PUBLIC INTEREST LITIGATION

[Mr. M. GOVINDARAJAN]

Public Interest Litigation in India

Public Interest Litigation (‘PIL’ for short) is directly filed by an individual or group of people in the Supreme Court of India and High Courts of India and judicial magistrate. It was felt that their interests are undermined by the government. In such a situation, the court directly accepts the public good. It is a new legal horizon in which court of law can initiate and enforce action to serve and secure significant Public Interest.

PIL right since its inception in the Indian judicial system has shown some good examples of safeguarding the rights of the people of India and has strengthened the position of the Supreme Court of India as preeminent guardian of Fundamental Rights enumerated in the Indian Constitution. It was introduced in India around 1979-80 by the Supreme Court judges, Justice V. R. Krishna Iyer along with Justice P. N. Bhagwati. And since then there had been instances when the Courts are keen to decide the matters of public importance without delay, as the case in Shyam sundar where the court accepted the matter even when the application was made by a letter sent through post.

It was in the case of ‘S.P. Gupta v. Union of India’ [ 1993 (10) TMI 352 - SUPREME COURT OF INDIA ] the Supreme Court of India defined the term Public Interest Litigation in the Indian Context. The concept of PIL is in harmony with the principles enshrined in Article 39A of the Constitution of India to protect and deliver prompt social justice with the help of law. Before the 1980s, only the aggrieved party could approach the courts for justice. After the emergency era the high court reached out to the people, devising a means for any person of the public (or an NGO) to approach the court seeking legal remedy in cases where the public interest is at stake.

Importance of PIL

PIL gives a wider description to the right to equality, life and personality which is guaranteed under part III of the Constitution of India.

• It has introduced some kinds of reliefs or remedies under the writ jurisdiction.
• It also functions as an effective instrument for changes in the society or social welfare.
• Through public interest litigation, any public or person can seek remedy on behalf of the oppressed class by introducing a PIL.

Benefits of PIL

As the term suggests, “Public Interest Litigation” is litigation that is taken in order to advance a “good cause” or issue of public importance.  PIL shares many features with ordinary litigation, but it is different in one crucial aspect:

• Ordinary litigation is usually brought in order to protect an individual’s own personal interests.
• Whereas the intention of PIL is protect the interests of a section of the public at large or the natural environment.

PIL is brought with the aim of protecting the interests of the public, or at the very least, the interests of persons beyond those who are bringing or defending the litigation. It is in some ways similar to a group or class action where lots of claimants with similar interest bring a claim.

PIL is commonly used as a mechanism for political, social, or legal change. People engage in PIL when they feel that the legal rights of a certain group (often whole communities or social/cultural groupings) or the natural environment are threatened.   PIL can provide a short-term solution for an impending or current legal wrong, but it can also be used to seek long-term, systemic change through legal reform.

Since PIL’s main function is to actively promote change, it is usually part of a wider plan and, as such, PIL cases are chosen carefully as part of an overall campaign for change which may also include other strategies such as lobbying and demonstrations.

Over the years, public interest litigation has brought immense social change through interventions made and directions issued by the Supreme Court.   On most occasions, it has been initiated through a writ petition filed by activist individuals or organizations.   Public interest litigation has been initiated, very rarely, by suo motu exercise of jurisdiction by the Supreme Court on the basis of a communication received by this Court

PIL can be filed against Government only, not individuals

A PIL may be filed against state government, central government, municipal authority not any private party. But, private person may be included in PIL as ‘respondent’, after concerned of State authority i.e. a private factory in Chennai which is causing pollution then PIL can be file against Tamil Nadu Government, State Pollution Board, Central board including that private factory of Chennai.

Provisions under which PIL may be filed

The court must be satisfied that the Writ petition fulfils some basic needs for PIL as the letter is addressed by the aggrieved person, public spirited individual and a social action group for the enforcement of legal or Constitutional rights to any person who are not able to approach the court for redress. Any citizen can file a public case by filing a petition-

• under Act 32 of the Indian Constitution, in the Supreme court.
• under Act 226 of the Indian Constitution, in the High court.
• under sec. 133 of the Criminal Procedure Code, in the court of Magistrate.

