Submitted by-BhaskarJyotiHazarika
Furkating college , Golaghat
TOPIC
PUBLIC INTEREST LITIGATION: A FRESH STEP TOWARDS
JUDICIAL ACTIVISM
Abstract:
Judicial activism is gaining prominence in
present days. Judiciary has become the centre of controversy, in the recent
past , on account of the sudden rise in the level of judiciary intervention.
Judicial activism refers to the interference of judiciary in the legislative
and executive fields. The area of judicial intervention has been steadily
expanding through the device of Public Interest Litigation (PIL). Judicial
activism is a way through which relief is provided to the disadvantaged and
aggrieved citizens. PIL enables civil society to
play an active role in spreading social awareness about human rights, in
providing voice to the marginalize sections of society, and in allowing their
participation in government decision making. . In the form of Public interest litigation, citizens are getting access to justice. The
areas in which judiciary has become active are Health, child labor, political
corruption, environment, education etc. PIL
has a vital role in the civil justice system in that it could achieve those
objectives which could hardly be achieved through conventional private
litigation. PIL could also contribute to good governance by keeping the
government accountable.
This article will show, with reference to the Indian experience , that PIL
could achieve
these important objectives. However, the
Indian PIL experience also shows us that it is critical to ensure that PIL
does not become a facade to fulfill private interests, settle political scores
or gain easy publicity. Judiciary in a democracy should also not use PIL
as a device to run the country on a day-to-day basis or enter the legitimate
domain of the executive and legislature. The challenge for states, therefore,
is to strike a balance in allowing legitimate PIL cases and discouraging
frivolous one.
KEYWORDS:
Judicial Activism, public interest
litigation, judiciary,
INTRODUCTION:
The introductory chapter is devoted to the
definition and description of PIL its
emergence and provides an Indian perspective on PIL.Next it tries to capture
the controversial and the most talked about debatei.e – positive and negative
limitations. In most countries it has been found that the under section people
found it difficult to put their claim before the appropriate forum and claim
justice. Poverty,ignorance , economic cost, intimitdaion, reluctance and a host
of other problems make the access to justice beyond the vast masses of people
OBJECTIVES OFTHE STUDY:
The objective of the present study are as the
following-
1) To appreciate
the significance of judicial activism .
2) Highlight
the crucial role of Public Interest Litigation.
3) Examine
the relationship between the judiciary and public interest litigation.
4) Analyse
the present scenario of public interest litigation.
5) To
highlight the cause for the rise of judicial activism.
METHODOLOGY:
Data used here are mostly collected from
secondary sources. The study is explanatory cum analytical and descriptive in
nature.
Public Interest Litigation: One of the overarching aims of law and legal
systems has been to achievejustice in the society and public interest
litigation (PIL) has proved to bea useful tool in achieving this objective.The
term Public Interest Litigation (PIL) is composed of two words; ‘Public
Interest’ and ‘Litigation’.The
term "Public Interest" means the larger interests of the
public,general welfare and interest of the masses (Oxford English Dictionary
2nd Edn.) Vol.Xll) and theword “Litigation” means "a legal
action including all proceedings therein, initiated in a court oflaw with the
purpose of enforcing a right or seeking a remedy." Thus, the
expression `PublicInterest Litigation' means "any litigation
conducted for the benefit of public or for removal ofsome public grievance
Hence,
lexically the expression ‘Public Interest Litigation’ denotes a legal action
initiated in a court of law for the enforcement of public interest where the
rights of an individual or a group have been affected. ." In simple words, public interest litigation means any
public spirited
citizen can move or approach the court for
the public cause (or public interest or public welfare) byfiling a petition in
the Supreme Court under Art.32 of the Constitution or in the High Court
underArt.226 of the Constitution or before the Court of Magistrate under Sec.
133 of the Code ofCriminal Procedure, 1973. Public Interest Litigation
(PIL) has been an invaluable innovative judicial remedy.
Judicial Activism: The expression `Judicial Activism' signifies
the anxiety of courts to find out
appropriate remedy to the aggrieved by
formulating a new rule to settle the conflicting questions inthe event of
lawlessness or uncertain laws. In short Judicial activism means that instead of
judicial restraint , the supreme court and other lower courts become activists
and compel the authority to act and sometimes also direct the government
regarding policies and maters of administration.
