"The 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 prostituted by the vested interests for protecting and upholding the status quo under the guise of enforcement of their civil and political rights. The poor too have civil and political rights and the rule of law is meant for them also, though today it exists only on paper and not in reality"Hon'ble Supreme Court of India[i].
The onset of Covid-19 has crippled the entire world, prompting all countries across the world including India, to announce some stringent, expansive and stout hearted measures in order to forestall the havoc, which the virus is capable of wreaking. However, during this period, there has been an unusual surge in filing of Public Interest Litigations in the Hon'ble Supreme Court and various other High Courts seeking judicial intervention on multifarious issues touching upon various facets of public life, which were jeopardized by the spread of Covid-19. Public Interest Litigation is a Petition, which an individual or a Non-Governmental Organization or citizen groups can file in the Court seeking Justice in an issue that has larger public interest. PIL is a creation of a judicial philosophy motivated by the conviction that mere enumeration of fundamental rights is nugatory without their meaningful enjoyment by those, who have no substantial means to avail the legal remedies prescribed for their enforcement. PIL is a cooperative or collaborative effort by the Petitioner, the State or Public Authority and the Judiciary to secure observance of Constitutional or basic human rights, benefits and privileges upon poor, downtrodden and vulnerable sections of the society[ii].
In this article, an endeavour is made to explain the concept of PIL, elucidate its development in the Indian context and role of judiciary in expanding its scope. It is also discussed how PIL can be used by some vested elements for their oblique motives. An attempt is also made to discuss some of the latest PIL's filed in the hon'ble Supreme Court and how the Court has responded to them.
2. Development of Public Interest Litigation:
Constitution of India in its Part III contains a long list of fundamental rights. This chapter of the Constitution has been very well described as the Magna Carta of India. However, it is indubitably true that mere declaration of fundamental rights is worthless unless there is some effective machinery for the enforcement of those rights. As it is very aptly said, "right without a remedy is no right at all". The framers of the Constitution were well aware that the essence of these rights lies in providing an exhaustive mechanism for their enforcement. Keeping this in consideration, the framers of the constitution after having incorporated a long list of fundamental rights, have also provided an effective mechanism for the enforcement of these rights under Article 32 and Article 226 of the Constitution of India.
Therefore, for obtaining a proper remedy for infringement of any of the fundamental rights, one has to move the Supreme Court or the respective High Court by invoking writ jurisdiction of these courts. Nevertheless, the high cost and the labyrinthine procedure involved in the litigation makes the equal access to justice a hollow adage with respect to the millions of impoverished class of persons, who on account of poverty or socially and economically disadvantaged position are unable to approach the court for enforcement of their rights. Therefore, the Supreme Court of India spearheaded the movement of Public Interest Litigation (PIL) in India, with the noble idea of bringing justice as nearly as possible at the hearthstone of the weak, the unorganized and exploited sections of the society.
The concept of "Public Interest Litigation" owes much to the American innovation of the dictum "Public Interest Law" whose basic thrust is to ensure that citizens whose lives may be affected by governmental policies have a right to participate in the formulation of those policies. The council for Public Interest Law set up by the Ford Foundation in USA, in its report, has opted for a broad definition:
Public Interest Law is the name that has recently given to efforts to provide legal representation to previously unrepresented groups and interest. Such efforts have been undertaken in recognition that the ordinary market place for legal services fails to provide such services to significant sections of the population and to significant interests. Such groups and interest include the poor, environmentalists, consumers, racial and ethnic minorities and others.[iii]
Public Interest Litigation is not defined in any statute or any Act. It has been interpreted by judiciary to consider the intent of the public at large. Ordinarily it means a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or class of the community have some interest by which their legal rights or liabilities are affected.
