Administrative Law

CHANAKYA NATIONAL LAW UNIVERSITY

PUBLIC
INTEREST LITIGATION

Submitted to Submitted by:

Prof. Dr .S. Ali Mohmmad Kundan Kumar

Roll no. 1627

BBA LLB

1|Page
Administrative Law

ACKNOWLEDGEMENT

I am using this opportunity to express my gratitude to everyone who supported me throughout

the course of this project. I am thankful for their aspiring guidance, invaluably constructive
criticism and friendly advice during the project work. I am sincerely grateful to them for sharing
their truthful and illuminating views on a number of issues related to the project.

I express my warm thanks to Dr. Prof. Syed Ali Mohmmad for his support and guidance at
chanakya law university University.

I would also like to thank all the concerned authorities and all the people who provided me with
the facilities being required and conductive conditions for my project.

Thank you

2|Page
Administrative Law

REVIEW OF LITERATURE

Following are the literary works used in this project:

1. Public Interest litigation by Mamta Rao

This book helped to a great extent as the book consisted of the basic information about
the of public interest litigation The book contained the basic introductory matter which
were very helpful for this project. The book also consisted certain concepts regarding the
origin of public interest litigation which were very much helpful in the making of this
project. But since this book did not consist a lot of information but consisted only some
of the basic introductory matter it was not enough for the research work.

2. Public Interest Litigation by W.L. Wadheera

This book by S.R. Myneni was also a great help. This book consisted of a lot of
information which the first book did not have. It consisted some more information on the
concept and origin of public interest litigation. The concepts of various jurists was a great
help.

RESEARCH METHODOLOGY

The researcher will be using only doctrinal methods of research. The researcher will be using
various books, articles present in the library for doctrinal research.

HYPOTHESIS
The researcher assumes that the role of public interest litigation has been instrumental in
providing justice, in matters of public interest.

3|Page
Administrative Law

CONTENTS

Pg

INTRODUCTION 5

EVOLUTION OF PIL 6-7

JUDICIAL MODIFICATION OF PIL 8-9

THE DEBATE OVER LABEL PIL OR SOCIAL ACTION 10

LITIGATION

THE THREE PHASES OF PIL 11-13

SOME RECENT PIL CASES 14

DARK SIDE OF PIL 15-17

CHECKING DARK SIDE OF PIL 18-19

CONCLUSION 20

BIBLIOGRAPHY 21

4|Page
Administrative Law

INTRODUCTION

One of the overarching aims of law and legal systems has been to achieve justice in the society
and public interest litigation (PIL) has proved to be a useful tool in achieving this objective. For
example, PIL—in which the focus is not on 1vindicating private rights but on matters of general
public interest—extends the reach of judicial system to disadvantaged sections of society. It also
facilitates an effective realisation of collective, diffused rights for which individual litigation is
neither practicable nor an efficient method. Nevertheless, PIL has generally received peripheral
attention in debates on civil justice reforms around the world. This is not to suggest that the
evolution of PIL in various jurisdictions has missed the attention of scholars. To continue this
tradition, this article aims to critically examine the evolution and development of PIL in India.
The main objective of this examination is to highlight the dark side of PIL so that other
jurisdictions could learn useful lessons from the Indian experience. The choice of India—a
democracy of over 1 billion people governed by a common law system, rule of law and
independent judiciary—for learning lessons in the area of PIL is an obvious one given the
contribution of India to the PIL jurisprudence. I begin this article with a review of the evolution
of PIL, which could be traced to mid-1970s, and the debate about its appropriate label. An
attempt is then made to divide the past PIL cases of more than 30 years into three broad phases
to understand better the transformations that2 have taken place in the PIL jurisprudence over
these years. Finally, I highlight the major variables which provided impetus to the development
of PIL in India. Although this article aims to highlight the dark side of PIL, it will not be fair if
the positive contributions of PIL are not acknowledged. After all, the dark side could only be
discussed in the backdrop of a bright side. The section on ‘‘Positive contributions’’, therefore,
briefly highlights the positive contributions that the PIL project has made within and outside
India. ‘‘The dark side’’ then offers critical insights into various aspects of PIL, which together
constitute its dark side. Here again, before mapping these facets of the dark side, I will take
1
https://en.wikipedia.org/wiki/Public_interest_litigation_in_India
2
http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=a4a599a3-ee92-41da-aa0b-
b4201b77a8bd&txtsearch=Subject:%20Jurisprudence

