Public Interest Litigation With Special Reference To Judicial Activism (Project)

Public Interest
Litigation with
Special Reference
to Judicial Activism
Clinical -1 Project Report
Sahil Ahmad, 09-B.A.LL.B-54,

Faculty of Law, Jamia Millia Islamia, New Delhi.
Public Interest Litigation with Special Reference to Judicial Activism
Fundamental Rights
and its
enforcement
through Judicial
Review power of
the Courts has
coincided with the
Concept of Public
Interest Litigation.
Individuals who are
affected by the
State action which
are not in
conformity with the
mandate and limits
of law have the
entitlement to
approach the
Supreme Court or
High Court for
appropriate
redressals. This
right correlates
with the judicial
review authority of
the courts which is
an entrenched
feature of the
Constitution. In
such case the latter
is not the source of
the former, but
friends in the
CONTENT
Acknowledgement
Page no. 03
Introduction
Page no. 04
Practice and Procedure
no. 12
Page
Reach and Remedy under PIL

no. 19
Page
PIL and Judicial Activism

no. 26
Page
Judicial Activism not PIL per se

no. 31
Page
Merits and Demerits of PIL

no. 33
Page
Steps Necessary
Page no. 35
Balancing a double edged sword
Page no. 36
Conclusion
Page no. 40
Bibliography
Page no. 45
ACKNOWLEDGEMENT
2
The project on this topic of Interpretation of Statutes was a challenging task. The
complication involved in the subject is of immense magnitude. Interpretation of Statutes
being the sole of the legal system helps in the application of Law in factual situations is vital
in the making of a good Lawyer. Hence doing a project of such magnitude requires guidance
by the subject teacher. The enlightening experience provided by my teacher Dr. Iqbal
Hussain proved to be a continues guiding source in this endeavor. I owe him sincere
gratitude, for his untiring and constant academic and intellectual support. His inspiration
tickles down every nerve in our system.
I would also like to take due cognizance of the efforts of my classmates who support me and
always help me in every way they can.
PUBLIC INTEREST LITIGATION

3
INTRODUCTION
According to Blacks Law Dictionary, "Public Interest Litigation means a legal action
initiated in a court of law for the enforcement of public interest or general interest in which
the public or class of the community have pecuniary interest or some interest by which their
legal
rights
or
liabilities
are
affected."
Public Interest Litigation's explicit purpose is to alienate the suffering off all those who have
borne the brunt of insensitive treatment at the hands of fellow human being. Transparency in
public life & fair judicial action are the right answer to check increasing menace of violation
of legal rights. Traditional rule was that the right to move the Supreme Court is only available
to those whose fundamental rights are infringed.
The words `Public Interest' mean "the common well being also public welfare1 and the word
'Litigation' means "a legal action including all proceedings therein, initiated in a court of law
with the purpose of enforcing a right or seeking a remedy."2 Thus, the expression `Public
Interest Litigation' means "some litigations conducted for the benefit of public or for removal
of some public grievance."
The phrase public law litigation was first prominently used by American academic Abram
Chayes to describe the practice of lawyers or public spirited individuals who seek to
precipitate social change through court-ordered decrees that reform legal rules, enforce
existing laws and articulate public norms.3
1 Oxford English Dictionary 2nd Edn. Vol.Xll

2 Supra1
3 See: Abram Chaves, The role of the judge in Public Law litigation, 89 Harvard
Law Review 1281 (May 1976)
4
During the eighties, the Supreme Court of India introduced the concept of Public Interest
Litigation (PIL). The apex court gave all individuals in the country and the newly formed
consumer groups or social action groups, an easier access to the law, and introduced in their
work a broad public interest perspective.
Public Interest Litigation, popularly known as PIL, can be broadly defined as litigation in the
interest of that nebulous entry: the public in general. Prior to the 1980s, only the aggrieved
party could knock the doors of justice personally and seek remedy for its grievance and any
other person, who was not personally affected, could not approach the judiciary as a proxy
for the victim or the aggrieved party. In other words, only the affected parties had the locus
standi (standing required in law) to file a case and pursue the litigation and the non-affected
persons had no locus standi to do so. And as a result, there was hardly any link between the
rights guaranteed by the Constitution of the Indian Union and the laws made by legislature,
on one hand and the vast majority of illiterate citizens, on the other.
However, this scenario gradually changed when the past emergency Supreme Court tackled
the problem of 'access to justice' by people through the radical changes and alterations made
in the requirements of locus standi and of party aggrieved. The splendid efforts of Justice
P.N. Bhagwati and Justice V.R. Krishna Iyer were instrumental in this juristic revolution of
the eighties to convert the apex court of India into a Supreme Court for all Indians. The seeds
of the concept of public interest litigation were initially sown in India by Krishna Iyer J., in
1976 in Mumbai Kamagar Sabha vs. Abdul Thai4 and was initiated in Akhil bharatiya Sosail
Karnuuhari Sangh Raihvaiy vs, Union of India, wherein an unregistered association of
workers was permitted to institute a writ petition under Art.32 of the Constitution for the
4 AIR 1976 SC 1455; 1976 (3) SCC 832

5
readressal of common grievances. Krishna lyer J., enunciated the reasons for liberalization of
the rule of Locus Standi in Fertilizer Corporation Kamgar vs. Union of India5.
One of the earliest cases of public interest litigation was that reported as Hussainara Khatoon
(I) v. State of Bihar6. This case was concerned with a series of articles published in a
prominent newspaper - the Indian Express which exposed the plight of undertrial prisoners in
the state of Bihar. A writ petition was filed by an advocate drawing the Courts attention to
the deplorable plight of these prisoners. Many of them had been in jail for longer periods than
the maximum permissible sentences for the offences they had been charged with. The
Supreme Court accepted the locus standi of the advocate to maintain the writ petition.
Thereafter, a series of cases followed in which the Court gave directions.
Public interest litigation acquired a new dimension namely that of epistolary jurisdiction
with the decision in the case of Sunil Batra v. Delhi Administration7, It was initiated by a
letter that was written by a prisoner lodged in jail to a Judge of the Supreme Court. The
prisoner complained of a brutal assault committed by a Head Warder on another prisoner. The
Court treated that letter as a writ petition, and, while issuing various directions, opined that:
technicalities and legal niceties are no impediment to the court entertaining even an
informal communication as a proceeding for habeas corpus if the basic facts are found.
In Municipal Council, Ratlam v. Vardichand8, the Court recognized the locus standi of a
group of citizens who sought directions against the local Municipal Council for removal of
5 AIR 1981 SC 149
6 (1980) 1 SCC 81
7 (1978) 4 SCC 494
8 (1980) 4 SCC 162
6
open drains that caused stench as well as diseases. The Court, recognizing the right of the
group of citizens, asserted that if the:
"centre of gravity of justice is to shift as indeed the Preamble to the Constitution mandates,
from the traditional individualism of locus standi to the community orientation of public
interest litigation, the court must consider the issues as there is need to focus on the ordinary
men."
In the Judges Transfer Case9: The Court held that Public Interest Litigation can be filed by
any member of public having sufficient interest for public injury arising from violation of
legal rights so as to get judicial redress. This is absolutely necessary for maintaining Rule of
law and accelerating the balance between law and justice. It is a settled law that when a
person approaches the court of equity in exercise of extraordinary jurisdiction, he should
approach the court not only with clean hands but with clean mind, heart and with clean
objectives.
In Peoples Union for Democratic Rights v. Union of India10 the court permited Public Interest
Litigation or Social Interest Litigation at the instance of Public spirited citizens" for the
enforcement of constitutional & legal rights of any person or group of persons who because
of their socially or economically disadvantaged position are unable to approach court for
relief. Public interest litigation is a part of the process of participate justice and standing in
civil litigation of that pattern must have liberal reception at the judicial door steps.
9 AIR 1982, SC 149

10 A.I.R.. 1982, S C 1473
7
In Shiram Food & Fertilizer case11 the Supreme Court through Public Interest Litigation
directed the Co. Manufacturing hazardous & lethal chemical and gases posing danger to life
and health of workmen & to take all necessary safety measures before re-opening the plant.
In the case of M.C Mehta V. Union of India12 - In Public Interest Litigation brought against
Ganga water pollution so as to prevent any further pollution of Ganga water. Supreme Court
held that petitioner although not a riparian owner is entitled to move the court for the
enforcement of statutory provisions, as he is the person interested in protecting the lives of
the people who make use of Ganga water.
In the case of Council For Environment Legal Action V. Union Of India13 it was held that
Public Interest Litigation filed by registered voluntary organisation regarding economic
degradation in coastal area. Supreme Court issued appropriate orders and directions for
enforcing the laws to protect ecology. A report entitled "Treat Prisoners Equally HC"
published in THE TRIBUNE, Aug 23 Punjab & Haryana High Court quashed the provisions
of jail manual dividing prisoners into A, B & C classes after holding that there cannot be any
classification of convicts on the basis of their social status, education or habit of living. This
is a remarkable ruling given by High Court by declaring 576-A paragraph of the manual to be
"Unconstitutional".
According to Justice Bhagwati, "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
11 (1986) 2 SCC 176