The concept of PIL in India owes its origin to the more activist role undertaken by the Supreme Court, when it started flexing its muscles in 1980's in an effort to redeem its image as the guardian of fundamental rights of the people of India, which was largely eroded during the emergency period (1975-77) by the excessive intervention of the executive in the matters of civil rights of people. The first reported case of PIL was Hussainara Khatoon v State of Bihar[iv]. The case was filed in the Hon'ble Supreme Court before the bench headed by Justice P. N. Bhagwati. In this case, a petition was filed by an advocate on the basis of the news item published in the Indian Express, highlighting the plight of the thousands of under trial prisoners languishing in various jails in Bihar. These proceedings led to the release of more than 40,000 under trial prisoners. The Hon'ble Supreme Court held that "right to speedy trial" a fundamental right is implicit in the guarantee of life and personal liberty enshrined in Article 21 of the Constitution of India. The special thing about this petition was that it was not filed by any single prisoner; rather it was filed by various prisoners of the Bihar jail. In the ensuing years, the Court began to issue sweeping directions to protect the rights of prisoners, slum-dwellers and bonded laborers, and later waded into major environmental disputes.
However, the credit for nourishing and emboldening the contours of the Public Interest Litigation goes to few illustrious personalities of the judicial arena such as Justice P.N.Bhagwati and Justice V.R.Krishna Iyer, who by virtue of their unparalleled legal acumen changed the scope of the traditional rule of locus standi, which was engrossed by the concept, that a petition under Article 32 can only be filed by an individual whose fundamental right is infringed. In the words of Justice P.N. Bhagwati of the Supreme Court:
'PIL' It is a strategic arm of the legal aid movement which is intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity and is a totally different kind of litigation which is essentially of an adversary character where there is a dispute between two litigating parties, one making claim or seeking relief against the other and that other opposing such claim or resisting such relief.
The concept of PIL was comprehensively expounded by Justice Bhagwati, In the Judges Transfer case,[v] in which a 7 member bench of the Supreme Court has firmly established the rule regarding the Public Interest Litigation. The Court held that any member of public having "sufficient interest" can approach the court for enforcement of the Constitutional or legal rights of other persons and redressal of common grievance. Speaking for the majority Bhagwati,J., (as he then was) stated the rule as follows:
"Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of personal 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 appropriate direction, order or writ in the High Court under Article 226 and in case of breach of any fundamental right of such person or determinate class of persons, in this court under Article 32 seeking judicial redress for the legal ' wrong or injury caused to such person or determinate class of persons".
Justice Bhagwati further held that,
"It is absolutely necessary for maintaining the rule of law furthering the cause of justice and accelerating the pace of the realization of the constitutional remedies".
However, the Court said that it would be decided from case to case as to whether the person approaching the court for relief has sufficient interest and has not acted with mala fide or political motives.
His lordship Bhagwati, J. (as he then was) expressed a note of caution also while observing that:
"But we must be careful to see that the members 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 allowed its process to be abused by some unscrupulous persons…."
In Bihar Legal Support Society V Chief Justice of India[vi], the Court made it clear that the strategy of Public Interest Litigation has been evolved by this Court with a view to bring justice within the easy reach of the poor and the disadvantaged sections of the Society.
In Peoples union for Democratic Rights V Union of India[vii], The Supreme Court rejected the argument that such "PIL" would create arrears of cases and therefore it should not be encouraged. It was held that, "no state has the right to tell its citizens that because of large number of cases of the rich are pending in our courts, we will not help the poor to come to the courts for seeking justice until the staggering load of cases of people who can afford rich lawyers is disposed off".
In Guruvayur Devaswom Managing Committee and Anr Vs C.K. Rajan and Ors[viii], Hon'ble Supreme Court held:
"The Courts exercising their power of judicial review found to its dismay that the poorest of the poor, depraved, the illiterate, the urban and rural unorganized labour sector, women, children, handicapped by ignorance, indigence and illiteracy and other down trodden have either no access to justice or had been denied justice. A new branch of proceedings known as 'Social Interest Litigation' or 'Public Interest Litigation' was evolved with a view to render complete justice to the aforementioned classes of persons. It expanded its wings in course of time. Public interest litigation has come to stay and its necessity cannot be overemphasized. The courts evolved a jurisprudence of compassion. Procedural propriety was to move over giving place to substantive concerns of the deprivation of rights. The rule of locus standi was diluted. The Court in place of disinterested and dispassionate adjudicator became active participant in the dispensation of justice".
