Public Interest Litigation

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In Indian law, Public Interest Litigation (PIL) OR जनहित याचिका means litigation for the protection of the public interest. It is litigation introduced in a court of law, not by the aggrieved party but by the court itself (suo motu) or by any other private party. It is not necessary, for the exercise of the court's jurisdiction, that the person who is the victim of the violation of his or her right should personally approach the court. In Public Interest Litigation, the power to file a suit is given to a member of the public by the courts etc. through judicially conscious judicial activism.That member of the public can be a NGO, Institution or an individual.In India, Supreme Court, rejecting the criticism of judicial activism, has said the judiciary has stepped in to give directions only because of executive inaction what with laws enacted by Parliament and the State legislatures in the last 63 years for the poor not being implemented properly.

History

The Supreme Court of India in Sunil Batra (II) v. Delhi Administration, 1980 (3) SCC 488 : 1980 SCC (Cri) 777 : AIR 1980 SC 1579 : 1980 CriLJ 1099 has accepted a letter written to the Supreme Court by one Sunil Batra, a prisoner from Tihar Jail, Delhi complaining of inhuman torture in the jail. In Dr. Upendra Baxi (I) v. State of U.P., AIR 1987 SC 191 the court entertained letter sent by the two Professors of Delhi University seeking enforcement of the constitutional right of the inmates in a Protective Home, at Agra who were living in inhuman and degrading conditions. In Miss Veena Sethi v. State of Bihar, 1982 (2) SCC 583 : 1982 SCC (Cri) 511 : AIR 1983 SC 339 the Court treated letter addressed to a Judge of the Court by the Free Legal Aid Committee at Hazaribagh, Bihar as a writ petition. In Citizens for Democracy through its President v. State of Assam and Others, 1995 KHC 486 : 1995 (2) KLT SN 74 : 1995 (3) SCC 743 : 1995 SCC (Cri) 600 : AIR 1996 SC 2193 the Court entertained a letter addressed by Shri Kuldip Nayar, an eminent journalist, in his capacity as President of "Citizens for Democracy" to one of the Judges of the Court complaining of human rights violations of TADA detenues and the same was treated as a petition under Art.32.^[1][2] Prior to the 1980s, only the aggrieved party could approach the courts for justice. However, post 1980s and after the emergency era, the apex court decided to reach out to the people and hence it devised an innovative way wherein a person or a civil society group could approach the supreme court seeking legal remedies in cases where public interest is at stake. Justice P. N. Bhagwati and Justice V. R. Krishna Iyer were among the first judges to admit PIL's in the court.^[3] Filing a PIL is not as cumbersome as any other legal case and there have been instances when even letters and telegrams addressed to the court have been taken up as PIL's and heard by the court.^[4]

Interference made by Courts in Public Interest Litigations

The Bombay High Court on 31 August 2006 directed the broadcasters to give an undertaking that they will abide by the Cable Television Network Act 1995 as well as the court's orders by tomorrow, in view of larger public interest.

A division bench comprising Justices R M Lodha and S A Bubbey were hearing a Public Interest Litigation (PIL) filed by Professor Pratibha Nathani of St Xavier's College alleging that films without certification by the Censor Board for Film Certification (CBFC) allowing 'free public exhibition', were being shown on cable channels, which have a bad impact on children. Hence, such films should not be shown and action be taken against those still running such content on their channels.

The court on 23 August had allowed the cable operators and channels to screen only 'U' and 'U/A' certified films.

However, before that order, the police had taken action against the Multi-system operators and seized their decoders due to which they could not telecast certain channels. Assistant Commissioner of Police Sanjay Apranti told the court that they did not have a problem if the channels provided the cable operators with new decoders.

Also, Zee Television and Star Television networks applied for the declaration in writing that they would abide by the said Act and court orders.

The court also directed seven channels—Star Movies, Star One, Star Gold, HBO, ZEE Movies, AXN and Sony Max—to furnish a list of all the films that they were to screen to the police.

Frivolous PILs

Public Interest Litigation is a RULE OF DECLARED LAW by the Courts of Record However, the person or entity filing the petition must prove to the satisfaction of the court that the petition is being filed for a larger public interest and not just as a frivolous litigation by a busy body or for individual or pecuniary gains and profit.

