REVIEW AND ASSESSMENT OF CONSTITUTIONAL REMEDIAL MEASURES UNDER PUBLIC INTEREST LITIGATION

[Mr. M. GOVINDARAJAN]

INTRODUCTION:

Each economic system otherwise called as a country has its own procedure for the conduct of its business through which the welfare of the people, safety of the nation etc., as provided in the Constitution of the country. The word 'Constitution' refers to the make up of the human body, so in politics it describes the framework and parts of government or the overall composition of the polity. Constitution, in general, is in the written form except in United Kingdom where it is unwritten form and everything is based on conventions that are being followed by the people of UK for years together. In ancient Greek political thought of constitution were the principles, institutions, and laws, practices and traditions by which the people carried on their political and governmental life. The term carries the same broad meaning today. From one standpoint, the Constitution is descriptive referring to existing governmental arrangements; from another point, it is a normative content which is intended to guide and control political and governmental action to state what ought to be rather than what it is. In this sense a constitution prescribes official conduct and provides a standard of legitimacy for assessing the validity of governmental action.

The purpose of the Constitution is not merely to create, organize and distribute governmental power but also to assure that governmental power is exercised legitimately. Inherent in the concept of legitimacy in the idea of imposing restraints on government, lest it degenerate into tyranny. Indeed, the very notion of defining institutions of government implies placing limits on them. An essential component of Constitutionalism is legalism, the belief that right conduct consists in following rules. Constitution, almost in all countries, is expressly declared to be 'the Supreme law of the land'. At the same time it cannot be excessively legislatic.

INDIAN CONSTITUTION:

Indian Constitution is a written one. It was adopted by the Constituent Assembly on November 26, 1949. It is a comprehensive document containing 395 articles and 11 schedules. It is one of the longest constitutions in the world. It is basically federal in form and is marked by the traditional characteristics of a federal system, namely, supremacy of the constitution, division of powers between the Union and State Governments, existence of the independent judiciary and a rigid procedure for the amendment of the constitution. It is also 'sovereign' that means the state has power to legislate on any subject in conformity with constitutional limitations as held by Supreme Court in Synthetics V. State of UP (1990) 1 SCC 109. It is 'socialist' in the sense that a court can able to strike down a statute, which failed to achieve the socialist goal to the fullest extent. In the way of secularism, Indian Constitution not only guarantees a person's freedom of religion and conscience but also ensures freedom for one who has no religion and it scrupulously restrains the state from making any discrimination on grounds of religion.

FUNDAMENTAL RIGHTS:

The inclusion of a Chapter of Fundamental Rights in Part III of the Constitution of India is in accordance with the trend of modern thought, the idea being to preserve that which is an indispensable condition of a free society. Magna Carta of the United Kingdom is the first written document relating to the first fundamental rights of citizens. In Chapter XXXIX of the Charter it was provided that 'No free man should be arrested or imprisoned or disseized or outlawed or exiled or in any way molested; nor will go upon him, nor will we send upon him, except when a legal judgement of his peers or by the justices of the king in cases in which this has been the common procedure, the law of land in effect everywhere and accepted as such'. In 1689 the Bill of Rights was written consolidating all the important rights and liberties of the English people.

USA is the first country to incorporate the fundamental rights of citizens in its Constitution by means of ten amendments to the constitution adopted as a unit in 1791.

The powers of the Government are limited by the rights of the people and that, by expressly enumerating certain rights of the people in the Constitution, the framers of the Constitution did not intend to recognize that Government had unlimited power to invade other rights.

As held in "Hartado V. People of California "28 LED 232, Mathews J, the fundamental rights are essential to protect the rights and liberties of the people against the encroachment to protect the rights delegated by them to their Government. At the same time absolute and unrestricted individual rights do not and cannot exist in modern states. Giving unrestricted liberty will become a licence and jeopardize the liberty of others. As such the Constitution of India permits reasonable restrictions to be imposed on individual's liberties in the interest of the society. The Hon'ble Justice Mukherjee, J., in A.K. Gopalan V. State of Madras, AIR 1950 SC 27 rightly said that the Constitution attempts to do by declaring the rights of the people is to strike a balance between individual and social control.

The following are the fundamental rights enshrined in the Constitution of India:

Article 14 - Equality between law;

Article 15 - Prohibition of discrimination on grounds of religion, race, caste, sex or place of berth;

Article 16 - Equality of opportunity in matters of public employment;

Article 17 - Prohibition of untouchability;

Article 18 - Abolition of titles;

Article 19(a) - Right of freedom of speech and expression;

19(b) - Right to assemble peacefully without arms;

19(c) - Right to form associations or union;

19(d) - Right to move freely throughout the territories of India;

19(e) - Right to reside and settle in any part of the territory of India;

19(f) - Right to practice any profession, or to carry on any occupation, trade, or business;

(The guarantee of each of the above right is restricted by the Constitution itself by conferring upon the state power to impose by law reasonable restrictions as may be necessary in the larger interest of the public which are enumerated in clauses 2 to 6 of Article 19 of the Constitution.)

Article 20 - Protection in respect of conviction of offences;

Article 21 - Protection of life and personal liberty;

Article 22 - Protection against arrest and detention in certain cases;

Article 23 - Prohibition of traffic in human beings and forced labor;

Article 24 - Prohibition of employment of children in factories etc.,

Article 25 - Right to freedom of religion.

All the above rights are subject to reasonable restrictions that can be imposed by the Government in the interest of public.

Further the fundamental rights are available against State only and not against the private individuals. The Supreme Court, in P.D. Shamdasani V. Central Bank of India, AIR 1952 SC 59 held that the Constitution clearly shows that Article was intended to protect the freedoms against the State action other than in the legitimate exercise of its powers to regulate private rights of property by individuals is not within the purview of the Articles; Private action is sufficiently protected by the ordinary law of the land.

CONSTITUTIONAL REMEDY:

While the Constitution of India provides various fundamental rights, it also provides the remedial measures in itself if the fundamental rights are violated against the individuals. The Constitution is supreme. It distributes the power to the executive, judiciary etc., The legislating power is granted by the Constitution to the Parliament and also to the State assemblies.

Article 13(2) provides that the state shall not make any law, which takes away or abridges the rights conferred by this Part III and any law made in contravention of this clause shall, to the extent of contravention, be void. Thus the object of the constitution is to prohibit the state from making a law which either takes away totally or abrogates in part a fundamental right. The expression 'the state' is to be construed in conformity with article 12 as judicially interpreted. The Constitution remedy, in the first aspect lies in the Constitution itself.

Another course of Constitutional remedy is provided to the judiciary by the Constitution. Article 32 gives the right to the citizens the Constitutional remedies. Article 32 provides that the right to move the Supreme Court by appropriates proceedings for the enforcement of the rights conferred by the Part III is guaranteed. Further Article 32 provides that the Supreme Court shall have power to issue directions or orders of writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by Part III. The Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercised by the Supreme Court under Article 32. Article 226 gives the High Court the power of Supreme Court given in Article 32. Article 32 provides that the rights guaranteed shall not be suspended except as otherwise provided for by the Constitution.

Article 32 acts in both way of giving constitutional remedy against the infringement of fundamental rights and also safeguarding the fundamental rights in suspending them except provided by other articles of the Constitution. Article 358 provides that when the proclamation of emergency is made by the President under Article 352 the freedom guaranteed by Article 19 are automatically suspended and would continue to be so for the period of emergency. Article 359 provides the suspension of the enforcement of the rights conferred by Part III during emergency by the order of President.

Dr. Ambedhkar rightly said, "If I was asked to name any particular article in this Constitution as the most important - an article without which this Constitution would be a nullity - I could not refer to any other except this one (Article 32). It is the very soul of the Constitution and the very heart of it.

On the text of Article 32 and Article 226 where a fundamental right is involved a party should be free to approach either the Supreme Court or High Court. Notwithstanding the above position, the Supreme Court held that where the relief through High Court is available under Article 226 the party should approach the High Court.

By Article 32 the Supreme Court has been constituted as a protector and guarantor of fundamental rights conferred by Part III. 'Once a citizen has shown that there is infringement of his fundamental right, the court cannot refuse to entertain petition seeking enforcement of fundamental rights' as held by Supreme Court in Ramesh Thappar V. State of Madras AIR 1950 SC 124. In State of Madras V. V.G. Row AIR 1952 SC 196 Justice Patanjali Sastri J, correctly held in discharging the duties assigned to protect the fundamental rights the Supreme Court has to play a role of sentinel on the qui vive. In Daryo V. State of UP AIR 1961 SC 1457 the Supreme Court took it as its solemn duty to protect the fundamental rights zealously and vigilantly.

PUBLIC INTEREST LITIGATION:

Public Interest Litigation is the concept that has been emerged from the constitutional remedy under Art. 32 and Art. 226 of the Constitution. This concept became very popular in recent times and familiar to general public. This subject has been discussed in detail by jurists, intellectuals, journalists etc., As per the various judgements of Supreme Court the person aggrieved alone can maintain a writ petition. If the personal rights are not affected such a person cannot maintain a writ petition under Art. 32 or Art. 226 of the Constitution. But however the Supreme Court relaxed in its recent rulings and permitted the public interest litigation or social interest litigation at the instance of public spirited citizens to enforce the rights of any person or group of persons who cannot able to approach the Supreme Court or High Court by means of poverty, socially disadvantaged position etc., for relief. In S.P. Gupta and other V. President of India and others AIR 1982 SC 149 the Supreme Court has firmly established the rule regarding the public interest litigation.

EMERGENCE OF PUBLIC INTEREST LITIGATION:

Public Interest Litigation (hereinafter referred to as PIL) is the American origin. In USA Ford Foundation set up a Council for Public Interest Law. The Council submitted its report during 1976. The report defines PIL thus - Public Interest Law is the name that has been recently given to efforts to provide legal representation to previously unrepresented groups and interests. Such efforts have been undertaken in recognition that the ordinary market place for legal services fails to provide such services to significant segments of the population and to significant interests. Such groups and interests include the poor, environmentalists, consumers' racial and ethnic minorities and others.

PIL focussed in the earlier period on policy oriented cases where a decision will affect large number of people or advance a major law reform objective. Now it has been used for various purposes. In India the concept of PIL attained its reach by means of various judgements of Supreme Court.

The rule of locus standii that a petition is to be filed only by a person whose fundamental right is infringed has been relaxed considerably by the courts in their various decisions. Few of them are as follows:

i) S.P. Gupta and others V. President of India and others AIR 1982 SC 149 - This case is known as Judges transfer case. Bhagwati J. stated-

"It may therefore now be taken as well established that where a legal wrong or a legal injury is caused to a person or to 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 persons 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 an appropriate direction, order or writ in the High Court under Art. 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 persons or determinate class of persons.