3. Scope of Public Interest Litigation:-
The Supreme Court has time and again enlarged the horizons of Public Interest Litigation through the generous interpretation of its various aspects touching upon various social issues of great importance. The Public Interest Litigation is a highly effective weapon in the armory of law for bringing social justice to the reach common man. In the landmark judgment in the case of M.C. Mehta V Union of India[ix], the Supreme Court widened the Scope of Public Interest Litigation/ Social Interest Litigation under Article 32, Bhagwati, J., speaking for the majority laid down that:
"The Poor in India can seek enforcement of their fundamental rights by writing a letter to any judge. Letters addressed to individual Justices of this Court should not be rejected merely because they fail to conform to the preferred form of address nor should the Court adopt a rigid stance that no letters will be entertained unless they are supported by an affidavit. The Court further held that, it lies within the wisdom of the court to devise any procedure and forge any tool it deems appropriate for the enforcement of the fundamental rights of the poor".
Such a humanistic and broad based approach of the Judiciary is in consonance with its constitutional status as a guardian and sentinel of the fundamental rights guaranteed by the constitution.
In Bandhu Mukti Morcha V Union of India[x], Bhagwati.J., explained the purpose of PIL as follows:
Public Interest litigation is not in the nature of adversary litigation but it is a challenge and an opportunity to the government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social and economic justice which is the signature tune of our Constitution. When the Court entertains Public Interest Litigation, it does not do so in a cavilling spirit or in a confrontational mood or with a view to tilting at executive authority or seeking to unsurp it, but its attempt is only to ensure observance of social and economic rescue programmes, legislative as well as executive, framed for the benefit of the have-nots and the handicapped and to protect them against violation of their basic human rights, which is also the constitutional obligation of the executive. The Court is thus merely assisting in the realisation of the constitutional objectives.
The instrument of PIL has served to protect the human rights of the poor and disadvantaged masses. It has covered several areas of litigations. The Supreme Court has used this device for prohibition of exploitation of workmen, enforcing the rights of children employees and release of bonded laborers. It was used for the eradication of child prostitution, rescue and rehabilitation through its welfare measures of prostitutes and their children. It was used for seeking relief against mala fide acts of public servant in the discharge of his functions as public servant, protection of environment and the people's right to natural resources. The PIL was also used to award monetary compensation in appropriate cases of violations of right and personal liberty.
4. PIL- Susceptibility to Abuse:
The PIL in the early years contributed significantly to the development of law and jurisprudence in India, and set a new direction in various fields of law. However, over the years, vested interests saw great prospects in misusing this great arm of social justice to fulfill their own ulterior motives. Some unscrupulous people find it a viable option to file unmerited, odious, vexatious and fictitious claims. Abuse of PIL, misuse of this strategy and hijacking of this versatile process by enemies of the poor and even trivialization of PIL bringing it into contempt are now on the cards. There always remains an attempt from some quarters to use this factotum facility as a browbeating tool. The purpose for which it was devised is sometimes rendered redundant by those who are motivated by political and oblique motives. In this regard, Courts should always adopt an active approach though not pedantic in determining whether the petitioner who has approached the Court for relief has come with clean hands and a clean objective. The Courts must gauge the honesty and seriousness of the Petitioner and to see whether he is actually the champion of the cause of the persons or groups, he is representing. It is also argued by many that the excessive interference by the Courts through the PIL in the sphere of Executive and Legislative is not justified as it may pit the three organs of the Government against each other and politicize PIL's .
