Public Interest Litigation (PIL) in India for UPSC IAS preparation.
Though there are comprehensive provisions in the constitution and many laws have been passed to provide for the need for access to justice, the stark inequality in access to justice is one of the glaring problems of our country. Judiciary itself recognized this problem in the 1980s and the concept of Public Interest Litigation (PIL) was introduced in the Indian justice system. But recently, it has been in the news as the solicitor general Tushar Mehta criticized them in the Supreme court. He said that the “Self-employment generation petitions”, as he called the PILs, must be stopped. Let us understand, Through this article, the concept of PILs.
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What are Public Interest Litigations?
- PIL, in simple terms, is the use of the law to advance human rights and equality, raise issues of broad public concern. It helps poor and underprivileged minorities to raise their voices to uphold their basic human rights.
- It essentially enlarges the concept of “locus standi” i.e. the right to bring action or appeal in courts.
- In normal circumstances, it is the aggrieved person or body that comes forward in courts seeking justice. But in PIL, anybody can file a case or an appeal for justice to the victims.
- PIL is a right of the socially conscious citizenry or a public-spirited NGO to take up a public cause by seeking judicial redressal of public injury
- It is not defined by any law or statute. It has been developed in India by the judiciary itself when in the 1970-the 80s it decided to take cognizance of issues of human rights violations.
- Judicial review is the chief form in which the courts try the PILs.
What is the ambit of the PILs in India?
The PILs in India, as discussed, are mainly concerned with the public interest at large. In many years of its history, it has seen litigations on road safety, prisoner’s rights, road safety, environment, etc. Broadly, the following are the cases in which PILs are filed:
- Violation of the basic human rights of the poor (litigations for protection of fundamental rights, mainly Article 21)
- Content and conduct of the government and its policymaking
- Labor exploitation issues
- Women rights
- Caste and religious issues
- Governance issues and the working of public bodies: Local, state and the union
- Environmental issues
- The issues of culture and heritage
- Other matters of public importance
What is the process of filing the PIL?
- A PIL can be filed by any citizen for public cause by filing a petition under
- Article 32 of the constitution (Writ Jurisdiction of the Supreme Court (One can move any High court to)).
- Article 226 (Writ jurisdiction of the High Courts).
- Section 133 of the CrPC to the Court of Magistrate.
- A PIL can be filed directly in the High Court or the Supreme Court.
- But the court has to be satisfied that the letter is addressed by the aggrieved person/a public-spirited individual/ asocial action group for the enforcement of legal or constitutional rights to any person who, due to poverty or disability, are not able to approach the court for redressal of their grievances.
Origin and Evolution of PILs in India
The history of PILs in India dates back to the 1970s when courts first started to go beyond the letter of the constitution and decided to uphold justice in its true spirit.
- Its seeds were sown by Justice V. R. Krishna Iyer in Mumbai Kamgar Sabha Vs Abdul Thai.
- In 1979, a lawyer by the name of Pushpa Kapila Hingorani who filed a habeas corpus petition on behalf of undertrial prisoners in Bihar in the Supreme Court.
- The case came to be known as the Hussainara Khatoon case (heard by a bench headed by Justice P.N. Bhagwati), 1979, and resulted in the release of all the undertrials in Bihar, and about 40,000 undertrials all over the country.
- The monumental efforts of Justice V. R. Krishna Iyer and Justice P.N. Bhagwati resulted in the inculcation of PILs in the Indian judicial system and made the Supreme Court of India to the Supreme Court of all Indians.
- The new era of the PIL movement was heralded by Justice Bhagwati in the case of S.P. Gupta vs Union of India. It was held in this case that any member of the public or social action group acting bonafide can invoke the Writ Jurisdiction of the High Courts or the Supreme Court seeking redressal against violation of legal or constitutional rights of persons who due to social or economic or any other disability cannot approach the Court.
- Through many cases, PIL evolved to become a potent weapon in the enforcement of basic rights and to right the wrongs committed by public actions.
- The Anil Yadav Vs State of Bihar exposed police brutalities.
- The Indian Banker’s Association case was further able to widen the ambit when the Supreme Court held that even if the petitioner moved the court in her private interest but if the court is satisfied that there is sufficient furtherance of the public interest, it may treat any case as a PIL and inquire the subject matter in the interest larger justice.