EVOLUTION
OF PIL
Prior to the 1980s, only the aggrieved party
could knock the doors of justice personally and seek remedy for its grievance
and any other person, who was not personally affected, could not approach the
judiciary as a proxy for the victim or the aggrieved party in India,. 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. And thus Public Interest Litigation was
formed. The Indian PIL is an improved version of PIL of USA. It was in theUnited
states of America where litigation in public interest started way back in the
1960s. The United Kingdom saw similar
legal actions a decade later , in the 1970s.
In India the PIL came in the late 1970s but acquired its particularly useful shape I
the 1980s I the hands of judges like Justice P.N Bhagawatiand Justice V.R
Krishna Iyer.
They preparedthe groundwork, from mid-1970s
to early 1980s, for the birth of PIL inIndia. This included modifying the
traditional requirements of locus standi,liberalising the procedure to file
writ petitions, creating or expanding FRs,overcoming evidentiary problems, and
evolving innovative remedies As a result, any citizen of India or any consumer
group or social action group can approach the apex court of the country,
seeking legal remedies in all cases, where the interests of general public or a
section of public are at stake. Further, public interest cases could be filed
without incurring heavy court fees, as required in private civil litigations.
RELATION BETWEEN PUBLIC INTEREST LITIGATION
AND JUDICIAL
ACTIVISM AND THE EMERGENCE OF PIL IN INDIA
Public interest litigation today has great
significance and has drawn theattention of all concerned. The traditional rule
of "Locus Standi" that a person, whose right isinfringed alone
can file a petition, has been considerably relaxed by the Supreme Court in
itsrecent decisions. Now, the court permits public interest litigation at the
instance of the so-called“PUBLIC-SPIRITED CITIZENS”4 for the
enforcement of Constitutional and Legal rights. Now,any public spirited citizen
can move/approach the court for the public cause (in the interests of thepublic
or public welfare) by filing a petition:
1. In the Supreme Court under Article 32 of
the Constitution of India;
2. In the High Court under Article 226 of the
Indian Constitution
3.
In the Court of Magistrate under Section 133 of the Code of Criminal procedure.
In order to appreciate theevolution of PIL in
India, it is desirable to have a basic understanding of the
constitutionalframework and the Indian judiciary. After gaining independence
from the British rule on August15, 1947, the People of India adopted a
Constitution in November 1949 with the hope to establisha ‘‘sovereign socialist
secular democratic republic’’.Among others, the Constitution aims to secure to
all its citizens justice (social, economic and political), liberty (of thought,expression,belief,
faith and worship) and equality (of status and of opportunity). These aims were
not merelyaspirational because the founding fathers wanted to achieve a social
revolution through theConstitution. The main tools employed to achieve such
social change were the provisions onfundamental rights (FRs) and the directive
principles of state policy (DPs).In order to ensure that FRs did not remain
empty declarations, the founding fathers made variousprovisions in the
Constitution to establish an independent judiciary.
. After initial deviation, the Supreme Court
accepted that FRs are not superior to DPs on
account of the latter being non-justiciable:
rather FRs and DPs are complementary and the formerare a means to achieve the
goals indicated in the latter. The founding fathers envisaged ‘‘the judiciary
as a bastion of rights and justice’’.
Anindependent judiciary armed with the power
of judicial review was the constitutional device
chosen to achieve this objective. The power
to enforce the FRs was conferred on both the SupremeCourt and the High
Courts—the courts that have entertained all the PIL cases. The judiciary
cantest not only the validity of laws and executive actions but also of
constitutional amendments.
THE THREE PHASES OF PIL
The PIL discourse in India could be divided,
in myview, into three broad phases. One will notice that these three phases
differ from each other interms of at least the following four variables: who
initiated PIL cases; what was the subjectmatter/focus of PIL; against whom the
relief was sought; and how judiciary responded to PILcases.
The First Phase:
In the first phase—which began in the late
1970s and continued through the 1980s—the PIL cases
were generally filed by public-spirited
persons (lawyers, journalists, social activists or academics).
Most of the cases related to the rights of
disadvantaged sections of society such as child labourers,
bondedlabourers, prisoners, mentally
challenged, pavement dwellers, and women. In short, it is arguable that in the
first phase, the PIL truly became an instrument of the type of social transformation/revolution
that the founding fathers had expected to achieve through theConstitution.