12 (1988) 1 SCC 471
13 (1996)5 SCC 281
8
social and economic justice which is the significant tune of our Constitution. The government
and its officers must welcome PIL because it would provide them an accession to examine
whether the poor and the downtrodden are getting their social and entitlements or whether
they are continuing to remain victims of deception and exploitation at the hands of strong
and powerful sections of the community... when the court entertains PIL, it does not do so in
a cavilling spirit or in a confrontational mood or with a view to tilting at executive authority
or seeking to usurp it, but its attempt is only to ensure observance of social and economic
rescue programmes, legislative as well as executive, framed for the benefit of the have-nots
and the handicapped and to protect them against violation of their basic human rights, which
is also the constitutional obligation of the executive. The court is thus merely assisting in the
realization of the constitutional objective,"
As a result, any citizen of India or any consumer group or social action group can approach
the apex court of the country, seeking legal remedies in all cases, where the interests of
general public or a section of public are at stake. Further, public interest cases could be filed
without incurring heavy court fees, as required in private civil litigations. In Public Interest
Litigation, vigilant citizens of the country can find an inexpensive legal remedy, because
there is only a nominal fixed court fee involved in this. further, through the so-called PILs,
the litigants can focus attention on and achieve results pertaining to larger public issues,
especially in the fields of human rights, consumer welfare and environment.
However, the development of PIL has also uncovered its pitfalls and drawbacks. As a result,
the apex court itself has been compelled to lay down certain guidelines to govern the
management and disposal of the PILs. the abuse of PIL is also increasing along with its
extended and multifaceted use. Of late, many of PIL activists in the country have found the
PIL as a handy tool of harassment, since frivolous cases could be filed without investment of
heavy court fees, and deals could then be negotiated with the victims of stay orders obtained
in the so-called PILs.
Just as a weapon, meant for defence can be used equally effectively for offence, the lowering
of the locus standi requirement has permitted privately motivated interests to pose as public
interests. The abuse of PIL has become more rampant than its use and genuine causes either
receded to the background or began to be viewed with the suspicion generated by spurious
causes mooted by privately motivated interests in the disguise of the so-called public
interests. With the view to regulating the abuse of PIL, the apex court itself has framed
certain guidelines (to govern the management and disposal of the PILs). The court must be
careful to see that the petitioner, who approaches it, is acting bona fide and not for personal
gains, private profit or political or other oblique considerations. The court should not allow its
process to be abused by politicians or others to delay legitimate administrative action or to
gain political objectives. Political pressure groups, who could not achieve their aims thought
the administrative process or political process, may try to use the courts (through the means
of PILs) to further their closely vested aims and interests.
There may be cases where the PIL may affect the right of persons not before the court, and
therefore in shaping the relief the court must invariably take into account its impact on those
interests and the court must exercise greatest caution and adopt procedure ensuring sufficient
notice to all interests likely to be affected. At present, the court can treat a letter as a write
petition and take action upon it. But, it is not every letter which may be treated as a writ
petition by the court. The court would be justified in treating the letter as a writ petition only
in the following cases: It is only where the letter is addressed by an aggrieved person or a
public spirited individual or a social action group for enforcement of the constitutional or the
legal rights of a person, in custody or of a class or group of persons who, by reason of
10
poverty, disability or socially or economically disadvantageous position, find it difficult to

approach the court for redress.
Even though it is very much essential to curb the misuse and abuse of PIL, any move by the
government to regulate the PIL results in widespread protests from those who are not aware
of its abuse and equate any form of regulation with erosion of their fundamental rights, Under
these circumstances, the Supreme Court of India is required to step in by incorporating safeguards provided by the Civil Procedure Code in matters of stay orders / injunctions in the
arena of PIL. In the landmark case of Raunaw International Limited v/s IVR Construction
Ltd14., Justice Manohar rightly enunciated that "when a stay order is obtained at the instance
of a private party or even at the instance of a body litigating in public interest, any interim
order which stops the project from proceeding further must provide for the reimbursement of
costs to the public, in case ultimately the litigation started by such an individual or body
fails", In other words, the public must be compensated both for the delay in the
implementation of the project and the cost escalation resulting from such delay.
Public interest litigants, all over the country, have not taken very kindly to such court
decisions. They do fear that this will sound the death-knell of the 'people-friendly' concept of
PIL. However, bona fide litigants of India have nothing to fear. only those PIL activists, who
prefer to file frivolous complaints will have to pay compensation to the opposite parties. it is
actually a welcome move because no one in the country can deny that even PIL activists
should be responsible and accountable. it is also notable here that even the Consumers
Protection Act, 1986 has been amended to provide compensation to opposite parties in cases
of frivolous complaints made by the consumers. In any way, PIL now require a complete
rethink and restructuring. Over-use and abuse of the PILs can only make them stale and
14 AIR 1999 SC 393
11
ineffectively. Since it is an extraordinary remedy available at a cheaper cost to all citizens of

the country, it ought not be used by all litigants as a substitute for ordinary ones or as a means
to file frivolous complaints.
All said and done, it may be concluded that Public Interest Litigation (PIL) has been an
invaluable innovative judicial remedy It has translated the rhetoric of fundamental rights into
living reality for at least some segments of our exploited and downtrodden humanity. Under
trial prisoners languishing in jails for inordinately long periods, inmates of asylums and carehomes living in sub-human conditions, children working in hazardous occupations and
similar disadvantaged sections.
PRACTICE AND PROCEDURE

The access to justice foundation of Public Interest Litigation and the procedure and practice
of the courts in relation to such litigation is a unique contribution of the Indian courts to Rule
of Law and entrenchment of certain facets of Constitutional law. The relaxation of methods
for accessing the courts, or of the standing of persons to represent public interest concerns,
the authority of the courts to determine useful procedures for effective resolution of public
interest concerns and devising fruitful remedial processes, continuing engagement in the issue
resolution process, orders or directions all constitute an integral law and institutional
structure. The instrumentalities of procedure and practice of the Courts have been articulated
and defined as aides to the authority of the Courts in the Constitutional scheme, to deal with
State action, determine and declare on its limits and legality; the authority of Courts to ensure
that fundamental freedoms as read and interpreted by them are protected; and the authority of
Courts to scroll the Directive Principles, [Fundamental in the governance of the Country] into
12
fundamental freedoms. The statement of law herein captures the strides made so far, while
not undermining the constitutional limitations to be vigilantly observed by Courts. This
chapter digests the departures made from ordinary methods of accessing Courts and the
assumption of authority to deal with Public Interest presentations through inexpensive and
appropriate means.
In Public Interest Litigation, the nature of proceedings itself does not exactly fit into the
accepted common-law framework of adversarial litigation. The courtroom dynamics are
substantially different from ordinary civil or criminal appeals. While an adversarial
environment may prevail in cases where actions are brought to highlight administrative
apathy or the governments condonation of abusive practices, in most public interest-related
litigation, the judges take on a far more active role in terms of posing questions to the parties
as well as exploring solutions. Especially in actions seeking directions for ensuring
governmental accountability or environmental protection, the orientation of the proceedings
is usually more akin to collective problem-solving rather than an acrimonious contest
between the counsels. Since these matters are filed straightaway at the level of the Supreme
Court or the High Court, the parties do not have a meaningful opportunity to present evidence
on record before the start of the court proceeding. To overcome this problem, our Courts have
developed the practice of appointing fact-finding commissions on a case-by-case basis
which are deputed to inquire into the subject-matter of the case and report back to the Court.
These commissions usually consist of experts in the concerned fields or practicing lawyers. In
matters involving complex legal considerations, the Courts also seek the services of senior
counsels by appointing them as amicus curiae on a case-by-case basis.15 For purposes of
constitutional competence, these actions are characterized as those coming under the writ
15 See Ashok H. Desai & S. Muralidhar, Public Interest Litigation: Potential and
Problems in B.N. Kirpal et. al. (eds.), Supreme but not Infallible (OUP, 2000) 159192, at p. 164-167
13
jurisdiction of the Supreme Court of India under Article 32 of our Constitution and the
various High Courts, under Article 226. The traditional extent of writ jurisdiction was of
course a colonial inheritance from the British-era and the remedies that could be invoked
were those of habeas corpus, quo warranto, mandamus, prohibition and certiorari. However,
the Indian Courts have pushed the boundaries of constitutional remedies by evolving the
concept of a continuing mandamus which involves the passing of regular directions and the
monitoring of their implementation by executive agencies. In addition to designing remedies
for ensuring that their orders are complied with, the Courts have also resorted to private law
remedies such as injunctions and stay orders in Public Interest Litigation (PIL) matters. The
Supreme Court of India has been able to shape appropriate remedies for a variety of
situations on account of the wide discretionary powers for granting constitutional remedies
that have been conferred on it as per the language of Article 32 of the Constitution.
Furthermore, under Article 141 of the Constitution of India, the Supreme Courts rulings are
considered to be the law of the land and become binding precedents for all courts and
tribunals in the countrys legal system. Hence, the Supreme Courts decisions in Public
Interest Litigation (PIL) matters have progressively shaped a unique jurisprudence that gives
due weightage to the interests of the underprivileged and backward sections in society. A
significant consequence of this is that creative remedies designed for particular fact-situations
come to be widely reported and are referred to by Courts
Modes and methods to move the court:

Section 401. [a] Proceedings for enforcement of Rights, Fundamental or legal, are
prosecuted under Articles 32 or 226, seeking annulment of infringing State action
14
by way of issuance of writs or directions. Holders of such rights which are shown to
be infringed have the competence to pursue such proceedings.
[b] Such writs or directions can also be sought to resolve issues of public concern
or interest infringed by State action, which can be said to be comprehended by the
expression appropriate proceedings under Article 32, or writs in the nature of
under Article 226/
[c] A petition so filed for such reliefs by any person acting on behalf of a defined
class of persons or public injury generally can be treated as a petition in public
interest, if the petition covers elements which the Court regards sufficient and
essential for exercising its jurisdiction and if the issues can be fruitfully resolved,
through the judicial process.
Public Injury
Legal concepts and their fitting application are instruments of intelligence in the hands of
courts.16 The endeavour to dilute the public law private law divide, is of relevance to the
role and reach of the courts in dealing with issues of concern beyond the individual. 17 Private
law realizes its fullness through processes of enforcement by which persons in breach of
private law principles (contract, tort, family, fiduciary relationships and economic
16 The principle of absolute liability as dealt with in M.C. Mehta v. Union of India,
(1987) 1 SCC 395 : [1987] 1 SCR 819 : AIR 1987 SC 1086; Like Res ipsa
locquiter
17 The Public Trust doctrine Common Cause v. Union of India, (1996) 1 SCC 753
:AIR 1996 SC 929: 1996 (1) SCALE 32; The principle of inter-generational equity;
A.P. Pollution Control Board vs. M.V. Naidu, (1999) 2 SCC 718 : AIR 1999 SC 812.
15
relationships etc.) are enjoined to remedy the loss or injury caused by their conduct. 18 Even if
all human grievances or claims relate to loss or injury, damage or despair, public law pursues
the same remedial ends on certain principles relevant to governance and accountability, 19 in
order that exercise of public power is in promotion and not in frustration of rights and
entitlements available to all citizens and persons.20 Beyond these seeming resemblances there
is a common thread viz. that all law acts in aid of fulfillment of stipulated and agreed human
conduct, as facilitating, order, certainty, productivity and distribution of resources, peace and
welfare21 public and private law have mutually constitutive values, as private law can be
usefully strengthened or enriched by public law principles.22 The concept of Public injury
however transcends concerns of individuals and is identified with injuries or affectations
which have social or human life implications.
Withdrawal of petitions
18 The remedies of declaration injunction and specific performance through
grant of decrees and execution.
19 Principles of fairness reasonableness and execution right be heard, nondiscrimination, structuring discretion,proportionality, bias and malafides, abuse of power,
negligence in action, are grounds relevant to deal with exercise of legislative, executive
and statutory powers.
20 The importance attached to life and liberty demonstrated in Article 21 which

is not confined to citizens.
21 The solemnity of keeping promises raised to higher dimensions of estoppel;
The Arbitration law emphasizing manifold dimensions, and impact and relevance
of agreements; all laws relating to distribution of resources aimed towards Article
51A[J]- to strive towards excellence in all spheres of individual and collective
activity so that the nation constantly rises to higher levels of endeavour and
achievement.
22 The invocation and reading of fairness in Government contracts is one
example. This call constitutionality private law : See Sreelekha Vidyarthi v. State
of U.P., AIR 1991 SC 537 : (1991) 1 SCC 212.
16
Law grants to every suitor the liberty to withdraw legal proceedings set in motion in
circumstances deemed appropriate by her.23 This is founded on the principle that the
jurisdiction or the authority to adjudicate is premised on the need and desire of parties to
resolve their disputes through the process of Courts and Courts have no independent concern
to enter into or continue with the adjudicatory process. 24 The analogous principle is that death
of parties may bring to a close certain claims and contests.25 The suitor is the controller of the
proceedings.26 In Public Interest Litigation however, the issue or subject matter is seen as
autonomous and the applicant plays the role of the initiator and that of the friend of the
Court.27 The PIL petitioner is perceived by the Court as one who draws upon the judicial
scrutiny and resources to public injuries deserving of remedial measures and the petitioner
has no personal stake in the matter.28 It expects her/him to be alive to the high obligation to
the cause being espoused and to assist the Court accordingly. They are not the sole custodians
of the Court of the proceedings and cannot of their free will seek to abandon or withdraw the
23 See Vora H.D. v. State of Maharashtra, (1984) 2 SCC 337 : AIR 1984 SC 866 [petition
challenging an orderrequisition of property after 30 years. The impugned conduct a fraud
upon statute.]
24 As jurisdiction is a creature of statutes relevant to the nature and kind of

disputes to be resolved, concomitantly it is said parties cannot by consent confer
jurisdiction
25 Actio personolis moritar cum persona.
26 The Choices granted to decide on parties, reliefs, accord and settlements etc,
under the Code of Civil Procedure, 1980.
27 The social audit function of law which is set in motion is the autonomous element :
Fertilizer CorporationKamgar Union v. Union of India, (1981) 1 SCC 568: AIR 1981 SC 344
28 Withdrawal of proceedings are based on evaluation or perception of economic, or

other benefits,consequences, flowing to a person.- These considerations are absent in a
P.I.L
17
petition. The Court may take over the conduct of the matter if it feels that in the interests of
justice the issue concerned should be dealt with irrespective of the wishes of the petitioner. 29
Even if the petitioner desires to withdraw from the proceedings, the proceedings may still
continue.30 In granting permission to withdraw, the court would be guided solely by
considerations of public interest and abuse of the process of law. Permission will be denied
where the same question is repeatedly agitated.31
Section 403 :- The jurisdiction, under public interest litigation, may be exercised
by the Supreme Court and High Courts suo-moto to protect rights of an individual
or classes or sections of people and to ensure the Rule of Law :(i)
when no person has approached the court espousing the issue concerned,
(ii)
and
that the nature of the issue, and the person or persons whose rights or
interests stand affected deserve to be granted the protection of judicial
(iii)
authority.
Such suo-moto action may be based on information or news items available
in public media.
Suo-moto action, if understood as exercise of judicial authority with reference to a lis,

without due petitioning by an aggrieved party, is offensive to judicial independence, except
29 Sheela Barse v. Union of India, (1988) 4 SCC 226, 246; S.P. Anand Indore v.
H.D. Deve Fowda (1996) 6 SCC 734, 744.
30 Bandua Mukti Morcha v. Union of India, AIR 1984 SC 802; (1984) 3 SCC 161,
237
31 S.P. Anand, Indore v. H.D. Deve Gowda, (1996) 6 SCC 734, para 17; AIR 1979
SC 272.
18
where law and procedure permit.32 Suo-moto, exercise of power can be gathered from certain
statutes.33
The reservoir of their Constitutional power to engage in the task of enforcement of
Fundamental rights is not controlled by any limitations. 34 This facet is also integral to the
Independence of judiciary. The right to move the Supreme Court for enforcement of
fundamental rights being fundamental, the court has the duty to act as the custodian of
Fundamental rights.35 From this duty, a further intrinsic duty to act in protection of rights and
interests of classes of persons who may not contemplate action or act themselves towards
such protection can be posited. Such a duty can be described as the highest development or
evolution of the administration of justice.36 This evolution of process of justice has been
32 This would be so on the principle that all state action including adjudicating processes
must be predicated bylaw and must be fair, just and reasonable.
33 Provisions such as Section 216, Cr.P.C. (dealing with powers of the court to alter
charge); Section 397(empowering the High Courts or any Session Judge to exercise
powers of revision); Section 401 (dealing with
the High Courts power of revision); Section 482, Cr.P.C. 1973 (dealing with the inherent
power of High
Courts). See also Pratap v. State of U.P., AIR 1973 SC 786; Thakur v. Javeri, AIR 1973 SC
84; Delhi
Municipality v. Girdharilal, AIR 1981 SC 1169; Eknath v. State of Maharashtra, AIR 1977
SC 1177; Satab v.
State of Haryana, (1990) Cr.L.J. 1202.
34 Except the separation of powers and the deference to law making or

