by the alleged impugned action. It was contended inter alia following the aforesaid decisions of the Supreme Court, the existence of right is foundation of exercise of jurisdiction of the High Court under Article 226 of the Constitution of India and, therefore, it is only at the instance of the aggrieved party appropriate writ can be issued. 

19. It cannot be disputed, however, that the concept of Public Interest Litigation, which was initially unknown to our jurisprudence, is a product of recent judicial vindicate their rights in public interest. The concept of public interest litigation because of the reasons aforesaid is a departure from the age-old concept of 'locus standi' and 'persons aggrieved' so long accepted by the Court. Under such newly innovated concept of public interest litigation which was introduced for the first time by the Apex Court of the land more or less in the decision reported in the case of S. P. Gupta v. Union of India, , 

any public spirited person or association is permitted to go before the Court in public interest to vindicate constitutional or legal right of a determinate class of the society, who are economically or socially oppressed and are unable to approach the Court themselves. The aforesaid concept of public interest litigation introduced by the Apex Court how now come to stay through a number of subsequent decisions of the Supreme Court as also of different High Courts of the country and in that view of the matter it is too late in the day to argue in a public interest litigation that the petitioner has no locus standi to move the application he not being aggrieved by the impugned action.

Ramsharan Autyanuprasi & Anr vs Union Of India & Ors  1989 AIR 549

On the facts as appearing from the pleadings it cannot be predicted that there is any breach of any fundamental rights of the petitioners. In view of the nature of the allegations it is a case which is more amenable to be proceeded under sections 37 & 38 of the Rajasthan PublicTrust Act, 1959, which correspond to Sections 91 & 92 of the Code of Civil Procedure. [875G-H] JUDGMENT: ORIGINAL JURlSDlCTlON: Writ Petition (Civil) No. 442 of 1988. (Under Article 32 of the Constitution of IndIa). Dr. Shankar Ghosh and A.K. Gupta for the petitioners. Rajinder Sachhar, S.C. Paul, M.M. Kashyap, E.C. Agarwala, S.K. Jain and J.M. Khanna for the Respondents. PG NO 872 The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This is a petition under Article 32 of the Constitution, filed by Ramsharan Autyanprasi and Vijendra Singh. They assert that it is public interest litigation. This petition was addressed to one of the learned Judges of this Court by name. The petitioners state that they wanted to bring to the notice of the Judge the total disarry caused by the arbitrary and high-handed running clandestinely removed, the Distt. Judge of Jaipur was directed to appoint one person from his establishment who should ensure that nothing is removed from the museum without the leave of this Court. There were further applications made and how this application has come up for final disposal. As mentioned hereinbefore, the petitioners assert that it is public interest litigation. Counsel for the petitioner stated before us that his clients' right to life as enjoined under Article 21 of the Constitution had been infringed. He further drew our attention to Article 49 of the Constitution which casts a duty on the State to protect every monument or place or object of artistic or historic interest (delcared by or under law made by Parliament) to be of national importance, from spoilation, disfigurement, destruction, removal, disposal or export, as the case may be. He also referred to Article 51A(f) of the Constitution. The allegations in the petition are disputed seriously in the counter affidavit filed on behalf of the respondents Nos. 5 & 6 by one Dr. A.S. Paul son of Mr. B.S. Paul. In the rejoinder affidavit it was further alleged that Razanama and the Ramayan opinion that the petition under Article 32 of the Constitution is not maintainable. On the facts as appearing from the pleadings it cannot be predicted that there is any breach of any fundamental right of the petitioners. We are fortified by this conclusion by the fact that in view of the nature of the allegations made in the present context, it is a case which is more amenable to be proceeded under sections 37 & 38 of the Rajasthan Public Trust Act, 1959, as amended from time to time. These provisions correspond, more or less, to Sections 91 & 92 of the Code of Civil Procedure. PG NO 876 It appears to us, further, that it would be highly improper to consider this litigation to be a public interest litigation as it is a litigation between the members of the erstwhile Raj family to settle their own scores. It is not pro bono publico, for the benefit of the public, but for the benefit of a particular section of people for their personal rights. Hence, the assertion that this dispute is a public interest dispute, is wrong. The petitioner has asserted that there is violation of Article public right. It seeks to exploit private grievances. Indeed, in a situation of this nature it is well to bear in mind the observations of the tailpieces in the decision in Sachidanand Pandey & Anr. v. State of West Bengal & Ors., [1987] 2 SCC 295 at 331 where the learned Judge highlighted the necessity to delineate the parameters of public interest litigation. The Learned Judge noted that today public spirited litigants rush to courts to file cases in profusion under this attractive name. They must, however, inspire confidence in courts and among the public, and must be above suspicion. Hence, it is imperative to lay down clear guidelines and outline the correct parameters for entertaining such petitions. If courts do not restrict the free flow of such cases in the name of public interest litigations, the traditional litigation along with justice will suffer. It is only when courts are apprised of gross violation of fundamental rights by a group or a class action or when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the courts. especially this Court, should leave aside procedural shackles and hear such petitions.

