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Public interest litigation and Judicial activism in India

Because of Public Interest Litigation (PIL), judicial activism has grown . Until the advent of PIL, justice was a far-fetched dream for the socially and economically disadvantaged. The traditional rule of 'locus standi' (the right to file a petition in court) was that judicial remedies could only be used in exceptional circumstances. Only those who have been wronged by the law should seek help.

The Supreme Court has loosened the rules, Because the poor masses lack both the means and the will to approach the government, the rule of locus standi applies. In court of justice any public-spirited individual or institution can now move the needle under the new rule. The Court must only be satisfied that the person or institution is acting in good faith and not for personal gain or vengeance.

The PIL also gave rise to what is known as 'epistolary jurisdiction,' which means that the court could recognize even a postcard or a letter. These written petitions have resulted in judicial action in a variety of cases, providing justice to the weaker sections and even taking action against political corruption and unaccountability. The PIL procedure has become an important part of the country's judicial system. Judicial activism is likely to continue, forcing the government to act responsibly for the people's welfare.

Introduction:
Basically Public interest Litigation (PIL) means litigation filed in a court, for the protection of Public Interest, for example, Pollution, Terrorism, Road security, Constructional perils and so on Any matter where the interest of public overall is impacted can be reviewed by recording a Public Interest Litigation in a courtroom. In simple words, public interest litigation means. Any public spirited citizen or public welfare interested citizens can approach the court for the public cause or for the welfare of the public by filing a petition in the Supreme Court under the Article 32 of the Indian Constitution or in the High Court under Article 226 of the Constitution or before the Court of Magistrate under Sec. 133 of the Code of Criminal Procedure, 1973.

The seeds of the idea of public interest litigation were at first planted in India by Justice Krishna Iyer , in 1976 in Mumbai Kamgar Sabha versus Abdul Thai, also was started in Akhil Bharatiya Shoshit Karmachari Sangh (Railway) v. Association of India, wherein an unregistered relationship of laborers was allowed to establish a writ appeal under Art.32 of the Constitution for the redressal of normal complaints. Justice Krishna lyer , articulated the explanations behind progression of the standard of Locus Standi in Fertilizer Corporation Kamgar Union v. Association of India, also the possibility of 'Public Interest Litigation' bloomed in S.P. Gupta and others versus Association of India.

Judicial Activism:
The judiciary plays a vital role in promoting and upholding the rights of citizens in a country. Judicial activism in simple terms is the responsibility of the judiciary to guard the rights of the citizens and to uphold the constitutional and legal system of the country. The Judicial Activism in India can be seen with the reference under Article 32 of the Indian Constitution and also Article 226 of the Indian Constitution provides the power to judicially review the higher judiciary and to declare any executive, legislative or administrative action void if it is in contravention with the Indian Constitution .

Statement Of Problem:
The standard of locus standi has been loose as the Indian courts engage the public interest suit with sprit and the number of cases have been increased which result in overburden on the courts which directly results in impact on delay in deciding normal cases. Legislature and the Judiciary are free yet Judiciary is endowed with execution of the laws made by the legislature.

Also in the case of absence of any laws on a particular issue or a matter, judiciary issues guidelines and directions for the Legislature to follow, once those directions are executed it becomes precedents. How far judicial activism is utilizing by the judiciary under the power of judicial review within the preview of articles 32,136,226,227 of Indian constitution.

Scope Of Study:
Because of the intricacies of the Indian legal system, it is critical to investigate how public interest litigation awareness might be increased. Also, look into how PIL can overcome obstacles and how the courts can get more engaged while not being overly aggressive, while also taking into account people's rights to file a PIL in which examples and concerns are covered in this study, this project might be very beneficial and it is crucial to be concerned.

Objectives:
  1. Research into the issues that PIL in India is facing
  2. To investigate the relationship between public interest litigation and judicial activism, as well as the emergence of public interest litigation in India.
  3. Research into the impact of judicial activism on Indian environmental law.
To investigate the role of PIL in the protection of the environment.

Investigate the issues surrounding the use of public interest litigation (PIL) to engage in judicial activism

Hypothesis:
  1. What role does public interest litigation play in making government agencies more accountable and transparent?
  2. What role does public interest litigation and judicial activism play in promoting social justice?
  3. What role does judicial activism play in loosening the locus standi rule in PIL?
  4. To what extent is the judiciary involved in promoting public justice?

Judicial Activism In India:
Montesquieu, a French jurist, proposed the doctrine of separation of powers. It has also been adopted in India, where the President has executive powers, the Parliament and State Legislative Assemblies have legislative powers, and the Supreme Court has judicial powers.

There are two types of courts: the supreme court and the subordinate courts. However, in India, this principle is only partially implemented. This is because, while the Legislature and the Judiciary are both independent, the Judiciary is the most powerful and entrusted with putting the legislature's laws into effect In the event of, on the other hand, In the absence of specific legislation, the judiciary issues guidelines and directives to the legislature to be followed while appointing Supreme Court judges, the executive also encroaches on judicial power.

Relation Between Public Interest Litigation And Judicial Activism And The Emergence Of PIL In India

Public interest or social interest litigation has become increasingly important in recent years, attracting the attention of all parties involved. The Supreme Court recently relaxed the traditional rule of "Locus Standi," which allows a person whose right has been infringed alone to file a petition. The court now allows public interest litigation to be brought at the request of the so-called Public-Spirited Citizens" (Public-Spirited Citizens) (Public-Spirited) to protect and enforce constitutional and legal rights.

