Definitions of Public Interest Litigation
Public Interest Litigation has been defined in the Black’s Law Dictionary (6th Edition) as under:-
“Public Interest Litigation is something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as a mere curiosity, or as the interests of the particular localities, which may be affected by the matters in dispute.
The Council for Public Interest Law set up by the Ford Foundation in the USA- defined “public interest litigation” in its report of Public Interest Law in the USA, 1976 as follows: “Public Interest Law is the name that has recently been given to efforts provide legal representation to previously unrepresented groups and interests. Such efforts have been undertaken in the recognition that ordinary marketplace for legal services fails to provide such services to significant segments of the population and to significant interests. Such groups and interests include the proper environmentalists, consumers, racial and ethnic minorities and others.
Origin of The Public Interest Litigation
The term Public Interest Litigation commonly known as PIL originated in the United States in mid-1980. The phrase public law litigation‘ was firstly used by American academic, Abram Chayes, to illustrate the practice of lawyers or public determined persons who seek to have the social change through court and they ordered decrees that gave information regarding the legal rules and all the enforcing as well as the existing laws and public norms. Since the nineteenth century, various movements in that country had contributed to public interest law, which was the part of the legal aid movement of that period. The first legal aid office was established in New York City in 1876. During 1960 the public interest litigation movement started to receive financial hold from the office of Economic Opportunity. This encouraged all the lawyers and the public-spirited persons to take up cases regarding the under-privileged fight against dangers to the society which consists of the following- environment and public health and the exploitation of consumers and the weaker sections of the society.
The Public Interest Litigation, as it had taken place in Indian society, is unlike from the various class of action or group litigation. Whereas the former is driven by the effectiveness considerations, the Public Interest Litigation is concerned with providing justice to all communal constituents. Public Interest Litigation in India has been a part of the constitutional litigation but not the civil litigation. Therefore, for appreciating the evolution of Public Interest Litigation in India, it is desirable to have a basic knowledge of the constitutional framework and the Indian judiciary as well. After getting independence from the British rule on August 15, 1947, the Indian citizens adopted the Constitution in November 1949 with the hope to establish a sovereign, socialist, secular, democratic, republic country. Among others, the Constitution aims to secure all its citizen’s justice regarding the social, economic and political, along with the liberty of thought, expression, belief, faith and worship and equality of status and of opportunity. These were not merely the inspirational thoughts because of the fact that the founding fathers of the Indian Constitution wanted to achieve a social revolution through the Constitution. The main tools employed to achieve such social change were the provisions on fundamental rights (FRs) and the directive principles of state policy (DPs), which Austin described as the ‗‗Conscience of the Constitution‘‘.
In order to ensure that the Fundamental Rights did not remain the empty declarations, the founding fathers of the Indian Constitution made several of the provisions in our Constitution regarding the establishment of an independent judiciary. As we will study various of the provisions regarding the Fundamental Right‘s and the Directive Principle‘s and the independent judiciary together provided a stable constitutional foundation for the evolution of Public Interest Litigation in India. Part III of the Constitution lays down various Fundamental Rights to its citizens and also specifies grounds for limiting these rights granted to them by the constitution. As we know that a right without a remedy does not have much substance in the society Therefore the remedy to approach the Supreme Court directly for the enforcement of the rights provided under part III of the constitution has also been made a Fundamental Right. The holder of the Fundamental Right‘s cannot waive them. Nor can the fundamental rights be affected by an amendment of the Constitution if such curtailment is against the basic structure of the Constitution. Some of the Fundamental Right‘s are available only to citizens of the country while others are available to citizens as well as non-citizens, including juristic persons of the country. Notably, some of the Fundamental Right‘s are expressly conferred on groups of people or community and not all Fundamental Right‘s are guaranteed specifically against the state and some of them are expressly guaranteed against non-state bodies.
The public interest litigation is the product of the recognition of the constitutional obligation of the court. The public interest litigation is an important jurisdiction exercised by the Supreme Court and the High Courts. Various important instructions and orders have been passed which have brought positive changes in our country. These guidelines have greatly benefited marginalized sections of the society in a number of cases. It has also helped in protecting and preserving of ecology, environment, forests, marine life, wildlife etc. The court’s directions to have helped in maintaining honesty and transparency in the public life. generally, to offer access to fairness to the poor, deprived, vulnerable, discriminated and marginalized sections of the society, this court has initiated, confident and propelled the public interest litigation. The litigation is upshot and invention of this court’s deep and intense urge to fulfill its enclosed duty and constitutional obligation.