In this case Supreme Court allows any public interest litigation can be filed not only for infringement of fundamental rights but also for other purposes. The Court was even ready to respond to a letter addressed by such individual acting pro bono publico casting aside the technical rules of the procedure in the exercise of its dispensing power and treat the letter of the public minded individual as a writ petition and act upon it.

It was further held that any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provisions of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provisions. The Court was firm that the Court must not allow its process to be abused by politicians and others.

ii) The statute may itself expressly recognize the locus standii of an applicant though no legal right or legally protected interest of the application has been violated resulting in legal injury - AIR 1976 SC 578.

The decision of the Supreme Court is implemented in various statutes. For example the Consumer Protection Act, 1986 authorizes a Consumer protection council to file a complaint before the appropriate Consumer Agency whether the affected person is a member of the council or not.

iii) Kasani Narayana and others V. The Government of AP (1988(1) alt 739 (DB) - In this case His Lordship P.A. Choudary J. held - 'The concept of locus standi in public interest litigation is loosened for the purpose of protecting the interests of the third party who is assumed to be willing but not in a position to come before the court to ventilate the grievances.'

iv) AIR 1985 AP 64 - The Supreme Court indicated three considerations, which are emphasized in the matter of public interest litigation, are that -

- the person moving the court must have sufficient interest;

- there must be a public injury; and

- the action must be bonafide.

v) Himachal Pradesh V. Parent of a Student, Medical College of Simla and others (1985) 3 SCC 169 - The Supreme Court explained the scope of public interest litigation as - 'This is an innovation strategy which has been evolved by the Supreme Court for the purpose of providing easy access to justice to the weaker sections of Indian humanity and it is a powerful tool in the hands of public spirited individuals and social action groups for combating exploitation and injustice and securing for the under privileged segments of society their social and economic commitments.

The PIL is not a codified law. It emerged from the judgements of Supreme Court in various cases. Under Article 141 the judgement of the Supreme Court will be binding on all courts in India. The judgment pronounced by Supreme Court is a law and to be observed. Under these phenomena the PIL has attained its growth and reached its peak. Even though the Supreme Court may in proper cases reverse its previous decisions the Supreme Court has negativated the principles laid by it on the PIL cases.

PIL - A JUDICIAL REVIEW?

Judicial Review is the power of the court to review a law enacted by Parliament and a state legislature if they are alleged to violate the purpose of constitutional validity.

When any contradictions between the Constitution and an enacted legislation is alleged to exist, and if such contradictions is proved in the course of judicial proceedings, then it is the plain duty of the court to resolve such contradictions.

If an enactment does not confirm and cannot be harmonized with the Constitution, then in conformity with its obligations, it should plainly uphold the constitution and knock off the enactment. It is an obligation on the court because it is obliged to do so in discharge of the Constitutional trust reposed in it by the powers of the Constitution to the use of the people. Indian Constitution by virtue of Article 13 gives judicial power to Supreme Court and High Court.

PIL could not be said as a judicial review in toto. Most of the PILs are filed in cases of infringement of fundamental rights of individuals or group of individuals who could not able to approach the court even if they are willing. Some PIL may be of judicial review challenging the enactment fully or partially.

PIL ALWAYS POSITIVE?

Doubts may be raised as to whether PILs are always for positive one. Negative aspects are also there. As such His Lordship Bhagwati J. expressed a note of caution in S.P. Gupta and others V. President of India and others AIR 1962 SC 149 as - "But we must be careful to see that the member of the public, who approaches the court in case of this kind, in acting bonafide and not for personal gains or private or political motivation or other oblique consideration"

The Supreme Court is ready to accept a letter to any judge as a writ by means of PIL. If so there is a possibility for the court to be flooded with the litigation resulting in deciding many other important cases. The court has rejected the petitions of PIL which are in negative aspects. Some examples are as follows:

1. AIR 1986 SC 825 - SC held that under the guise of public interest litigation no scope should be given to any one to indulge in reckless allegation.

2. AIR 1977 SC 1361 - If a question brought before the court is purely a political question not involving determination of any legal or constitutional right or obligation the court will not entertain.

3. In Dalfit Singh Dalal V. Union of India AIR 1997 SC 1367, the Supreme Court held that where several disputed questions or fact are involved a PIL is not maintainable.

4. In Dr. Nandjee Singh V PG Medical Students Association 1993 (2) SCC (supp) 300, the Court held that cases where what is strictly an individual dispute is sought to be converted into a PIL should not be encouraged.

5. In Kasami Narayana and others V. The Government of AP - 1988 (1) ALJ 739 (DB)

The court held that a third party cannot attempt to do what the owner himself is unwilling to do.

PARAMETERS FOR PIL:

In Shri Sachidanand Pandey and another V. The State of West Bengal and others AIR 1987 SC 1109, His Lordship Khalid, J, observed as - One is led to think that PIL poses a threat to courts and public alike. Such cases are not filed without any rhyme or reason. It is, therefore, necessary to lay down clear guidelines and outline the correct parameters for entertainment of such petitions. The observation of His Lordship is correct. There is no effort taken by the Government to bring guidelines to regulate the PIL. However the following points are to be considered in respect of PIL:
The person moving the court must have sufficient interest;

1. There must be a public injury or violation of fundamental right;

2. The action must be bonafide;

3. It is not to be used to indulge in reckless allegation;

4. PIL should not be in the nature of adversary litigation;

5. A third party will not be welcome for a person who is unwilling to do;

6. Courts should be reluctant to decide matters involving pure political questions;

7. PIL should not be for malafide purposes or for personal gains;

8. PIL is meant to be a co-operative and collaborative effort of the parties and the court to secure the justice for the poor and weaker sections of the community;

9. Allegations in PIL must be specific; PIL is not permissible where the allegations are vague, indefinite and not specific.

10. Suo motu initiation of PIL by courts is not permissible;

11. It must be real and it must not be to invoke further personal cause of enmity.

12. The principle of res judicata does not strictly applicable in PIL.

OTHER POWERS OF COURT IN PIL:

The court shall grant relief in PIL cases where there is a genuine case or infringement of fundamental rights. In addition to the relief the Supreme Court is empowered to award compensation, damages and costs.

In M.C. Mehta V. Union of India (1996) 1 SCC 753, the Supreme Court held that the scope of Art.32 is wide enough to include the power to grant compensation for violation of fundamental rights. Thus the power of the court is two fold; one is preventing the infringement of fundamental rights and the other is remedial measures i.e., power to grant compensation in appropriate cases.

If the PIL was filed with vague allegation, for extraneous considerations and not in public interest it may be dismissed. Court is empowered to award exemplary costs.

The Court is having power to appoint Commission for making inquiry into facts relating to the violation of fundamental rights.

To protect the fundamental rights of people the court has all incidental and ancillary powers including to force new remedies and fashion new strategies designed to enforce fundamental rights.

On certain particular acts on PIL the court is empowered to direct for the payment of compensation. An interim order shall not be granted without considering the balance of convenience the public interest involved and the financial impact of an interim order.

REVIEW OF CONSTITUTIONAL REMEDY UNDER PIL:

PIL is not confined to a particular subject. It is widely spreading over all subjects. The Supreme Court in T.N. Godavarman Tirumalpad V. Union of India 1998(9) SCC 580 held rightly that the field of public interest litigation has expanded itself well in recent times in matters of ecology, environmental protection, pollution control etc.,

The strict rule of locus standii applicable to PIL is relaxed and a broad rule is evolved which gives the right of locus standii to any member of public acting bonafide and having sufficient interest in instituting an action for redressal of public wrong or public injury.

The field of PIL has also expanded itself by means of judgements of Supreme Court to the problems relating to-

- inhuman prison conditions;

- legal aid;

- speedy trial;

- basic needs;

- human dignity etc.,

The innovative strategy of Supreme Court viz., PIL has the history of more than 30 years. PIL is now familiar and famous. It is inherent desire to know the fruitfulness or success of the innovation to what extent. It is possible only if the judgements of various courts in various fields are gone through. It is pertinent to review or make a survey in this regard. It is not possible to make known all the judgements in PILs pronounced by SC and other High Courts. The important cases in important areas are selected. As such the Review of the Constitutional remedy under PIL for the purpose of this study will be made under the following heads:

- Environmental Protection;

- Labor;

- Education;

- Executive;

- Police and Prison; and

- Society and Social Welfare.

ENVIRONMENTAL PROTECTION AND PIL:

Mother Nature is indeed highly tolerant. Mankind has been exploiting, using and abusing earth for centuries but still earth could remain habitable. Rapid industrialization and uncontrolled increase in population with little control over its adverse aspects is degrading environment at an alarming rate. The quality of life will deteriorate and earth may sooner or later become uninhabitable if the pollution is unchecked or unable to be checked. In June 1972 the problems of pollution were discussed and decisions were taken to protect the environment and also to improve them at the United Nations Conference on Human Environment. In June 1990, United Nations Conference on Environment and Development (UNCED) called 'earth meet' pushed environmental related activities further. The second United Nations Conference on Human Settlement (City Summit or Habitat II) was held in Istanbul during June 1996. Various conventions such as climate change convention, 1992, Convention on

Biological Diversity, 1992, Vienna Convention for the Protection of Ozone, 1985 etc., were signed. Also protocols such as Kyoto Protocol, 1997 were signed. The UN World Summit (Earth Summit, 2002) was held during August 26th to September 4th, 2002, in Johannesburg, South Africa. The most important agreement was to halve the people living without clean water by 2015.

ENVIRONMENT PROTECTION IN INDIA:

The enjoyment of life and its attainment of life and its attainment and fulfillment guaranteed under Article 21 of the Constitution embraces the protection and Nature's gifts without which life cannot be enjoyed. Causing environmental pollution should also be regarded as amounting to violation of Article 21. Public health, sanitation, water and land are state subjects. Article 252 provides that the Centre cannot pass any law in these matters unless consent of state government is obtained. Center can pass any act on the state subjects on the basis of international treaties, agreement or convention as provided in Article 253.

Article 47 contains Directive Principles that state shall improve the public health, which is one of its primary duties. Article 48A provides that the state shall endeavor to protect and improve the environment and to safeguard the forests and wild life. Article 51A(g) provides that it shall be the fundamental duty of every citizen of India to protect and improve the natural environment including forests, likes, rivers and improve the natural environment including forests, lakes, rivers and wild life.