The Hon'ble Supreme Court while taking note of the instances of misuse of PIL jurisdiction in Ashok Kumar Pandey V State of West bengal[xi] has observed that:
"Public Interest Litigation which has now come to occupy an important field in the administration of law should not be "publicity interest litigation" or "private interest litigation" or "politics interest litigation or the latest trend "paise income litigation". If not properly regulated and abuse averted it also becomes a tool in unscrupulous hands to release vendetta and wreak vengeance as well. There must be real public interest involved and not merely an adventure of the knight errant or poke one's nose into for a probe".
In State of Uttaranchal vs Balwant Singh Chaufal & Ors[xii]., In order to preserve the purity and sanctity of the PIL, the Supreme Court has laid down following guidelines to be followed by courts:
(1) The courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations;
(2) Instead of every individual judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives.
(3) The courts should prima facie verify the credentials of the petitioner before entertaining a P.I.L.;
(4) The court should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL;
(5) The court should be fully satisfied that substantial public interest is involved before entertaining the petition;
(6) The court should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions;
(7) The courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury.
Although the instrument of PIL is sometimes misused, but in many instances Courts refuse to entertain deserving and meritorious PILs. On occasions, the Court fails to apply its judicial mind on the seriousness of the issue involved deserving judicial intervention and dismiss or refuse to entertain a more genuine and deserving PIL. Thus, it becomes very important to create and maintain a balance in the judicial firmament in order to save this most important and inherent power envisaged in our legal system, which not only in times of emergencies like the present one, but also in normal times can act as significant social tool to deal with some emerging and current issues involving public interest, when it appears to the Judiciary that the said issue has been neglected or not catered to by the other arms of the system especially the Executive, which includes the state and central governments including the enforcement bodies.
5. Covid Conundrum and the Supreme Court:
The outbreak of Covid-19 has led to a spate in filing of Public Interest Litigations (PILs) before the Supreme Court, praying for various directions and measures in order to come to grips with the present unprecedented situation. In some cases the Hon'ble Supreme Court passed some significant orders, while as in some other deserving cases, it failed to rise to the occasion and act as the sentinel of rights of the people. It also reprimanded and rebuked severely those, who had filed some motivated and misconceived PIL Petitions seeking relief which was exfacie non-justiciable and purely dictated by some extraneous considerations.
In a PIL filed before the Hon'ble Supreme Court seeking directions to permit migrant workers to return to their native places by trains without conditions and charges. The Supreme Court disposed of the plea without any effective directions saying:
"As all necessary steps are being taken by the centre and the states, we do not see any purpose in keeping this writ petition pending".[xiii]
The Supreme Court showed its reluctance to extend its arm of judicial sympathy to the heart wrenching miseries which had befallen on thousands of migrant workers, stranded in various parts of the country. It simply took note of the Solicitor General that there are no migrant crises and closed the matter. This erroneous finding was based on the misleading assertion made by the centre in its affidavit that fake news was to be blamed for the exodus. Although belatedly, the Supreme Court took suo motu cognizance of the issue on various media reports and representations from senior lawyers, but failed to do so at the opportune time[xiv].
In another plea before the Supreme Court seeking directions to the Centre to identify migrants walking on the roads and provide them shelter and food. The Court said:
"It is not possible for this Court to monitor who is walking and not walking. Let the state decide. Why should the court hear or decide"[xv].
The way the migrant crisis were handled by the Centre and the respective States, should have prompted the Apex Court to stretch its arm of social justice and assert its impregnable position provided by the Constitution of India as a guardian of the fundamental rights of the people especially the poor and downtrodden. By refusing to entertain these pleas, the Hon'ble Supreme Court has changed the dynamics of justice, prompting Senior Advocate Jaideep Gupta to urge the Supreme Court to "pick up the brief again. The walking migrants who are worthy citizens of this country needs you"[xvi] Although, the Supreme Court belatedly on various media reports and representation made by various Senior lawyers urging it to intervene, took suo motu cognizance of the issue of migrant workers ,however it failed to do so at the opportune time, when the issue was brought first to its notice.[xvii]
Another fiasco on the part of the Supreme Court that needs to be mentioned here, is the order passed in a PIL filed for restoration of 4G mobile internet services in the Union Territory of J&K, amid Covid-19 Crisis. The Supreme Court directed the Centre to constitute a "Special Committee" to examine the issues raised by the Petitioner. [xviii] here also, The Court renounced its duty to act as a protector and steward of the fundamental rights and took a narrow view by only taking into consideration the conceited assertiveness and dogmatic notions offered by the State Administration. Instead of considering the reasonability and fairness of the executive actions from a broader spectrum, it adopted a cursory approach and gave the Executive sufficient discretion to decide upon this fundamental aspect of Right to Life.