implementation process
35 Daryao v. State of U.P., [1962] 1 SCR 574 : AIR 1961 SC 1457; Prem Chand Garg v.
Excise Commissioner,1963 Supp [1] SCR 855 : AIR 1963 SC 996; Romesh Thappar v.
State of Madras, [1950] SCR 594 : AIR 1950
SC 124.
36 Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 : AIR 1993 SC 1960; [Real and
effective enforcement]D.K. Basu v. State of West Bengal, (1997) 1 SCC 416 : AIR 1997 SC
610; Consumer Education & Research
Center v. Union of India, [1995] 3 SCC 42 : AIR 1995 SC 922; Khatri v. State of Bihar,
(1981) 3 SCR 145 :
19
guided by the integrality to conception of the provisions of Part III and IV of the Constitution
intended to ensure distribute justice for removal of inequalities and disabilities and to
achieve an egalitarian social order.37 Suo moto action by the Courts will be understood only
as closely relevant to the advancement of the administration of justice. 38 Such exercise of
powers may be directed to remedy neglect by the executive and the performance of its duties
under the law.39 The courts can initiate action on its own for protecting public right as well as
the private rights of an individual.40
REACH AND REMEDY UNDER PUBLIC INTEREST LITIGATION

Justice Krishna Iyer in Fertilizer Corporation Kamgar Union vs. Union of India, in 1981
enumerated the following reasons for liberalization of the rule of Locus Standi:(1981) 2 SCC 493 : AIR 1981 SC 1068;[new remedies] Union Carbide v. Union of India,
(1991) 4 SCC 584:
1991 Supp [1] SCR 251 : AIR 1992 SC 248.[new principles of liability being evolved]
37 Lingappa Pochanna Appealwar v. State of Maharashtra, (1985) 1 SCC 479 :

AIR 1985 SC 389
38 For instance Section 401 Cr.P.C., 1973 confers such suo moto power. See Shri
Kumar Padma Prasad v. Union of India, (1992) 2 SCC 428, 437-38
[inappropriateness of suo moto exercise in the context of judicial appointments].
39 Ratlam Municipality v. Vardichand, (1980) 4 SCC 162 : AIR 1980 SC 1622; The
intervention by the court in T.N. Godhavarman initially and the ongoing
supervisory jurisdiction therein. A survey of impact of these orders may be useful
guide to sustain the rationale of intervention.
40 The duty imposed to act, when inaction, negligence, or lapses may themselves be
productive of injustice. The powers under Section 133, 144 and 145 Cr.P.C; or for instance
under the Commission of Sati (Prevention)Act, 1987; In death of 25 chained inmates in
Asylum fire, in Tamil Nadu v. Union of India, (2002) 3 SCC 31; Avinash Mehrotra v. Union
of India and others , (2009) 6 SCC 398; Re Yamuna W.P. [C] 725 of 1994. In Re
Destruction of Public and Private Properties v. State of A.P. and other, (2009) 5 SCC 212.
20
1. Exercise of State power to eradicate corruption may result in unrelated interference with
individuals rights.
2. Social justice wan ants liberal judicial review administrative action.
3. Restrictive rules of standing are antithesis to a healthy system of administrative action.
4. Activism is essential for participative public justice.
Therefore, a public minded citizen must be given an opportunity to move the court in the
interests of the public.
Responsibility to ensure that justice so guaranteed is accessible to all is placed on the
institutions of the State. The legislature has the primary duty to provide the means and
measures by which substantive equality is realisable and access to justice for their
actualisation is available to all. The constitutional responsibility of understanding,
interpreting and acting in terms of constitutional provision lies on all institutions of the State.
The task of ensuring access to justice was discharged by the introduction of Article 39A in its
procedural dimensions. Even that was a half way measure, being a provision enacted in Part
IV of the Constitution with its problematic non-justifiability tag. This proved no obstacle
however to the Courts which perceived their multi-dimensional role as declaring enunciating
and clarifying the law with the foundation that the judicial review interpretation of the
constitution constitutes the safe guard; as declaring enunciating and clarifying the law, and
looked towards administration of justice and access to justice as useful keys to unlock issues
of governmental obligations, Rule of Law and equality, protection from power and most of all
the frailty of the individual before overwhelming State or private authority. The story of the
unfolding sagas of fundamental rights, and the untapped potential of Directive Principles can
be said to be the juristic resources for using the Constitution in the service of its welfarist
21
proclamations. Public Interest Litigation is the emanation of this constitutional practice;

consequently, its reach and remedial contours are matters of care, concern, visionary
understandings, and statesmanship, as well as caution, proportionality, and deference to
Institutional arrangements and freedoms.
The plain meaning of Constitutional expressions, their judicial metamorphosis and expanded
avatars are staple food for the political polemists and judicial interpreters. Between those who
make a fortress of dictionaries and those who create additions to dictionaries there is
considerable debate. The reading of shades of meanings in constitutional expressions and
expanded understandings of rights are grounded in social realities and sometimes
conscientious compulsions. The post Emergency pro-poor participative justice dispensation
has given new dimensions and thrust to the fundamental rights of citizens and emphasis on
constitutional limitations. The Concept of equality has changed into substantive equality
which includes equality of access to material resources of the community, and the means and
measures of fulfilling human needs and wants, equal pay for equal work, special protection to
women and children, legal aid etc. The Fundamental right to freedom of speech and
expression now prominently includes the right to information; the Right to life now includes
livelihood. Other fundamental liberties have been interpreted in the light of various
provisions of the constitution such as equality, freedom from exploitation and the Directive
Principles of State Policies. These exercises in constitutional governance are manifestations
of the generative function of Courts in their role of being vanguards of meaning suppliers,
guardians and night watch(wo)men.
The concept of administration of justice has been understood as the provision of institutions
and procedures for the resolution of disputes in the civil law domain and provision of
22
machinery which will ensure public order, safety and security of the person and the
prosecution of violators of conduct, declared to be offensive and prohibited.
Accountability in the following domains was either left to be governed by the inadequate
legacies of common law or by piecemeal legal reforms: Accountability for obligations under
the laws, for failures, for omissions, for negligence, for deliberate wrongs. Accountability to
good governance or to the realisation and practice of the egalitarian social order, broadly
envisioned by the amalgam of Fundamental rights and Directive Principles, are thought to be
matters of social and political arrangements to be debated, determined and settled through the
democratic and political process. Though the superior courts declared themselves as the
sentinels on the qui vive this was still a declaration on the role of the Courts as rights
protecting institutions subject to the operation of the constitutional law doctrines of
legislative and executive wisdom and deference to such wisdom.
Bona-fides alone will qualify

Bona-fide intention of the litigant is an indispensable requirement for treating a writ petition
as PIL.41 Any personal purpose direct or indirect near or remote will not qualify as bonafide
representation. Representation of interests of deprived sections who can ill afford litigation to
resolve their pressing concerns and relief from exploitation would be one clear category of
bonafides.42 Issues of basic freedoms, their infringements and relevance to broader concerns
41 Which will e discerned by having regard to the nature of the issue; the absence of any
other responsibleperson; the lack of any other concern; principles stated in S.P. Gupta v.
P.U.D.R., reiterated in State of
Uttaranchal v. Balwant Singh Chaugal, supra
42 See Malik Brothers v. Narendra Dadich, AIR 1999 SC 3211; Chhatriya

Pardushan Mukti Sangarsh Samiti v. State of U.P., (1990) 4 SCC 449 : AIR 1990
SC 2060
23
of the Rule of Law, democracy, liberty issues would be issues of bonafide character. The
standard of expectation of civic responsibility required in public interest litigation is higher
than that of an applicant who strives to realize personal ends. 43 The courts expect a public
interest litigant to discharge high standards of responsibility.44 Negligent use or use for
oblique motives are extraneous to the PIL process. If the litigant were to act for his personal
gain or private profit or out of political motivation or other oblique consideration the
application would be rejected at the threshold. 45 Genessis of the cause and its public interest
espousal must both be shown benefit or settling scores as in a private dispute are good
reasons for the denial of access to the Court.46
The constitutional courts have time and again reiterated that abuse of the noble concept of
PIL is increasing day-by-day and to curb this abuse there should be explicit and broad
guidelines for entertaining petitions as PILs. The Supreme Court has given a set of illustrative
guidelines47 :(1) The courts must encourage genuine and bona fide PIL and effectively discourage and curb
the PIL filed for extraneous considerations.
43 Kapila Hingorani vs. State of Bihar, (2003) 6 SCC 1

44 The level of responsibility envisaged as a citizen under Article 51A to abide by
constitutional values and promotion of excellence in all spheres of life. See also, Ramjas
Foundation v. Union of India, 1993 Supp (2) SCC20 at 24,
45 See also, Janata Dal v. H.S. Chowdhary, AIR 1993 SC 892, 918; Kusum Lata v. Union of
India, (2006) 6SCC 180.
46 State of H. P. v. Ganesh Wood Products, (1995) 6 SCC 363.