The evolution of the PILs can be traced in three phases. The characteristics of these three phases are discussed below.
- The late 1970s to 1980s
- The 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 laborers, bonded laborers, 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
- The judiciary responded by recognizing the rights of these people and giving directions to the government to redress the alleged violations.
- The 1990s
- Several significant changes in the nature of PILs took place in this phase.
- In this phase, the filing of PIL cases became more institutionalized. Several specialized NGOs and lawyers started bringing matters of public interest to the courts.
- The breadth of issues raised in PIL also expanded tremendously—from the protection of the 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.
- the petitioners sought relief not only against the action/non-action of the executive but also against private individuals, about policy matters, and regarding something that would 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. the courts came up with detailed guidelines if there were any legislative gaps. The courts enforced FRs against private individuals and granted relief to the petitioner without going into the question of if the state is the violator of the FR.
- The courts also took non-compliance with its orders more seriously and in some cases, went to the extent of monitoring government investigative agencies and/or punishing civil servants for contempt for failing to abide by their directions.
- This is the phase when the misuse of PIL not only began but also reached a disturbing level, which occasionally compelled the courts to impose fine on plaintiffs for misusing PIL for private purposes
- 21st century onwards
- This is a phase 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.
- From the judiciary’s 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. The judiciary might make more measured interventions in the future.
- If rights of prisoners, pavement dwellers, child/bonded laborers, and women were in focus in the first phase, issues such as environment, AIDS, corruption, and good governance were at the forefront in the second phase, and development and free-market considerations might dominate the third phase.
What are the reasons for the huge impetus for the PILs?
Several factors contributed to the growth of the PILs in India.
- The constitutional framework relating to fundamental rights (FRs) and Directive principles (DPSPs) has been an important impetus for the PILs. In the process of protecting rights, the courts have allowed expansive interpretations of locus standi and the growth of PILs has been tremendous.
- Several constitutional provisions concerning the powers of the Supreme Court helped the Court in coming up with innovative and unconventional remedies, which in turn raised social expectations. For example, Article 142 deals with the court’s power to act in a way that ensures “complete justice” to the victims.
- The rise of PILs also corresponds to the extent and level of judicial activism by the higher courts. Some major instances of activism, which directly provided the impetus to PIL are:
- Introducing the due process requirement in article 21, despite its rejection by the Constituent Assembly
- employing DPSPs to create new FRs.
- Declaring judicial review, a basic feature of the Constitution.
- The existence of relatively weak executives at the center, especially in the 1990s, has given the judiciary freedom to act in the public interest. The growing gap between the constitutional mandate and the executive performance to fulfill the mandate has given the judiciary a space to use its powers to fill the governance vacuum.
- Being a democratic country, the civil society in the country is vibrant. It is empowered enough to know its basic rights and constitutional powers to raise the voice. It has acted with vigor and enthusiasm to hold governments accountable to the people and the constitution. They have freely used PILs for different causes.
What is the significance of the PILs?
The PILs have a very important part in the socio-economic developmental process of free India. The judicial weapon has democratized the judicial process through a) inspiring collective actions; b) creation of positive rights and c) filling the vacuum of governance. The significance can be summarized as below.
- The most important contribution of PIL, in my view, has been to bring courts closer to the disadvantaged sections of society such as prisoners, destitute, child or bonded laborers, women, and scheduled castes/tribes.
- By espousing the issues affecting the most underprivileged, PIL became a vehicle to bring social revolution through constitutional means, something that the founding fathers had hoped.
- Equally important is the part played by PIL in expanding the jurisprudence of fundamental (human) rights in India. As noted before, DPSPs are not justiciable but the courts imported some of these principles into the FRs thus making various socio-economic rights as important—at least in theory—as civil and political rights.
- the PIL became an instrument to promote the rule of law, demand fairness and transparency, fight corruption in the administration, and enhance the overall accountability of the government agencies.
- The main reason for these public demands and the subsequent judicial intervention was to strengthen constitutionalism in India.
- Through PIL, the judiciary also triggered legislative reforms and filled in legislative gaps in important areas. An example being the Vishakha guidelines.