The Government and its officers must obtain public interest litigation because it would provide them an instance to examine whether the poor and the weak people of the society are getting their social and economic benefits or whether they are lifelong to remain, victims of infringements of their rights, and as if they are being abused by the hands of strong and influential people in the society and whether social and economic justice is becoming important for them or it has remained merely a joking illusion and a fake undertake of unreality to them, so that in case the complaint in the public interest litigation is found to be true, they can while discharging of their constitutional obligations root out the misuse and biases in the society and ensure justice to the weaker sections concerning their rights and entitlements as per the constitution of India.
Evolution of The Public Interest Litigation In India:
The Public Interest Litigation (PIL) has a uniquely American development, the use of term Public Interest Litigation to cover the efforts to provide legal representation to unrepresented groups of the society and interests goes back no further than mid-1960.
The economic help from the private foundations led to the speedy development of public interest litigation during the time period of late 1960 and during the time period from 1972-75, the Foundations and the contributions of the private individuals provided 74% of Public Interest Litigation funding while the other 22% came from Government and 1% came from the fee awards.
The real beginning of the Public Interest Litigation can be traced to back to the legal aid movement. In the United States, an organized Legal Aid Movement for the poor people of the society began in 1876 with the setting up of an organization for providing Legal Aid for the then fresh arrived immigrants by the German Society of New York.
The purpose of the legal aid movement was the presumption of the people that in every society there are some individuals who are not able to participate in the legal system actively. Therefore it is important for the system of justice and society to provide those individuals voluntary free services of advocates. In its earlier phase the Legal Aid Movement was virtually tottering but soon the idea of collective social responsibility started in the society. In this regard, the credit goes to Reginald Heber Smith, an advocate registered with the Boston Legal Aid Society, who published his work, Justice and the Poor which was regarded as the first step for the development of the Legal Aid. This work gave a major thrust in this direction by shaping the Idea of Legal Aid by not merely through a philanthropic drive but rather with a well-organized programme with a distinct objective of affixing the idea of collective social responsibility of the Bar.
The Second Stage of the expansion of the Legal Aid Movement was marked by a fairly organized form of Legal Aid Programme, where entirely self-sufficient law firms distinct from an ordinary business motivated law firm, devoted itself solely towards legal aid programme, where lawyers worked full time on the problems of the clients.
The Three Phases of Public Interest Litigation
The first phase-
This began in the late 1970s and continued through the 1980s, the Public Interest Litigation cases were generally filed by public-spirited persons i.e. by the lawyers, journalists, social activists or academics. Most of the cases are related to the rights of disadvantaged sections of society such as child laborers, bonded laborers, prisoners, mentally challenged person, pavement dwellers, and women in the society. The relief was required against the action or non-action on the part of executive agencies resulting in violations of fundamental rights under the Constitution. During this phase, the judiciary responded by recognizing the rights of these people and giving information to the government to redress the alleged violation. In short, it can be said that in the first phase, the Public Interest Litigation truly became an instrument of the type of social transformation/revolution of society with the help of the Constitutional provisions.
The second phase-
In this phase of the Public Interest Litigation in the 1990s during which several significant changes took place in PIL. In comparison to the first phase, the filing of the PIL cases became more institutionalized. Several specialized NGOs and lawyers started bringing matters of public interest to the courts on a much regular basis. The issues raised in PIL also extended tremendously consisting of the protection of the environment to corruption-free administration, right to education, sexual harassment at the workplace, relocation of industries, rule of law, good governance and the general responsibility of the government. It is to be noted that in this phase, the petitioners sought relief not only against the action/ non-action of the supervisory but also against private persons.
The response of the judiciary during the second phase was much wider and bolder and then the first phase. The courts also took non-compliance with its orders more seriously and in some cases, went to the extent of monitoring government investigative agencies and/or punishing civil servants for contempt of failing to abide by their directions. The second phase was the period where the misuse of Public Interest Litigation not only began but also reached to a troubling level when the courts started to impose fine on plaintiffs for misusing the public interest litigation for their own benefit.
It can be seen apparently that in the second phase the PIL communication broke new grounds and chartered on previously unknown paths in that it moved much beyond the declared objective for which public interest litigation was meant. The courts, for instance, took resort to judicial legislation when needed, did not hesitate to reach centers of government power, tried to extend the protection of fundamental rights against non-state actors, moved to protect the interests of the middle class rather than poor populace, and sought means to control the misuse of public interest litigation for ulterior purposes.
The third phase-
The current phase, which began in the 21st century, is a period in which anyone could file public interest litigation for almost anything. It seems that there is a further expansion of issues that could be raised as PIL, e.g. calling back the Indian cricket team from the Australian tour and preventing an alleged marriage of an actress with trees for astrological reasons.
