TAKING THE EXPERIENCE FROM PUBLIC INTEREST LITIGATION IN INDIA
A. Introduction


Such is the disillusionment with the state formal legal system that it is no longer demanded by law to do justice, if justice perchance is done, we congratulate ourselves for being fortune.In judicial circumstances one of the best things that have happened in the country of India recent years is the process reform through Public Interest Litigation or Social Action Litigation (PIL/SAL).

In essence, the PIL develops a new jurisprudence of the accountability of the state for constitutional and legal violations adversely affecting the interest of the weaker elements in the community. The following articles will discuss that whether this mechanism can be a good example to be implemented in other countries.
B. Necessity of Informal Justice
Necessity of informal justice stems from the nature of Anglo-Saxon law prescribing legal formalism and due to the failure of formal legal system to deliver justice that forced informal justice to take on a separate identity from state law.The British rule bequeathed to India as colonial legal heritage. The Anglo-Saxon model of adjudication insisted upon observance of procedural technicalities such as locus standi and adherence to adversarial system of litigation.The result was that the courts were accessible only to the rich and the influential people. The marginalized and disadvantaged groups continued to be exploited and denied basic human rights.C. Evolution of PIL

The Indian PIL is the improved version of PIL from U.S.A. PIL emerged as a result of an informal nexus of pro-active judges, media persons and social activist. This trend shows stark difference between the traditional justice delivery system and the modern informal justice system where the judiciary is performing administrative judicial role. PIL necessary rejection of “laissez faire” of traditional jurisprudence.

According to jurisprudence of Article 32 of the Constitution of India, “The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this part is guaranteed.” Ordinarily, only the aggrieved party has the right to seek redress under Article 32.

D. Aspects of PIL

In 1981 Justice P.N. Bhagwati in S.P. Gupta v. Union of India (1981, SCC 87) articulated the concept of PIL. In regard of this, let us observe the aspects of PIL, namely:

1. Remedial in Nature

Remedial nature of PUL departs from traditional locus standi rules. It is indirectly incorporated the principles enshrined in the Part IV into Part III of Indian Constitution.

2. Representative Standing

Representative standing can be seen as a creative expansion of the well-accepted standing exception which allows a third party to file a habeas corpus petition on the ground that the injured party cannot approach the court himself.

And in this regard the Indian concept of PIL is much broader in relation to the American PIL which is a modified form of class action.

3. Non-Adversarial Litigation

Non-adversarial litigation has two aspects, namely:

  • Collaborative Litigation: In collaborative litigation the effort is from all the sides. The claimant, the court and the Government or the public official, all are in collaboration here to see that basic human rights become meaningful for the large masses of the people.
  • Investigative Litigation: It is investigative litigation because of it works on the reports of the Registrar, District Magistrate, comments of experts, newspaper, etc.
4. Relaxation of Strict Rule of Locus StandiThe rule of locus standi have been relaxed and a person acting bonafide and having sufficient interest in the proceeding of PIL will alone have a locus standi and can approach the court and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration.5. Epistolary JurisdictionThe Supreme Court of India as well as High Courts can convert a letter from a member of public into a writ petition. The access to judicial redress may be found even without a lawyer or filling formal papers.E. Core IssuesNow we will see that whether Indian PIL is emerging as an effective medium of struggle against domination and victimization. Whether this can be used as effective means of social change and to what extent the victim groups have been liberated. We will also see what has been the response of executive to the judicial intitative.

Unlike mainstream law, PIL is not oriented to the individual nor does it deal with a range of ‘single dispute’. PIL is invariably group-oriented. It deals with the assertion of group or collective rights, involves question of injustice pertaining to a group or collectivity, or may involve a legal action where an individual is representative of a group.

PIL is working as an important instrument of social change. It is working for the welfare of every section of society. It is the sword of every one used only for taking the justice. The innovation of this legitimate instrument proved beneficial for the developing country like India. PIL has been used as a strategy to combat the atrocities prevailing in society. It is an institutional initiative towards the welfare of the needy class of the society.

1. Landmark Cases

Mentioning some of the important cases, the following could be considered as landmark judgment in area of PIL.

