In this article, Prashant Gupta discusses how to file a Public Interest Litigation.
Introduction
Public Interest Litigation in India marked an epoch in the year 1979 when it was filed against the inhumane conditions that were meted out to the prisoners on trial. In this popular case, Hussainara Khatoon v. State of Bihar, a PIL was filed by an advocate in the apex court on the basis of an article published in the newspaper Indian Express, which put into fore the poor living condition of undertrial prisoners in various jails in the state of Bihar. The Supreme Court took cognizance of the matter and this ultimately led to the release of nearly 40,000 undertrial prisoners languishing in dilapidated jails in Bihar.
The Public Interest Litigation movement in India was further heralded in the case SP Gupta v. Union of India, also known by the moniker – ‘The Judges Transfer case’, the judgement of which was delivered by Justice PN Bhagwati. It was held in this case that, any member of the society/public acting bonafide can file a writ petition in any High Court or the Supreme Court to seek redressal against violation of a legal/constitutional right. As a result of this judgement, PIL became a potent tool for the deprived section/class of the society when the right(s) of the society or a group of individuals are compromised by the government resulting in public injury. A PIL can be filed not only by a group of people collectively but also by any individual directly/indirectly connected or even not connected to the cause or they can be represented by an advocate.
In the year 1981, the brutalities of the Police against the prisoners was exposed in the case of Anil Yadav v. State of Bihar, where a news report revealed that about 33 suspected criminals were blinded by the police by pouring acid into their eyes. The apex court not only ordered the Government of Bihar to bring the blinded victims for treatment to Delhi but also ordered a speedy prosecution of the policemen involved in the incident. The court in this case also recognized the right of free legal aid as a fundamental right of every accused. The petitioner, Anil Yadav, marked a start of social activism and investigative litigation.
Meaning and Definition
As defined in the Black’s Law Dictionary, PIL means “a legal action initiated in a court of law for the enforcement of certain rights that are in the interest of the public where the class of community may or may not have a pecuniary interest or any other interest by which their legal rights are affected”.
Concept of Public Interest Litigation
Under Article 32 of the Indian Constitution, only the aggrieved individual has the right to file a writ in the Supreme Court. Article 32 of our Constitution confers right upon an individual to move to the apex court by appropriate proceedings for the enforcement of rights/duties under the constitution.
Justice PN Bhagwati articulately explained the concept of Public Interest Litigation in SP Gupta v. Union of India in the year 1981. He said, “Whenever a legal wrong or a legal injury is committed upon an individual or a particular class of individuals by reason of violation of any fundamental/legal right or without authority of law any legal wrong is committed or legal injury is inflicted upon, or any illegal burden is inflicted upon downtrodden section of individual(s) by reasons of poverty, disability, helplessness, poor economic and social conditions, are unable to approach the judiciary for relief then any member of the society can file a writ under Article 226 of the Constitution in the High Court and in case of a breach in the fundamental rights of such individuals or class of individuals, relief can be sought in the Supreme Court by virtue of Article 32 of the Constitution.”
Writ Jurisdiction under the Constitution of India
Article 32 of the Indian Constitution is referred to as the ‘Doctrine of Constitutional Remedy’ for enforcement of fundamental rights. The Father of Indian Constitution, Dr BR Ambedkar, dubbed Article 32 as the ‘heart and soul’ of the Indian Constitution. The Supreme Court vindicated the importance given to this article as it provides justice to the economically and socially deprived sections of the society. The Supreme Court went on to expand the term ‘appropriate proceedings’ mentioned under article 32 by saying, the term does not refer to the ‘form’ in which the application/writ is to be filed but to the purpose of the proceeding. As long as the objective of the proceeding is to enforce fundamental rights, the ‘form’ becomes insignificant. This form of interpretation gave rise to epistolary jurisdiction by which even telegrams and letters were accepted as writ petitions.
A PIL can be filed in the apex court under article 32 of the constitution or before the High Court under Article 226 of the constitution.