Latest News On PIL

Supreme Court to hear Public Interest Litigation to amend Information Technology Act

Voicing concern over recent incidents of people being arrested for posting alleged offensive messages on websites, the Supreme Court today agreed to hear a PIL seeking amendment to the Information Technology Act.

A bench headed by Chief Justice Altamas Kabir said that it was considering to take suo motu cognisance of recent incidents and wondered why nobody had so far challenged the particular provision of the IT Act.

2. Supreme Court notice to Centre on PIL to make IB,RAW accountable to Parliament

The Supreme Court on Monday issued notice to the Centre on a PIL seeking to make intelligence agencies IB, RAW and NTRO accountable to Parliament.

A bench headed by Chief Justice Altamas Kabir sought response from the Centre and the three intelligence wings for bringing the agencies under the oversight of Parliament and CAG.

Conclusion

While traditional lawyers have been critical about departure from the mould of adversarial litigation with its precise pleadings and procedure, and while politicians have been uneasy about judicial encroachment into the area of policy-making, the public by and large have welcomed the intercession of the Court through PIL. This is because of a general perception that the legislature is unwilling to take prompt remedial measures and the executive is unwilling even to enforce the existing law. Despite the problems of judicial predictability and the feeling that the constitutional balance may be affected, it has to be acknowledged that the far-reaching judgements in cases like the Bhagalpur blindings,48 the Bihar under trial case,49 and the mentally ill in jail50 have provided desperately needed relief and exposed executive failings. PIL has also helped in the development of legal principles such as the ‘polluter pays’ principle,51 the ‘precautionary’ principle,52 and the principle of award of compensation for constitutional wrongs.53 Bearing in mind the power and importance of PIL in making the Constitution a living reality for a large number of citizens, it is important to view these criticisms as indicators of the safeguards and checks that the Court must now build into its PIL jurisprudence. To allow public perception against PIL to fester would erode its credibility and that of the judiciary itself. In the words of Chief Justice J.S. Verma:54 The need is to prevent misuse of PIL and not to criticise the process. And this is what the Courts will have to do so that misuse of PIL is prevented and proper use of it has not to be blunted. Every innovation takes time to get into proper shape. Any attempt to curb it would be to throw the baby with the bath water. It is primarily for the Courts who devised this procedure to practise self-restraint and to also devise proper checks and balances to ensure that even persons who want to misuse it are not able to do so. In many ways PIL imposes a burden on as well as poses a temptation for the judge. On the one hand there is the desire to resolve the problems of a society where laws are not seen to be enforced, particularly where the petitioner before the Court is espousing a public and not a private cause. On the other hand, there is the temptation for a well-meaning judge to extend the law, if necessary, by a policy decision, departing ever so slightly from the trodden path. Thus, there is an interplay of enforcing the law, moulding it by equity while also responding to the perception of ‘an imperial judiciary’ making history. The future of PIL will depend much on where the Court strikes the balance between the law, and its sense of history.

48. See Khatri, supra n. 68

49. See Hussainara Khatoon, supra n. 68

50. Sheela Barse v Union of India, supra n. 50

51. See section on ‘Environment’ supra

52. Ibid.

53. See section on ‘Human Rights’, supra

54. Justice J.S. Verma: ‘The Constitutional Obligation of the Judiciary’, R.C. Ghiya Memorial Lecture,(1997) 7 SCC (Journal) 1 at 7.