Download Public Interest Litigation (PIL) and more Lecture notes Law in PDF only on Docsity!
COURSE 2 : UNIT 1: Public Interest Litigation (PIL) And Advocacy
1. INTRODUCTION
This sub unit gives a detailed description about the evolution and development og Public Interest Litigation (PIL) in India. This sub unit covers the meaning and concept of PIL, followed by the evolution, growth and development of PIL, types of PIL and finally the overview of the landmark judgments which has led to the development of PIL. This sub unit gives a detailed description about the evolution and development og Public Interest Litigation (PIL) in India. This sub unit covers the meaning and concept of PIL, followed by the evolution, growth and development of PIL, types of PIL and finally the overview of the landmark judgments which has led to the development of PIL. Since amendment of the law is a time-consuming process, the burden falls on the judiciary to mould the law to ensure its relevance in a changing scenario. These days the judiciary is the deciding authority in various fronts. There are some who believe that the wide jurisdiction exercised by the courts in matters of public interest transgresses the traditional doctrine of separation of powers. They hold the view that the role of a judge is only to interpret and declare the law and not make it. One of the possible reasons why there is this conception about the role of the judiciary was highlighted by Justice Michel Kirby from Australia, thus:
“ Simply put, judicial activism depicts the pro-active role played by the judiciary in ensuring that rights and liberties of citizens are protected. Through judicial activism, the court moves beyond its normal role of a mere adjudicator of disputes and becomes a player in the system of the country, laying down principles and guidelines that the executive must carry out. In performing its activist role the court is required to display fine balancing skills. While protecting the fundamental human rights of the people, the judiciary must take care to ensure that its orders are capable of execution, for no amount of judicial activism is useful if its orders are incapable of execution; they then remain “paper tigers” only.”
The concept of PIL which has been and is being fostered by judicial activism has been an increasingly important one setting up valuables and respectable records, especially in the erena of constitutional and legal treatment for “unrepresentative and under-represented”. judicial activism necessary to make the ideals enshrinedin the constitution meaningful and reality.
2. OBJECTIVES
The main purpose of the sub unit is to highlight the importance of PIL in India in protecting and promoting the interests of the marginalized and weaker sections of the society. PIL is a legal weapon, a strong judicial tool by which the justice is administered in a quick and effective way. After going through this Unit you will be able to
understand the concept of judicial activism and its implications study various landmark judgments pertaining to PIL compare different views of courts in different judgments
3. CONTENTS
3.1MEANING AND CONCEPT OF PIL
"Public interest Litigation", in simple words, means, litigation filed in a court of law, for the protection of "Public Interest" (nebulous entity), such as pollution, Terrorism, Road safety, constructional hazards etc. Article 32 of the Indian Constitution contains the tool which directly joins the public with the judiciary. Public Interest Litigation is not defined in any statute or in any act. It has been interpreted by judges to consider the intent of public at large.
political rights and the Rule of Law is meant for them also, though today it exists only on paper and not in reality.”
3.2 HISTORY OF PIL IN INDIA
A. ORIGIN AND EVOLUTION OF PIL
The term "PIL" originated in the United States in the mid-1980s. Since the nineteenth century, various movements in that country had contributed to public interest law, which was part of the legal aid movement. The first legal aid office was established in New York in 1876. In the 1960s the PIL movement began to receive financial support from the office of Economic Opportunity, This encouraged lawyers and public spirited persons to take up cases of the under- privileged and fight against dangers to environment and public health and exploitation of consumers and the weaker sections.
The origin and evolution of Public Interest Litigation in India emanated from realization of constitutional obligation by the Judiciary towards the vast sections of the society - the poor and the marginalized sections of the society. Prior to 1980s the aggrieved party could personally knock the doors of justice and seek remedy for his grievance and any other person who was not personally affected could not knock the doors of justice as a proxy for the victim or the aggrieved party. In other words, only the affected parties had the locus standi (standing required in law) to file a case and continue the litigation and the non-affected persons had no locus standi to do so. And as a result, there was hardly any link between the rights guaranteed by the Constitution of Indian Union and the laws made by the legislature on the one hand and the vast majority of illiterate citizens on the other.