The 38th Chief Justice of India Justice S. H. Kapadia said huge costs would be imposed on litigants filing frivolous public interest litigation (PIL) petitions. His statement was widely welcomed because instances of unscrupulous elements filing PILs to advance personal or pecuniary interest had witnessed an upward trend in recent years. And last year too, a bench of the apex court raised concern over the misuse of PILs. The same bench had also issued a set of guidelines, which it wanted all courts in the country to observe while entertaining PILs.

In a speech in September 2008, Prime Minister Manmohan Singh also expressed concern over the misuse of the PIL: “Many would argue that like in so many things in public life, in PILs too we may have gone too far. Perhaps a corrective was required and we have had some balance restored in recent times.”

Now, in what could result in the most effective tool against frivolous PILs, the Union Ministry of Law and Justice is giving final touches to a law to regulate the PIL. And helping the Ministry in its endeavour is none other than former Chief Justice of India P N Bhagwati, acknowledged as somebody who along with Justice V R Krishna Iyer pioneered the concept of PIL in the country.

Chastising those who move courts with such dubious motives, the judgment said: “This court wants to make it clear that an action at law is not a game of chess. A litigant who approaches the court must come with clean hands. He cannot prevaricate and take inconsistent positions.” Since the Amar Singh petition was vague, not conforming to the rules of procedure and riddled with inconsistencies, the court did not go into his main grievance — infringement of privacy. The only positive outcome of the case was the court’s request to the government to “frame certain statutory guidelines to prevent interception of telephone conversation on unauthorised requests.” In this case, Reliance Infocom acted on a forged request from the police.

In the judgment of Kalyaneshwari vs Union of India, the court deprecated misuse of public interest litigation to wage business battles. A writ petition was filed in the Gujarat High Court seeking the closure of asbestos units, alleging that the material was harmful to humans. The high court dismissed it, stating that the petition was filed at the behest of rival industrial groups that wanted to push their products as substitute for asbestos. Undaunted, a similar petition was then moved in the Supreme Court. The plea was not only dismissed, but the person who mooted it was asked to pay cost of Rs 1 lakh and sit in the court for a whole day.

The judgment said: “The petition lacks bona fide and in fact was instituted at the behest of a rival industrial group, which was interested in banning of the activity of mining and manufacturing of asbestos. A definite attempt was made by it to secure a ban on these activities with the ultimate intention of increasing the demand of cast and ductile iron products as they are some of the suitable substitute for asbestos. Thus it was litigation initiated with ulterior motive of causing industrial imbalance and financial loss to the industry of asbestos through the process of court.”

The court declared that it was its duty in such circumstances to punish the petitioners exercising its power under the Contempt of Courts Act. The court must “ensure that such unscrupulous and undesirable public interest litigation be not instituted in courts of law so as to waste the valuable time of the courts as well as preserve the faith of the public in the justice delivery system.”

“By now it ought to be plain and obvious that this Court does not approve of an approach that would encourage petitions filed for achieving oblique motives on the basis of wild and reckless allegations made by individuals, ie, busybodies,” a Bench of Justices B Sudershan Reddy and SS Nijjar observed in their March 29 judgment released on Thursday. The Bench overruled an Andhra Pradesh High Court decision of April 2010 in which it set aside the services of a retired IPS officer on special duty with the Tirumala Tirupathi temple. The High Court’s decision was on a public interest petition filed by one S Mangati Gopal Reddy, who alleged in court that the IPS officer, P Seshadri, was involved in the loss of “300 gold dollars” from the temple and should not continue in office.The Supreme Court, surprisingly, found that the High Court had decided against Seshadri with very little information about Reddy himself, except that he is an “agriculturist” by profession and a “staunch devotee of Lord Venkateshwara (the temple deity) since childhood”.

“The parameters within which PILs can be entertained have been laid down. The credentials, the motive and the objective of the petitioner have to be apparently and patently aboveboard. Otherwise the petition is liable to be dismissed at the threshold,” the judgment stated. Reasoning as to why it continues to skeptical about a large number of PILs, the Bench speaks for the Supreme Court when it says that “judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity-seeking is not lurking”.