5|Page
Administrative Law

readers to a quick tour of some recent PIL cases in India. The conclusion will sum up the
discussion and also throw some light on how other jurisdictions could benefit from the Indian
PIL experience

EVOLUTION OF PIL IN INDIA

It should be noted at outset that PIL, at least as it had developed in India, is different from class
action or group litigation. Whereas the latter is driven primarily by efficiency considerations, the
PIL is concerned at providing access to justice to all societal constituents. PIL in India has been a
part of the constitutional litigation and not civil litigation. Therefore, in order to appreciate the
evolution of PIL in India, it is desirable to have a basic understanding of the constitutional
framework and the Indian judiciary. After gaining independence from the British rule on August
15, 1947, the people of India adopted 3a Constitution in November 1949 with the hope to
establish a ‘‘sovereign socialist secular democratic republic’’. Among others, the Constitution
aims to secure to all its citizens justice (social, economic and political), liberty (of thought,
expression, belief, faith and worship) and equality (of status and of opportunity).6These aims
were not merely aspirational because the founding fathers wanted to achieve a social revolution
through the Constitution. The main tools employed to achieve such social change were the
provisions on fundamental rights (FRs) and the directive principles of state policy (DPs), which
Austin described as the ‘‘conscience4 of the Constitution’’. In order to ensure that FRs did not
remain empty declarations, the founding fathers made various provisions in the Constitution to
establish an independent judiciary. As we will see below, provisions related to FRs, DPs and
independent judiciary together provided a firm constitutional foundation to the evolution of PIL
in India. Part III of the Constitution lays down various FRs and also specifies grounds for
limiting these rights. ‘‘As a right without a remedy does not have much substance’’, the remedy
to approach the Supreme Court directly for the enforcement of any of the Pt III rights has also
been made a FR. The holder of the FRs cannot waive them. Nor can the FRs be curtailed by an
amendment of the Constitution if such curtailment is against the basic structure of the
Constitution. Some of the FRs are available only to citizens while others are available to citizens

3
http://www.legalservicesindia.com/article/2528/A-Study-on-Public-Interest-Litigation-In-Full-Concept.html
4
https://www.thebetterindia.com/104204/5-pil-cases-every-indian-citizen-grateful/

6|Page
Administrative Law

as well as non-citizens, including juristic persons. Notably, some of the FRs are expressly
conferred on groups of people or community. Not all FRs are guaranteed specifically against the
state and some of them are expressly guaranteed against non-state bodies. Even the ‘‘state’’ is
liberally defined in art.12 of the Constitution to include, ‘‘the Government and Parliament of
India and the Government and the 5legislature of each of the states and all local or other
authorities within the territory of India or under the control of the Government of India’’. The
expression ‘‘other authorities’’ has been expansively interpreted, and any agency or
instrumentality of the state will fall within its ambit. The DPs find a place in Pt IV of the
Constitution. Although the DPs are not justiciable, they are, ‘‘nevertheless fundamental in the
governance of the country and it shall be the duty of the state to apply these principles in making
laws’’.After initial deviation, the Supreme Court accepted that FRs are not superior to DPs on
account of the latter being non-justiciable: rather FRs and DPs are complementary and the
former are a means to achieve the goals indicated in the latter. The issue was put beyond any
controversy in Minerva Mills Ltd v Union of India where the Court held that the, ‘‘harmony and
balance between fundamental rights and directive principles is an essential feature of the basic
structure of the Constitution’’.Since then the judiciary has employed DPs to derive the contents
of various FRs. The founding fathers envisaged 6‘‘the judiciary as a bastion of rights and
justice’’. An independent judiciary armed with the power of judicial review was the
constitutional device chosen to achieve this objective. The power to enforce the FRs was
conferred on both the Supreme Court and the High Courts —the courts that have entertained all
the PIL cases. The judiciary can test not only the validity of laws and executive actions but also
of constitutional amendments. It has the final say on the interpretation of the Constitution and its
orders, supported with the power to punish for contempt, can reach everyone throughout the
territory of the country. Since its inception, the Supreme Court has delivered judgments of far-
reaching importance involving not only adjudication of disputes but also determination of public
policies and establishment of rule of law and constitutionalism.