If the cases of the decades of 70s and 80s are analysed it can be observed that PIL had begun in India towards the end of 1970s and came into full bloom in the 80s since most of the public interest litigation cases which were entertained by the
courts were pertaining to enforcement of fundamental rights of marginalized and deprived sections of the society. This can be termed as the first phase of the public interest litigation in India. The scenario gradually changed when the post emergency Supreme Court tackled the problem of access to justice by people through radical changes and alterations made in the requirements of locus standi and of party aggrieved. The splendid efforts of Justice P N Bhagwati and Justice V R Krishna Iyer were instrumental of this juristic revolution of eighties to convert the Apex Court of India into a Supreme Court for all Indians.
Justice V. R. Krishna Iyer and P. N. Bhagwati recognised the possibility of providing access to justice to the poor and the exploited people by relaxing the rules of standing. In the post-emergency period when the political situations had changed, investigative journalism also began to expose gory scenes of governmental lawlessness, repression, custodial violence, drawing attention of lawyers, judges, and social activists. PIL emerged as a result of an informal nexus of pro-active judges, media persons and social activists. This trend shows starke difference between the traditional justice delivery system and the modern informal justice system where the judiciary is performing administrative judicial role. PIL is necessary rejection of laissez faire notions of traditional jurisprudence.
The first reported case of PIL in 1979 focused on the inhuman conditions of prisons and under trial prisoners. In HussainaraKhatoon v. State of Bihar , the PIL was filed by an advocate on the basis of the news item published in the Indian Express, highlighting the plight of thousands of undertrial prisoners languishing in various jails in Bihar. These proceeding led to the release of more than 40, undertrial prisoners. Right to speedy justice emerged as a basic fundamental right which had been denied to these prisoners. The same set pattern was adopted in subsequent cases.
B. DEVELOPMENT OF PIL
Subjects of Public Interest Litigation: Public Interest Litigation is meant for enforcement of fundamental and other legal rights of the people who are poor, weak, ignorant of legal redressal system or otherwise in a disadvantageous position, due to their social or economic background. Such litigation can be initiated only for redressal of a public injury, enforcement of a public duty or vindicating interest of public nature. It is necessary that the petition is not filed for personal gain or private motive or for other extraneous consideration and is filed bona fide in public interest.
The following are the subjects which may be litigated under the head of Public Interest Litigation:
The Writ Jurisdiction of Supreme Court can be invoked under Article 32 of the Constitution for the violation of fundamental rights guaranteed under Part – III of the Constitution. Any provision in any Constitution for Fundamental Rights is meaningless unless there are adequate safeguards to ensure enforcement of such
provisions. Indian Constitution, like most of Western Constitutions, lays down certain provisions to ensure the enforcement of Fundamental Rights. (a) The Fundamental Rights provided in the Indian Constitution are guaranteed against any executive and legislative actions. Any executive or legislative action, which infringes upon the Fundamental Rights of any person or any group of persons, can be declared as void by the Courts under Article 13 of the Constitution. (b) In addition, the Judiciary has the power to issue the prerogative writs. These are the extra-ordinary remedies provided to the citizens to get their rights enforced against any authority in the State. These writs are - Habeas corpus, Mandamus, Prohibition, Certiorari and Quo-warranto. Both, High Courts as well as the Supreme Court may issue the writs. (c) The Fundamental Rights provided to the citizens by the Constitution cannot be suspended by the State, except during the period of emergency, as laid down in Article 359 of the Constitution. A Fundamental Right may also be enforced by way of normal legal procedures including a declaratory suit or by way of defence to legal proceedings.
A Public Interest Litigation can be filed before the Supreme Court under Article 32 of the Constitution or before the High Court of a State under Article 226 of the Constitution under their respective Writ Jurisdictions. There are mainly five types of Writs:
Habeas Corpus: Mandamus: Quo-Warranto: Prohibition Certiorari
ARTICLE 32: A CONSTITUTIONAL REMEDY Dr.B.R.Ambedkar described Article 32 as the most important one, without which the Constitution would be reduced to nullity. It is also referred to as the heart and soul of the Constitution. By including Article 32 in the Fundamental Rights, the Supreme Court has been made the protector and guarantor of these Rights. An application made under Article 32 of the Constitution before the Supreme Court, cannot be refused on technical grounds. In addition to the prescribed five types of writs, the Supreme Court may pass any other appropriate order. Moreover, only the questions pertaining to the Fundamental Rights can be determined in proceedings against Article 32. Under Article 32, the Supreme Court may issue a Writ against any person or government within the territory of India. Where the infringement of a Fundamental Right has been established, the Supreme Court cannot refuse relief on the ground that the aggrieved person may have remedy before some other court or under the ordinary law.
