PUBLIC INTEREST LITIGATION: A TOOL FOR PROTECTION OF HUMAN RIGHTS IN INDIA: ABHIJAY CHAKRABORTY

Public Interest Litigation: A tool for the protection of Human Rights in India

Author: Abhijay Chakraborty

Assistant Professor

S.S. Jain Subodh Law College, Jaipur.

ISSN: 2582-3655

Abstract

It is evident by reading Article 32 of the Indian Constitution that the traditional rule –locus standi is that the right to move the Supreme Court is available to those people whose Fundamental rights have been violated. The power vested in the Supreme Court can only be exercised for the enforcement and protection of fundamental rights. The writ under which the remedy is asked under Article 32 must be correlated to one of the fundamental rights sought to be enforced. The remedy must be sought through appropriate proceedings. the courts have played their role in a constructive manner with a view to promote the welfare of the people and strengthen the democratic fabric of the country. At the same time, the increase of the inflow of public interest litigation and the abuse thereof has prompted the Supreme Court to sound a precautionary note.

Keywords: PIL, Locus standi, Article 32, Fundamental Rights.

INTRODUCTION

It is evident by reading the Article 32 of the Indian Constitution that the traditional rule –locus standi is that the right to move the Supreme Court is available to those people whose Fundamental rights have been violated. The power vested in the Supreme Court can only be exercised for the enforcement and protection of fundamental rights. The writ under which the remedy is asked under Article 32 must be correlated to one of the fundamental rights sought to be enforced. The remedy must be sought through appropriate proceedings. If we elaborate the traditional rule of locus standi which came to established since 1880[1], judicial remedy could be available to a person who actually suffered legal injury by reason of his violation of his legal right or legally protected interest by the impugned action of the state or public authority or any other person or who was likely to suffer a legal injury by reason of threatened violation of his legal right or legally protected interest by any such action. Thus the basis of judicial redress under the traditional rule of locus standi was injury to property, body, mind or reputation arising from an actual or threatened violation of his legal right or legally protected interest of the person seeking redress from the court. To meet the ends of justice exception of this rule were recognized from time to time. For example, a taxpayer to local authority was accorded standing to challenge the illegal action of the local authority or misuse of its funds.[2]Section 133 of the criminal procedure code empowers a Magistrate on receiving a report of a police officer or other information to make an order for remedying a public nuisance. Besides all this, exception is also recognized in cases of persons who are not able to reach the court for remedies, such as minor, a prisoner or a person who has been illegally arrested. To meet this requirement the concept of Public Interest Litigation came into existence.

Definition of Public Interest Litigation

The concept of public interest litigation requires that where a legal wrong or legal injury is caused to a person or a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or where any such legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position unable to approach the court, any member of public may maintain an application for appropriate action, direction or writ in the High Court under Article 226. Where the fundamental right is violated he can approach the  Supreme Court under Article 32 or the High Court under Article 226. It may, however, be emphasized that a PIL, writ petition can be filed in the Supreme Court under Article 32 only if a question concerning the enforcement of a Fundamental Right is involved. Under Article 226, a writ petition can be filed in a High Court whether or not a Fundamental Right is involved.

A striking factor of PIL in India is that it is primarily a judicially constructed phenomenon, and related to the active assertion of judicial power. Although there was an explosive assertion of judicial power following the declaration of political emergency in India (between 1975 and1977), such power had become pronounced even before. The constitutional tension between the court and Parliament had been pronounced over land reform.[3] The concept of Public Interest Litigation owes its origin to American Jurisprudence. In India, for the first time, Krishna Iyer J. Initiated public interest litigation in 1976 in Mumbai Kamgar Sabha v. Abdulbhai.[4] His Lordship observed “test litigations, representative actions, pro bono publico and like broadened forms of legal proceedings are in keeping with the current accent on justice to the common man and a necessary disincentive to those who wish to bypass the real issues on the merits by suspect reliance on peripheral, procedural shortcomings… Public interest is promoted by a spacious construction of locus standi in our socio-economic circumstances and conceptual latitudinarianism permits taking liberties with individualization of the right to invoke the higher courts where the remedy is shared by a considerable number, particularly when they are weaker. Less litigation consistent with the fair process is the aim of the adjective law.” In that case, standing was granted to an association of workers as such.  The concept of public interest litigation was further developed in the case of Fertilizer Corporation Kamgar Union v. Union of India.[5] Thereafter judges like Bhagwati J. Jurist like Dr. Upendra Baxi and some social action groups took a special interest in promoting public interest litigation. In Sunil Batra v. Delhi Administration [6]  the Apex Court accepted the writ of Habeas Corpus petition of a prisoner complaining of a brutal assault by Jail Warden on another prisoner. In Dr. Upendra Baxi v. State of U.P.[7] inmates of protective home at Agra were living in inhuman and degrading conditions in violation of Article 21 and because of their socially and economically and economically disadvantaged position they were not able to court. Therefore two Law Professors of Delhi University addressed a letter to the Supreme Court. The court treated the letter as a writ petition. Similarly, a letter written by a journalist for relief against the demolition of hutments of pavement dwellers by the Bombay Municipal Corporation was treated as a writ petition.[8]  The principle of public interest litigation was well established in India after the decision of the Constitution Bench of 7 judges of the Supreme Court in S.P. Gupta v. Union of India[9], The Court held that any member of the public having “sufficient interest” can approach the court for enforcing constitutional or legal rights of other persons and redressal of a common grievance. In People Union for Democratic Rights v. Union of India[10]the supreme court held that where a person provides his labour or services to another for a remuneration which is less than minimum wage, his labour falls within the words ‘ forced labour’. He can claim a remedy under Article 32 and 226 for violation of his right under Article 23 and ask the court to direct the payment of minimum wage to him. This case came before the Apex Court by means of a letter written by the People Union for Democratic Rights to Justice Bhagwati regarding conditions under which workmen engaged in various Asiad projects were working. It was contended that the petitioner has no locus standi but the supreme court rejected this contention.