The following are the laws enacted for the purpose of protecting pollution:

- Water (Prevention and Control of Pollution) Act, 1974;

- Air (Prevention and Control of Pollution) Act, 1981;

- Factories Act to regulate the emission of air pollutants, improper holding of hazardous wastes;

- Motor Vehicles Act - to regulate the excessive emission of smoke/noise beyond prescribed limit;

- Indian Ports Act - to regulate the throwing of ballast or rubbish in water;

- Merchant Shipping Act to check water pollution by oil;

- Indian Fisheries Act - to restrict the putting any poison, lime or noxious materials in any water;

- Environmental Protection Act, 1986;

- The Forest (Conservation) Act, 1980;

- The Wild Life (Protection) Act, 1972;

ROLE OF PIL IN ENVIRONMENT PROTECTION:

The Central Government has been given power by the laws passed for the purpose of environmental protection to take all necessary measures for purposes of protecting and improving the quality of environment and preventing, controlling and abating environmental pollution. However the quality of environment does not improve. The help comes through the Public Interest Litigation. The following are the decided cases that will reveal the greater role of PILs for the improvement and protection of the environment.

1. RIGHT TO CARRY ON BUSINESS SUBJECT TO ENVIRONMENT PROTECTION:

In Consumer Education and Research Center V. Union of India 1995 AIR SCW 759 - The Court held that right to carry on business is subject to protect the health of workmen and preserve pollution free atmosphere and to provide safety and health conditions to workmen.

2. GANGA WATER POLLUTION CASE;

In M.C. Mehta V. Union of India AIR 1988 SC 1037 - Shri M.C. Mehtha, an Advocate filed public interest litigation on various field. One among them is the environmental protection. In this case tanneries were polluting the river Ganga. The Supreme Court held that unless adequate provision is made for treatment of trade effluents flowing out of the factories, application for new industries could be refused. Action can be taken against the existing industries if they are found responsible for pollution of water. The Units, which did not comply, were asked to be closed. The court however held that the financial capacity of the industry should be considered as irrelevant while requiring them to establish primary treatment plants. Just like an industry which cannot pay minimum wages to its workers cannot be allowed to exist, which an industry which cannot set up a primary treatment plant cannot be permitted to continue to be in existence for the adverse effects on the public.

3. OLEUM GAS LEAK CASE:

M.C. Mehta V. Union of India AIR 1987 SC 965 - This case confirmed the absolute liability of polluter. The Constitutional bench examined the case. It held that an enterprise which is engaged in production of toxic chemicals or other hazardous substances owe an absolute non delegable duty of care to the community. Principles of common law liability for compensation is not adequate to meet such contingency created by hazardous and inherently dangerous industries. The enterprise is absolutely liable to compensate all those who were affected by accident. Compensation should be related to magnitude and capacity of the enterprise so that compensation has deterrent effect.

4. DEHRADUN QUARRYING CASE:

Rural Litigation and Entitlement Kendra V. State of UP AIR 1989 SC 632 - It has been held that right to a wholesome environment is a part of right guaranteed by Article 21 of the Constitution. Trees are friends of mankind and forests are inevitable necessity for human existence, healthy living and healthy civilization to thrive and flourish. Maintenance of ecology is the primary duty of the state.

5. BALANCE BETWEEN DEVELOPMENT AND ENVIRONMENTAL PROTECTION:

M.C. Mehta V. Union of India (1987) 1 SCC 395 - Supreme Court observes that it is not possible to totally eliminate hazard or risk inherent to the very use of science and technology. Otherwise it would mean end of all progress and development. It was further observed that development of economy must not be at the cost of ecology. There is a need for strict proper balance between development and protection of environment. Some times, there is conflict between need for development and adverse effect on environment. In such cases a balance must be struck.

6. FORMATION OF GREEN BENCH:

Vellore Citizens Welfare Forum V. Union of India AIR 1996 SC 2715 - Supreme Court has requested Chief Justices of High Court to constitute a special bench to be named as Green Bench to deal with cases of environmental matters.

NOTE: Green benches are constituted at various High Courts to deal with the environmental matters for its quick disposal.

In this case the Supreme Court has observed that the traditional concept that development and ecology are opposed to each other, is no longer acceptable. Sustainable development is the answer which means that needs of the present generations without compromising the ability of future generations to meet their own needs. It is a balancing concept between ecology and development that has been accepted as a part of customary of International Law.

We are of the view that precautionary principle and polluter pays principle are essential features of sustainable development.

The Precautionary Principle means -

- Environmental measures by the State Government and the statutory authorities must anticipate, prevent and attach the causes of environmental degradation;

- Where there are threats of serious and irreversible damage, each of scientific. Certainly should not be used as a reason for postponing measures to prevent environmental degradation.

- The onus of proof is on the actor or the developer/industrialist to show that his act is environmentally benign.

The Polluter pays principle means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation.

We have no hesitation in holding that the precautionary principle and the polluter pay principle are part of the environmental law of the country.

7. ABSOLUTE LIABILITY OF MUNICIPALITY:

Municipal Council, Ratlem V. Vardhichand AIR 1980 SC 1622 - In this case the Supreme Court held that the Municipality has statutory obligation to provide sanitation facilities and budgetary constraints do not absolve the municipality of this statutory obligation.

8. MAKING AWARENESS TO PUBLIC ABOUT ENVIRONMENT PROTECTION:

M.C. Mehta V. Union of India AIR 1992 SC 382 - In this case the Supreme Court held that no law can indeed effectively work unless there is an acceptance by the people in society. No law works out unless the inter action is voluntary. In order that human conduct may be in accordance with the prescription of law it is necessary that there should be appropriate awareness about the law requires and there is an element of acceptance that the requirement of law is groundled upon a philosophy, which should be followed. Supreme Court ordered that slides, films etc. should create mass awareness about environmental pollution, Environment should be made a compulsory subjects in schools.

1. CONSTITUTIONAL MANDATE:

Chota Lal Sidhu V. Union of India AIR 1990 SC 1480 - Supreme Court held that environment protection is a constitutional mandate. It is the commitment of a country wedded to welfare.

2. SENSITIVE AREA:

M.C. Mehta V. Union of India 1996 (7) SCALE 579 - In this case further building construction in sensitive area i.e., are upto 5 kms. From the bird sanctuary was stopped.

3. HOT MIX PLANTS:

M.C. Mehta V. Union of India 1997 (1) SCALE (SP)p.3 - The Supreme Court held that 43 hot mix plants couldn't be permitted to operate and function in Delhi, which deals with hazardous products. These plants may relocate/shirt themselves to any other industrial estate in the NCR. These hot mix plants shall close down and stop functioning in Delhi w.e.f. 28.2.1997. The National Capital Region Planning Board shall render all assistance to the hot mix plants in the process of relocation. The allotment of plots, construction of factory, building etc., and issuance of any licences/permissions etc., shall be expedited and granted on priority basis.

4. DIVERSION OF FORESTLAND:

Nature Lovers Movement V. State of Kerala AIR 2000 Ker. 131 - The court observed - The preservation of ecology, environment and forests is a function not only of the state but also of every individual. But the question now poses is while preserving and protecting the environment including forests how far the state can restrict the desire of the man to hold the land for his benefits or for the benefit of the community. It may be an economic activity of a man and his adventures in this regard can be totally routed while enforcing the protection of environment and preservation of forests, if the state so desires. But the State can only act in accordance with justice and fair play otherwise it amount to arbitrary action.

5. SPAN RESORT CASE:

M.C. Mehta V. Kamal Nath AIR 1997 SC 811 - The Supreme Court held that the court's power to harmonize between 'danger to the environment' and 'sustainable development' by supplying appropriate directions is a concept which refers to the objective of continuing to develop economics of the world while protecting the environment for the benefit of all present nations of the world and all future generations.

6. TAJ CASE:

M.C. Mehta V. Union of India AIR 1997 SC 734 - Closure of relocation of 292 industries consists of 289 foundaries and 3 limekilns were ordered to save pollution of TAJ at Agra. Precautionary principle and polluter pay principal was also reiterated and confirmed.

7. DISCONTINUANCE OF OLD VEHICLES:

M.C. Mehta V. Union of India AIR 1999 SC 291 - Order was passed to discontinue old vehicles over 15 years from Delhi. A program to implement to reduce air pollution in Delhi was also approved.

8. PREVENTION OF SMOKING IN PUBLIC PLACES:

K. Ramakrishnan V. State of Kerala AIR 1999 Ker 385 - The Kerala High Court held - This Court acting as the sentinel on the qui vive can certainly interfere and grant relief by way of mandamus to the Government and its officials including police to enforce the existing laws which is quiet sufficient to safeguard the interest of the public against the wisp of environmental tobacco smoke (ETS) When laws are there to deal with nuisance the law has to be enforced by the law enforcing the agency of the state.

It was again made clear that if the police were carrying out their duty to enforce the law, the court would not interfere with their discretion; but that the court would do so in the extreme case where it was shown that they were neglecting their duty.

9. NANDAVANAM PROJECT CASE:

Kamal Nagar Welfare Association V. Government of AP AIR 2000 AP 132 - The court held - It is now well settled by the Supreme Court that in the larger interest of the society the interest of smaller segments can be sacrificed and that would not amount to arbitrary or illegal action offending Art. 14 and 21 of the Constitution of India. This is also not present in the instant case. Even though identified persons on the Moogi river bed are liable to be evicted without giving any alternate accommodation as they are unauthorized occupants, yet a greater latitude was shown by the government and they are being rehabilitated at a more hygienic and convenience place duly making permanent and residential arrangements. This cannot be styled as depriving the basic rights of human life of livelihood.

10. PUBLIC PARK CASE:

Bangalore Medical Trust V. B.S. Mudrappa (1991) 4 SCC 511 - An open space reserved for Public Park was allowed to a private person for construction of a hospital by the Bangalore Development Authority, which was challenged. It was held that the residents of the locality have locus standii to challenge the allotment under Art. 32 and Art. 226 of the Constitution. A private nursing home could neither be considered to be an amenity nor it could be considered improvement over necessity like a public park. For maintaining ecology in urban areas open space and park is necessary.

11. M.C. Mehta V. Union of India 2003

In the case filed by Shri M.C. Mehta AIR 1992 SC 382, Supreme Court directed that environment should be made as a compulsory subjects in schools. Though 12 years were lapsed either government has taken no action. As such he filed another PIL with the prayer directing to introduce environment as one of the subjects in schools/colleges. Notices were issued to various state governments. Either government has filed no reply. Supreme Court imposed a fine of Rs.15000/- for each state and directed the Chef Secretary of each state to give explanation for this lapse before the court in person.

12. Narmada Bachao Aandolan V. Union of India 2000 (10) SCC 664 - The Court held that the project, in principle, was cleared more than 25 years ago when late Pandit Jawahar Lal Nehru laid the foundation stone. The final clearance was not given because of the environment concern, which is quite evident. Even though complete data with environment was not available, the government did in 1987 finally give environmental clearance.

When such projects are undertaken and hundreds of crores of public money is spent any individual or organization in the garb of PIL cannot be permitted to challenge the policy decision taken after a lapse of time.