5
https://www.sci.gov.in/pdf/Guidelines/pilguidelines.pdf
6
https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1492&context=ijgls

7|Page
Administrative Law

JUDICIAL MODIFICATION OF PIL

Two judges of the Indian Supreme Court (Bhagwati and Iyer JJ.) prepared the groundwork, from
mid-1970s to early 1980s, for the birth of PIL in India. This included modifying the traditional
requirements of locus standi, liberalising the procedure to file writ petitions, creating or
expanding FRs, overcoming evidentiary problems, and evolving innvative remedies.

Modification of the traditional requirement of standing was sine qua non for the evolution of PIL
and any public participation in justice administration. The need was more pressing in a country
like India where a great majority of people were 7either ignorant of their rights or were too poor
to approach the court. Realising this need, the Court held that any member of public acting bona
fide and having sufficient interest has a right to approach the court for redressal of a legal wrong,
especially when the actual plaintiff suffers from some disability or the violation of collective
diffused rights is at stake. Later on, merging representative standing and citizen standing, the
Supreme Court in Gupta v Union of India held: ‘‘Where a legal wrong or a legal injury is caused
to a person or to a determinate class of persons by reason of violation of any constitutional or
legal right ... and such person or determinate class of persons is by reasons of poverty,
helplessness, or disability or socially or economically disadvantaged position, unable to approach
the Court for any relief, any member of the public8 can maintain an application for an appropriate
direction, order or writ.’’ The court justified such extension of standing in order to enforce rule
of law and provide justice to disadvantaged sections of society. Furthermore, the Supreme Court
observed that the term ‘‘appropriate proceedings’’ in art.32 of the Constitution does not refer to
the form but to the purpose of proceeding: so long as the purpose of the proceeding is to enforce
a FR, any form will do.This interpretation allowed the Court to develop epistolary jurisdiction by
which even letters or telegrams were accepted as writ petitions. Once the hurdles posed by locus
standi and the procedure to file writ petitions were removed, the judiciary focused its attention to
providing a robust basis to pursue a range of issues under PIL. This was achieved by both
interpreting existing FRs widely and by creating new FRs. Article 21—‘‘no person shall be

7
https://www.telegraphindia.com/opinion/the-rule-that-a-pil-can-only-be-heard-in-high-courts-or-the-supreme-
court-ends-up-denying-justice-to-the-poor/cid/1676495
8
https://timesofindia.indiatimes.com/india/sc-defers-hearing-pil-against-bill/articleshow/67533760.cms

8|Page
Administrative Law

deprived of his life or personal liberty except according to the procedure established by law’’—
proved to be the most fertile provision in the evolution of new FRs. ‘‘Life’’ in this article has
been interpreted to mean more than mere physical existence; it ‘‘includes right to live with
human dignity and all that goes along with it’’. Ever-widening horizon of art.21 is illustrated by
the fact that the Court has read into it, inter alia, the right to health, livelihood, free and
compulsory 9education up to the age of 14 years, unpolluted environment, shelter, clean drinking
water, privacy, legal aid, speedy trial, and various rights of under-trials, convicts and prisoners. It
is important to note that in a majority of cases the judiciary relied upon DPs for such extension.
The judiciary has also invoked art.21 to give directions to government on matters affecting lives
of general public, or to invalidate state actions, or to grant compensation for violation of FRs.
The final challenge before the Indian judiciary was to overcome evidentiary problems and find
suitable remedies for the PIL plaintiffs. The Supreme Court responded by appointing fact-finding
commissioners and amicus curiae. As in most of the PIL cases there were no immediate or quick
solutions, the Court developed ‘‘creeping’’ jurisdiction thereby issuing appropriate interim
orders and directions. The judiciary also emphasised that PIL is not an adversarial but a
collaborative and cooperative project in which all concerned parties should work together to
realise the human rights of disadvantaged sections of society.