47 State of Uttaranchal v. Balwant Singh Chaufal and Ors. , 2010 (1) SCALE 492,
para 198. See also Dr. B. Singh v. Union of India, (2004) 3 SCC 363; Ashok Kumar
Pandey v. State of West Bengal, 2003 (9) SCALE 741
24
(2) Instead of every individual judge devising his own procedure for dealing with the public
interest litigation, it would be appropriate for each High Court to properly formulate rules for
encouraging the genuine PIL and discouraging the PIL filed with oblique motives.
Consequently, we request that the High Courts who have not yet framed the rules, should
frame the rules within three months. The Registrar General of each High Court is directed to
ensure that a copy of the Rules prepared by the High Court is sent to the Secretary General of
this Court immediately thereafter.
(3) The courts should prima facie verify the credentials of the petitioner before entertaining a
P.I.L.
(4) The court should be prima facie satisfied regarding the correctness of the contents of the
petition before entertaining a PIL.
(5) The court should be fully satisfied that substantial public interest is involved before
entertaining the petition.
(6) The court should ensure that the petition that involves larger public interest, gravity and
urgency must be given priority over other petitions.
(7) The courts before entertaining the PIL should ensure that the PIL is aimed at redressal of
genuine public harm or public injury. The court should also ensure that there is no personal
gain, private motive or oblique motive behind filing the public interest litigation.
(8) The court should also ensure that the petitions filed by busybodies for extraneous and
ulterior motives must be discouraged by imposing exemplary costs or by adopting similar
novel methods to curb frivolous petitions and the petitions filed for extraneous
considerations.
25
Compilation of guidelines to be followed for entertaining letters/petitions received48:

Letter-petitions falling under the following categories alone will ordinarily be entertained as
Public Interest Litigation49:1. 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 (pre-mature release) 50 and seeking
release after having completed 14 years in jail, death in jail, transfer, release on
personal bond, speedy trial as a fundamental right.51
5. Petitions against police for refusing to register a case, harassment by police and death
in police custody.
48 Based on full Court decision dated 1.12.1988 and subsequent modifications
49 All letter-petitions received in the PIL Cell will first be screened in the Cell and
only such petitions as are covered by the above mentioned categories will be
placed before a Judge to be nominated by Hon'ble the Chief Justice of India for
directions after which the case will be listed before the Bench concerned
50 Petitions for premature release, parole etc. are not matters which deserve to
be treated as petitions u/Article 32 as they can effectively be dealt with by the
concerned High Court. To save time Registry may simultaneously call for remarks
of the jail Superintendent and ask him to forward the same to High Court. The
main petition may be forwarded to the concerned High Court for disposal in
accordance with law. [Added based on Order dated 19.8.1993 of the then Chief
Justice of India]
51 Even in regard to petitions containing allegations against Jail Authorities there is no
reason why it cannot be dealt with by the High Court. But petitions complaining of
torture, custody death and the like may be entertained by this Court directly if the
allegations are of a serious nature.
26
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 Caste 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
wild life and other matters of public importance.
9. Petitions from riot -victims.
10. Family Pension.
.
PUBLIC INTEREST LITIGATION AND JUDICIAL ACTIVISM:

IS JUDICIARY OVER-REACHING ITS CONSTITUTIONAL MANDATE
The advent of Public Interest Litigation (PIL) is one of the key components of the approach
of judicial activism that is attributed to the higher judiciary in India. The Courts
27
interventions have played a pivotal role in advancing the protection of civil liberties, the
rights of workers, gender justice, and accountability of public institutions, environmental
conservation and the guarantee of socio-economic entitlements such as housing, health and
education among others. This has not only strengthened the position of the judiciary vis--vis
the other wings of government, but has also raised its prestige among the general populace.
However, this activist disposition of the Courts also has its critics.
PIL in the Indian courts have not taken this somewhat old-fashioned form, perhaps because in
a country where the scale of needs is so large it is hard to say that social and economic
priorities are less commanding than civil and political ones. They have rather argued that the
social and economic domain should be largely the prerogative of the other branches of
government, which are better equipped to analyze, formulate, and implement complex
policies, and that much of PIL is inappropriate judicial activism or adventurism.
For instance, in an assessment of the activities of the Supreme Court in the Delhi Vehicular
Pollution and Municipal Solid Waste Management Cases, Rajamani admonishes that policy,
environmental and social, must emerge from a socio political process and must be considered
in a legitimate forum not a judicial one.52 Citing cases in which courts formulated explicit
guidelines, such as cases related to vehicular pollution, the management of the Central
Bureau of Investigation, adoption by foreign nationals, custodial torture, and sexual
harassment, Justice Desai and Muralidhar note that while in some cases, the Court has
expressed its reluctance to step into the legislative field, in others it has laid down detailed
guidelines and explicitly formulated policy 53. In their 2003 article, Rosencranz and Jackson
welcome the environmental and health impact of the Supreme Courts 2001 decision
52 Rajamani, 2007
53 Desai & Muralidhar, 2000
28
requiring the Delhi government to convert its commercial vehicles to a fleet running on
compressed natural gas (CNG), but then plead for leadership on the part of the regulatory and
legislative authorities: Some of the roadblocks to CNG implementation could have been
avoided, or at least minimized, had the conversion been originally mandated through the
normal legislative process.54Thiruvengadam documents a spate of similarly motivated
criticism of PIL as an incursion into lawmaking from sitting and former judges on Indias
Supreme and High Courts, including comments from Justice Hidyatullah in 1984, Justice
Srikrishna in 2005, and, perhaps most intemperately, Justice Katju in 2008, who said PIL
has developed into an uncontrollable Frankenstein.55
To some, it appears as though the courts may be spending time on frivolous and ineffectual
PIL cases at the expense of the real administration of justice, and choose to do so because PIL
burnishes their popularity. Reported instances of frivolous PIL include prayers to rename
India Hindustan, rename the Arabian Sea Sindhu Sagar and replace the national anthem
for one offered by the petitioner (and partly sung before the Chief Justice) 56. At the same
time, the systems of civil and criminal justice suffer enormous delays and arbitrary pre-trial
detentions.
Looking from the point of Separation of power, policy formulation by the courts or its
agents is, to some extent, inevitable. Judicial review of any sort requires ongoing commentary
on laws and policies, including guidelines regarding their proper content. Because dispute
resolution entails an elaboration and application of the normative structures of society as the
necessary ground for the dispute resolvers decision, judges inevitably involve themselves in
54 Armin Rosencranz & Jackson, 2003, p. 21
55 A. K. Thiruvengadam, 2009, p. 22
56 Supra 45
29
rule making, which is a form of lawmaking whether in common law or civil law jurisdictions.
Courts have not traditionally been significant actors in the area of social and economic
policy; and resistance to public interest litigation and the court directives it prompts in these
areas may stem more from the novelty of the phenomenon than from anything like a real
judicial dictatorship. Reluctance on the part of the Indian judiciary to be held accountable
for performance and probity is certainly problematic from the point of view of democratic
theory it limits the power of the people to review public action. The expansion of judicial
power in the area of social and economic concerns, on the other hand, catalyzes legislative
and executive activity more often than it paralyzes it. That is because, as an empirical matter
the world over, public interest litigation typically spurs judicial dialogue with the other
branches: rarely do courts issue all or nothing demands, backed with common law contempt
power or its civil law counterparts, in a way that requires the state to restructure its policy
framework. Courts decisions do not so much stop or hijack the policy debate as inject the
language of rights into it and add another forum for debate. 57 As Fredman puts it, PIL allows
the judicial forum to become, potentially, a space for democratic deliberation among equal
citizens, rather than a place of interest group bargaining, which prevails in the legislature.58
4
See: T.R. Andhyarujina, Judicial Activism and Constitutional Democracy in India (Bombay:
N.M. Tripathi, 1992)