Obligations of litigants

However, the person filing the petition must prove to the satisfaction of the court that the petition is being filed for a public interest and not just as a frivolous litigation by a busy body.

Frivolous PIL

PIL is a rule of law declared 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 the public interest and not as a frivolous litigation for pecuniary gain. Fines as well as costs would be imposed on litigants filing frivolous PILs.

In ‘Rajendra Bharti v. Government of India & Others’ - 2018 (9) TMI 1412 - MADHYA PRADESH HIGH COURT, the present petition which is filed in public interest, the petitioner seeks direction for an enquiry to be caused by the Enforcement Directorate and the Central Bureau of Investigation in respect of alleged undeclared income - offence under the prevention of corruption act against respondent.  The High Court held that since income, said to be the “unaccounted” by the present petitioner, has been subjected to judicial review and there are orders in favor of the assessee, the High Court fail to appreciate the contention raised by the petitioner of its being earned through corrupt practice. The petitioner besides being a practicing lawyer of the court is an ex-MLA, and on enquiry he reveals of belonging to a national political party which does not rule out the fact that it is to gain political mileage which is implicit, rather any public interest.   The present PIL is not a genuine Public Interest Litigation, but a politically motivated litigation, which deserves to be dismissed with exemplary cost, we intend to impose rupees one lakh cost so that the petitioner is deterred from filing such frivolous litigation.

suo-motu PIL

In cases the victim does not have the necessary resources to commence litigation or his freedom to move court has been suppressed or encroached upon.  The court can itself take cognizance of the matter and proceed on its own, or cases can commence on the petition of any public-spirited individual.

In re ‘Inhuman conditions in 1382 prisons’ [2018 (10) TMI 75 - SUPREME COURT] – WP (Civil) No. 406/2013, judgment date 25.09.2018 the petition arose out of a concern shown by former Chief Justice R.C. Lahoti on four issues, namely-

• overcrowding in prisons;
• unnatural deaths of prisoners;
• gross inadequacy of staff; and t
• he available staff being untrained or inadequately trained.

Ever since this petition has been pending disposal, despite several directions issued by the Supreme Court from time to time, no finality has yet been attached to the rights of prisoners. On the contrary, issues that require consideration have multiplied and new vistas have opened for consideration.

Keeping this in mind and the dire necessity of reforms in prison administration and prison management despite earlier efforts, it was put to the learned Attorney General to consider the feasibility of appointing a Committee to look into the entire range of issues raised, not only in this petition, but also other issues that have cropped up during the hearing on several dates and from time to time. As mentioned above, the learned Attorney General accepted the suggestion of a Committee being appointed.   Therefore, the Supreme Court issued the following directions-

• The Ministry of Home Affairs in the Government of India shall forthwith issue a notification constituting a Supreme Court Committee on Prison Reforms consisting of-

• Hon’ble Mr. Justice Amitava Roy, former Judge of the Supreme Court as its Chair.
• Inspector General of Police, Bureau of Police Research and Development as its Member;
• Director General (Prisons) Tihar Jail, New Delhi as its Member.

The Committee is directed to give their recommendations on 17 items contained in the terms of reference. The Committee is requested to give its recommendations in respect of the first three Terms of Reference, preferably within a period of three months from the date on which the necessary facilities are provided by the Government of India-

• to review the implementation of the Guidelines contained in the Model Prison Manual 2016 by States and Union Territories (UT's).
• to review the implementation by the States and UTs of the recommendations made by the Parliamentary Committee on Empowerment of Women in its report tabled in the Parliament titled ‘Women in Detention and Access to Justice,’ and the advisory issued by the Ministry of Home Affairs (MHA) in this regard.
• to review the two training manuals for prison personnel prepared by Bureau of Police Research & Development (BPR&D), ‘Training Manual of Basic Course for Prison Officers 2017’ and ‘Training Manual of Basic Course for Prison Warders 2017’ and forwarded to States and UTs.

As and when a copy of the final report is submitted, the matter is to be listed for further orders of the Supreme Court.

