Constitutional Law I Unit 3 Constitutional Law Complete Notes Public Interest litigation

Public Interest litigation: Constitutional Organs

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TOPIC- Public Interest litigation: Constitutional Organs

Law-making has assumed new dimensions through judicial activism of law courts. Public Interest Litigation (PIL) or Social Action Litigation introduced by the Supreme Court of India in the Constitutional jurisprudence is a major example of Supreme Court’s judicial activism.

Hitherto, the rigidity of the locus stand rule deprived the poorer sections of the society from approaching the courts for enforcement of their fundamental rights against the rich and affluent class of society but now the public interest litigation has liberalized the locus standee rule to such an extent that it has opened new vistas for the redressed of the social problems.

About the PIL the Supreme Court has written, “The question “What PIL means and is”? has been deeply surveyed, explored and explained not only by various judicial pronouncements in many countries, but also by eminent judges, jurists, activist lawyers, outstanding scholars, journalists and social scientists etc. with a vast erudition.

Basically, the meaning of the words ‘Public Interest’ is defined in the OXFORD ENGLISH DICTIONARY, as “the common well being is also public welfare”.

PIL means a legal action initiated in the Court of Law for the enforcement of public interest or general interest in which the public or a class or community have pecuniary interest or some interest by which their legal rights or liabilities are effected.

PIL originated from the United States where it was firmly established around 1965. In England, it was started in the name of Citizens’ Action wherein any citizen could file a writ against public authorities for the cause of common man.

In India, the seeds of PIL were sown by the Justice Krishna Iyer in 1976 in the case of Mumbai Kamgar Sabha v. Abdulbhai. In this case, while disposing of an industrial dispute in regards to the payment of bonus, he observed:

“Our adjectival branch of jurisprudence by and large deals not with sophisticated litigants but the rural poor, the urban lay and the weaker societal segments for whom law will be an added terror if technical mis-descriptions and deficiencies in drafting pleadings and setting out the cause title create a secret weapon to non-suit a party. Where foul play is absent, and fairness is not faulted, latitude is grace of procedural justice.

Test litigations, representative actions, pro bono public and like broadened forms of legal proceedings are in keeping with the current accent on justice to the common man and a necessary disincentive to those who wish to by-pass the real issues on the merits by suspect reliance on peripheral procedural shortcomings. Even Art 226, viewed on wider perspective, may be amenable to ventilation of collective or common grievances, as distinguished from assertion of individual rights although the traditional view, backed by precedents has opted for the narrower alternative.

Public interest is promoted by a spacious construction of locus standi in our socioeconomic circumstances, and conceptual latitudinarianism permits taking liberties with individualization of the right to invoke the higher courts where the remedy is shared by a considerable number, particularly when they are weaker. Less litigation, consistent with fair process, is the aim of adjectival law”.

The court permits public interest litigation at the instance of ‘public spirited citizens’ for the enforcement of the Constitutional and legal rights of any person or groups of persons who because of their poverty or socially or economically disadvantaged position are unable to approach the court for relief.

In A.B.S.K. Sangh (Rly) v. Union of India, it was held that the Akhil Bhartiya Soshit Karamchari Sangh (Rly) though an unregistered association could maintain a writ petition under Art 32 for the redressal of a common grievance. KRISHNA IYER, J, declared that access to justice through ‘class actions’, ‘ public interest litigation’ and ‘representative proceedings’ is the present Constitutional jurisprudence.

In the Judges Transfer Case the rule regarding the PIL was firmly established. 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 a common grievance.

BHAGWATI, J., observed: “Where a legal wrong or legal injury is caused to person or to a determinate class of persons by reason of violation of any Constitutional or legal right and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position unable to approach the court for relief, any member of the public can maintain an application for an appropriate direction or order or writ in the High Court under Article 226 or in case of breach of any Fundamental Right to this court under Article 32.

Where the weaker sections of the community are concerned such as under-trial prisoners languishing in jails without trial, inmates of the Protective Home in Agra or Harijan workers engaged in road construction in the District of Ajmer, who are living in poverty and desolation, who are barely eking out a miserable existence with their sweet and toil, who are helpless victims of an exploitative society and who do not have easy access to justice, the Supreme Court will not insist on a regular writ petition to be filed by the public spirited individual espousing their cause and seeking relief for them. The Supreme Court will readily respond to a letter addressed by such individual acting pro bono public.

It is true that there are rules made by the Supreme Court prescribing the procedure for moving it for relief under Article 32 and they require various formalities to be of one through by a person seeking to approach it. But it must not be forgotten that procedure is but a handmade of justice and the cause of justice may never be allowed to be wasted by any procedural technicalities.

The Court will therefore unhesitatingly cast aside the technical rules of procedure in the exercising of its dispensing power and treat the letter of the public minded individual as a writ petition and act upon it”.

Certain guidelines for taking precaution against misuse of PIL have also been given by BHAGWATI, C.J. In his words:

“But we must be careful to see that the member of the public, who approaches the court in case of this kind, is acting bonafide and not for personal gain or private profit or political motivation or other oblique consideration. The court must not allow its process to be abused by politicians and others……”

For example, in the case of Janta Dal v. H.S. Chowdhari ‘ (Bofors Gun case), the petitioner tried to abuse the Public Interest Litigation for political purposes. Similarly, Krishna Swami V/s. Union of India, Simranjit Singh Mann v. Union of India can also be included in this category.