THE DEBATE OVER LABEL: PIL OR SOCIAL ACTION LITIGATION

9
http://www.indiaenvironmentportal.org.in/category/1255/thesaurus/public-interest-litigation-pil/

9|Page
Administrative Law

Given that the birth of PIL in India was connected to the evolution of PIL in the United States, it
was natural for scholars to draw comparisons between the US experience and the Indian
experience. One result of this comparison was that it was argued that PIL in India should be
labeled as social action litigation (SAL). Baxi was the key scholar who mooted for such
indigenous labelling of PIL because of its distinctive characteristics. He contended that whereas
PIL in the United States has focused on10 ‘‘civic participation in governmental decision
making’’, the Indian PIL discourse was directed against ‘‘state repression or governmental
lawlessness’’ and was focused primarily on the rural poor. Writing in the early 1980s, Baxi
highlighted another contrast: that unlike India, PIL in the United States sought to represent
‘‘interests without groups’’ such as consumerism or environment. At least two comments could
be made about the desire to designate PIL as SAL. First, the term ‘‘social action’’ probably
implied the role that law could/should play in social engineering. However, considering that in
PIL cases judges (rather than the legislature) play a key role and the law is judgemade law, one
should not over-estimate what courts11 could deliver through PIL/SAL in a democracy. No doubt,
courts could help in providing an official recognition to the voices of minorities or destitutes that
might be ignored otherwise, but it would be unrealistic to expect that they could achieve social
transformation on their own. Secondly, as we will note in the next section, the character of the
PIL in India has changed a lot in the second phase in that now it is not limited to espousing the
interests of disadvantaged sections of society or to redressing state repression and governmental
lawlessness. In fact, in the second phase, the focus of PIL in India has shifted from poor to the
middle class and from redressing state exploitation of disadvantaged groups to pleas for civic
participation in governance. Although there are still differences between how the PIL
jurisprudence has unfolded in the United States and India, the distinction as to the subject-matter
or the basic objective of the PIL is not that much as it used to be when an argument was made to
label PIL as SAL.

10
https://en.wikipedia.org/wiki/Public_interest_litigation_in_India
11
https://www.thebetterindia.com/104204/5-pil-cases-every-indian-citizen-grateful/

10 | P a g e
Administrative Law

THE THREE PHASES OF PIL

At the risk of over-simplification and overlap, the PIL discourse in India could be divided, in my
view, into three broad phases. One will notice that these three phases differ from each other in
terms of at least the following four variables: who initiated PIL cases; what was the subject
matter/focus of PIL; against whom the relief was sought; and how judiciary responded to PIL
cases. In the first phase—which began in the late 1970s and continued through the 1980s—the
PIL cases were generally filed by public-spirited persons (lawyers, journalists, social activists or
academics). Most of the cases related to12 the rights of disadvantaged sections of society such as
child labourers, bonded labourers, 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. During this phase, the judiciary responded
by recognising the rights of these people 13and giving directions to the government to redress the
alleged violations. In short, it is arguable that in the first phase, the PIL truly became an
instrument of the type of social transformation/revolution that the founding fathers had expected
to achieve through the Constitution. The second phase of the PIL was in the 1990s during which
several significant changes in the chemistry of PIL took place. In comparison to the first phase,
the filing of PIL cases became more institutionalised in that several specialised NGOs and
lawyers started bringing matters of public interest to the courts on a much regular basis. The
breadth of issues raised in PIL also expanded tremendously—from the protection of 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. It is to be noted that in this phase, the petitioners sought relief not only against the
action/non-action of the executive but also against private individuals, in relation to policy
matters, and regarding something that would clearly fall within the domain of the legislature.The
response of the judiciary during the second phase was by and large much bolder and

12
http://www.pilindia.in/
13
https://www.vakilno1.com/legal-advice/know-public-interest-litigation-pil.html