The petitioner has been agitating against the construction of the dam since 1986, before environmental clearance was given and construction started. It has, over the years, chosen different paths to oppose the dam. Having failed in its attempt to stall the project the petitioner has resorted to court proceedings by filing this writ petition long after the environmental clearance was given and construction started. The pleas relating to the height of the dam and the extent of submergence environment studies and clearance hydrology, seismicity and other issues, except implementation of relief and rehabilitation, cannot be permitted to be raised at this belated stage.

LABOUR AND PUBLIC INTEREST LITIGATION:

Matters connected with labor laws are covered in List III concurrent list of seventh schedule to constitution of India. Entries relevant to labor matters in the concurrent list are as follows:

Entry 22 - Trade unions; industrial and labor disputes;

Entry 23 - Social security and social insurance; employment and unemployment;

Entry 24 - Welfare of labor is including conditions of work, provident fund, employer's liability, workmen compensation, invalidity and age pension and maternity benefits.

Entry 36 - Factories

Only one exception is that Industrial Disputes concerning union employees is a list I i.e., Union subject.

Labor legislation is mainly a benevolent legislation. The principle behind that of labor laws is protection. Thus 'opting out' of labor legislation is not permitted. The Central Government as well state Governments can pass laws in respect of labor matters. Most of the laws have been enacted by Parliament in view of uniformity throughout India. It is the state to suitably modify the Acts to suit their requirements. The following are some of the main acts enacted for the purpose of laborers:

- Minimum Wages Act, 1948;

- Payment of Wages Act, 1936;

- Trade Unions Act, 1926;

- Workmen Compensation Act, 1923;

- Industrial Employees (Standing Orders) Act, 1946;

- Industrial Disputes Act, 1947;

- Factories Act, 1948;

- Equal Remuneration Act, 1976;

- Employees State Insurance Act, 1948;

- Contract Labor (Regulation and Abolition) Act, 1970;

- Employees Provident Funds and Miscellaneous Provisions Act, 1952.

LABOURER:

Labor is one of the factors of production and it also bears cost and so the manufacturer may be careful in employing the laborer and with the objective of optimum utilization of labor. The term 'Labor' is not defined in any of the act. It may be skilled or unskilled. The labor laws mostly give protection to unskilled laborers. The government employees do not come under the purview of the definition of labor since they are doing the sovereign functions in respect of their governments. Separate rules and regulations are there in respect of government employees.

Labor may be classified in another aspect as child labor, women labor and male laborers. Laws take much care in protecting the child labor as well as women employers. Despite there is a ban on employment of child labor some Act recognizes the child labor by giving due protection to them. Similar is the case to women employees with protection such as exploitation etc.,

Separate legislations enacted exclusively for the laborers lead to execute the right to form unions and to resolve the disputes by means of the provisions of the concerned enactment. There is a remedy, therefore, available to the laborers. Despite this PIL plays a vital role in labor matters especially in child labor and in sexual harassment of women in the employed places. The following decided cases would reveal the greater role of PILs for the improvement and protection of the labor welfare.

1. CHILD LABOUR:

The Factories Act, 1948 defines child as a person who has not completed his fifteenth year of age; adolescent as a person who has completed 15 years of age but has not completed his eighteenth year; adult means a person who has completed 18 years of age.

The Factories Act vide its Sec.67 prohibits the employment of child labor. Sec. 67 provides that no child who has not completed his fourteenth year shall be required or allowed to work in any factory. Adolescent may be allowed to work of a certificate of fitness granted by a certified surgeon appointed for that purpose. Further the Act prescribes that no child shall be employed or permitted to work for more than four and a half-hour in any day during the night.

Bandhu Mukthi Morcha V. Union of India air 1997 SC 2218 - While dealing with the child labor and their employment in hazardous industries, the apex court has given directions to the Government of India to evolve the principles to eliminate the child labor.

M.C. Mehta V. Union of India, 1996 (6) SCC 756 - The Supreme Court in its order directed to provide-

- Compulsory education to all children either by industries itself or in co-ordination with it by the State Government to the children employed with such timings as is convenient to impart compulsory education, facilities for secondary, vocational profession and higher education.

- Periodical check-up;

- Nutrient food etc.,

- Entrust the responsibilities for implementation of the principles.

M.C. Mehta V. State of Tamil Nadu AIR 1997 SC 699 - This is the famous case which is against the exploitation of child labor at Sivakasi utilizing for the manufacture of crackers which is hazardous and injurious to the health of the children.

The Supreme Court in its order directed the concerned States to do the following:

- A survey would be made of the aforesaid type of child labor which would be completed within six months from today, the most hazardous employment such as match industry in Sivakasi; diamond polishing industry in Surat; precious stone polishing industry in Jaipur etc., may rank in priority to be followed by comparatively less hazardous and so on.

- The employment to be given as per our direction could be dovetailed to other assured employment;

- In those cases where alternative employment would not be made available the parent/guardian of the concerned child would be paid the income which would be earned on the corpus, which would be a sum of Rs.25,000/- for each child, every month.

- The employment given or payment would cease of operative if the child would not be sent by the parent/guardian for education.

- On discontinuation of the employment of the child, his education would be assured in suitable institutions with a view to make it a better situation.

2. BONDED LABOUR:

Bandhu Mukthi Morcha V. Union of India AIR 1984 SC 803 - An organization wrote a letter to Supreme Court informing that they found a large number of laborers working in stone quarries under inhuman and intolerable condition and many of them were bonded laborers.

The Supreme Court held that where a PIL alleging the existence of bonded laborers is filed it is not proper on the part of the Government to raise preliminary objections. On the contrary the Government should welcome an inquiry by the Court so that if it is found that there are bonded laborers or workers living inhuman conditions such a situation can be set right by the Government.

Mukesh Advani V. State of AP AIR 1985 SC 1365 - A letter relating to existence of bonded labor in some quarries was treated as a writ petition and report was called for from the District Judge.

Chhatis Ghar Krishak Mazdoor Sangh V. State of Madhya Pradesh 1984 (1) scale 603 - The court has issued required direction to the Government relating to the bonded labor.

Santhal Paragon Antyodaya Ashram V. State of Bihar 1987 (1) SCALE 679 - The Court ordered to release the bonded laborers identified by the Saxena Committee within two weeks from the date of the order. The Collector should issue a certificate to the effect that he has been released from bondage and to pay Rs.3,000/- as interim relief. So far as these 2515 bonded laborers are concerned, the State Government on a permanent basis must on their release rehabilitate them immediately.

Public Union for Civil Liberties etc., V. State of Tamil Nadu 1997(7) SCALE (SP) P.8 - The Court gave directions to Tamil Nadu Government on bonded laborers as follows:

- To identify the bonded laborers and update the existing list of such bonded laborers as well as to identify the villages where this practice is prevalent.

- To identify the employers exploiting the bonded laborers and to initiate criminal proceedings against such employers;

- To discharge any existing debt and or bonded liability and to ensure them an alternative means of livelihood;

- To provide employment to such bonded laborers;

- To provide adequate shelter, food, education to the children of the bonded laborers and medical facilities to the bonded laborers and their family as part of rehabilitation package.

Neeraj Choudhary V. State of MP 1984 (3) SCC 243 - It is the plainest requirement of Articles 21 and 23 of the Constitution that bonded laborers must be identified and released and on release they must be suitably rehabilitated.

III. WOMEN LABOURERS:

Rape of Working Women:

Delhi Domestic working women's Forum V. UOI (1995)1SCC 14 - It is the case exposing the pathetic plight of four domestic servants who were subjected to indecent sexual assault by seven army personnel in a train from Ranchi to Delhi. The Supreme Court has laid down the following guidelines in such cases:

- The complainants of sexual assault cases should be provided with legal representation who is well acquainted with the criminal justice and able to assist her in the public station and in court;

- The police should inform the victim of her right to representation and provide legal assistance;

- The advocate shall be appointed by the court on application by police at the earliest convenient moment;

- In all rape trials anonymity of the victim must be maintained as far as necessary;

- Compensation of victims shall be awarded by the court on conviction of the offender;

- The National Commission for women to evolve a scheme within six months and take necessary steps for its implementation at the earliest.

Visaha V. State of Rajasthan Air 1997 SC 3011 - The Supreme Court has laid down exhaustive guidelines for preventing sexual harassment of working women in place of their work until a legislation is enacted for this purpose relying on international convention and norms to which India is a party and held that in absence of any domestic law on the point, they can be relied on

interpreting the guarantee of 'gender equality' in Articles 14, 19 and 21 of the Constitution.

ENFORCEMENT OF LABOUR LAWS:

1. Mukesh Advani V. State of AP AIR 1985 SC 1363 - It was found that there was total absence of implementation of labor laws and hence the Supreme Court has issued directions and the Central Government has issued notification specifying minimum wages.

2. People's Union for Democratic Rights V. UOI 1982(1) SCALE 818 - In a writ petition by way of PIL, the SC ordered to ensure the observance of the provisions of various labor laws in relation to workmen employed in the construction work of various projects connected with the Asian Games. The Court further held that where a person provides labor or service to another for remuneration which is less than the minimum wage, the labor or service provided by him clearly falls within the meaning of the words 'forced labor' and attracts the condemnation of Article 23.

3. Sivasamy V. Tamil Nadu 198392) SCALE 240 - The Supreme Court issued suitable direction to implement the labour laws relating to payment of wages and other aspects.

4. Sanjit Roy V. State of Rajasthan AIR 1983 SC 328 - The Supreme Court held that the Rajasthan Famine Relief Works Employees (Exemption from Labor Laws) Act, excluding the applicability of Minimum wages Act, is violative of Article 23 of the Constitution.

5. Ram Kumar Mishra V. State of Bihar AIR 1984 SC 537 - For ferries in Bihar the Minimum Wages Act is applicable and suitable directions were given in this regard.

6. Consumer Education and Research Centre V. Union of India AIR 1995 SC 922 - Where a writ petition was filed by way of PIL for taking remedial measures to protect health of workers in mines and asbestos industries the writ petition was allowed with certain directions.

7. National Federation of Blind v. UPSC (1993) 2 scc 41) - Supreme Court in this case held that the visually handicapped blind and partially blind are eligible to compete and write Civil Services Examination in categories of Group A and B posts which are suitable for the handicapped in Braille script or with the help of a scribe. The visually handicapped constitute a significant section of our society and as such it is necessary to encourage their participation in every walk of life, the court declared.

8. Daily rated casual labor V. UOI (1988) 1 SCC 122 - It has been held that the daily rated casual laborers in P&T Department who were doing similar work as done by the regular workers of department were entitled to minimum pay in the pay scale of regular workers plus DA but without increments. Classification of employees into regular employees and casual employees for the purposes of the payment of less than the minimum pay is violative of Article 14 and 16 of the Constitution. It is also opposed to the spirit of Article 7 of the International Covenant of Economic, Social and Cultural Rights, 1966. The Government cannot take advantage of its dominant position. The Government should be a model employer.