However the Supreme Court also reprimanded severely some flippant petitioners, who filed some frivolous and outrageous PILs. A PIL filed challenging the PM Covid Care Fund, was dismissed by the Court with a stringent caveat to the Petitioner to either withdraw the Petition or face costs. In a PIL seeking directions from the Government for payment of wages to migrant workers during Covid-19 induced lockdown, Solicitor General Tushar Mehta submitted that "PIL shops must close down till the country emerges out of this crisis. These are self employment generating petitions"[xix]. In another PIL filed seeking free treatment of Corona Virus infected patients, the Supreme Court noted that the Petition was nothing but a publicity stunt and strongly remarked that such Petitions need not be filed further warning the Petitioner not to create Publicity Interest Litigation[xx].
At a time when the Justice delivery system is already in a quandary and the present unprecedented crisis has seriously impeded the functioning of the courts , such meretricious proceedings are putting a colossal burden on the judicial system laying waste to valuable Court time and frustration in the minds of genuine litigants.
The laudable concept of Public Interest Litigation was devised by the Judiciary to extend its arm of sympathy to the poor, ignorant, oppressed and the needy whose fundamental rights are violated and whose grievances get unnoticed, unrepresented and unheard. The instrument of Public Interest Litigation was devised with a noble motive of bringing justice within the easy reach of the "have not" sections of the community. It is a one of the fine virtue of the concept social justice, which provides meaning and significance to life and makes the rule of law dynamic. PIL as an instrument of social transformation ensures the dispensation of justice to those to whom it has been systematically denied in the past because of an established social structure. Since its inception as a course for judicial remedy, the PIL system has emerged as potent tool for ensuring transparency in governance and enabler of social justice
However, unfortunately, of late, such an important jurisdiction, which has been carefully carved out, created and nurtured with great care and caution by the courts, is being blatantly abused by filing PIL petitions with oblique motives. There is a need for an effective deterrent to prevent such frivolous cases, from being filed. Judiciary must adopt a proactive approach and should come down heavily on those who file cases purely to gain publicity. PIL is very important instrument, which should be used with great circumspection and caution, and the judiciary needs to be extra vigilant and cautious so that vested interests are not seen to be lurking behind the beautiful veil of public interest. Judiciary also needs to consider the significance of Public Interest Litigation from a broader spectrum. It should not be forgotten that PIL has translated the rhetoric of fundamental rights into a living reality. Hence, every endeavor should be made by the Judiciary to ensure that sanctity of PIL system responsible for some of the progressive verdicts delivered by various courts is not lost.
Mr. Samarjit Pattnaik is the Partner and Mr. Irfan Mazamil is a Trainee Associate at Karanjawala and Company, Advocates.
[i] People's Union for Democratic Rights v. Union of India (1982) 3 SCC 235.
[iii] S.K. Agarwal, Public Interest Litigation in India: A Critique, N.M. Tripathi, Bombay, 1985, p.2.
[iv] AIR 1979 SC 1360.
[v] S.P. Gupta and others V President of India and Others, AIR 1982 SC 149
[vi] (1986) 4 SCC 767s
[vii] AIR 1983 SC 339
[viii] (2003) 7 SCC 546
[ix] AIR 1987SC 1087
[x] AIR 1984 SC 803
[xi] 2004 (3) SCC 349,
[xii] (2010) 3 SCC 402
[xx] https:latest laws.com