  • The Supreme Court accepted the locus standi of an advocate to maintain the writ petition and in a series of cases Hussainara Katoon (I) to Hussainara Khatoon (VI) v. State of Bihar. The issued many meaningful for directions and inter alia held that speedy trial was an integral and an essential part of “right to life and liberty” contained in Article 21 of the Constitution.
  • In Nilabati Bahera v State of Orissa on a PIL court evolved the principle of public law doctrine of compensation for violation of human rights according to which liability of the state for violation of human rights is absolute and admits no exception such as sovereign immunity.
  • In M.C. Mehta v. Union of India the petitioner prayed for directions for giving wide publicity to the messages and directions issued by the Court from time to time to protect the environment and ecology on environmental protection.
  • In Bandhua Mukti Morcha v. Union of India, Supreme Court ordered for the release of bonded labourers. Public Interest actions focusing on the plight of bonded labourers have to some extent helped in the implementation of The Bonded Labour System (Abolition) Act, 1976.
  • In a landmark judgement of Delhi Domestic Working Women’s Forum v. Union of India (1995, 1 SCC 14). Supreme Court issued guidelines for rehabilitation and compensation for the rape on working women.
2. Response of GovernmentIn some cases the response of government has been positive to the initiative taken by the judiciary in various PIL. For example, government has complied the Court orders in Sunil Batra v. Delhi Administartion, M.C. Mehta v. Union of India, Bandhua Mukti Morca v. Union of India.In fact guideless issued in D.K. Basu v. State of West Bengal have been incorporated in criminal procedure (amandement) Act. While in criminal procedure response of government has left a lot of be desired.It has often been said that public interest litigation is a collaborative effort on the part of the petitioner, the Court and the Government or the public official to see that basic human right become meaningful for large masses or people.It merely seeks to draw the attention of the authorities to their constitutional and legal obligations and to enforce then so that the rule of law does not remain confined in its beneficent effects to a fortunate few, but extends to all, irrespective of their power, position or wealth.This approach was considerably diluted opposition to public interest litigation and the Government of India has also come to accept it as an essential part of the judicial process.

3. Limitations of PIL

It is hardly surprising, that while Public Interest Litigation may have secured a better life for some individuals, it has not prevented human right violations altogether or remedied it in all cases.

PIL activist themselves admit that howsoever well-intentioned for the downtrodden of the world, we secure their right by law, exactly as though they had the some privilege background as we, and then, outside the court room we leave them to their separate ways.

However to admit the limitations of PIL is not necessarily to dismiss it. Some have suggested that while PIL is not directly instrumental it can be used to call attention to “the pathology of public and dominant group power” and those successful results must be considered merely as bargaining endowments in the struggle to improve the lot of the oppressed.

F. Conclusion

PIL in India has produced astonishing results which were unthinkable two decades ago. Degraded bonded labourers, tortured under trials and women prisoners, exploited children and many others have been liberated through judicial intervention.

The greatest contribution of PIL has been the enhance the accountability of governments towards human rights of underprivileged. Judges alone cannot provide effective responses to governmental lawlessness but they can surely a culture formation where political power becomes increasingly sensitive to human rights.

Other developing countries who are still seeking tool for strengthening justice in grass root level of society, particularly Indonesia, should learn from the PIL experiences delivered in Indian Legal System. Since Indonesia is using civil law system; it seems very difficult to adopt this mechanism. Nevertheless the establishment of Constitutional Court posts 1945 Constitution amendment will give a room to implement this mechanism. As the “guardian of constitution”, the Court should be given another weapon to protect all citizen suffered from the violation of Constitution and Basic Human Rights.

Hence the need to study on this area becomes more important for the country who wants to develop their legal system in order to give more protection on human rights under the Constitution.

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Main Reference:

  • Protection of Human Rights through Public Interest Litigation in India written by Permanand Singh.
  • Public Interest Litigation and Right of Prisoners written by Yogesh Prasad Kolekar.
  • Public Interest Litigation written by Sri Ranjan K. Saran.
  • Public Interest Litigation in Indian Supreme Court: A Study in the Light of American Experience written by Clark D. Cunningham.
  • Taking Suffering Seriously: Social Action Litigation in the Supreme Cour of India written by Upendra Baxi.
  • Others.

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