EDUCATION AND PUBLIC INTEREST LITIGATION

The right to education is implicit in the right of life and personal liberty guaranteed by Article 21. It must be construed in the light of directive principles. Justice Kuldip Singh in Mohini Jain V. State of Karnataka AIR 1992 SC 1858 rightly said that the dignity of an individual couldn't be assured unless the right to education accompanies it.

CONSTITUTIONAL PROVISIONS:

Though the Constitution does not confer any right on education it can be derived from the right of life. But the constitution protects the interests of minorities in respect of education under the provisions of Articles 29 and 30.

Article 29 provides that any section of citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.

Article 29 further provides that no citizen shall be denied admission into any educational institutions maintained by the State or receiving aid out of state funds on grounds only of religion, race, caste, language or any one of them.

Ray C.J. pointed out in the Ahamedabad St. Xaveiers College Society V. State of Gujarath AIR 1974 SC 1389 that although commonly Article 29(1) is assumed to relate to minorities its scope is not necessarily so confined, as it is available to 'any sections of citizens resident in the territory of India' and this may include well the majority also.

Even though Article 29 protects the interests of minority the first amendment to Constitution to Article 15 by inserting clause (4) which is having overriding effect of Sec. 29(2).

Article 15(4) provides that nothing in clause 2 of Article 29 shall prevent the state from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and the scheduled tribes. In making reservation by executive order by virtue of Article 15(4) the state has to take care that it is not unduly wide.

In Article 46, dealing with the directive principles of State policy it is provided that the obligation is on the part of the state to promote with special care the educational and economic interests of the weaker section of the people and in particular of the scheduled cases and scheduled tribes.

Article 30(1) provides that all minorities, whether based on religion or language shall have the right to establish and administer educational institution of their choice. The right under Article 30(1) is further protected by Article 30(2) which prohibits the state in granting aid to educational institutions from discriminating against any educational institutions on the ground that it is under the management of a minority whether based on religion or language.

Though a regulation can be made by the State to prevent maladministration in minority run educational institution but at the same time it is to be ensured that under the regulatory power nothing is done would destroy the character of the institution as institution. There is no fundamental right of minority to affiliation to a University.

ROLE OF PIL IN EDUCATION:

Since no specific articles in the Constitution except Article 15(4), 29 and 30 which are meant for minorities, backward class, SC & ST, many law are emanated through the law declared by the Supreme Court and High Courts through the constitutional remedy by means of public interest litigation. The role of PIL in education is very commendable. The following are the few decided cases in PILs in respect of education:

1. Pradip kishore Mishra V. State of Orissa AIR 1988 Ori 273 - The court held that a member of the locality will a person interested and capable of maintaining writ petition since he will be vitally interested in continuance of the school in his locality.

2. Balbir Sing Grewal V. G.D. Tapse AIR 1985 P&H 244 - MLA and Educationist having interest in the Universities and other educational institutions can question appointment of Vice Chancellor.

3. Gaurav Jain V. Union of India AIR 1990 SC 292 - The Supreme Court rejected the demand for providing separate schools and hostels for children of prostitutes, as it was not in the interest of such children.

4. Frank Antony Public School Employees Association V. Union of India (1987) 2 SCC 516 - The Supreme Court has held that the statutory measures regulating terms and conditions of service of teachers and other employees of minority educational institution for maintaining educational standards and excellence are not violative of the fundamental rights of the minorities to administer educational institutions of their choice under Art. 30(1) of the Constitution.

5. AIR 1987 SC 294 - Though the petitioner could have moved the court in his private interest, inquiry into the conduct of the examiners in one of the highest medical degrees like MD was held to be a matter of public interest litigation and when such affairs are brought to the notice of the court, it is the duty of the court to the public that the truth and the validity of such allegations must be inquired into.

6. Praful Kumar Sinha V. State of Orissa AIR 1989 SC 1783 - Where an Advocate from Nadia in West Bengal had brought to the notice of the court by way of a letter with news items published in Amrit Bazar Patrika relating to sexual exploitation of girl student, the court directed the Chief Judicial Magistrate to make an inquiry.               

7. Kedarnath Singh Gautam V. Secretary, Board of High School and Intermediate Education AIR 1991 ALL 381 - A principal of the High School filed PIL seeking direction relating the examination Centre on the ground that it is far away. The Court held that the petitioner has no locus standii as much as the students, their guardian had not approached the court.

8. Parents Teachers Association V. Chairman, Kendriya Vidyalaya Sangethan and others AIR 2001 Raj 35 - Public interest litigation challenging the closure of Kendriya Vidyalaya by Parent Teachers Association was held not to be maintainable.

The court held that it is evident that the so called parent teachers association is an unregistered and unrecognized association and therefore it has no fundamental right to approach the court under Art.226 of the Constitution.

The Court further held that the jurisdiction for closure of the school was examined in detail by the authority concerned and they came to the conclusion to grant approval for the closure of Kendriya Vidyalaya, Jobner. The policy decision as arrived at by the competent authority after taking into account the various facts and circumstances and the materials placed on record which also involved the elements of financial constraints, it is not open to challenge by the petitioners and the grounds raised by them are not sustainable in law or amenable to challenge.

In view of the policy decision taken by the respondents, there is no need and necessity to hear either the students or their parents before taking the policy decision of closure of the school. Thus there is no violation of natural justice.

9. Manubhai Pragaji Vashi V. State of Maharastra AIR 1989 Bom. 296 - The Bombay High Court held that withholding of grants from non governmental law colleges would be discrimination between the staff of such colleges and of the Government Law College, other Government run colleges and colleges having faculties of arts, science, commerce, engineering and medicine.

10. State of HP V. Parent of a student of Medical College, Shimla AIR 1987 SC 294 - The Supreme Court held that 'In a quite number of states in the country there are Acts on ragging which make ragging a cognizable offence and prescribes types of punishment commensurate with the crimes committed. The HP Government could be suggested to initiate such legislation as early as possible. Pending such legislation by the State Government the University authorities could think of incorporating some provisions relating to ragging in the relevant ordinance of discipline in the ordinance of the University.

11. AP Dalit Maha Sabha V. Government of AP AIR 1999 452 - Where Government made allotment of land at concessional rate for developmental and educational project it cannot be gagged under the garb of PIL.

EXECUTIVE AND PUBLIC INTEREST LITIGATION

The Constitution vide Article 53(1) provides that the executive power of the union shall be vested in the President and shall be exercised by him either directly or through officers sub ordinate to him in accordance with the Constitution. The Prime Minister is the head of the Council of Ministers, who are responsible to the House of the People. Though the executive power is vested in the President he exercises his power with the aid and advice of the Council of Ministers. The Supreme Court held in its order M/s Bishambar Dayal Chandra Mahan V. State of UP AIR 1982 SC 33 'It may not be possible to frame an exhaustive definition of what executive function means and imply. Ordinarily the executive power connotes the residue of government functions that remain after the legislative and judicial functions are taken away. Similarly Article 153 to 167 elaborates the executives and their functions of the State. The pattern of the Government in the State is the same that for the Union. The executive head is the Governor who acts according to the advice of the Council of Ministers.

There are procedures for election to the Office of President, members of Parliament and state assemblies. When a single political party gains an absolute majority in the Lok Sabha election and has been accepted leader the President appoints that leader as the Prime Minister, as the formality adopted for years together. Then the President appoints Council of Ministers on the advice of the Prime Minister. Similar is the way for the appointment of Chief Minister and Council of Ministers in the State by the Governor of the respective State. Thus the reign of Parliament and State assemblies is in the hands of political parties. Existence of various political parties causes of non-permanent government in India which resulted in variation of policies implementation etc., which does not yield the uniform growth of the country in all aspects.

The executive wing is separate and gains its powers from the Constitution itself. Err is human. Executive is also no exemption from committing errors. The Court comes to the rescue for such lapses.

Affected parties by the action of executive can approach the court for remedy. Since the court loosened the principle of locus standii the court can be approached by the interested persons on behalf of the affected who is willing to but could not able to approach the court. The role of PIL in executive field considers very important since it has made many remarkable changes and challenges. The following are the examples of the fruitful decisions of courts in PILs in the field of executive, which will prove the above contents:

1. Hannadha Babu V. N.T. Rama Rao AIR 1990 AP 20 - Codes of conduct issued by the Union Government and State Government are not statutory in nature. Hence a writ of mandamus restraining Chief Ministers from participating in film cannot be granted. The Codes of conduct lay down rules of conduct, which the ministers must observe. They are in the nature of only guidelines.

Because accepting the office of the Minister he is not deprived of the several fundamental rights guaranteed to him by Part III of the Constitution. But at the same time the nature of office, the duties, functions and powers attaching to the said office do call for certain restrictions thereon. We may in this connection refer to the case of civil servants. Not that we are treating the ministers and civil servants on the same bar. While the relationship of master and servant obtains in the case of civil servants no such relationship can be conceived of in the case of ministers.

2. A Registered Society V. Union of India AIR 1999 SC 2979 - 'Common Cause' a registered society can maintain PIL to expose the way in which minister relating to petrol outlets out of the discretionary quota made allotments.

3. Janata Dal V. H.S. Chowdari (1992) 4 SCC 653 - It is an example where the petitioner tried to abuse the PIL for political purposes. In 1986 the Government of India had placed orders for purchase of Bofor Guns. On 17.4.1987 some leading newspapers of India published news broadcast made by Swedish Radio that bribe had been paid to some Indian politicians and defence personnel to secure the contract. Meanwhile there was a change of Government and the Janata Dal came to power at Centre. To get more information and evidence from Swiss authorities CBI moved an application before the Special Judge to issue a letter of rogatory to Switzerland for getting necessary assistance in conducting investigation. At this state an advocate Shri Harinder Singh Chowdari filed PIL with the prayer not to issue a letter of rogatory unless the allegations against named persons are proved. The petition was dismissed on the ground that the petitioner has no locus standii.

4. Sunil Kumar Mondal V. UOI AIR 1989 Cal. 197 - A PIL was filed to transit all the records, proceedings papers relating to all proposed agreement of Darjeeling Gurkha Hill Council to High Court for the sake of the public, it was held by the Court that memorandum of settlement per se has got no legal entity and the writ petition itself is premature.

5. Y.S. Rajasekhar Reddy V. Nara Chandra Babu Naidu AIR 2000 AP 142 - This is the PIL seeking direction to remove the Chief Minister. The court held that the Chief Minister of Minister hold the office during the pleasure of the Governor and he being the appointing authority can alone have a right to dismiss him in reality only when the person has earned or incurred any of the disqualification provided by the Constitution or the statute or no longer enjoys the confidence of the legislative assembly to which ultimately he is responsible. Even Governor is not competent to dismiss the Chief Minister or his cabinet for breach of Constitutional oath, malfeasance and misfeasance. Courts in exercise of their power of Judicial Review would not be competent to issue such a writ.

