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).
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.
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.
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.
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.
- 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.