Abuse of PIL not be allowed: Guidelines: In Judges Transfer Case, while expanding the scope of the locus standi rules his lordship Bhagwati J.  expressed a note of caution also. He observed:

“ But we must be careful to see that the member of the public, who approaches the court in case of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The court must not allow its process to be abused by politicians and others…….”

This observation makes it clear that His Lordship was aware that this liberal rule of locus standi might be misused by vested interests. He, therefore, made it clear that in that case,, the court will not allow the remedy to be abused.

In Simranjit Singh Mann v. Union of India[11] The court held that the petitioners had no ‘ locus standi’ to file petition being a total stranger to the prosecution and more than that they were not even authorized by the convicts. In Guruvayur Devasawom Managing Committee v. C.K. Ranjan [12] The Supreme Court held that public interest litigation cannot be used in solving disputes of private nature. Public Interest Litigation was evolved with a view to render justice to the poor, deprived, the illiterate and downtrodden that have either no access to justice or had been denied justice. It can’t be used for removing corruption in the temple.

Advantages of PIL

  1. The preamble to our constitution and Article 38 emphasizes social, economic and political justice. However, under the present judicial procedure, which is costly and complicated, poor and, ignorant people cannot get justice. PIL has done a praiseworthy job in helping this segment of the population to get their due.
  2. Because of their ignorance, people cannot get the advantages that the law provides for them. Public Interest Litigation has raised their problems in courts.
  3. It helped to activise the administration by building pressure through media and litigation in courts.
  4. The courts have also been sympathetic in such cases and did away with the technical procedures. In many cases, even a letter was treated as the petition.
  5. Many public grievances that affect many people or people at large remain unredressed because no one dares or cares to come forward. Public Interest Litigation has done appreciable work in such areas.

Criticism of Public Interest Litigation

  1. PIL is a weapon which has to be used with great care and circumspection. The judiciary has to be extremely careful to see that behind the beautiful veil of public interest ugly private malice, vested interest or publicity-seeking is not lurking. When there is material to show that a petition styled as public interest litigation is really intended to foster a private personal interest the writ petition is to be thrown out.
  2. Sometimes public interest litigation is also resorted to for the sake of publicity. Such misuse is to be checked. Public Interest Litigation should not be misunderstood as public interest litigation or political interest litigation.
  3. In Bandhua Mukti Morcha v. Union of India[13] Pathak and A.N.Sen J.  Criticized exercise of court’s jurisdiction on the basis of letter written to any judge of the court on the ground that some persons and organizations used PIL for their publicity and some judges also like cheap popularity, which is against the dignity of the court. According to the letter should be addressed to the Chief Justice and not to the particular judge.
  4. In the case mentioned above, it was also said that the Court has no power to appoint a commission for investigation.[14]
  5. Sometimes decisions given in PIL case land the general public in trouble because alternative arrangement involves money and time.
  6. Public Interest Litigation can also be misused for the benefit of a particular section of the public.
  7. Anonymous letters should not be entertained.[15]

Conclusion

Public Interest Litigation has flourished in India mainly because of the lack of any sense of accountability and responsibility on the part of the government. Had the Administration discharged its role faithfully and effectively, there would be no need for people to knock at the doors of the courts to assert their book without the Administration taking any steps to implement the same. On the other hand, the courts have played their role in a constructive manner with a view to promote the welfare of the people and strengthen the democratic fabric of the country. At the same time, the increase of the inflow of public interest litigation and the abuse thereof has prompted the Supreme Court to sound a precautionary note.

REFERENCES

  • Constitution of India.
  • Jain M.P. Indian Constitutional Law, 7th Edition, Lexis Nexis.
  • Pandey Dr.J.N. Constitutional  Law of India , 53rd Edition, Central Law Agency.
  • Pande  J.S. Constitutional  Law of India, 15th Edition, University Book House Pvt.Ltd.
  • Sen Sarbani. Public Interest Litigation in India: Implications for Law and Development.  Manirban Calcutta Research Group.

[1] Ex Parte Sidebotham (1880) 14ch D. 458

[2] K.R. Shenoy v. Udipi Municipality AIR 1974 SC 2177

[3] Jagat Narain, “Judges and distributive justice,” in Rajeev Dhavan & R. Sudarshan, eds., Judges and the
judicial powers [London: Sweet and Maxwell, 1985]

[4] AIR 1976SC1455,1458

[5] AIR 1981SC344

[6] AIR 1980 SC1579

[7] (1981)3 Scale 1137 (SC)

[8] Olga Tellis v. Bombay Municipal Corporations

[9] AIR 1982 SC149

[10] AIR 1982 SC149

[11] (1992)4 SCC 653

[12] AIR 2004 SC 561

[13] AIR1984SC802

[14] Ibid

[15] Divine Retreat Centre v. State of Kerala AIR 2008 SC 1614

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