6. S.R. Bommai V. Union of India AIR 1994 SC 1918 - Supreme Court while dealing with the provisions of Article 356 of the Constitution for promulgation of President's Rule and failure of the Constitutional machinery to run the state in accordance with the Constitution, observed that the President on being satisfied on the basis of the report from the Governor and other information received by him that the State cannot or carry out the functions in accordance with the provisions of the Constitution, can dismiss the Government and dissolve the assembly.

7. D.C. Wadhwa V. State of Bihar (1987) 1 SCC 378 - The court pointed out that between 1967 and 1981 the Bihar Governor promulgated 256 ordinances and all these were kept alive for periods ranging one to 14 years by repromulgation from time to time. The court observed it as a 'subversion of democratic process' and 'colorable exercise of powers' and held that this amounted to a fraud on the Constitution and hence unconstitutional.

8. R.K. Gar V. Union of India AIR 1981 SC 2139 - The ordinance making power of the President is challenged in this case. It was held that 'Special Bearer Bonds (Immunities and Exemptions) Ordinance, 1981 was not ultra vires of Article 123 of the Constitution. The President is competent to issue an ordinance amending or altering the tax laws.

9. A.K. Roy V. UOI, AIR 1982 SC 710 - The Court held that the National Security Ordinance was valid and not violative of Article 14. The ordinances issued by the President under Article 123 stand on the same footing as laws passed by the legislatures. The ordinance, however, was subject to the test of vagueness, arbitration, reasonableness and public interest and that it was passed only when the legislature was not in session.

10. K. Nagaraj V. State of AP (1985) 1 SCC 524 - The court held that the power to issue an ordinance is power of the executive to legislate. The power is plenary within its field and there are no limitations upon that power except those to which legislative power of the state is subject to. Therefore, though an ordinance can be invalidated for contravention of constitutional limitations it cannot be invalidated on grounds of non-application of mind or malafides. But an executive action can be struck down on the ground of non-application of mind, not the act of a legislature.

11. V.R. Sreeramarao V. Telugu Desam AIR 1983 AP 96 - The court held that Telugu Desam couldn't be deprived allotment of Election symbol on the ground that the name arouses chauvinism and sectarian tendencies.

12. Venkatachalam V. Rabri Devi 19971 (5) Scale 632 - The court held that the appointment of a Chief Minister being a political question couldn't be entertained by way of public interest litigation.

13. Bimal Prasad Das V. Bijayananda Patnaik, AIR 1992 Ori 10 -        The petitioner, a public spirited Advocate had approached the High Court by way of PIL against Chief Minister's call for breaking up corrupt officials. The court held that the petitioner cannot be regarded as belonging to the meddlesome interlopper, is vitally interested in perseverance of the rule of law and if the call given by the chief minister to beat corrupt officials encourages people to take law into their own hands, the petitioner would well be within his rights to approach this court to see that the rule of law is maintained.

The Chief Minister's call for beating was an emotional expression in indignation against the particular situation existing in the State wherein corruption was found to be rampant.

From the speech of the Chief Minister it is clear that he did not want the people to take law into their own hands. He also stated that the charges were investigated and were found to be tenable action had been taken and more stern action would be taken.

As corruption being rampant, a call to deal with the corrupt officials strictly and to create a fear physchosis in their minds cannot be said to be in any way violative of the rule of law.

14. T. Ramachandar Rao V. Union of India, 2001(2) ALD 634 - The court dismissed the petition complaining discrimination on the part of the state is not providing irrigation facilities in Telengana region, since the court cannot interfere in policy decisions of the Government.

15. M.V.R. Sharma V. State of AP 2001(2) ALD 572 - Collection of parking fee is a matter of policy decision of Government and Municipal Corporation and hence the court cannot interfere.

16. Sukumaran V. Union of India AIR 1987 Ker. 212 - The High Court, Kerala held that in exercise of its power under Article 226 of the Constitution it couldn't declare the appointment of a person as minister made under Article 164 as unconstitutional on the ground that he committed a breach of oath of office. The Court further held that there is no express provision in the Constitution or the law made by the Parliament, which attaches specifically any disqualification to the Minister who commits breach of his oath. Even then, it is pointed out that it could not be assumed that there is no sanctity to the oath taken before assumption of office or that there is no authority to take action if there is violation of that oath.

The oath of office insisted upon under the Constitution is the prescription of a fundamental code of conduct in discharge of the duties of these high offices. Breach of this fundamental conduct of good behavior may result in the very office he holds. Breach of oath then be a betrayal of faith. The appointing authority, the Governor, in such cases, can consider whether there was, in fact, any breach of oath. It is not for this court embark on any such inquiry.

Breach of oath requires a termination of the tenure of the office. The appointing authority under the Constitution and according to the procedure can exercise this power, if any prescribed therein. The termination of that tenure is not the function of the court and it would not be appropriate to exercise jurisdiction under Art.226 in such cases do not lie.

17. Dr. Kasinath G. Jalmi V. The Speaker AIR 1993 SC 1873 - The Court held that there is no merit in submission that the power of review inheres the speaker under the tenth schedule as a necessary incident of his jurisdiction to decide the question of disqualification.

18. Ranchi Bar Association V. State of Bihar AIR 1999 Pat. 169 - The High Court held that it is bounden duty for the Government to protect the people and not to allow unlawful bundh, rally etc., which invade life, liberty and property of people.

19. National Human Rights Commission V. State of Arunachal Pradesh AIR 1996 SC 1234 - While dealing with PIL seeking protection of the life and liberty of the Chakma tribes the Supreme Court held, that no provision can be deprived of his life or personal liberty except according to the procedure established by law. The State is bound to protect the life and liberty of every human being, be he a citizen or otherwise, and it cannot permit anybody or group of persons, e.g., the AAPSU, to threaten the chakmas to leave the state, failing which they would be forced to do so. No state government worth the name can tolerate such threats by one group of persons to another group of persons; it is duty bound to protect the threatened group from such assaults and if it fails to do so, it will fail to perform the constitutional as well as statutory obligations.

20. Forum for fairness in Education, Mumbai V. Vilas Rao Deshmuk AIR 2001 Bom. 136 - Where a PIL was filed against appointment of a person as Sheriff of Mumbai and the allegation against Chief Minister are based on certain newspaper reports relating to certain school with which he is said to be associated, it was held that it is not a bona fide public interest litigation.

21. Maharishi Avadesh V. State of UP AIR 1991 All.52 - The prayer of the petitioner is for a direction to remove Shri Mufti Mohamed Syed from the office of the Home Minister. The President on the advice of the Prime Minister appoints a minister. Under Art. 75(2) he holds office during the pleasure of the President. There is no constitutional guarantee about the tenure of his office like the one provided for under Art. 124(4) of Constitution for a Judge of High Court and Supreme Court. Therefore it may be assumed that President can remove a Minister from office. However the pleasure of dismissing the Minister has to be of the President and not of this court.

The next prayer is that the Prime Minister V.P. Singh may be directed to resign from his office. There is no constitutional or statutory provision prescribing the circumstances in which the country's Prime Minister is obliged to resign. To resign or not to resign is again a matter of discretion resting entirely with the holder of the office. Accordingly the court cannot issue a writ, direction or order in the nature of mandamus requiring the Prime Minister to resign from his office.

The petitioner then wants certain public servants who have played dubious role in maintenance of law and order in the release of terrorists to be dismissed from services. Constitutional and statutory provisions govern the services of the public servants. If an employee has committed misconduct it is for the employer to decide whether that public servant will be continued in service or he will be removed therefrom. The court cannot therefore, by issuing a writ of mandamus or order or direction of like nature commands the executive to dismiss the public servant.

The petitioner alleged discrimination practised by the State authorities obtaining release of Dr. Rubaiya Syed from the clutches of the terrorists. The petitioner points out that an Indian Diplomat Sri Ravindra Mahatre had been similarly abducted by the members of Kashmir Liberation Front who demanded release of terrorist Magbool as a condition for the release of Shri Mahatre by releasing Magbool from custody resulting in the terrorists extinguishing life of Shri Mahatre. The Court held that the matter is entirely in the discretion of the executive. Accordingly we are unable to grant any relief to the petitioner on the basis that in obtaining release of Dr. Rubia Syed the Administration has practised discrimination. The Court can issue only such directions of which it can supervise compliance.

22. Madurai Adheena Peedathipathi V. State of Tamil Nadu AIR 1984 Mad. 241 - The court held that the petitioner alleged the mis-rule of the Hon'ble Minister Veerappan. With judicial restraint the court would like to state that this kind of allegations against a minister of a state is not a matter which would fall within the jurisdiction of a court of law, and is not a justifiable issue.

23. S.P. Gupta and others V. UOI AIR 1982 SC 149 - The Supreme Court has held that though the advice given by the council of Ministers to the President cannot be inquired into by the courts but the materials on the basis of which such advice is given are not secret and can be scrutinized by the courts.

24. Krishna Swami V. Union of India (1992) 4 SCC 605 - The petitioner Krishna Swami, a Member of the Lok Sabha from Tamil Nadu claiming that he had sufficient interest to file the petition for quashing the motion given by the speaker by 108 members of the ninth lok sabha for initiating proceedings for the removal of Mr. Justice V. Ramasami of the Supreme Court against whom there were allegations of financial irregularities. The Supreme Court by 4-1 majority held that the petitioner had no locus standii to file the petition and have no public purpose in filing the petition.

25. Shiv Sagar Tiwari V. Union of India AIR 1997 SC 83 - The Supreme Court held that the allotment of 52 shops and stalls made by Smt. Sheela Kaul, the then Minister for Housing and Urban Development, Government of India, was arbitrary, malafide and unconstitutional as it was done without following policy or criterion and hence she was directed to pay Rs.60 lakhs as exemplary damages done to the Government exchequer.

26. Raunaq International Ltd., V. IVR Construction Ltd., & others AIR 1999 I 492 SC - PIL should be bonafide for public good and not merely a cloak for attaining private ends, court can examine previous record of public service of the litigant. The Supreme Court gives the following guidelines in deciding a contract by government authorities:

- Public money would be expended for the purposes of the contract;

- The goods or services which are being commissioned could be for a public purpose such as construction of roads, public buildings, power plants or other public utility;

- The public would be directly interested in the timely fulfillment of the contact so that the services become available to the public expeditiously.

- The public would also be interested in the quality of the work undertaken or goods supplied by the tender

27. Research Foundation for Science, Tech & Ecology and others V. Ministry of Agriculture and others AIR 1999 (1) SC 655 - The petition is to direct the government to challenge the patenting of basmati rice, of required in the US Patent and Trade Mark Office (USPTO) and/or before the Dispute Settlement Body (DSB) created under WTO and also to amend the Patents Act of India in consonance with the IPR.