3.4MERITS & DE-MERITS
Merits:
- In Public Interest Litigation (PIL) vigilant citizens of the country can find an inexpensive legal remedy because there is only a nominal fixed court fee involved in this.
- Further, through the so-called PIL, the litigants can focus attention on and achieve results pertaining to larger public issues, especially in the fields of human rights, consumer welfare and environment.
Demerits:
- The genuine causes and cases of public interest have in fact receded to the background and irresponsible PIL activists all over the country have started to play a major but not a constructive role in the arena of litigation. Of late, many of the PIL activists in the country have found the PIL as a handy tool of harassment since frivolous cases could be filed without investment of heavy court fees as required in private civil litigation and deals could then be negotiated with the victims of stay orders obtained in the so-called PILs.
- The framers of 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 regarding as the exclusive domain of the executive and the legislature. Vishaka v State of Rajasthan which was a PIL concerning sexual harassment of women at work place. The court declared that till the legislature enacted a law consistent with the convention on the Elimination of All Forms of Discrimination Against Women which India was a signatory, the guidelines set out by the court would be enforceable.
- The flexibility of procedure that is a character of PIL has given rise to another set of problems. It gives an opportunity to opposite parties to ascertain the precise allegation and respond specific issues.
- The credibility of PIL process is now adversely affected by the criticism that the judiciary is overstepping the boundaries pf 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 the people agitating for private grievance in the grab of public interest and seeking publicity rather than espousing public cause.
3.5HOW TO FILE A PIL?
A "Public Interest Litigation", is filed in the same manner, as a writ petition is filed.
In High Court : If a Public Interest Litigation is filed in a High court, then two (2) copies of the petition have to be filed. Also, an advance copy of the petition has to be served on the each respondent, i.e. opposite party, and this proof of service has to be affixed on the petition. In Supreme Court : If a Public Interest Litigation is filed in the Supreme court, then (4)+(1) (i.e. 5) sets of petition has to be filed opposite party is served, the copy only when notice is issued.
Court Fees : A Court fee of RS. 50, per respondent (i.e. for each number of opposite party, court fees of RS. 50)has to be affixed on the petition.
Procedure
It is a settled law that when a person approaches the court of equity in exercise of extraordinary jurisdiction, he should approach the court not only with clean hands but with clean mind, heart and with clean objectives.
3. Shiram Food & Fertilizer case AIR (1986) 2 SCC 176 SC Public Interest Litigation directed the Co. Manufacturing hazardous & lethal chemical and gases posing danger to life and health of workmen & to take all necessary safety measures before re-opening the plant. 4. In the case of M.C Mehta V. Union of India (1988) 1 SCC 471 –
In Public Interest Litigation brought against Ganga water pollution so as to prevent any further pollution of Ganga water. Supreme court held that petitioner although not a riparian owner is entitled to move the court for the enforcement of statutory provisions, as he is the person interested in protecting the lives of the people who make use of Ganga water.
5. ParmanandKatara V. Union of India - AIR 1989, SC 2039 :-
Supreme Court held in the Public Interest Litigation filed by a human right activist fighting for general public interest that it is a paramount obligation of every member of medical profession to give medical aid to every injured citizen as soon as possible without waiting for any procedural formalities.
6. Council For Environment Legal Action V. Union Of India - (1996)5 SCC 281:
Public Interest Litigation filed by registered voluntary organisation regarding economic degradation in coastal area. Supreme Court issued appropriate orders and directions for enforcing the laws to protect ecology.A report entitled "Treat Prisoners Equally HC" published in THE TRIBUNE, Aug 23 Punjab & Haryana
High Court quashed the provisions of jail manual dividing prisoners into A , B & C classes after holding that there cannot be any classification of convicts on the basis of their social status, education or habit of living .This is a remarkable ruling given by High Court by declaring 576-A paragraph of the manual to be " Unconstitutional".
7. State V. Union Of India - AIR 1996 Cal 181 at 218:
Public Interest Litigation is a strategic arm of the legal aid movement which intended to bring justice. Rule of Law does not mean that the Protection of the law must be available only to a fortunate few or that the law should be allowed to be abused and misused by the vested interest. In a recent ruling of Supreme Court on " GROWTH OF SLUMS" in Delhi through Public Interest Litigation initiated by lawyers Mr. B.L. Wadhera& Mr. Almitra Patel Court held that large area of public land is covered by the people living in slum area. Departments despite being giving a dig on the slum clearance, it has been found that more and more slums are coming into existence. Instead of "Slum Clearance", there is "Slum Creation" in Delhi. As slums tended to increase; the Court directed the departments to take appropriate action to check the growth of slums and to create an environment worth for living.