11 | P a g e
Administrative Law

unconventional than the first phase. For 14instance, the courts did not hesitate to come up with
detailed guidelines where there were legislative gaps. The courts enforced FRs against private
individuals and granted relief to the petitioner without going into the question of whether the
violator of the FR was the state. 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. The second
phase was also the period when the misuse of PIL not only began but also reached to a disturbing
level, which occasionally compelled the courts to impose fine on plaintiffs for misusing PIL for
private purposes. It is thus apparent that in the second phase the PIL discourse broke new grounds
and chartered on previously unknown paths in that it moved much beyond the declared objective
for which PIL was meant. The courts, for instance, took resort to judicial legislation when
needed, did not hesitate to reach centres of government power, tried to extend the protection of
FRs against non-state actors, moved to protect the interests of the middle class rather than poor
populace, and sought means to control the misuse of PIL for ulterior purposes. On the other hand,
the third phase—the current phase, which began with the 21st century—is a period 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, e.g. calling back the Indian cricket team from the Australia tour and
preventing an alleged marriage of an actress15 with trees for astrological reasons. 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. Although
the judiciary is unlikely to roll back the expansive scope of PIL, it is possible that it might make
more measured interventions in the future. One aspect that stands out in the third phase deserves
a special mention. In continuation of its approval of the government’s policies of liberalisation in
Delhi Science Forum, the judiciary has shown a general support to disinvestment and
development policies of the Government. What is more troublesome for students of the PIL
project in India is, however, the fact that this judicial attitude might be at the cost of the
sympathetic response that the rights and interests of impoverished and vulnerable sections of
society (such as slum dwellers and people displaced by the construction of dams) received in the

14
https://www.sci.gov.in/pdf/Guidelines/pilguidelines.pdf
15
http://www.legalserviceindia.com/article/l171-Public-Interest-Litigation.html

12 | P a g e
Administrative Law

first phase. The Supreme Court’s observations 16such as the following also fuel these concerns:
‘‘Socialism might have been a catchword from our history. It may be present in the Preamble of
our Constitution. However, due to the liberalisation policy adopted by the Central Government
from the early nineties, this view that the Indian society is essentially wedded to socialism is
definitely withering away.’’ It seems that the judicial attitude towards PIL in these three phases is
a response, at least in part, to how it perceived to be the ‘‘issue(s) in vogue’’. If rights of
prisoners, pavement dwellers, child/bonded labourers and women were in focus in the first phase,
issues such as environment, AIDS, corruption and good governance were at the forefront in
second phase, and development and free market considerations might dominate the third phase.
So, the way courts have reacted to PIL in India is merely a reflection of what people expected
from the judiciary at any given point of time. If the judiciary deviates too much from the
prevailing social expectations, it might not command the public support that it requires to sustain
PIL.

SOME RECENT PIL CASES

In the last three decades, the Indian Supreme Court and High Courts have been approached
through PIL to redress a variety of issues, not all of which related to alleged violation of FRs.
The judiciary, for instance, has addressed issues such as: the constitutionality of the

16
https://www.pilship.com/en-pil-pacific-international-lines/1.html

13 | P a g e
Administrative Law

Government’s privatization and disinvestment policies, defacing of rocks by painted

advertisements, the danger to the Taj Mahal from a refinery, pollution of rivers, relocation of
industries out of Delhi, lack of access to food, deaths due to starvation, use of environment-
friendly fuel in Delhi buses and17 regulation of traffic, outof-turn allotment of government
accommodation, prohibition of smoking in public places, arbitrary allotment of petrol outlets,
investigation of alleged bribe taking, employment of children in hazardous industries, rights of
children and bonded labours, extent of the right to strike, right to health, right to education,
sexual harassment in the workplace, and female foeticide and infanticide through modern
technology. Although a review of the above sample of PIL cases may surprise those who are not
familiar with PIL in India, it should be noted that in all the above cases the judiciary did actually
entertain the PIL and took these cases to their logical conclusion. But there have been instances
of more blatant misuse of the process of PIL. For instance, the courts were approached to call
back the Indian cricket team from Australia after the controversial Sydney test match. PILs were
initiated to regulate the treatment of wild monkeys in Delhi and the practice of private schools to
conduct admission interviews for very young18 children. A PIL was also filed in the Supreme
Court to seek ban on the publication of allegedly obscene and nude photographs in newspapers.
Some so-called public-spirited lawyers knocked at the door of the courts against: (i) Richard
Gere’s public kissing of an Indian actress, Ms Shilpa Shetty; (ii) an alleged indecent live stage
show on New Year’s Eve; and (iii) the marriage of former Miss World, Ms Aishwarya Rai, with
a tree to overcome certain astrological obstacles in her marriage. More recently, the PIL
discourse was employed to request the Indian government to send technical experts to work with
the Nepal government in strengthening the Bhimnagar barrage to prevent recurrence of flood and
to challenge the constitutional validity of the Indo–US civil nuclear agreement.