The principled criticism against Public Interest Litigation (PIL) is that it detracts from the
constitutional principle of separation of powers by allowing the Courts to arbitrarily
interfere with policy-choices made by the legislature and pass orders that may be difficult for
the executive agencies to implement. In respect of practical considerations, the criticism
57 Brinks & Gauri, 2008, p. 304
58 Fredman, 2008, p. 149
30
revolves around the behaviour of litigants as well as judges. From time to time, it has been
urged that the dilution of the requirement of locus standi has opened up the floodgates for
frivolous cases that either involve the litigants private interests or are vehicles for gaining
publicity rather than seeking justice for disadvantaged groups.59 It is argued that in light of the
increasing case-load before the appellate judges, the PIL cases impose an additional gatekeeping role and impede efficiency. From the standpoint of the judges, it is reasoned that
quite often there are no checks against decisions or orders that amount to judicial overreach
or judicial populism.
While all of these criticisms have been offered by acclaimed scholars, senior practitioners and
sitting judges as well, there is a much more compelling case in defence of the use of Public
Interest Litigation (PIL). I would like to take this opportunity to present that defence. The
main rationale for judicial activism in India lies in the highly unequal social profile of our
population, where judges must take proactive steps to protect the interests of those who do
not have a voice in the political system and do not have the means or information to move the
Courts. This places the Indian Courts in a very different social role as compared to several
developed nations where directions given by unelected judges are often viewed as
unjustified restraints on the will of the majority. It is precisely this counter majoritarian
function that needs to be robustly discharged by an independent and responsible judiciary.
At this point I would like to recall an observation made in the matter of Bihar Legal Support
Society v. The Chief Justice of India & Ors60:
59 See: T.R. Andhyarujina, Judicial Activism and Constitutional Democracy in
India (Bombay: N.M. Tripathi, 1992)
60 AIR 1987 SC 38
31
The majority of the people of our country are subjected to this denial of access to justice
and overtaken by despair and helplessness, they continue to remain victims of an exploitative
society where economic power is concentrated in the hands of a few and it is used for
perpetuation of domination over large masses of human beings The strategy of public
interest litigation has been evolved by this Court with a view to bringing justice within the
easy reach of the poor and disadvantaged sections of the community.
The activist turn of the Indian judiciary

Our judicial system is a very visible part of the inheritance from the British Raj. We continue
to rely on a sizeable body of statutory law and precedents from the colonial period, with the
exception of what is repugnant to our constitutional provisions. However, the framers of our
Constitution incorporated influences from several countries and adopted the idea of judicial
review as opposed to the British notion of Parliamentary sovereignty.6 In India, the criteria
for the Courts to review governmental action is threefold the fundamental rights enshrined
in Part III of the Constitution, the reasonableness of administrative actions and the
demarcation of legislative competence between the Union and the States.
However, the scope of this power of judicial review was keenly contested throughout the
1950 and 1960s, primarily over the question of the right to property. During that phase,
governments at both the Union level and most states enacted legislations providing for land
acquisition in order to advance the policy of agrarian land reforms. However, many of the
large landowners who were required to give up their holdings challenged these laws before
the Courts on grounds such as inadequate compensation among others. While the Nehru-led
government passed several Constitutional amendments with the objective of immunizing
these land-reforms measures against judicial review, the Courts frequently ruled in favour
of the property-owners. By the late 1960s, this tussle between the Courts and the Congress
32
Party controlled Parliament turned into one between the idea of judicial review on one hand
and unqualified parliamentary sovereignty on the other hand.7 The Supreme Court itself
was called upon to rule on the scope of the Parliaments power to amend the Constitution,
and it evolved the Basic Structure doctrine in the much-cited decision in Keshavananda
Bharati v. State of Kerala. By a narrow majority of 7-6 it was ruled that Parliaments power
of amendment was not absolute and it could not amend the Basic structure of the
Constitution, which in the opinion of
Judicial Activism is not PIL per se.

Judicial activism is not PIL. A court can be judicially active or inactive irrespective of PIL.
Judicial activism is a word of many shades. No person today subscribes to Bacon's view that
judges must only declare the law and do not make law. Such a view was rightly described as
a fairy tale by a distinguished English judge Lord Reid. Judges do and must make law but not
in the manner of legislatures. There is much scope for creative judicial activism in the
interpretative functions of judges, on the choices inherent in their function and in the gaps in
legal rules, as has been done by superior courts in several countries for many years.
The Indian Supreme Court's own creative jurisprudence of the inviolability of the basic
structure of the Constitution in 1973 and the importation of non-arbitrariness in the
fundamental Right of Equality, and of due process of law in the right to personal liberty 61, are
stellar examples of how judicial function can be creative. Regrettably, this kind of creative
judicial activism in Indian courts seems to have become dormant and displaced by a poor
substitute of routine judicial correction and monitoring of governmental functions by courts
61 Maneka Gandhi V. UOI, 1978
33
in PIL. Judicial activism is equated with PIL mainly because it is a most convenient vehicle
for bringing public grievances before courts and because the courts' orders in PIL are farreaching and sometimes sensational.
Once these fundamentals of judicial review are borne in mind by courts in exercising PIL
jurisdiction, it can be a useful judicial process for the benefit of the public, particularly of the
poor, the indigent and marginalised sections of society, whose fundamental rights are to be
protected by court orders. It is the historic and constitutional duty of courts to safeguard and
enforce the basic liberties and rights of individuals. A court is strongest and least vulnerable,
when it grounds its interventions in enforcing the basic rights of individuals against authority.
No question of the court breaching the separation of powers can arise, as it carries out its
constitutional function of protecting the basic rights of individual in such cases. It is also the
court's legitimate function to enforce the law, not of each and every infraction, but in those
cases where its disregard has grave consequences to the public. No question of the court
overreaching its powers can arise in such cases. In matters relating to environment, where
irreversible damage may be done unless the actions of the authorities are immediately
corrected, the court may take prompt corrective measures, but not take over the
administration itself or supplant the law. . It is this aspect of misplaced judicial activism,
which a bench of two judges of the Supreme Court in Aravali Golf Club62 Case recently
criticised in rather strong words of reprimand. The judgment was timely and has brought
misplaced judicial activism into focus, but in the process it did not advert to the permissible
scope of judicial intervention.
MERIT AND DEMERITS OF PIL

Merits:
62 2008 1 SCC 683
34
1. In Public Interest Litigation (PIL) vigilant citizens of the country can find an
inexpensive legal remedy because there is only a nominal fixed court fee involved in
this.
2. Directly approaching Apex Court without Delayed process of Appeals. The liberal
interpretation of locus standi where any person can apply to the court on behalf of
those who are economically or physically unable to come before it has helped. Judges
themselves have in some cases initiated suo moto action based on newspaper articles
or letters received.
3. Further, through the so-called PIL, the litigants can focus attention on and achieve
results pertaining to larger public issues, especially in the fields of human rights,
consumer welfare and environment.
4. India has some of the most progressive social legislation to be found anywhere in the
world whether it be relating to bonded labor, minimum wages, land ceiling,
environmental protection, etc. This has made it easier for the courts to haul up the
executive when it is not performing its duties in ensuring the rights of the poor as per
the law of the land.
Demerits:
1. 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. Of late, many of the PIL
activists in the country have found the PIL as a handy tool of harassment since
frivolous cases could be filed without investment of heavy court fees as required in
private civil litigation and deals could then be negotiated with the victims of stay
orders obtained in the so-called PILs.
2. 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
35
implementation of policy are conventionally regarding as the exclusive domain of the

executive and the legislature.Vishaka v State of Rajasthan which was a PIL
concerning sexual harassment of women at work place.The court declared that till the
legislature enacted a law consistent with the convention on the Elimination of All
Forms of Discrimination Against Women which India was a signatory, the guidelines
set out by the court would be enforceable.
3. The flexibility of procedure that is a character of PIL has given rise to another set of
problems. It gives an opportunity to opposite parties to ascertain the precise
allegation and respond specific issues.
4. The credibility of PIL process is now adversely affected by the criticism that the
judiciary is overstepping the boundaries pf its jurisdiction and that it is unable to
supervise the effective implementation of its orders. It has also been increasingly felt
that PIL is being misused by the people agitating for private grievance in the grab of
public interest and seeking publicity rather than espousing public cause.
STEPS NECESSARY
With the view to regulate the abuse of PIL the apex court itself has framed certain guidelines
(to govern the management and disposal of PILs.) The court must be careful to see that the
petitioner who approaches it is acting bona fide and not for personal gain, private profit or
political or other oblique considerations. The court should not allow its process to be abused
36
by politicians and others to delay legitimate administrative action or to gain political

