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--------------- Print Magazine --------------
  May 2016
  April 2016
Legal Article


Purnima Arora, Advocate*

Till 1960s and seventies, the concept of litigation in India was still in its rudimentary form and was seen as a private pursuit for the vindication of private vested interests. Litigation in those days consisted mainly of some action initiated and continued by certain individuals, usually addressing their own grievances. The bulk of citizens were unaware of their legal rights and much less in a position to assert them. As a result, there was hardly any link between the rights guaranteed by the Constitution of India and the laws made by the Legislature on the one hand and the vast majority of illiterate citizens on the other. However, this scenario gradually changed when the post emergency Supreme Court tackled the problem of access to justice by people through radical changes and alterations made in the requirements of locus standi and of the party aggrieved.

Public Interest Litigation (PIL) as it has developed in recent years marks a significant departure from traditional judicial proceedings. The court is now seen as an institution not only reaching out to provide relief to citizens but even venturing into formulation of policy which the State must follow.

Justice P N Bhagwati in S P Gupta v. Union of India1 has stated: “Today a vast resolution is taking place in the judicial process, the theatre of law is fast changing and the problems of the poor are coming to the forefront. The Court has to innovate new methods and devise new strategies for the purpose of providing access to justice to large masses of people who are denied their basic human rights and to whom freedom and liberty have no meaning. The only way in which this can be done is by entertaining writ petitions and even letters from public spirited individuals seeking judicial redress for the benefit of persons who have suffered a legal wrong or a legal injury or whose constitutional or legal rights have been violated, but who by reason of their poverty or socially or economically disadvantaged position are unable to approach the court for relief.”

PIL has been an invaluable innovative judicial remedy. It has translated the rhetoric of fundamental rights into living reality for the exploited and downtrodden humanity. Under-trial prisoners languishing in jails for inordinately long periods, inmates of asylums and care-homes living in sub-human conditions, children working in hazardous occupations and similar disadvantaged sections have got lots of benefits.

In a letter by Bandhua Mukti Morcha alleging that a large number of migrant workers were working as bonded labourers in stone quarries of Haryana, despite the enactment of the Bonded Labour System (Abolition) Act, 1976, the Supreme Court appointed a commission to study the facts and report to the Court.2

A letter was sent by one Nilabati Behera to the Supreme Court complaining that her son was taken by the police to examine him in relation to a theft case but on the next day, he was found dead on the railway tracks with multiple injuries. The Court treated the letter as a writ petition and appointed a commission and after going through the evidence, came to the conclusion that the youth was done to death by the police.3

A PIL was filed before the Supreme Court by certain social activists and NGOs with the aim of focusing attention towards societal aberration, and assisting the finding of suitable methods for realization of the true concept of ‘gender equality’ and to prevent sexual harassment of working women in all work places through judicial process, to fill the vacuum in existing legislation. Taking note of the fact that the present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in work places and that enactment of such legislation will take considerable time, the Supreme Court laid out certain guidelines to ensure the prevention of sexual harassment of women.4

There are several other instances where the forum of PIL has been used to provide succour to the downtrodden and underprivileged sections of the society.

However, the development of PIL in the country has uncovered its own pitfalls and drawbacks. The genuine causes and cases of public interest have, in fact, receded to the background and irresponsible PIL activists all over the country have started to play a major but not a constructive role in the arena of litigation. It is being seen that the forum of PIL is being misused and PIL is turning towards either Private Interest Litigation or Publicity Interest Litigation. It has been observed that PILs are being filed either to settle a personal score particularly in service matters or to seek cheap publicity. The Supreme Court has opined that the Court cannot be a silent and mute spectator to it and helplessly watch the erosion of the institution of PIL.

In Holicow Pictures Pvt. Ltd. v. Prem Chandra Mishra,5 the Supreme Court held that when there is material in the PIL to show that a petition styled as a PIL is nothing but a camouflage to foster personal disputes, the said petition is to be thrown out. The Supreme Court held: “Public Interest Litigation which has now come to occupy an important field in the administration of law should not be “publicity interest litigation” or “private interest litigation” or “politics interest litigation” or the latest trend “paise income litigation”. If not properly regulated and abuse averted, it becomes also a tool in unscrupulous hands to release vendetta and wreak vengeance, as well…Public Interest Litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking.”

Of late, many of the PIL activists in the country have found the PIL as a handy tool of harassment since frivolous cases can be filed without investment of heavy court fees as required in private civil litigation and deals can then be negotiated with the victims of stay orders obtained in the so-called PILs.

The framers of Indian Constitution did not incorporate a strict doctrine of separation of powers but envisaged a system of checks and balances. Policy making and its implementation are conventionally regarded as the exclusive domain of the Executive and the Legislature. The power of judicial review cannot be used by the court to usurp the powers of other organs. PIL, in practice, however, tends to narrow the divide between the roles of the various organs of the government and is, therefore, regarded controversial in this regard.

In order to minimize the misuse of the forum of PIL, which was evolved by the judiciary to protect the interests of the underprivileged, the Supreme Court has constituted a Cell to scrutinize the letters or petitions received so as to see whether they actually qualify as PILs or not. The Cell bases its conclusion on the guidelines provided to it which are: (1) Bonded labour matters; (2) Neglected children; (3) Non-payment of minimum wages to workers and exploitation of casual workers and complaints of violation of labour laws (except in individual cases); (4) Petitions from jails complaining of harassment, for premature release and seeking release after having completed 14 years in jail, death in jail, release on personal bond, speedy trial as a right; (5) Petitions against police for refusing to register a case, harassment by police and death in police custody; (6) Petitions against atrocities on women, in particular harassment of bride, bride burning, rape, murder, kidnapping, etc.; (7) Petitions complaining of harassment or torture of villagers by co-villagers or by police from persons belonging to Scheduled Castes and Scheduled Tribes and economically backward classes; (8) Petitions pertaining to environmental pollution, disturbance of ecological balance, drugs, food adulteration, maintenance of heritage and culture, antiques, forest and wildlife and other matters of public importance; (9) Petitions from riot-victims; (10) Family pension.

In Dr. B Singh v. Union of India,6 the Supreme Court held that in admitting PILs the Court has to take into account the two important points, viz.(i) Nobody should indulge in wild and reckless allegation besmirching the character of others; and (ii) Avoidance of public mischief and to avoid mischievous petitions filed for oblique motives, justifiable executive actions.

If not properly and strictly regulated, PIL becomes a tool in unscrupulous hands to release vendetta and wreak vengeance. Therefore, the Courts should be extremely careful to see that under the guise of redressing a public grievance, its forum was not being misused.

  1. AIR 1982 SC 149.
  2. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.
  3. Nilabati Behera v. State of Orissa, AIR 1993 SC 1960.
  4. Vishakha v. State of Rajasthan, AIR 1997 SC 3011.
  5. 2007 (14) SCALE 10.
  6. AIR 2004 SC 1923.
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