PIL jurisdiction has been actually evolved for socio-economic justice. Supreme Court has pointed out that “the compulsion for the judicial innovation of the technique of a public interest action is the Constitutional promise of a social and economic transformation to usher in an egalitarian social order and a welfare State. Effective solutions to the problems peculiar to this transformation are not available in the traditional judicial system.

The proceedings in a public interest litigation are, therefore, intended to vindicate and effectuate the public interest by prevention of violation of the rights, Constitutional or statutory, of sizeable segments of the society, which owing to poverty, ignorance, social and economic disadvantages cannot themselves assert and quite often not even aware of those rights. The technique of public interest litigation serves to provide an effective remedy to enforce these rights and interests”.

Thus under this jurisdiction Supreme Court proceeded to secure social justice to the weaker section of the society. It observed in People’s Union for Democratic Rights v. Union of India.

“The time has now come when the courts must become the courts for the poor and struggling masses of this country. They must shed their character as upholders of the established order and the status quo. They must be sensitized to the need of doing justice to the larger masses of people to whom justice has been denied by a cruel and heartless society for generations. It is through public interest litigation that the problems of the poor are now coming to the forefront and the entire theatre of the law is changing. It holds out greater possibilities for the future.

Main grounds on which PIL is available are as follows:

Protection of weaker sections of society.-

Public or social interest litigation is innovative strategy which has been evolved 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 inspired individuals and social action groups for combating exploitation and injustice and securing for the underprivileged segments of society, their social and economic entitlements.

In Lakshmi Kant Pandey v. Union of India a writ petition was filed on the basis of a letter complaining of malpractices indulged in by social organizations and voluntary agencies engaged in the work of offering Indian children in adoption to foreign parents. Certain principles and norms were laid down in this case which were to be followed in determining whether a child should be allowed to be adopted by foreign parents.

In M.C. Mehta Vs Union of India it was held that the children cannot be employed in match factories which are directly connected with the manufacturing process as it is a hazardous employment within the meaning of the Employment of Children Act, 1938. In many cases Supreme Court has passed orders and issued directions for the welfare and protection of labor.

The court also has the power under Article 32 to award costs of public interest petition to the petitioner who was not in legal profession but brought an important matter before the court for its consideration. In Sheela Barse v. Union of India the Court directed the Central Government to pay to the petitioner, a social worker, Rs. 10,000 for the expenses and to extend all necessary assistance to him as he offered to personally visit different parts of the country to verify whether the information submitted by the Authorities regarding children bellow the age of 18 years detained in jails in different States of the country was correct.

Similarly, in D.C Wadhwa V/s State of Bihar the petitioner, a Professor of Political Science who had done substantial research and was deeply interested in ensuring proper implementation of the Constitutional provisions, challenged the practice followed by the State of Bihar in re promulgating a number of ordinances without getting the approval of the legislature. The Court held that the petitioner as a member of public has ‘sufficient interest’ to maintain a petition under Art. 32. The Court directed the State of Bihar to pay Rs. 10,000 to Dr. Wadhwa whose research brought to light this repressive practice.

In Bandhua Mukti Morcha v. Union of India the Supreme Court issued directions to Government to ensure the welfare of bonded labourers.

In Consumer Education and Research Center V/S. Union of India” the Supreme Court held asbestos factories or companies to be bound to compensate the workmen for the health hazards which were the cause for disease a workman was suffering from.

Protection of ecology and environmental pollution.-

In Rural Litigation and Entitlement Kendra v/s State of U.P., the Court ordered the closure of certain lime stone quarries on the ground that there were serious deficiencies regarding safety and hazards in them.

Similarly, in Shriram Food and Fertilizer case, the Supreme Court directed the company manufacturing hazardous and lethal chemicals and gases posing danger to health and life of workmen and people living in its neighborhood, to take all necessary safety measures before reopening the plant.

litigation was instituted to check invasion of the right to life of individuals by pollution caused by private sector companies. In India Council for Enviro Legal Action v. Union of India a public interest litigation was instituted to check invasion of the right to life of individuals by pollution caused by private sector companies.

In M.C Mehta V/s. Union of India,” the Supreme Court ordered the closure of the tanneries at Jajmau near Kanpur, polluting the Ganga; the matter was brought to the notice of the court by the petitioner, a social worker, through public interest litigation.

In M C. Mehta v. Union of India, the Supreme Court directed that hazardous and noxious industries to be shifted away from Delhi as per provision of the Master Plan prepared under National Capital Region Planning Board Act.

In M.C. Mehta v. Union of India, the Supreme Court directed the closure of mining operations within 2 km. radius of Badkhal Lake and Suraj Kund and further directed that mining leases within areas of 2 to 5 km. should not be renewed unless no objection of State and Central Pollution Control Board was obtained.

Securing human rights and human dignity.-

In Ramesh v. Union of India” it has been held that public interest litigation for ensuring communal harmony is maintainable under Art 32 of the Constitution.