Latest PIL

In ‘Ashwini Kumar Upadhyay v.  Union of India & Another’ [2018 (10) TMI 74 - SUPREME COURT ]-  WP (CIVIL) NO.95 OF 2018 – Supreme Court, decided on 25.09.2018,  by this writ petition filed under Article 32 of the Constitution of India as a PIL, the petitioner prays for issue of a writ of mandamus or direction to debar the legislators from practising as an Advocate (during the period when they are Members of Parliament or of State Assembly/Council) in the spirit of Part-VI of the Bar Council of India Rules or, in the alternative, declare that Rule 49 of the Rules is arbitrary and ultra-vires the Constitution and to permit all public servants to practise as an advocate.  According to the petitioner, the elected people‘s representatives take a constitutional oath to serve the people and are supposed to work full-time for public causes. They also draw their salary from the consolidated fund. Being public servants, they cannot be permitted to practise as an advocate.  Allowing legislators to practise law will have the potential of permitting them to indulge in conflict of interest amounting to professional misconduct since they may appear in matters, in their capacity as advocates, challenging the wisdom of Parliament/State Legislature. It is possible that they may have participated in the deliberation when the Bill to pass the stated law was introduced in the Parliament/State Legislature. They may either take the same position before the court or even a completely opposite stand in their role as an Advocate. In either case, it would be a serious issue of conflict of interest.

The Supreme Court held that the provisions of the Advocates Act, 1961 and the Rules framed there under, do not place any restrictions on the legislators to practise as advocates during the relevant period. The closest rule framed by the Bar Council of India is Rule 49 which, however, has no application to the elected people‘s representatives as they do not fall in the category of full-time salaried employee of any person, firm, government, corporation or concern. As there is no express provision to prohibit or restrict the legislators from practising as advocates during the relevant period, the question of granting relief, as prayed, to debar them from practising as advocates cannot be countenanced. Even the alternative relief to declare Rule 49 as unconstitutional, does not commend to the Supreme Court.   As of now, the Bar Council of India has made its stand explicitly clear that no such prohibition can be placed on the legislators. As a result, the reliefs claimed in this writ petition are devoid of merit.   The Supreme Court dismissed the writ petition.

Present position in PIL

In re ‘Inhuman conditions in 1382 prisons’ [2018 (10) TMI 75 - SUPREME COURT] – WP (Civil) No. 406/2013, judgment date 25.09.2018, the Supreme Court observed that during the last several decades, PIL has compelled the Supreme Court to consider issues relating to the environment, social justice, violation of human rights and disregard for Article 21 of the Constitution; either because of an absence of governance due to the failure of the State to faithfully and sincerely implement laws enacted by Parliament4 or due to mis-governance by the State, that is, the Central Government, the State Governments and Union Territory Administrations leading to rampant illegalities5. The failure of the State to take remedial steps to fill in the gap when there is no operative law, except that enshrined in the Constitution, more particularly Article 21 has resulted in PIL and at least two cases where a treaty obligation ought to be fulfilled.

The Supreme Court further observed that in recent times, usually and regrettably, the State has chosen to challenge the idea of PIL or denigrate it by chanting the mantra of ‘judicial activism’ or ‘separation of powers’. In most cases, these mantras are nothing but a fig leaf to cover the failure of the State to recognize the existence of the rule of law and the need for providing social justice to the people of the country, as stated in the Preamble to our Constitution. There must be a realization that PIL has given a voice to millions of marginalized sections of society, women and children. PIL is one of the more important contributions of India to jurisprudence. In fact, the Indian experience has encouraged some other countries to introduce PIL in their jurisprudence.

Occasional transgression

In re ‘Inhuman conditions in 1382 prisons’ [2018 (10) TMI 75 - SUPREME COURT]– WP (Civil) No. 406/2013, judgment date 25.09.2018, the Supreme Court observed that this is not to suggest that PIL has not been misused or that occasionally this Court has not exceeded its jurisdiction, but it must be emphasized that wherever this Court might have exceeded its jurisdiction, it has always been in the interest of the people of the country prompted by administrative mis-governance or absence of governance. There are, therefore, occasional transgressions on both sides, but that cannot take away from the significance of PIL as a non-adversarial source of righting some wrongs and encouraging social change through accountability and, in cases, transparency.