The Second Phase:
The second phase of the PIL was in the 1990s during which several significant changes in
the
chemistry of PIL took place. In comparison to
the first phase, the filing of PIL cases became more
institutionalized in that several specialized
NGOs and lawyers started bringing matters of public
interest to the courts on a much regular
basis. The breadth of issues which were raised in PIL also
expanded tremendously—from the protection of
environment to corruption-free administration,
right to education, sexual harassment at the
workplace, relocation of industries, rule of law, good
governance, and the general accountability of
the Government. In this phase,the petitioners sought relief not only against
the action or non-action of the executive but also againstprivate individuals,
in relation to policy matters and regarding something that would clearly fall within
the domain of the legislature. The response of the judiciary during the second
phase was by
and large much bolder and unconventional than
the first phase. For instance, the courts did not
hesitate to come up with detailed guidelines
where there were legislative gaps. The courts enforced
FRs against private individuals and granted
relief to the petitioner without going into the question
of whether the violator of the FR was the
state. The second phase was also the period when the misuse of PIL not only
began but also reached to a disturbing level, which occasionally compelled the
courts to impose fine on plaintiffs for misusing PIL for private purposes.
The Third Phase:
On the other hand, the third phase—the
current phase, which began with the 21st century—is a
period in which anyone could file a PIL 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
Australia tour and preventing an alleged
marriage of an actress with trees for astrological reasons.If rights of
prisoners, pavement dwellers,child or bonded labourers and women were in focus
in the first phase, issues such as environment,AIDS, corruption and good
governance were at the forefront in second phase, and development.
Positive contributions
The most important contribution of PIL, in my
view, has been to bring courtscloser to the disadvantaged sections of society
such as prisoners, destitute, child or bonded laborers, women, and scheduled
castes or tribes. By taking upthe issues affecting these people, PIL truly
became a vehicle to bring socialrevolution through constitutional means,
something that the founding fathershad hoped.Equally important is the part
played by PIL in expanding the jurisprudenceof fundamental (human) rights in
India.. This resulted in the legal recognition of rights as important
aseducation, health, livelihood, pollution-free environment, privacy and
speedytrial.As we have seen before, in the second phase, the PIL became an
instrumentto promote rule of law, demand fairness and transparency, fight
corruptionin administration, and enhance the overall accountability of the
government. The underlying justification for these public demands and the
judicialintervention was to strengthen constitutionalism—a constant desire of
the civil. society to keep government powers under check. This resulted in the
judiciarygiving directions to the government to follow its constitutional
obligations.The Indian judiciary, courtesy of PIL, has helped in cooling down a
fewcontroversial policy questions on which the society was sharply divided.
Onecould think of the controversy about the reservation of seats for SCs/STsand
other backwards classes in employment or educations institutions, thegovernment
policies of liberalisation and privatisation, and the contestedheight of the
Narmada dam as examples of this kind of contribution.On a theoretical level,
PIL has helped the Indian judiciary to gain publicconfidence and establish
legitimacy in the society. The role of an independentjudiciary in a democracy
is of course important. But given that judges are neitherelected by public nor are
they accountable to public or their representativesordinarily, the judiciary in
a democracy is susceptible to public criticism forrepresenting the elite or
being undemocratic and anti-majoritarian. Therefore,it becomes critical for the
judiciary to be seen by the public to be not onlyindependent but also in touch
with social realities.One positive contribution of PIL in India, which has
extended outside theIndian territory, deserves a special mention. The Indian
PIL jurisprudence hasalso contributed to the trans-judicial
influence—especially in South Asia—in
that courts in Pakistan, Sri Lanka,
Bangladesh and Nepal have cited IndianPIL cases to develop their own PIL
jurisprudence.89 In a few cases, evenHong Kong courts have cited Indian PIL
cases, in particular cases dealing with environmental issues. Given that the
civil society that is following thedevelopment of PIL in China is familiar with
the Indian PIL jurisprudence, it
is possible that Indian PIL cases might be
cited even before the Chinese courtsin the future.