“This Court (Supreme Court of India) must not allow its process to be abused for oblique considerations by masked phantoms who monitor at times from behind,” it said.

Empirical study on PIL results

According to a controversial study by Hans Dembowski, PIL has been successful in the sense of making official authorities accountable to civil society organisations. While this social scientist also found some effect on the ground level, PIL cases dealing with major environmental grievances in the Kolkata agglomeration did not tackle underlying problems such as inadequate town planning. Dembowski's book Taking the State to Court - Public Interest Litigation and the Public Sphere in Metropolitan India was originally published by Oxford University Press in 2001. The publisher, however, soon discontinued distribution because of contempt of court proceedings started by the Calcutta High Court. The author, who claims he was never officially notified by the Court, has since republished the book online with the Germany-based NGO Asia House.^[5][6]

Arguments Against PIL

A Bench of Justices G.S. Singhvi and A.K. Ganguly pointed out that laws enacted for achieving the goals set out in the Preamble to the Constitution had been extremely inadequate and tardy, and the benefit of welfare measures enshrined in those legislation had not reached millions of poor, downtrodden and disadvantaged sections, nor did efforts to bridge the gap between the haves and have-nots yield the desired result.

Writing the judgment in a case related to sewerage workers, Justice Singhvi said: “The most unfortunate part of the scenario is that whenever one of the three constituents of the state i.e. the judiciary issues directions for ensuring that the right to equality, life and liberty no longer remains illusory for those who suffer from the handicaps of poverty, illiteracy and ignorance, and directions are given for implementation of the laws enacted by the legislature for the benefit of the have-nots, a theoretical debate is started by raising the bogey of judicial activism or overreach.”^[7]

The Bench clarified that it deemed it necessary to erase the impression and misgivings among some people that the superior courts, by entertaining PIL petitions for espousing the cause of the poor who could not seek protection and vindication of their rights, exceeded the unwritten boundaries of their jurisdiction. The judges said it was the duty of the judiciary, like that of the political and executive constituents of the state, to protect the rights of every citizen and ensure that everyone lived with dignity.

Such cases may occur in public interest when the victims do not have the necessary consciousness, know-how or resources to commence litigation or their freedom to move court has been suppressed or encroached upon. The court can itself take cognisance of the matter and proceed suo motu or cases can commence on the petition of any public-spirited individual or body. Further courts can also take cognizance on the basis of letters written to them or Newspaper Reports.

See also

• Rule of law
• Rule according to higher law
• Parens patriae
• Qui tam
• Legal aid
• Constitution of India
• Constitutional theory
• Fundamental Rights, Directive Principles and Fundamental Duties of India
• Class action
• Civil society

External links

• British Council's LEGAL eNEWS compares Indian and British experiences on public interest litigation
• Public interest litigation described on Helplinelaw - The site has detailed pages explaining various aspects of PILs in Indian law.
• Right to Food Campaign in India - The site has information about one of the most significant PILs on right to food in the world.
• Bodhisattwa Gautam vs. Subhra Chakraborty: a case where PIL introduced the case to court.
• Environmental Law Research and Guidance Foundation (India): More judgments on Public Interest Environmental Law.
• Supreme Court of India: - Official Website of SUPREME COURT OF INDIA.
• Supreme Court of India: - Commonwealth Website of SUPREME COURT OF INDIA Judgements.
• JUDGEMENTS from SUPREME COURT and other COURTS OF INDIA: - Official website of Court judgements in INDIA

References

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1. ^ Constitution of India
2. ^ Divine Retreat Centre Vs. State of Kerala and Others [AIR 2008 SC 1614
3. ^ PIL A Boon Or A Bane
4. ^ Introduction to Public Interest Litigation
5. ^ [1]
6. ^ Dembowski, Hans (2009). "Erratic justice?". Development and Cooperation (Frankfurt am Main: Societäts-Verlag) 36 (3): 122–123. http://www.inwent.org/ez/articles/087239/index.en.shtml. 
7. ^ "Supreme Court Judgment on Scavengers working under the Delhi Jal Board (Civil Appeal No 5322 of 2011)". http://indiacurrentaffairs.org/supreme-court-judgement-on-scavengers/.