DARK SIDE OF PIL

17
https://www.google.com/search?
q=pil+in+india&ei=FhV9XIaRO5LcrQH93r3QDQ&start=20&sa=N&ved=0ahUKEwiG9LbYuejgAhUSbisKHX1vD9oQ8t
MDCOYB&biw=1366&bih=657
18
https://www.indiatoday.in/magazine/cover-story/story/20030818-1986-chief-justice-p.n.-bhagwati-introduced-
public-interest-litigation-792018-2003-08-18

14 | P a g e
Administrative Law

It seems that the misuse of PIL in India, which started in the 1990s, has reached to such a stage
where it has started undermining the very purpose for which PIL was introduced. In other words,
the dark side is slowly moving to overshadow the bright side of the PIL project. Ulterior
purpose: public in PIL stands substituted by private or publicity One major rationale why the
courts supported PIL was its usefulness in serving the public interest. It is doubtful, however, if
PIL is still wedded to that goal. As we have seen above, almost any issue is presented to the
courts in the guise of public interest 19 because of the allurements that the PIL jurisprudence
offers (e.g. inexpensive, quick response, and high impact). Of course, it is not always easy to
differentiate ‘‘public’’ interest from ‘‘private’’ interest, but it is arguable that courts have not
rigorously enforced the requirement of PILs being aimed at espousing some public interest.
Desai and Muralidhar confirm the perception that: ‘‘PIL is being misused by people agitating for
private grievances in the grab of public interest and seeking publicity rather than espousing
public causes.’’ It is critical that courts do not allow ‘‘public’’ in PIL to be substituted by
‘‘private’’ or ‘‘publicity’’ by doing more vigilant gate-keeping. merely of [an] academic value’’.
The fact that courts need years to settle cases might also suggest that probably courts were not
the most appropriate forum to deal with the issues in hand as PIL. Judicial populism Judges are
human beings, but it would be unfortunate if they admit PIL cases on account of raising an issue
that is (or might become) popular in the society. Conversely, the desire to become people’s
judges in a democracy should not hinder admitting PIL cases which involve an important public
interest but are potentially unpopular. The fear of judicial populism is not merely academic is
clear from the following observation of Dwivedi J. in Kesavnanda Bharathi v Union of India:
‘‘The court is not chosen by the people and is not responsible to them in the sense in which the
House of People is. However, it will win for itself a permanent place in the hearts of the people
and augment its moral authority if it can shift the focus of judicial review from the numerical
concept of minority protection to the humanitarian concept of the protection of the weaker
section of the people.’’ It is submitted that courts should refrain from perceiving themselves as
crusaders constitutionally obliged to redress all failures of democracy. Neither they have this
authority nor could they achieve this goal. Symbolic justice Another major problem with the PIL
project in India has been of PIL cases often doing only symbolic justice. Two facets of this
problem could be noted here. First, judiciary is often unable to ensure that its guidelines or