The dark sidePIL has, however, led to new
problems such as an unanticipated increase inthe workload of the superior
courts, lack of judicial infrastructure to determinefactual matters, gap
between the promise and reality, abuse of process, frictionand confrontation
with fellow organs of the government, and dangers inherentin judicial populism.
Before elaborating these problems, let me take readersto a quick tour of some
recent PIL cases that would offer an indication of thisdark side.
A quick tour of some recent PIL cases
The judiciary, for instance, has addressed
issues suchas: the constitutionality of the Government’s privatisationand
disinvestment policies, defacing of rocks by painted advertisements,the danger
to the
TajMahal from a refinery, pollution of
rivers, relocation of industries out of Delhi, lack of access to food, deaths
due to starvation, use of environment-friendly fuel in Delhi buses and
regulation of traffic, outof-turn allotment of government accommodation, prohibition
of smoking in public places,arbitrary allotment of petrol outlets,
investigation ofalleged bribe taking, employment of children in hazardous
industries,rights of children and bonded labours, extent of the right to
strike, right to health,right to education, sexual harassment in the workplace,
and female foeticide and infanticide through modern technology.(collected from
various e-newspapers)
It should be noted that in all the above
casesthe judiciary did actually entertain the PIL and took these cases to their
logicalconclusion. But there have been instances of more blatant misuse of the
process of PIL. For instance, the courts were approached to call back the
Indian cricketteam from Australia after the controversial Sydney test match.
PILs wereinitiated to regulate the treatment of wild monkeys in Delhi and the
practice
of private schools to conduct admission
interviews for very young children.A PIL was also filed in the Supreme Court to
seek ban on the publicationof allegedly obscene and nude photographs in
newspapers.Some so-calledpublic-spirited lawyers knocked at the door of the
courts against: (i) RichardGere’s public kissing of an Indian actress,
MsShilpaShetty; (ii) an allegedindecent live stage show on New Year’s Eve; and
(iii) the marriage of formerMiss World, MsAishwaryaRai, with a tree to overcome
certain astrological
obstacles in her marriage.More recently, the
PIL discourse was employed to request the Indian
government to send technical experts to work
with the Nepal government in strengthening the Bhimnagar barrage to prevent
recurrence of flood and to challenge the constitutional validity of the Indo–US
civil nuclear agreement.
The dark side
It seems that the misuse of PIL in India,
which started in the 1990s, hasreached to such a stage where it has started
undermining the very purpose forwhich PIL was introduced. In other words, the
dark side is slowly moving toovershadow the bright side of the PIL project.
Ulterior purpose: public in PIL stands
substituted by private or publicity
Desai and Muralidhar confirm the perception
that:
‘‘PIL is being misused by people agitating
for private grievances in the
grab of public interest and seeking publicity
rather than espousing public
causes.’’
As we have seen above, almost any issue is
presented to the courts in theguise of public interest because of the
allurements that the PIL jurisprudenceoffers (e.g. inexpensive, quick response,
and high impact). Of course, it is notalways easy to differentiate ‘‘public’’
interest from ‘‘private’’ interest, but itis arguable that courts have not
rigorously enforced the requirement of PILsbeing aimed at espousing some public
interest
Inefficient use of limited judicial resources:
If properly managed, the PIL has the
potential to contribute to an efficientdisposal of people’s grievances. But
considering that the number of per capitajudges in India is much lower than
many other countries and given that theIndian Supreme Court as well as High
Courts are facing a huge backlog ofcases,It is puzzling why the courts have not
done enough to stop nongenuinePIL cases. A related problem is that the courts
are taking unduly long time in finallydisposing of even PIL cases. The fact
that courts need years to settlecases might also suggest that probably courts
were not the most appropriateforum to deal with the issues in hand as PIL.
Judicial populism
Judges are human beings, but it would be
unfortunate if they admit PIL caseson account of raising an issue that is (or
might become) popular in the society.Conversely, the desire to become people’s
judges in a democracy should nothinder admitting PIL cases which involve an
important public interest but arepotentially unpopular.
Overuse-induced non-seriousness
PIL should not be the first step in
redressing all kinds of grievances even ifthey involve public interest. In
order to remain effective, PIL should not beallowed to become a routine affair
which is not taken seriously by the Bench,the Bar, and most importantly by the
masses:
‘‘The overuse of PIL for every conceivable
public interest might dilute
the original commitment to use this remedy
only for enforcing human
rights of the victimised and the
disadvantaged groups.’’