Subjects of Public Interest Litigation
The below-mentioned subjects may be litigated under the head of PIL
Matters pertaining to the public interest which generally include and not limited to the following issues:
- Petitions from the riot victims;
- Environmental pollution, ecological imbalance;
- Food adulteration, preservation of heritage, culture, forests and wildlife;
- Exploitation of economically and socially downtrodden sections of the society (Scheduled Castes/Scheduled Tribes etc);
- Welfare of children;
- Other matters related to public interest.
Matters that are private/civil in nature generally include but not limited to the following:
- Admission related issues to colleges/universities of national importance. (Indian Institutes of Technology, Indian Institutes of Management, National Law Universities, to name a few);
- Seeking investigation by an agency other than the local law enforcement (Like Central Bureau of Investigation, National Investigation Agency);
- Service-related matters;
- Landlord-Tenant matters;
- Threat/intimidation of the petitioner(s) by private individuals.
Petitions can be filed by letters and even electronically as well online or by simply writing an E-mail addressed to the Chief Justice of India. Petitions that are not of public interest can also be treated as writ petitions subject to the discretion of the Judge of the Supreme Court/High Court concerned. Such matters may include but are not limited to the following:
- Police torture;
- Kidnapping;
- Offences related to Women/Children;
- Petition regarding Pensions;
- Petition regarding refusal of the law enforcement to file FIR(s)
Procedure for filing a Public Interest Litigation
The modus operandi for filing a PIL can be divided into two ways:
- Filing: A PIL is filed in the same manner as a writ petition is filed either in the Supreme Court (Article 32) or in the High Court (Article 226). If the PIL is to be filed in the High Court, then two copies of the petition have to be filed and if the PIL is to be filed in the Supreme Court, then the petition has to be filed in five sets (4+1). Also, it is imperative to serve an advance copy of the petition on each respondent/opposite party and the proof of having served the copy of the petition to the respondent(s) has to be affixed with the petition – that can be in the form of postal or courier receipts.
- Procedure: A court fee amounting to Rs. 50 per respondent (for more than one, each respondent will have to pay Rs. 50 as court fee) has to be affixed to the petition. The proceedings in a PIL hearing are carried out in the same way as in another case irrespective of its nature. However, during the PIL proceedings, if the presiding judge feels a court commissioner has to be appointed to investigate the matter in question like inquiry on allegations of pollution being caused, trees being cut among other things. Post reply by the respondent(s) or rejoinder by the petitioner, the judge(s) may give his/her decision.
It is pertinent to note that before filing a PIL, it is admonished that the petitioner first brings the dispute before the relevant authorities and give them sufficient time to act on it. However, when no action is taken or the petitioner is not satisfied with the response/action, they may file a PIL before the concerned court of law, High Court or the Supreme Court.
Against whom a Public Interest Litigation can be filed
A PIL can be filed against the Central government, State governments, municipal corporations and any other authority that comes within the purview of a ‘state’ as defined under Article 12 of the Indian Constitution. Article 12 of the Indian constitution includes the following:
- The Government (central and state);
- Parliament of India, Legislative Assemblies/Councils of all states and Union Territories;
- Any local or other authorities within the delimitations of India and controlled directly/indirectly by the government.
- Other authorities
The Public Sector Undertakings (PSUs), government enterprises, government institutions, Government agencies come within the ambit of Article 12 of the constitution. In Electricity Board, Rajasthan v. Mohan Lal, the apex court held that ‘other authorities’ include all the institutions/authorities that are created by the Indian constitution and upon whom powers are conferred by law. A ‘private party’ can be made a ‘respondent’ only when the state is made a party to it.
Aspects of Public Interest Litigation
- Remedial in Nature: The remedial nature of Public Interest Litigation is a result of its tectonic shift from the traditional ‘locus standi’ rules. It incorporated the Fundamental Duties under Part IV of the Indian constitution into Part III of the constitution which mentions Fundamental Rights. By this change, the ‘straitjacketed’ nature was shifted to a more dynamic welfare oriented one.
- Representative Standing: This is an exception to the general ‘locus standi’ rule which allows a third party to file a habeas corpus in cases where the aggrieved party cannot appear before the court.
- Citizen Standing: This doctrine of citizen standing marked an epoch in the significant expansion of the court’s rule from a ‘protector’ of individual rights to a ‘guardian’ of the rule of law whenever the latter is threatened by official apathy.