The Supreme Court issued suitable direction. The Government made amendments in Patents Act during 2000 and also challenged the Basmati Rice Case.

28. Ranji Thomas V. Union of India AIR 2000 (2) SC 81 - PIL praying inter alia for declaration of the President seeking resignation of Governor and Lt. Governor was ultra vires of the Constitution.

29. Kapila Hingorani V. State of Bihar 2003-44 SCL 429 SC - Statistics reflected that many PSUs in Bihar had not paid salaries to their employees for decades, leading to many starvation deaths. There was undertaking such as the Bihar Sugar Corporation that had not paid salaries to about 9240 employees from 2000 onwards resulting in 467 deaths.

The Supreme Court held that it is beyond any cavil of doubt that state was for all intent and purpose the sole share holder of these companies and as such cannot escape its liabilities having regard to the fact that it has deep and pervasive control, including financial control, over the affairs of the said company.

POLICE, PRISON AND PUBLIC INTEREST LITIGATION

Police Department was established not only for protection of the people but also to find out and to give punishments through court of law in criminal proceedings. The criminal cases are conducted by the state through the public prosecutors to whom the police authorities are helping in finding out the real culprit with evidences and witnesses after making a thorough investigation. During the investigation police may use force or threatening to get the truth. Police actions are governed by the provisions of IPC, Cr. PC, Evidence Act etc., Public Interest Litigation in the arena of police normally will be, inaction on their part in riots etc., corruption, custodial violence, lock up deaths, torture, encounteres, crimes against women etc.,

The prisoners are usually governed by Jail Manual and prisons manual. The following enactments are dealing with prisons and prisoners:

- The Prisons Act, 1894;

- The Reformatory Schools Act, 1897;

- The Prisoners Act, 1900;

- The Identification of Prisoners Act, 1920;

- The Exchange of Prisoners Act, 1948;

- The Transfer of Prisoners Act, 1950;

- The Prisoner's (Attendance in Courts) Act, 1955;

Various PILs are the causes to reduce the sufferings of the prisoners while they are in the journey of punishments.

The following are the decided cases in respect of police and prisoners, which will reveal the great role of PIL in both the fields:

1. Nathulal Jain V. State of Rajasthan, AIR 1993 Raj 140 - The Rajasthan High Court held that a third party couldn't claim relief by way of damages to victims from government in communal riot by means of public interest litigation.

2. P&H High Court Bar Association V. State of Punjab 1993 (4) SCALE 636 - An Advocate, his wife and their child were alleged to have been abducted in murder. The High Court, on the public interest litigation ordered for the CBI inquiry for this case.

3. People's Union of Civil Liberties V. Union of India AIR 1997 SC 1203 - In the case of police atrocities, the court feels that in the interest of justice compensation is to be awarded, it can be granted by issuing appropriate directions.

4. Sankara Narayanan V. State of Kerala AIR 1981 Ker 82 - It does not amount to a common law nuisance to march or conduct a procession through the streets of a town so long as the procession allows the other people reasonable passage and in a non-violent and sensible manner.

The police officer if has reasonable ground for apprehension that the procession may occasion serious public disorder he may give directions imposing upon the persons organizing or taking part in the procession such conditions as appear to him necessary for the preservation of the public order, including conditions prescribing the route to be taken by the procession and conditions prohibiting the procession from entering any public place specified in the directions.

5. Saheli V. Commissioner of Police, Delhi AIR 1990 SC 513 - The Supreme Court held that the state is liable to pay compensation in case of public atrocities.

6. People's Union for civil liberties V. Union of India AIR 1997 SC 1203 - The Supreme Court held that killing of two persons in fake encounter by the police was clear violation of the right to life guaranteed in Art.21 of the Constitution and the defence of sovereign immunity does not apply in such case. The court awarded Re.1 lakh as compensation for each deceased.

7. People's Union for Democratic Rights V. Ministry of Home Affairs AIR 1985 Del. 268 - The question which usually arises in PIL is whether the action or inaction of the State is violative of any law and can effective relief be granted by the court where no statutory provision is violated but the action or the inaction of the State is arbitrary then, as has now well been settled by the Supreme Court, the said action or the inaction would per se violative of Article 14 of the Constitution.

8. Sunil Batra V. Delhi Administration AIR 1978 SC 1075 - Mr. Justice Krishna Iyer J. held that 'Law is that for a prisoner all fundamental rights are an enforceable reality though restricted by the fact of imprisonment.

9. Interviews with the prisoners case - 1987 (4) SCC 373 - The guarantee of fundamental right under Art. 21 may be available to the citizens detained in jails, it becomes necessary to permit the citizens access to information as to interviews with prisoners. Interviews become necessary, as otherwise correct information may not be collect but such access has got to be controlled and regulated.

10. A Registered Society V. UOI AIR 1996 SC 1619 - Supreme Court held that right to a speedy trial, a fundamental right is implicit in the guarantee of life and personal liberty enshrined in Art. 21 of the Constitution. Speedy trial is the essence of criminal justice.

11. Trilok Singh V. State of Delhi 1989 (1) SCALE 458 - The Supreme Court in a PIL relating to jail conditions has issued suitable directions.

12. Kadra Pehadiya V. State of Bihar, AIR 1981 SC 939 - The Supreme Court held that putting leg irons to the under trial prisoners during their work outside jail walls to guard against the possibility of their running away and also inside the jail was a highly disturbing state of affairs.

13. AIR 1981 SC 625 - The Supreme Court highly condemned the third degree methods in this case and held that the using of third degree methods by police in case of criminal and suspects had been repeatedly depreciated.

14. Citizens for democracy V. State of Assam (1995) 3 SCC 743 - The court held ' we declare, direct and lay down on a rule that handcuffs or other fetters shall not be forced on prisoner, convicted or under trial while lodged in a jail anywhere in the country or while transporting or in transit from one jail to another or from jail to court and back.

15. D.S. Nakara V. UOI 1983 (1) SCC 305 - Where certain prisoners were detained in prison for long periods they were declared insane at the time of trial and were put in jail with directions to submit half-yearly medical reports. After declaration of sane they were not released. Because of the callous attitude of authorities directions were issued to release them.

SOCIETY, SOCIAL WELFARE AND PUBLIC INTEREST LITIGATION

In a country like India the society and social welfare could not be neglected. Even though many laws have been enacted for the protection of society and social welfare, the decisions of the court in the PIL are worth mentioning. The following case laws will reveal the importance of PIL:

1. Olga Tellis V. Bombay Municipal Corporation 1985 (3) SCC 545 - The court held that pave dwellers and slum dwellers using pavements and other public properties are not having intention to commit an offence or intimidate or insult or among any person. The opportunity of hearing cannot be denied to them on ground that they are trespassers.

2. State of HP V. Umed Ram Sharma AIR 1986 SC 847 - The entire state of H.P. is in hills and without roads no communication is possible. Denial of that right especially for Harijan residents would be the denial of life by the ambit of Constitution.

3. Jayalalitha V. Government of Tamil Nadu AIR 1999 SC 2350 - The Supreme Court held if the sports stadium is misused for the purpose other than sports activities for earning rental, tax payer has a right to question such misuse.

4. Sanjay Aggarwal V. Nagar Mahapalika, Ahamedabad AIR 1999 All 348 - Public roads and sidewalks cannot be blocked by any one not even by court.

4. Nirmala V. State of Karnataka 1999 (6) KLD 659 - The Karnataka High Court held that residents of a locality could challenge the grant of licence for running bar and restaurant under the Karnataka Excise Act. Appropriate direction s were given.

5. Subash Chandran V. Government of AP AIR 2000 AP 272 - In this public interest litigation the court held that the harassment by private super speciality hospitals in urging co patients to purchase imported medicines at costliest rates from private persons at the time of operations is to be reacted by legislature and the court cannot given any directions regarding the same.

6. Varadharajan V. Salem Municipal Council AIR 1973 Mad 55 - The Tamil Nadu High Court held that a taxpayer has a right to question the resolution involving wasting of municipal funds.

7. People's Union for Civil Liberties V. UOI AIR 1997 SC 568 - Telephone tapping is also the violation of Art. 19(1)(a) unless it comes within grounds of restrictions under Art. 19(2). Freedom means the right to express one's conviction and opinions freely by words, of mouth, writing, printing, picture or in other manner. When a person is talking on telephone he is exercising his right of freedom of speech and expression.

8. LIC of India V. Consumer Education & Research Council (1995) 5 SCC 482 - The Supreme Court held that the terms and conditions imposed by the LIC accepting policy must be just, fair and reasonable. The policy cannot be restricted to only salaried class in government service or quasi government service or reputed commercial firms. Such a condition is unconstitutional.

9. Chairman, Railway Board V. Chandrima Das AIR 2000 SC 988 - The Supreme Court held that where a foreign national, a Bangaladeshi woman was gang raped in a building belonging to railways, compensation can be granted under public law for violation of fundamental rights on the ground of domestic jurisdiction based on constitutional provisions and human rights jurisprudence.

10. G.M.J. Cherian V. UOI 1991(2) SCALE 1035 - In this PIL the court directed CBI to investigate about the alleged rape of 2 nuns in UP assaulting several other nuns and decamping with 1.1. lakhs in cash.

11. Delhi Domestic Working Women's Forum V. Union of India 1995(1) SCC 14 - The Supreme Court directed the National Commission for Women's Act, 1990 to evolve the scheme to wipe out the tears of unfortunate victims.

12. J.S.N. Chowduary V. Government of AO 1998(4) ALD 473 - In this PIL diversion of Tirupathi Thirumala Devasthanam funds for water supply to Tirumala was questioned that they are for secular purposes and diversion of funds for such secular purposes is impermissible. The court held that the proposed schemes are very much for the benefit of the pilgrims, devotee or worshippers of Lord Venkateswara and hence such diversion cannot be said to be bad in law.

ASSESSMENT:

Lord Diplock in IRC V. Federation of Self Employed (1981) 2 All.ER 93 rightly held that the higher courts in India have come to recognize that the standing requirement should not be barriers to justice. The liberalization of rule relating to standing has made possible the veritable revolution that had occurred in Environmental law and the law of consumer protection. The observation is correct. This observation is also applicable to PIL. It is thus absolutely clear that the whole purpose and object of PIL and liberalization of traditional rules relating to standing is to render socio-economic justice to the poor and weaker sections. PIL has been used for various types of relief for undertrial prisoners in jail, amelioration of the conditions of detention in protective homes for women, for medical check-up of remand home inmates, prohibition of traffic in women and relief for their victims, for the release of bonded labor, enforcement of other labor laws etc.,

The assessment on PIL may be done in two aspects. One is the procedural aspect and the other remedies available in various field. First the assessment is made in procedural aspect. The PIL is the innovative strategy of the Supreme Court. Since PIL is gaining momentum the Courts are very careful in procedural aspect of conducting PILs. One among the procedure, which lists in the top, is locus standii. The perusal of various PILs shows that the courts are very strict in respect of locus standii so as to filter vexatious PILs wasting the time of the Honorable Courts.