If civil society and disadvantaged groups
lose faith in the efficacy of PIL, thatwould sound a death knell for it.
Checking the dark side
One might ask if the dark side of PIL is so
visible, why has something notbeen done about this by the government or the
judiciary? An attempt tocurb the misuse of the PIL was made, though not
strictly on the part of theGovernment, in 1996 when a private member Bill was
introduced in theRajyaSabha, which proposed that petitioners filing frivolous
PILcases should be ‘‘put behind bars and pay the damages’’.However, it couldnot
receive the support of all political parties. As the Bill lapsed, this
attemptto control the misuse of PIL failed.The judiciary has responded to the
dark side of PIL in two ways. First, theIndian Supreme Court as well as High
Courts have tried to send strongmessages on a case-to-case basis whenever they
noticed that the process of PILwas misused. In some cases, the courts have gone
to the extent of imposing afine on plaintiffs who abused the judicial process.
The second, and a more systematic, step that
the Supreme Court hastaken was to compile a set of ‘‘Guidelines to be Followed
for EntertainingLetters/Petitions Received by it as PIL’’. The Guidelines,
which were basedon the full-court decision of December 1, 1988, have been
modified onthe orders/directions of the Chief Justice of India in 1993 and 2003.
TheGuidelines provide that ordinarily letter/petitions falling under one of
thefollowing 10 categories will be entertained as PIL:
(1) Bonded labour matters;
(2) neglected children;
(3) non-payment of minimum wages;
(4) petitions from jails complaining of
harassment, death in jail, speedy
trial as a fundamental right, etc.;
(5) petitions against police for refusing to
register a case, harassment by
police and death in police custody;
(6) petitions against atrocities on women, in
particular harassment of
bride, bride-burning, rape, murder,
kidnapping, etc.;
(7) petitions complaining harassment or
torture of persons belonging to
scheduled caste and scheduled tribes;
(8) petitions pertaining to environmental
pollution, disturbance of
ecological balance, drugs, food adulteration,
maintenance of heritage
and culture, antiques, forest and wildlife
and other matters of public
importance;
(9) petitions from riot-victims; and
(10) family pensions.
Conclusion:
PIL has an important role to play in the
civil justice system in that it affords aladder to justice to disadvantaged
sections of society, some of which might noteven be well-informed about their
rights. Furthermore, it provides an avenueto enforce diffused rights for which
either it is difficult to identify an aggrievedperson or where aggrieved
persons have no incentives to knock at the doorsof the courts. PIL could also
contribute to good governance by keeping thegovernment accountable. Last but
not least, PIL enables civil society to playan active role in spreading social
awareness about human rights, in providingvoice to the marginalised sections of
society, and in allowing their participationin government decision making.As I
have tried to show, with reference to the Indian experience, that PILcould
achieve all or many of these important policy objectives. However, theIndian
PIL experience also shows us that it is critical to ensure that PIL doesnot
become a back-door to enter the temple of justice to fulfill private
interests,settle political scores or simply to gain easy publicity. The way
forward, therefore, for India as well as for other jurisdictions isto strike a
balance in allowing legitimate PIL cases and discouraging frivolousones. One
way to achieve this objective could be to confine PIL primarily tothose cases
where access to justice is undermined by some kind of disability.The other
useful device could be to offer economic disincentives to those whoare found to
employ PIL for ulterior purposes. At the same time, it is worthconsidering if
some kind of economic incentives—e.g. protected cost order,legal aid, funding
for PIL civil society—should be offered for not discouraging legitimate PIL
cases. This isimportant because given the original underlying rationale for
PIL, it is likely that potential plaintiffs would not always be resourceful.It
providesinsight into a basic dilemma of the human rights activist, whether to
advocate reformor revolution.
REFERENCES:
1. Awasthy,S.S,2000, Indian Government and Politics,
HarAnand, New Delhi.
2. Singh ,M.P & V.N Shukla,1994, Constitution of India,
Eastern Book Company,Lucnow
3. HyeHasnat Abdul ,2001,Governance : South Asian
Perspectives,Manohar,New Delhi
5. www.hindustantimes.com
9. www.dnaindia.com/entertainment
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