objectives. There may be cases where the PIL may affect the right of persons not before the
court, and therefore in shaping the relief the court must invariably take into account its impact
on those interests and the court must exercise greatest caution and adopt procedure ensuring
sufficient notice to all interests likely to be affected.
At present, the court can treat a letter as a writ petition and take action upon it. But, it is not
every letter which may be treated as a writ petition by the court. The court would be justified
in treating the letter as a writ petition only in the following cases(i) It is only where the letter is addressed by an aggrieved person or
(ii) a public spirited individual or
(iii) a social action group for enforcement of the constitutional or the legal rights of a person
in custody or of a class or group of persons who by reason of poverty, disability or socially or
economically disadvantaged position find it difficult to approach the court for redress.
Even though it is very much essential to curb the misuse and abuse of PIL, any move by the
government to regulate the PIL results in widespread protests from those who are not aware
of its abuse and equate any form of regulation with erosion of their fundamental rights. Under
these circumstances the Supreme Court of India is required to step in by incorporating safe
guards provided by the civil procedure code in matters of stay orders /injunctions in the arena
of PIL.
BALANCING A DOUBLE-EDGED SWORD OF PIL
37
The power of the Court to entertain any circumstance that may hinder societal growth, or may
cause hardship to a class of individuals is not uninhibited. It is carefully regulated with tight
reins, and cases of public interest are taken up only after rigorous scrutiny. For instance, in a
case wherein a challenge was made to the Government of Indias telecommunication policy,
the Supreme Court refused to entertain the matter on the ground that it purely concerned a
question of policy. Similarly, public interest litigations that have sought to prohibit the sale of
liquor or the recognition of a particular language as a national language, or the introduction of
a uniform civil code, have been rejected on the ground that these were matters of policy and
were beyond the ambit of judicial scrutiny. The need for deference to the other wings of
government in respect of questions of policy was clearly expressed by Justice R.S. Pathak in
the following words:
Where the Court embarks upon affirmative action in the attempt to remedy a constitutional
imbalance within the social order, few critics will find fault with it so long as it confines itself
to the scope of its legitimate authority. But there is always the possibility in public interest
litigation, of succumbing to the temptation of crossing into territory which properly pertains
to the legislature or to the executive government In the process of correcting executive
error or removing legislative omission the Court can so easily find itself involved in policy
making of a quality and to a degree characteristic of political authority, and indeed run the
risk of being mistaken for one.63 The Court has refused to entertain cases that are private
interest litigations disguised as public interest litigations. It has also refused to interfere
with convictions in criminal cases. In a case where directions were sought from the Supreme
Court to the Central Government to preserve and protect certain temples, the said request was
rejected. The Court stated: The matter is eminently one for appropriate evaluation and
63 Cited from (1984) 3 SCC 161, at p. 232

38
action by the executive, and may not have an adjudicative disposition or judicially
manageable standards as the pleadings now stand.
At the time of admitting matters in the form of Public Interest Litigation (PIL), the Courts
have to carefully consider whether or not they are overstepping their domain. Upon
considering the issues at hand, they must then consider whether the orders they intend to pass
can be realistically implemented. Judges must also be attuned to the fact that inconsistencies
in the observations made by different Courts with respect to the same set of issues, can add to
administrative difficulties. There is also a need to keep a watch on the abuse of process by
litigants so as to avoid a situation where such cases occupy a disproportionate extent of the
Courts working time. Justice S.P. Barucha has expressed the need for caution in the
following words:
This court must refrain from passing orders that cannot be enforced, whatever the
fundamental right may be and however good the cause. It serves no purpose to issue some
high profile mandamus or declaration that can remain only on paper. It is counter productive
to have people say The Supreme Court has not been able to do anything or worse. It is of
cardinal importance to the confidence that people have in the Court that its orders are
implicitly and promptly obeyed and is, therefore, of cardinal importance that orders that are
incapable of obedience and enforcement are not made.64
In Raunaq International Ltd. v. I.V.R. Construction Ltd.65 the following observations were
made with the objective of streamlining the institution of PILs:
64 Ashok Desai & S. Muralidhar, Public Interest Litigation: Potential and

Problems in B.N. Kirpal et. al. (eds.), Supreme but not infallible (OUP, 2000) 159192, at p. 182
65 (1999) 1 SCC 492
39
When a petition is filed as a public litigation the Court must satisfy itself that the party
which has brought the litigation is litigating bona fide for public good. The public interest
litigation should not be merely a cloak for attaining private ends of a third party or of the
party bringing the petition Even when a public interest litigation is entertained, the Court
must be careful to weigh conflicting public interest before intervening.
It would be appropriate to conclude by quoting Cunningham, Indian PIL might rather be a
Phoenix: a whole new creative arising out of the ashes of the old order. PIL represents the
first attempt by a developing common law country to break away from legal imperialism
perpetuated for centuries. It contests the assumption that the most western the law, the better
it must work for economic and social development such law produced in developing states,
including India, was the development of under develop men. The shift from legal centralism
to legal pluralism was prompted by the disillusionment with formal legal system. In India,
however instead of seeking to evolve justice- dispensing mechanism ousted the formal legal
system itself through PIL. The change as we have seen, are both substantial and structural. It
has radically altered the traditional judicial role so as to enable the court to bring justice
within the reach of the common man.
Further, it is humbly submitted that PIL is still is in experimental stage. Many deficiencies in
handling the kind of litigation are likely to come on the front. But these deficiencies can be
removed by innovating better techniques. In essence, the PIL develops a new jurisprudence of
the accountability of the state for constitutional and legal violations adversely affecting the
interests of the weaker elements in the community. We may end with the hope once expressed
by Justice Krishna Iyer, The judicial activism gets its highest bonus when its orders wipe
some tears from some eyes.
40
CONCLUSION
Public Interest Litigants, all over the country, have not taken very kindly to such court
decisions. They do fear that this will sound the death-knell of the people friendly concept of
PIL. However, bona fide litigants of India have nothing to fear. Only those PIL activists who
prefer to file frivolous complaints will have to pay compensation to then opposite parties. It is
actually a welcome move because no one in the country can deny that even PIL activists
should be responsible and accountable. In any way, PIL now does require a complete rethink
41
and restructuring. Anyway, overuse and abuse of PIL can only make it stale and ineffective.
Since it is an extraordinary remedy available at a cheaper cost to all citizens of the country, it
ought not to be used by all litigants as a substitute for ordinary ones or as a means to file
frivolous complaints. For example a person recently filed a PIL at Bombay High Court which
had alleged that Khan was constructing a multi-storey structure in his compound in violation
of environment and heritage laws. The Supreme Court upheld the Bombay HC verdict,
dismissing the PIL and ordering the litigants to pay Rs 20,000 on the grounds that they had filed
the PIL only for the sake of publicity. "Why don't you file against others in respect of similar
properties if you are serious about it. There are 1000 such violations you cannot complain against
only one person" and termed it as publicity petition.
Fundamental Rights and its enforcement through Judicial Review power of the Courts has
coincided with the Concept of Public Interest Litigation. Individuals who are affected by the
State action which are not in conformity with the mandate and limits of law have the
entitlement to approach the Supreme Court or High Court for appro.Jpriate redressals. This
right merges with the judicial review authority of the courts which is an entrenched feature of
the Constitution. In such case the latter is not the source of the former, but buddies in the
process of Social Justice.
At the risk of over-simplification and overlap, the PIL discourse in India could be divided, in
my view, into three broad phases.66One will notice that these three phases differ from each
other in terms of at least the following four variables: who initiated PIL cases; what was the
subject matter/focus of PIL; against whom the relief was sought; and how judiciary
responded to PIL cases.
66 Shubhankar Dam, Lawmaking Beyond Lawmakers: Understanding the Little
Right and the Great Wrong (Analyzing The Legitimacy of the Nature of Judicial
Lawmaking in Indias Constitutional Dynamic) (200) 13 Tulane Journal of
International and Comparative Law 109, 115116
42
In the first phasewhich began in the late 1970s and continued through the 1980sthe PIL
cases were generally filed by public-spirited persons (lawyers, journalists, social activists or
academics). Most of the cases related to the rights of disadvantaged sections of society such
as child labourers, bonded labourers, prisoners, mentally challenged, pavement dwellers, and
women. The relief was sought against the action or non-action on the part of executive
agencies resulting in violations of FRs under the Constitution. During this phase, the
judiciary responded by recognising the rights of these people and giving directions to the
government to redress the alleged violations. In short, it is arguable that in the first phase, the
PIL truly became an instrument of the type of social transformation/revolution that the
founding fathers had expected to achieve through the Constitution.
The second phase of the PIL was in the 1990s during which several significant changes in
the chemistry of PIL took place. In comparison to the first phase, the filing of PIL cases
became more institutionalized in that several specialized NGOs and lawyers started bringing
matters of public interest to the courts on a much regular basis. The breadth of issues raised in
PIL also expanded tremendouslyfrom the protection of environment to corruption-free
administration, right to education, sexual harassment at the workplace, relocation of
industries, rule of law, good governance, and the general accountability of the Government. It
is to be noted that in this phase, the petitioners sought relief not only against the action/nonaction of the executive but also against private individuals, in relation to policy matters and
regarding something that would clearly fall within the domain of the legislature. The response
of the judiciary during the second phase was by and large much bolder and unconventional
than the first phase. For instance, the courts did not hesitate to come up with detailed
guidelines where there were legislative gaps. The courts enforced FRs against private
individuals and granted relief to the petitioner without going into the question of whether the
violator of the FR was the state. The courts also took non-compliance with its orders more
43
seriously and in some cases, went to the extent of monitoring government investigative
agencies66 and/or punishing civil servants for contempt for failing to abide by their
directions. The second phase was also the period when the misuse of PIL not only began but
also reached to a disturbing level, which occasionally compelled the courts to impose fine on
plaintiffs for misusing PIL for private purposes.
It is thus apparent that in the second phase the PIL discourse broke new grounds and
chartered on previously unknown paths in that it moved much beyond the declared objective
for which PIL was meant. The courts, for instance, took resort to judicial legislation when
needed, did not hesitate to reach centres of government power, tried to extend the protection
of FRs against non-state actors, moved to protect the interests of the middle class rather than
poor populace, and sought means to control the misuse of PIL for ulterior purposes.
On the other hand, the third phasethe current phase, which began with the 21st century
is a period in which anyone could file a PIL for almost anything. It seems that there is a
further expansion of issues that could be raised as PIL, e.g. calling back the Indian cricket
team from the Australia tour and preventing an alleged marriage of an actress with trees for
astrological reasons. From the judiciarys point of view, one could argue that it is time for
judicial introspection and for reviewing what courts tried to achieve through PIL. As
compared to the second phase, the judiciary has seemingly shown more restraint in issuing
directions to the government. Although the judiciary is unlikely to roll back the expansive
scope of PIL, it is possible that it might make more measured interventions in the future.
One aspect that stands out in the third phase deserves a special mention. In continuation of its
approval of the governments policies of liberalization in Delhi Science Forum, the judiciary
44
has shown a general support to disinvestment and development policies of the Government.67
What is more troublesome for students of the PIL project in India is, however, the fact that
this judicial attitude might be at the cost of the sympathetic response that the rights and
interests of impoverished and vulnerable sections of society (such as slum dwellers and
people displaced by the construction of dams) received in the first phase. The Supreme
Courts observations such as the following also fuel these concerns: Socialism might have
been a catchword from our history. It may be present in the Preamble of our Constitution.
However, due to the liberalization policy adopted by the Central Government from the early
nineties, this view that the Indian society is essentially wedded to socialism is definitely
withering away.
It seems that the judicial attitude towards PIL in these three phases is a response, at least in
part, to how it perceived to be the issue(s) in vogue. If rights of prisoners, pavement
dwellers, child/bonded labourers and women were in focus in the first phase, issues such as
environment, AIDS, corruption and good governance were at the forefront in second phase,
and development and free market considerations might dominate the third phase. So, the way
courts have reacted to PIL in India is merely a reflection of what people expected from the
judiciary at any given point of time.
The device of Public Interest Litigation may have its detractors, but it has played an
invaluable role in advancing our constitutional philosophy of social transformation and
67 It is suggested that in recent years the Supreme Court has been influenced by
liberalization and corporate business interests at the cost of human rights. See
Jamie Cassels, Multinational Corporations and catastrophic Law (2000)
31 Cumberland Law Review 311, 330; Parmanand Singh, State, Market and
Economic Reforms in Parmanand Singh et al. (eds), Legal Dimensions of Market
Economy (New Delhi: Universal Book Traders, 1997), pp.23, 3031; Prashant
Bhushan, Has the Philosophy of the Supreme Court on Public Interest Litigation
Changed in the Era of Liberalisation?,
<http://www.judicialreforms.org/files/2%20Philosophy%20of%20SC%20on%20PIL
%20%20Prashant%20Bhushan.pdf> Last Accessed on October 8, 2012].
45
improving access to justice. It is my sincere hope that this session has rekindled your interest
in this continuing socio-legal experiment.
BIBLIOGRAPHY
1. Upendra Baxi, The Avatars of Indian Judicial Activism: 50 years of the Supreme
Court of India, pp 165-166, Indian Law Institute, Oxford, 2000
2. Khan Kamaluddin, Public Interest Litigation and Judicial Activism. 2nd edition, 2006
3. Gupta Gulab J., Judicial Activism - A National Necessity, Journal of the Indian Law
Institute, Vol. III, 1999
46
4. Deva Surya, Public Interest Litigation in India: A Critical Review, Civil Justice
Quarterly, Vol.28, No.1, 2009
5. Sathe S.P., Judicial Activism in India, Oxford University Press (OUP), 1 st edn., New
Delhi, 2002
6. Ahuja, People, Law and Justice: Casebook on Public Interest Litigation, Orient
Blackswan, 1997,
7. David Feldman, Public Interest Litigation and Constitutional Theory in Comparative
Perspective, The Modern Law Review, Volume 55, Issue 1, pages 4472, January
1992
8. Craig, P. P.; Deshpande, S. L., Rights, Autonomy and Process: Public Interest
Litigation in India, 9 Oxford J. Legal Stud. 356 (1989)
9. Sangeeta Ahuja, People, Law and Justice: Cases and Materials on PIL, Vol. II 860,
Orient Longman, Delhi, 1997
47