- The Indian judiciary, using PIL, has helped in amicably solving many controversial policy questions such as the controversy about the reservation of seats for SCs/STs and other backward classes in employment or educations institutions, the government policies of liberalization and privatization, and the contested height of the Narmada dam, etc.
- PIL has helped the judiciary to gain the confidence of the people and establish legitimacy.
- The Indian PIL jurisprudence has also contributed to the trans-judicial influence—especially in South Asia—in that courts in Pakistan, Sri Lanka, Bangladesh, and Nepal have cited Indian PIL cases to develop their own PIL jurisprudence. In Hong Kong too, courts have cited Indian PIL cases, specifically, PILs dealing with environmental issues.
Why the PILs are the subject of criticism?
Though PILs have been able to revolutionize the legal system in India, it has attracted its share of criticism from different sections of the society. The misuse of PIL which started in the 1990s has now gone to the level of undermining the basic principle behind the PILs. The main issues are as follows
- PILs have excessively being used for private gains in the guise of public interest. Many useful projects have been stalled because of clandestine PILs in the name of public interest.
- This has been used to engage in the use of a competing rights regime. For instance, when a court orders the closure of the polluting industry, the interests of the workmen and their families who are deprived of their livelihood may not be taken into account by the court.
- The PILs have also been used for literally laughable issues. Some issues sought to be addressed by PILs are a) an alleged indecent live stage show on New Year’s Eve; b) d to regulate the treatment of wild monkeys in Delhi c) the marriage of former Miss World with a tree to overcome certain astrological obstacles in her marriage. This kind of naïve employment of the tool of PIL takes the seriousness out of it.
- PIL has a tendency to inspire the judiciary into judicial overreach. This has tilted the balance of separation of power towards the judiciary. The executive and legislatures have been vocal about the judicial interference in their jurisdiction and the notion of judicial populism.
- The courts have not done anything substantial to stop non-genuine PILs. This burdens the already burdened judiciary. The judicial pendency of socio-economically important PILs is partly because of n number of non-genuine PILs that are pending before the courts.
- So, by entertaining the non-genuine PILs, Courts might be violating the right to speedy trials of the needy population.
- Another major problem of PIL cases has been that of doing only symbolic justice. The symbolism may be understood in two ways. First, as we saw in the Vishakha guidelines, the actual lawmaking took too much time making court directives ineffective. Second can be seen in turning DPSPs in FRs when the state cannot enforce those rights. The Creation of rights that cannot be enforced devalues the notion of fundamental rights.
How the sanctity of PILs is being upheld?
- The Supreme Court as well as High Courts have tried to send strong messages on a case-to-case basis whenever they noticed that the process of PIL was misused. In some cases, the courts have gone to the extent of imposing a fine on plaintiffs who abused the judicial process.
- The Supreme Court has compiled a set of ‘‘Guidelines to be Followed for Entertaining Letters/Petitions Received by it as PIL’’. The Guidelines provide that ordinarily letters/petitions falling under one of the 10 categories provided will be entertained as PIL. Some of those are
- bonded labor matters;
- neglected children;
- non-payment of minimum wages;
- petitions from jails complaining of harassment, death in jail, speedy trial as a fundamental right, etc.;
- 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;
- The guidelines also mention some specific issues that will not be treated as PILs.
- PIL has an important role to play in the civil justice system in that it affords a ladder to justice to disadvantaged sections of society, some of which might not even be well-informed about their rights.
- The judiciary should strike balance by allowing legitimate PILs and discouraging frivolous ones. This can be achieved by confining PIL primarily to those cases where access to justice is undermined by some kind of disability.
- At the same time, it is worth considering if some kind of economic incentives—e.g. protected cost order, legal aid, pro bono litigation, funding for PIL civil society, and amicus curiae briefs—should be offered for not discouraging legitimate PIL cases
The founding fathers of the constitution aspired for an equitable and just society. The preamble of the constitution aspires free India to uphold justice: political, social, and economic. PILs have helped to fulfill the aspirations to some extent. Its sanctity must be protected if it is to be expected to continue to fulfill its mandate.
Practice Question for Mains
PILs, far from being a force of democracy, has become an industry of vested interests. Critically analyze. (250 words)