19
https://acadpubl.eu/hub/2018-120-5/4/368.pdf

15 | P a g e
Administrative Law

directions in PIL cases are complied with, for instance, regarding sexual harassment at
workplace (Vishaka case) or the procedure of arrest by police (D.K. Basu case). No doubt, more
empirical research is needed to investigate the extent of compliance and the difference made by
the Supreme Court’s guidelines.But it seems that the judicial intervention in these cases have
made little progress in combating 20sexual harassment of women and in limiting police atrocities
in matters of arrest and detention. The second instance of symbolic justice is provided by the
futility of overconversion of DPs into FRs and thus making them justiciable. Not much is gained
by recognising rights which cannot be enforced or fulfilled. It is arguable that creating rights
which cannot be enforced devalues the very notion of rights as trump. Singh aptly notes that, ‘‘a
judge may talk of right to life as including right to food, education, health, shelter and a horde of
social rights without exactly determining who has the duty and how such duty to provide positive
social benefits could be enforced’’. So, the PIL project might dupe disadvantaged sections of
society in believing that justice has been done to them, but without making a real difference to
their situation. Disturbing the constitutional balance of power Although the Indian Constitution
does not follow any strict separation of powers, it still embodies the doctrine of checks and
balances, which even the judiciary should respect. However, the judiciary on several occasions
did not exercise self-restraint and moved on to legislate, settle policy questions, take over
governance, or monitor executive agencies. Jain cautions against such tendency: ‘‘PIL is a
weapon which must be used with great care and circumspection; the courts need to keep in view
that under the guise of redressing a public grievance PIL does not encroach upon the sphere
reserved by the Constitution to the executive and the legislature.’’ Moreover, there has been a
lack of consistency as well in that in some cases, the Supreme Court did not hesitate to intrude
on policy questions but in other cases it hid behind the shield of policy questions. Just to
illustrate, the judiciary intervened to tackle sexual harassment as well as custodial torture and to
regulate the adoption of children by foreigners, but it did not intervene to introduce a uniform
civil code, to combat ragging in educational institutions, to adjust the height of the Narmada dam
and to provide a humane face21 to liberalisation-disinvestment polices. No clear or sound
theoretical basis for such selective intervention is discernable from judicial decisions. It is also
suspect if the judiciary has been (or would be) able to enhance the accountability of the other two
wings of the government through PIL. In fact, the reverse might be true: the judicial usurpation
20
http://www.legalservicesindia.com/article/1844/Public-Interest-Litigation---A-Critical-Evaluation.html
21
https://acadpubl.eu/hub/2018-120-5/4/368.pdf

16 | P a g e
Administrative Law

of executive and legislative functions might make these institutions more unaccountable, for they
know that judiciary is always there to step in should they fail to act. PIL should not be the first
step in redressing all kinds of grievances even if they involve public interest. In order to remain
effective, PIL should not be allowed to become a routine affair which is not taken seriously by
the Bench, the Bar, and most importantly by the masses: ‘‘The overuse of PIL for every
conceivable public interest might dilute the original commitment to use this remedy only for
enforcing human rights of the victimised and the disadvantaged groups.’’ If civil society and
disadvantaged groups lose faith in the efficacy of PIL, that would sound a death knell for it.

CHECKING DARK SIDE OF PIL

One might ask if the dark side of PIL is so visible, why has something not been done about this
by the government or the judiciary?22 An attempt to curb the misuse of the PIL was made, though
not strictly on the part of the Government, in 1996 when a private member Bill was introduced in

22
http://shodhganga.inflibnet.ac.in/bitstream/10603/39837/15/15_acapter%207.pdf

17 | P a g e
Administrative Law

the Rajya Sabha, the Upper House of the Indian Parliament. The Public Interest Litigation
(Regulation) Bill had proposed that petitioners filing frivolous PIL cases should be ‘‘put behind
bars and pay the damages’’. However, the Bill—which raised concerns of interfering with
judicial independence—could not receive the support of all political parties. As the Bill lapsed,
this attempt to control the misuse of PIL failed. On the other hand, the judiciary too is well-
aware of the problems associated with PIL and has responded to the dark side of PIL in two
ways. First, the Indian 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. On a few occasions, the Supreme Court also expressed its displeasure on how the High
Courts have admitted PIL cases. The second, and a more systematic, step that the Supreme Court
has taken was to compile a set of ‘‘Guidelines to be Followed for Entertaining Letters/Petitions
Received by it as PIL’’. The Guidelines, which were based on the full-court decision of
December 1, 1988, have been modified on the orders/directions of the Chief Justice of India in
1993 and 2003. The Guidelines provide that ordinarily letter/petitions falling under one of the
following 10 categories will be entertained as PIL: (1) bonded labour matters; (2) neglected
children; (3) non-payment of minimum wages; (4) petitions from jails complaining of
harassment, death in jail, speedy trial as a fundamental right, etc.; (5) petitions against police for
refusing to register a case, harassment by police and death in police custody; (6) petitions against
atrocities on women, in particular harassment of bride, bride-burning, rape, murder, kidnapping,
etc.; (7) petitions complaining harassment or torture of persons belonging to scheduled caste and
scheduled tribes; (8) 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; (9) petitions from riot-victims; and (10) family
pensions. The Guidelines also prescribe that petitions related to certain matters—such as related
to landlord-tenant matters, service matters and admission to educational institutions—will ‘‘not’’
be admitted as PIL.The PIL Cell has been entrusted the task of screening letters/petitions as per
these Guidelines and then placing them before a judge to be nominated by the Chief Justice of
India. As noted before, in view of the epistolary jurisdiction developed by the courts, PIL
petitions need not follow the required format; a mere postcard could suffice. However, in order
to balance this exceptional power/procedure, the Guidelines were amended in 2003 to provide