8. Devika Biswas V Union of India
The matter of Devika Biswas V Union of India WP(C) 95 of 2012 was listed before the chief justice on 8th may, 2014. In the state of Rajasthan, study on camp conditions in Bundi District it was found that Only 12% of women had been counselled about other forms of contraception; 42% not counselled about permanency of sterilization; 88% not informed about complications, side-effects or failures. 58% women experienced at least one adverse side effect.
Q2. Name two landmark judgments and their relevance in development of PIL in India?
……………………………………………………………………………………… ……………………………………………………………………………………… ……………………………………………………………………………………… ……………………………………………………………………………………… …………………………………………..
Q3. What do you understand by the term PIL and what section of the society does it majorly benefit?
……………………………………………………………………………………… ……………………………………………………………………………………… ……………………………………………………………………………………… ……………………………………………………………………………………… ……………………………………………………………………………………… ……………………………………………………..
5 SUMMARY
Thus Public Interest Litigation is and effective tool which connects the judiciary with the public. By efficient and effective administration of justice to the public at large which has been of great assistance to the weaker and marginalised sections of the society facing hassles in the long and complicated process of litigation.
Public interest litigation is a revolutionary stream which helps the common man to reach the remedy which is beneficial for public at large which was not earlier available to them even before actual damage is done. Public interest litigation has
opened the new window of thought. We should thank our judiciary who have coined this new concept which is very useful for public at large because there are many examples present with us which shows that it really helped the common person in field of pollution, environment, bonded labour, scams corruption etc. By filing the Public Interest Litigation one can assure the justice to the aggrieved people.
"The positive energy has to flow from all nations to each other. Only then, we can protect; we can preserve; we can think; we can be the same citizens. We can be a peaceful citizen of the world.":-From the Film The World is On Fire.
6 ANSWERS 7 REFERENCES
Obligations of Public Authorities : Every public authority shall maintain all its records duly catalogued and indexed in a manner and form, which facilitates the right to information Shall also publish the information of the organization regarding structure, functions and duties, procedure followed, decision making process, directory of officers and employees, names and designations of public information officers etc., Procedure for obtaining information Every person seeking the information shall request orally or in writing or through electronic means paying the requisite fees at the following rates : In respect of public authorities at the Village Level – No fee ; In respect of public authorities at Mandal Level – Rs. 5/- per application ; In respect of public authorities other than those covered above – Rs. 10/- per application. Disposal of Request The Central Public Information Officer or State Public Information Officer within 30 days either provide information or reject with reasons and the period within which appeal can be preferred and particulars of the appellate authority. If the information sought for concerns the life and liberty of a person, the same shall be provided within (48) hours of the receipt of request.
3.2 PUBLIC SERVICE GUARANTEE ACT 3.3 RIGHT TO EDUCATION
3.3.1 OVERVIEW
Article 21A of the Indian Constitution states that the state shall provide free and compulsory education to all children of the age six to fourteen years in such manner as the state may by law
determine. To ensure the fulfilment of this right, the Right to Children to Free and Compulsory Education (RTE) has been enacted.
3.3.2. The right guaranteed under RTE Act is the right:
Of every child between the ages of 6 to 14 To free and compulsory education In a neighbourhood school Till completion of elementary education
3.3.3. The government cannot deny any child‟s fundamental right of to education on the pretext of not having sufficient funds. The RTE Act lays down specific responsibilities of the central government, state government, local authority, schools and teachers in guaranteeing this right.
3.3.4 DUTIES OF THE APPROPRIATE GOVERNMENT, LOCAL AUTHORITIES AND PARENTS
Central Government:
Prepare estimates of expenditure Develop and enforce standards for training of teachers
HIGHLIGHTING PROVISIONS OF RTE ACT ADEQUATE UMBER OF SCHOOLS SAFE AND SECURE ENVIRONMENTFREEDOM FROM HARASSMENT IN SCHOOLS NON-DISCRIMINATION IN SCHOOLS NO DENIAL OF ADMISSION IN SCHOOL GOOD QUALITY EDUCATION REGULAR CLASSES TAKEN BY THE QUALIFIED TEACHERS ACCESS TO TEXT BOOK AND UNIFORMS FREE OF COST