In a judgment of far reaching importance in Parmanand Katara v. Union of India the Supreme Court held that it is a paramount obligation of every member of medical profession (Private or Government) to give medical aid to every injured citizen brought for treatment immediately without waiting for procedural formalities to be completed in order to avoid negligent death. The matter was brought to the notice of the court by petitioner, a human right activist, fighting for general public interest.

In an important judgment in National Federation of Blind V/s U.P.S.C. the Supreme Court held

that the visually handicapped persons are eligible to compete and take civil services examination in the categories of Group ‘A’ and ‘B’ posts which are suitable for the handicapped in Braille script or with the help of a scribe.

In National Human Rights Commission v. State of Arunachal Pradesh public interest litigation was instituted to restrain the Government of Arunachal Pradesh driving away from the State Chakma Refugees from Bangla Desh. In this case, the Supreme Court held that the right to life and equality clause is applicable to every person whether he be a citizen or otherwise.

Epistolary jurisdiction of the Supreme Court and the High Court is added new dimensions

to the scope of PIL in India. Under this jurisdiction, even ordinary letters and newspaper cuttings have been treated as writ petitions and the courts have initiated suo motu action against the erring Authorities.

In Bandhua Mukti Morcha v. Union of India, an organization dedicated to the cause of release of bonded labors’ informed the Supreme Court through a letter that they conducted a survey of the stonequarries situated in Faridabad District of the State of Haryana and found that there were a large number of laborers working in these stone-quarries under “inhuman and intolerable conditions” and many of them were bonded laborers.

The Supreme Court said: “Article 21 assures the right to live with human dignity, free from exploitation. The State is under a Constitutional obligation to see that there is no violation of the fundamental right of any person, particularly when he belongs to the weaker sections of the community and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him.

Both the Central Government and the State Government are, therefore, bound to ensure observance of social welfare and labor laws enacted by Parliament for the purpose of securing to the workman a life of basic human dignity in compliance with the Directive Principles of State Policy”.

In Consumer Education and Research Centre v. Union of India the court said that the right to life ensures to workmen right to health and medical care. Matters of public interest-

In Vineet Narain v. Union of India (Hawala case), the Supreme Court directed CBI and revenue authorities to properly and expeditiously investigate the matter.

The Supreme Court has been exercising this jurisdiction to check arbitrary and mala fide acts by public servants. In Common Cause a, Registered Society v. Union of India, a PIL was filed challenging the allotment of petrol pumps made by Minister for Petroleum and Natural Gas, Captain Satish Sharma, from discretionary quota as arbitrary and mala fide and illegal.

The Supreme Court found the allotments to be arbitrary, discriminatory, mala fide and illegal and directed the Minister to pay a sum of Rs 50 lakhs as exemplary damages to the Government Exchequer. However, the direction as to payment of exemplary damages was set aside in judicial review.

Similarly in Shiva Sagar Tiwari v. Union of India the Minister for Housing and Urban Development was held liable to pay Rs 60 lakhs as exemplary damages to the Government Exchequer for the arbitrary, mala fide and unconstitutional allotment of shops/stalls by the Minister to his own relatives/employees/domestic servants out of discretionary quota.

Granting of reliefs-

In Delhi Judicial Service Associations v. State of Gujarat” the petitioner had filed a PIL before the Supreme Court that the Chief Judicial Magistrate of Nadiad, Gujarat had been arrested, assaulted, handcuffed and humiliated by police officers and prayed for taking action against the police officers for committing contempt of court and for saving the dignity and honor of judiciary. The Supreme

Court on finding the truth sent those police officers to jail. The area of PIL has been growingly widening. The rule of locus standi has been further relaxed and High Courts are also exercising jurisdiction under Article 226 of the Constitution in this matter.

Interaction of social forces and law

In all societies intersection of social forces and law tend to mould each other. In democratic societies it is articulate and clearly discernible. In the words of Friedmann, “In a democracy the interplay between social opinion and the law moulding activities of the State is more obvious and articulate one.

Public opinion on vital social issues constantly expresses itself not only through elected representatives in the Legislative Assemblies, but through public discussion in press, radio, public lectures, pressure groups and, on a more sophisticated level, through scientific and professional associations, universities and a multitude of other channels.

Because of this constant interaction between the articulation of public opinion and the legislative

process, the tension between the legal and the social norms can seldom be too great. It is not possible in a democratic system to impose a law on an utterly hostile community. But, a strong social ground-swell sooner or later compel the legal action. Between these two extremes, there is a great variety of the patterns of challenge and response.

On the one hand, law may an irresistible tide of social habit or opinion. On the other hand, a determined and courageous individual or small minority group may initiate and pursue a legal change in the face of governmental or Parliamentary lethargy, and an indifferent public opinion.

Such legislation as now exists in many countries for the preservation of forests or wild life, or the conservation of other vital resources has been the belated result of the determined efforts of small group of men who saw beyond the immediate interest not only of vested interests but of the ordinary legislator and government execution”.

Constitutional Law I Unit 3 Constitutional Law Complete Notes Public Interest litigation

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