18 | P a g e
Administrative Law

23
that it, ‘‘may be worthwhile to require an affidavit to be filed in support of the statements
contained in the petition whenever it is not too onerous a requirement’’. Despite the twin-
strategy employed by the judiciary to curb the misuse of PIL, it seems that still many frivolous
PIL cases reach before the courts. For example, while hearing a bunch of PILs seeking
guidelines on premature release of convicts serving life imprisonment in various prisons, the
Supreme Court recently expressed its frustration on the misuse of the PIL device. Noting that
around 95 per cent PILs are frivolous, the Court observed that PIL has become a ‘‘nuisance’’ and
that time has come to impose a ‘‘penalty’’ on those who file PIL for frivolous reasons. One
possible explanation why it has proved difficult to curb the misuse of PIL could be that because
the very notion of PIL is based on flexibility (i.e. relaxing the general procedures as to standing,
form and evidence), it is not easy for the courts to keep the door open and at the same time stop
busybodies at the gate. For instance, the judiciary might not like to roll-back the PIL project so
as to lose its power to intervene as guardian of the interests of disadvantaged sections or to make
the Government accountable in selected cases. It might prefer a situation in which no single
genuine PIL case is excluded, even if that results in some non-serious PIL cases being
entertained. This approach is arguably reflected in the broad ambit of the above Guidelines,
which seem more like facilitating rather than curtailing PIL cases. This perhaps also explains
why, for example, the Supreme Court Rules do not yet deal with the PIL cases.

CONCLUSION

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. Furthermore, it provides an avenue to enforce diffused rights for which either it is difficult
to identify an aggrieved person or where aggrieved persons have no incentives to knock at the
doors of the courts. PIL could also contribute to good governance by keeping the government
23

https://www.researchgate.net/publication/46444168_Public_Interest_Litigation_in_India_Overreaching_or_Under
achieving

19 | P a g e
Administrative Law

accountable. Last but not least, PIL enables civil society to play an active role in spreading social
awareness about human rights, in providing voice to the marginalised sections of society, and in
allowing their participation in government decision making. As I have tried to show, with
reference to the Indian experience, that PIL could achieve all or many of these important policy
objectives. However, the Indian PIL experience also shows us that it is critical to ensure that PIL
does not become a back-door to enter the temple of justice to fulfill private interests, settle
political scores or simply to gain easy publicity. Courts should also not use PIL as a device to run
the country on a day-to-day basis or enter the legitimate domain of the executive and legislature.
The way forward, therefore, for India as well as for other jurisdictions is to strike a balance in
allowing legitimate PIL cases and discouraging frivolous ones. One way to achieve this objective
could be to confine PIL primarily to those cases where access to justice is undermined by some
kind of disability. The other useful device could be to offer economic disincentives to those who
are found to employ PIL for ulterior purposes. 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.

BIBLIOGRAPHY

Books

 Public interest litigation by W.L. Wadheera

 Public interest litigation(legal aids and para legal aids) by O.P. Tiwari
People Law and Justice by Sangeeta Ahuja
 Public interest litigation by Mamta Rao
 Dimensions of Judicial activism in India by Dr. Vandan

20 | P a g e
Administrative Law

Articles

 Judicial Activism in India by S.P. Sathe

 Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India’’by
Upendra Baxi (1985) ‘‘
 Public Interest Litigation in Indian Supreme Court: Third World Legal Studies 107; C.D.
Cunningham, ‘‘
 Judicial Activism and Public Interest Litigation’’ by J. Bhagwati

Websites

 http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID
 http://www.legalservicesindia.com/article/2528/A-Study-on-Public-Interest-Litigation-In-
Full-Concept.html
 https://www.vakilno1.com/legal-advice/know-public-interest-litigation-pil.html

21 | P a g e