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Public Interest

Sahil Ahmad, 09-B.A.LL.B-54,

Public Interest Litigation with Special Reference to Judicial Activism

Public Interest Litigation with Special Reference to Judicial Activism

Reach and Remedy under PIL

PIL and Judicial Activism

Judicial Activism not PIL per se

Merits and Demerits of PIL

Public Interest Litigation with Special Reference to Judicial Activism

PUBLIC INTEREST LITIGATION

Public Interest Litigation with Special Reference to Judicial Activism

1 Oxford English Dictionary 2nd Edn. Vol.Xll

Public Interest Litigation with Special Reference to Judicial Activism

4 AIR 1976 SC 1455; 1976 (3) SCC 832

Public Interest Litigation with Special Reference to Judicial Activism

Public Interest Litigation with Special Reference to Judicial Activism

9 AIR 1982, SC 149

Public Interest Litigation with Special Reference to Judicial Activism

11 (1986) 2 SCC 176

Public Interest Litigation with Special Reference to Judicial Activism

Public Interest Litigation with Special Reference to Judicial Activism

Public Interest Litigation with Special Reference to Judicial Activism

poverty, disability or socially or economically disadvantageous position, find it difficult to

Public Interest Litigation with Special Reference to Judicial Activism

ineffectively. Since it is an extraordinary remedy available at a cheaper cost to all citizens of

PRACTICE AND PROCEDURE

Public Interest Litigation with Special Reference to Judicial Activism

Public Interest Litigation with Special Reference to Judicial Activism

Modes and methods to move the court:

Public Interest Litigation with Special Reference to Judicial Activism

Public Interest Litigation with Special Reference to Judicial Activism

20 The importance attached to life and liberty demonstrated in Article 21 which

Public Interest Litigation with Special Reference to Judicial Activism

24 As jurisdiction is a creature of statutes relevant to the nature and kind of

28 Withdrawal of proceedings are based on evaluation or perception of economic, or

Public Interest Litigation with Special Reference to Judicial Activism

Suo-moto action, if understood as exercise of judicial authority with reference to a lis,

Public Interest Litigation with Special Reference to Judicial Activism

34 Except the separation of powers and the deference to law making or

Public Interest Litigation with Special Reference to Judicial Activism

REACH AND REMEDY UNDER PUBLIC INTEREST LITIGATION

37 Lingappa Pochanna Appealwar v. State of Maharashtra, (1985) 1 SCC 479 :

Public Interest Litigation with Special Reference to Judicial Activism

Public Interest Litigation with Special Reference to Judicial Activism

proclamations. Public Interest Litigation is the emanation of this constitutional practice;

Public Interest Litigation with Special Reference to Judicial Activism

Bona-fides alone will qualify

42 See Malik Brothers v. Narendra Dadich, AIR 1999 SC 3211; Chhatriya

Public Interest Litigation with Special Reference to Judicial Activism

43 Kapila Hingorani vs. State of Bihar, (2003) 6 SCC 1

46 State of H. P. v. Ganesh Wood Products, (1995) 6 SCC 363.

Public Interest Litigation with Special Reference to Judicial Activism

Public Interest Litigation with Special Reference to Judicial Activism

Compilation of guidelines to be followed for entertaining letters/petitions received48:

Public Interest Litigation with Special Reference to Judicial Activism

6. Petitions against atrocities on women, in particular harassment of bride, bride-burning,

PUBLIC INTEREST LITIGATION AND JUDICIAL ACTIVISM:

Public Interest Litigation with Special Reference to Judicial Activism

Public Interest Litigation with Special Reference to Judicial Activism

Public Interest Litigation with Special Reference to Judicial Activism

N.M. Tripathi, 1992)

Public Interest Litigation with Special Reference to Judicial Activism

Public Interest Litigation with Special Reference to Judicial Activism