- Non-Adversarial Litigation: The apex court in People’s Union for Democratic Rights v. Union of India distinguished traditional litigations from Public Interest Litigation. It said PIL is a different kind of litigation which is substantially different from the adversarial form of litigation where one party seeks relief against the other party and that another party (opponent party) opposes such claims. Non-adversarial litigation has two aspects:
(i) Collaborative Litigation: In such form of litigation, the effort to provide justice is from all sides namely the petitioner, the court, the government/public official to check if the human rights of every individual are not violated. PIL petitions help the government/executive discharge their constitutional functions. The court assumes three different functions to deliver justice – different from its traditional role of determinations and issuance of the decree.
- Ombudsman: An ombudsman is a quasi-judicial body where the citizen may file a written complaint in a prescribed format and submit it to them for quick redressal.
- Forum: The courts provide a forum as a place to deliberate on public issues at length and provide emergency relief through interim orders. Different forums include- National Lok Adalat, Permanent Lok Adalat to name a few.
- Mediator: The court may also act as a mediator to settle disputes. It is primarily focused on personal, business, family, social and community matters.
(ii) Investigative Litigation: In most of the cases, the court appoints officials like the District Magistrate, Superintendent of Police, Central Bureau of Investigation, National Human Rights Commission or even ad-hoc commissions of enquiry in socio-political-legal matters. This is called investigative litigation.e. Crucial Aspects: The Supreme Court in Sheela Barse v. State of Maharashtra, the apex court issued guidelines to curtail custodial violence. The Supreme Court broadened the meaning of the right to live with dignity as given under Article 21 of the Indian constitution.f. Epistolary Jurisdiction: The term ‘epistolary’ means ‘in the form of letters’. As mentioned earlier, the apex court started accepting PILs in the form of letters, emails. Telegrams etc. The main purpose of introducing such a concept was to focus on the purpose of the PIL than its form.
Factors leading to the growth of Public Interest Litigation
PIL is a result of judicial activism. It has become a tool to address public issues before the court within the confines of the legal and constitutional mould. Public Interest Litigations have played a substantial role in upholding fundamental rights of the people as well as exposing the latent as well as patent social problems and finding a remedy for them. PIL is a weapon that must be used with great care and circumspection. It is the responsibility of the court to see if such a tool is not being encroached upon the sphere reserved by the constitution to the executive and legislature under the garb of redressing the public grievance.
The main reason for the growth of Public Interest Litigation in India was its bureaucratic ‘inertia’ and the apathy of the executive towards the problems faced by the society especially the downtrodden sections of the society. The administration in India still has an antagonistic demeanour rather than a helpful one towards the public. There is no mechanism for redressal of public grievances in the country. For years there have been talks of establishing a Lokpal Ombudsman but it is still a distant reality. Hence, till date, an aggrieved person only has courts for redressal of its grievances. Similarly, the mechanism established for the protection of the environment has proved to be ineffective and hence, the option of PIL is resorted to for the protection of the environment. The administration lacks a sense of accountability and responsibility while the legislature focuses on issues that are unrelated to the welfare of the hoi polloi. All these factors led to the growth of Public Interest Litigation in India. The courts in India have played a substantial role in promoting the welfare of the people and restraining the waywardness of the executive in the country.
Conclusion
PIL has proved to be an important instrument for social change. PIL works for everyone irrespective of caste, class, gender etc. The introduction of this tool has proved beneficial for a developing country like India. PIL has been utilized as a strategy to counter the atrocities by the underprivileged in the society. However, it is also important to check for the misuse of this tool. Frivolous PILs are also filed under the guise of voicing of the downtrodden sections of the society. Advocates file PILSs to garner limelight – this defeats the very purpose of PILs. Hence, it becomes important to differentiate between a genuine and a frivolous PIL. Quoting Cunnigham, he once said – “Indian PIL might rather be a Phoenix: a whole new creative arising out of the ashes of the old order.”
The post How to file a Public Interest Litigation (PIL) appeared first on iPleaders.
Image may be NSFW.Clik here to view.