In respect of locus standii the following are the points ordered by the courts to take care in filing a PIL:

- PIL being pro bono publico should not smack of any ulterior motive as no person can be permitted to achieve any person gain or ulterior purposes only;

- Unincorporated associations or unregistered association cannot have locus standii to file PIL;

- The identity of the petitioner should be disclosed;

- The association filing PIL should have sufficient strength so as to come in the category of a large sect of public; members should be identifiable; individual member must not be capable of filing a writ petition; that the entire body of members must authorize the association to protect their legal right; the association must have its own constitution; they must be authority to file a PIL on behalf of all the members;

- Unless there is a public purpose the PIL will not be entertained;

- A PIL by a person on behalf of another person who is not at all willing to challenge.

Further in ascertaining the petition for PIL the court exerts cautiousness so that it might not be abused. There is a grave danger in such practice and the court must be vigilant against the abuses of its process.

- In respect of PIL even a single letter will be treated as PIL. In this regard the court suggested that all letters must be addr4essed to the entire court and not to a particular judge. It should be entertained only after proper verification of materials supplied by the petitioner;

- A vexatious petition under the color of PIL brought before the court for vindicating any personal grievance, deserves rejection at the threshold;

- The petitioner must inspire the confidence of the court and must be above suspicion;

- The PIL must not be invoked further personal cause of enmity;

- PIL should not be allowed to act as vehicle of harassment;

As already stated in respect of PIL the court has deviated itself from the standing rules. One example is the locus standii subject to restrictions. The others are as follows:

- The traditional concept is if there is an alternate remedy the writ is not maintainable. Alternative remedy is not a bar to maintain a writ under PIL on the facts and circumstances of the case;

- Contempt proceedings by way of PIL on the same footing as other legal proceedings of the court;

- The principle of res judicata not strictly applicable in respect of PILs;

- The court is also liberal in respect of limitation.

Besides the court is very strict that civil suits in the name of PILs is not allowed.

Withdrawal of PIL cannot be at the sweet will of the petitioner.

CRITICISM:

There are criticisms against the PIL.

The first criticism is the PIL is in the nature of adversary litigation against the state.

The answer to the criticism is well opposed by the Supreme Court in the S.P. Gupta and others V. UOI and others AIR 1982 SC 149 as "PIL 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"

The second criticism is accepting a letter as a PIL would create arrears of cases and therefore they should not be encouraged.

For this criticism the court declared - No State had the right to tell its citizens that because a large number of cases of the rich are pending in our court we will not help 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.

The third criticism is that the court has no capacity to enforce its orders and in many cases the conditions have not changed.

Bhagwati J. replied to this criticism pointed out the Art. 144 which provides that all authorities civil and judicial in the territory of India shall act in aid of the Supreme Court. If any of these state authorities fail to carry out the orders of the court the court can punish them for the contempt of the court.

The fourth criticism is that interference by the courts through the PIL in the sphere of executive and legislature is not justified as is likely to cause conflict between the three organs of the Government.

For this criticism the Supreme Court in AIR 1985 SC 910 replied as PIL is a weapon which is used with care and circumspection and the judiciary has to be extremely careful to see that under the guise of redressing a public grievance it does not encroach upon the sphere reserved by the Constitution to Executive and legislative.

GENERAL ASSESSMENT:

Review has been made in six fields in which the role of PIL is commendable. The said is not exhaustive. They are selective and illustrative. As such it is opt to have general assessment in regard to the PIL.

1. The PIL is the innovative strategy of the Supreme Court and it has added a new dimension to the nature of judicial process.

2. The origin and the growth of PIL would show its efficacy in the matter of enforcing the right to a speedy trial

3. Constitutional courts in India, by way of PIL gave new and liberal dimension to the law of standing and made access courts easy with a view to bring the law into the service of the poor and oppressed.

4. The Constitutional courts do not interfere with the policy matters of the government of Central, State, local authority etc., thus not interfering with the executive functions.

5. The courts are firm in its objective that the State in exercising its power whether it is legislature or the executive or any other authority should be within the constitutional limitations and if any practice is adopted by executive which is in flagrant and systematic violation of the Constitution then remedy is open to the aggrieved person.

6. In the executive field the role of PIL is excellent. Through PIL only Hawala scam, medicine scam, uria scam etc., have come to light. The court imposed heavy fine on the ministers who did the wrong to the exchequer to meet out the loss. Even Chief Minister has been arrested for misappropriate of fund.

7. The inhuman and horrible condition of prisons and prisoners were brought to the notice of the courts and the courts reacted very well and gave remedy by way of giving suitable quantum of compensation to the victims for their experience, torture, custodial violence etc., The custodial death is viewed seriously by the court and the state is made responsible for such lapses.

8. The court highly condemned using of third degree methods by police in case of criminals and also regulates the procedure for handcuffing of accused/convict who are also having the fundamental rights subject to some restrictions.

9. The Courts are also emphasized the speedy trial in criminal cases.

10. Most of the cases in PIL are where the Government had acted in violation of the rights of the people or had not acted when it should have. The Courts directed the State to implement the laws and regarding the wrong action or inaction issue suitable directions.

11. In case of violation of fundamental rights the court is not showing mercy to the concept of sovereign immunity.

12. In regard to environment the role of PIL is very great. It gives preference to the fundamental rights rather than the development of economy. To maintain ecology and environment the court directed to close the factories, which did not comply with the requirements of the environmental protection. At the same time the court made schemes for that business companies to relocate the business without affecting the environment.

13. The PIL itself paves the way for the formation of Green bench in each High Court to deal with the environmental cases.

14. The Courts showed great concern over the working women and also takes care of the sexual harassment of women employees at the work spot. The Supreme Court itself formulated a scheme at all levels including in the working place so that sexual harassment shall not occur; even if it is occurred the quick remedy to the employee and the stern action against the accused.

15. By means of PIL child labor is reduced to great extent. It could identify the areas of exploitation of child labor and directed the government to take measures for the education of the children.

16. It is pertinent to note that PIL caused the release of bonded labors in many, which is shocking not only to the court but also to the public. The court rightly acted in directing the states to discharge the bondage and to rehabilitate them.

17. The exploitation of laborers is curtailed and PIL stressed for the payment of minimum wages.

18. The court, through PIL directed the authorities to implement the existing laws that have to be followed by the executive especially in respect of labor and advised the government to act as a model employer.

19. The PIL, not only takes care of implementing the domestic laws but also takes care of the implementation of the covenants/agreements made with the international organizations. The best example is the amendment in patent laws in conformity with the TRIPs agreement.

FINDINGS:

1. It is of no doubt that the system of Public Interest Litigation is a new process in judiciary which is most useful to the poorest and oppressed who have no means to approach the court in money and lacked access to courts, administrative agencies and other legal forums in which basic policy decision affecting their interests are made.

2. The role of court through PIL is supervisory on the functions of the executive in exercising their power that they are not going beyond the Constitution; if so the court put a checkmate and cause rectification.

SUGGESTIONS:

Since the PIL is the beneficial one some suggestions for its improvement which raised in my mind are put forth for consideration of judicial wing. His Lordship, Krishna Iyer J correctly said - Law is a social auditor and this audit function can be put into action when some one with real public interest ignites the jurisdiction.

1. PIL is not a codified one. It is the innovative strategy of Supreme Court. In the absence of any code the rule of Supreme Court becomes law. By this way the process of PIL becomes part and parcel of law. Since the process of PIL is familiar with the people and the number of PILs are increasing day by day, in view of making the PILs successful for the benefit of the society, codification is required. If it is not possible, the supreme Court like in other cases, it may draw a detailed guideline in the matter of PIL by which the High Courts may follow the suit. The SC drew detailed guidelines to prevent sexual harassment in the working places caused to the women employees. Considering the importance of PIL, the executive may pass an enactment or the Supreme Court by virtue of its experience can draw a detailed guideline, which will be followed, uniformly throughout the country.

2. Hon'ble Umesh Chandra Banerjee C.J., and Hon'ble Justice P. Rama Krishna Raju observed - PIL constitutes in the present day judicial system a significant step. While it is true that this new concept has provided the law courts with much greater responsibility for rendering the concept of justice available to the disadvantaged sections of the society but this new phenomenon has over loaded the law courts rendering the ordinary litigants to wait for a further period of time.

The observations noted above by the Hon'ble judges are correct. To avoid this it is suggested that separate bench may be created in each High Court to deal with PILs exclusively as done in the case of environment by creating Green Bench in each

High Court to deal with the environment cases exclusively. This step will reduce the delay and the public at the earliest will get the justice.

3. It is suggested that in respect of waival of the rule of locus standii it is the court to permit the PIL after its satisfaction that there is a prima facie case and that the proceedings are in the competent hands of a person who is genuinely concerned in public interest and not is moved by extraneous considerations. To do this function a separate authority may be appointed as done in the case of filing appeal to Supreme Court through Special Leave Petition and the inquiry of unfair trade practice by MRTP Commission after ascertaining by the Director General, Investigations who makes an inquiry on the complaint and forward the complaint to the MRTP Commission if there is a prima facie case in the complaint. This may filter the vexatious complaints at the initial stage itself.

4. To avoid the numerous petitions by means of PIL, the limitation may be fixed either by way of making provision in the Act exclusively passed for PIL or Supreme Court may confirm it in its judgement.

CONCLUSION:

PIL is a highly effective weapon in the armory of the law for reaching social justice to the common law. There is a bounden duty on the litigants to PIL as well as the court disposing PILs. The liberalization of rule regarding standing can never be construed as a licence granted to litigants to invoke the extraordinary jurisdiction of the court to raise any dispute of their choice. They must come with clean hands and in clear terms stating the details about their concern and commitment in the subject matter of the debate prepared to be espoused and clearly indicate their interest. The Court has duty to insist the public interest litigant to satisfy that PIL is free from political motivation, lest the court itself may be caught up in the vortex.

REFERENCE:

1. The Constitution of India P.M. Bakshi - Universal Law Publishing Com. Pvt. Ltd.,

2. The American Constitution Kelly, Harrison, Belx - W.W. Norton & Company, New York;

1.      All India Report journals

2.      Bare Act of Consumer Protection Act, 1986

3.      Andhra Law Times Journal

4.      Madras Law journals

5.      Chartered Secretary - October 2003

6.      Kerala Jaw Journal

7.      Rajasthan Law Journals

8.      Orissa Law Journals.