From the judiciary‘s point of view, one could argue that it is time for judicial introspection and for reviewing what courts tried to achieve through PIL. As compared to the second phase, the judiciary has apparently shown more restraint in issuing guidelines to the Government. Although the judiciary is unlikely to roll back the expansive scope of Public Interest Litigation, it is possible that it might make more measured interventions in the future.
Constitutional Aspect of The Public Interest Litigation
The Public Interest Litigation emerged on the background of constitutional argument in India soon after the emergency (1975-77). India was by feudal structures of polity and social values and a stratified order of time-endorsed hierarchical systems. Under the British rule, such structures had become the foundation on which a colonial regime could be developed. Thus when India gained independence and adopted its own political system, the Constitution gave pride of place to the new philosophy of human rights and to the obligation of the State to provide a social and economic structure which promised human welfare, happiness, and development. As the values of the new order percolate through the Indian society, assertive citizens and activist groups in the social sphere began raising demands that the Indian government establishes conditions ensuring an improved quality of life for its people. With some 800 million (now more than 1.30 billion) people living amidst perhaps the most formidable diversity of languages, cultures, religions, economic inequalities, a sea of aspirations, expectations, and hopes soon swept over the country. Not surprisingly, neither the Parliament nor the Executive was able to respond adequately to those manifold demands. The citizens then turned to the judiciary and that constituted the beginning of PIL. In India, it can also be traced to the insistence by the executive throughout the seventies that the judges and the courts should be committed ‗explained as committed to the Constitution and the promise of progress and justice within it. Through PIL, judges have shown their ‘commitment’ to the oath that they take to defend the Constitution through the executive did not have this kind of ‘commitment’ in view; at the same time, it cannot repudiate it publicly.
Tracing the development of PIL in India, Pandian, J. in Janata Dal‘s case observed:
The seeds of the concept of PIL were initially shown in India by Krishna Iyer, J. in 1976 while disposing an industrial dispute who observed ―Our adjectival branch of jurisprudence by and large, deals not with complicated litigants but the rural poor, the urban lay and the weaker societal segments to whom law will be an added terror if technical misdescriptions 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 a grace of procession justice. Test litigations, representative actions, pro bono public and like broadened forms of legal measures are in keeping with the current accent on justice to the common man and a necessary discouragement to those who wish to by-pass the real issues on the merits by suspect reliance on peripheral procedural shortcomings. Even Article 226, viewed on a wider perspective and may be amenable to ventilation of collective or common grievances, as distinguished from an assertion of individual rights.
Later Bhagwati, J. (as he then was) in one of his articles observed,
The magistrates have to play a vital and important role not only in preventing and remedying abuse and misuse of power but also in eliminating exploitation and injustice… During the last three to five years, however, Judicial Activism has opened up a new dimension for the judicial process and has given new hope to the justice-starved millions of India.
Supreme Court in State of Uttaranchal Vs Balwant Singh Chaufal any member of the public having sufficient interest may maintain an action or petition by way of PIL provided:
- There is a personal injury or injury to a weaker section of the society for whom access to the legal justice system is difficult.
- The person bringing the action is having the sufficient interest to maintain the action of public injury.
- The injury must have been arisen or being arisen because of breach of a public duty or violation of the Constitution or of the law.
- This is a powerful safeguard and has provided immense social benefits, where there is essentially failure on the part of the executive to ameliorate the problems of the oppressed citizens. Considering the importance of the subject, three articles from the web on the subject are reproduced hereunder.
- The character of the Indian Constitution. Unlike Britain, India has a written constitution which through Part III (Fundamental Rights) and Part IV (Directive Principles of State Policy) provides a framework for regulating relations between the state and its citizens and between citizens interests.
- India has some of the most progressive social legislation to be found anywhere in the world whether it be relating to bonded labor, minimum wages, land ceiling, environmental protection, etc. This has made it easier for the courts to haul up the executive when it is not performing its duties in ensuring the rights of the poor as per the law of the land.
- Sensitive judges have constantly innovated on the side of the poor. For instance, in the Bandhua Mukti Morcha case in 1983, the Supreme Court put the burden of proof on the respondent stating it would treat every case of forced labor as a case of bonded labor unless proven otherwise by the employer. Similarly, in the Asiad workers judgment case, Justice P.N. Bhagwati held that anyone getting less than the minimum wage can approach the Supreme Court directly without going through the labor commissioner and lower courts.
- In PIL cases in which the person is not in a state to give all the necessary evidence, either because the parties are socially or economically weak, their courts can appoint commissions to collect information on facts and present it before the bench.