Now, any public-spirited citizen can petition the court for a public cause (in the public's best interests) (public or public welfare) by submitting a petition to the following authorities:
  1. In Supreme Court, under Article 32 of the Indian Constitution;
  2. In Supreme Court, under Article 226 of the Indian Constitution
  3. In the Fertilizer Corporation Kamgar Union case, Justice Krishna Iyer enumerated the following reasons for the liberalisation of the rule of locus standi in a court of magistrate under Section 133 of the Code of Criminal Procedure:
    1. When the government uses its power to fight corruption, it may interfere with other things.
    2. Liberal judicial review administrative action is incompatible with social justice.
    3. Strict standing rules are the polar opposite of an efficient administrative system.
    4. For participatory public justice, activism is necessary.

As a result, a concerned citizen must be given the chance to petition the court on behalf of the public good. Justice Bhagwati , a Supreme Court judge who is known for being pro-poor and activist, In the Judges Transfer Case, also known as S.P. Gupta vs. Union of India, firmly established the validity of public interest litigation. A large number of public interest litigation petitions have been filed since then.

It is important to note that PIL is not the same as class action or group litigation, at least as it has evolved in India. The PIL is concerned with providing access to justice to all societal constituents, whereas the latter is driven primarily by efficiency considerations. PIL has been a huge success in India. It is not a civil case, but rather a constitutional case. As a result, in order to fully appreciate the and to understand the evolution of PIL in India, it is necessary to have a basic understanding of the Indian Constitution and the Indian judicial system and its framework. On August 11th, the country declared independence from British rule and In November 1949, the people of India adopted a Constitution in the hopes of establishing a democratic government, a self-declared "sovereign socialist secular democratic republic".

The Constitution, among other things, 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). The founding fathers wanted to bring about a social revolution through the Constitution, so these goals were not merely aspirational. The provisions on were the main tools used to bring about such social change.

Austin differentiated between fundamental rights (FRs) and directive principles of state policy (DPs). The Constitution's conscience, he says.The founding fathers took a number of steps to ensure that FRs were not just empty declarations. Constitutional provisions establishing an independent judiciary As you'll see in the following paragraphs.

Together, the provisions concerning FRs, DPs, and an independent judiciary provided a solid constitutional foundation. PIL's evolution in India has a strong foundation. The Constitution's Part III establishes various FRs and It also lays out the conditions under which these rights can be restricted.

"As a right without a remedy does not have much 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 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.

From the mid-1970s to the early 1980s, two Indian Supreme Court judges (Bhagwati and Iyer JJ) laid the groundwork for the emergence of PIL in India. This included making changes to the traditional method. requirements of locus standi, easing the filing of writ petitions, and establishing or expanding FRs, overcoming evidentiary issues, and developing novel solutions. Revisions to the traditional requirement of standing was a pre-requisite for the development of PIL and any public institution, participation in the administration of justice.

In a country like India, the need was even greater. The vast majority of people were either unaware of their rights or too poor to seek assistance. Recognizing the need, the Court ruled that any member of the public who is acting in good faith and has sufficient curiosity 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 Judges Transfer case 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 public 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, which allowed the Court to accept letters or telegrams as writ petitions39. Following the removal of the obstacles posed by locus standi and the procedure for filing writ petitions, the judiciary concentrated on providing a fair and impartial system. A solid foundation for pursuing a variety of PIL issues This was accomplished through the use of existing data and the interpretation of new data. FRs on a large scale, as well as by inventing new FRs. "No one shall be deprived of his or her life or liberty," according to Article 21,personal liberty unless it is exercised in accordance with legal procedures"-has proven to be the most effective.

Fertile provision
refers to more than just physical survival; it also refers to the right to coexist with humans and everything that comes with it".The fact that Art.21 has an ever-expanding horizon exemplifies this.The Court has read into Art.21, among other things, the right to health, livelihood, free and compulsory education up to the age of 14, unpolluted environment, shelter, clean drinking water, privacy, legal aid, speedy trial, and various rights of association.

Those who are awaiting trial, those who have been convicted, and those who have been imprisoned, It's worth noting that the judiciary is involved in the vast majority of cases.For such an extension, DPs were used. The judiciary has also used Art. 21 to issue orders.

Government on issues that affect the general public's lives, or to overturn state actions, or to grant compensation for non-compliance with the FRs. The Indian judiciary's final challenge was to overcome PIL plaintiffs' evidentiary issues must be resolved, and appropriate remedies must be found. The judiciary also emphasized that PIL is not an adversarial but a collaborative and cooperative project in which all concerned parties should work together to realize the human rights of disadvantaged sections of society.

Problems Faced By PIL In India:

However, PIL, like any other law or statute, has issues with implementation. There are certain issues that turn this instrument into a weapon and disrupt societal harmony.The name PIL and its publicity had been a major factor in upsetting public order. The Court has dismissed many search PILs, claiming that they are merely a publicity stunt. Another issue that arises when dealing with a PIL is judicial adventurism. It interferes with the Executive and Legislative branches of government, thereby violating the principle of separation of powers.

The Supreme Court, for example, banned the sale of liquor along state and national highways in a PIL relating to road safety. While hearing a plea, it went beyond its authority.. Because of the flexibility and simplicity of filing a PIL, there has been a significant increase in litigation. It puts a lot of strain on the judicial system and increases the number of cases that are pending.

PIL frequently reflects a symbolic justice system established by the judiciary. When a PIL's direction is not followed, the credibility of the judiciary is called into question. For example, the Supreme Court issues orders in cases of sexual harassment and the arrest procedure, but it is unable to properly monitor compliance and execution.

Role Of Public Interest Litigation In Environmental Protection:

In many cases, the Indian judiciary used the technique of public interest litigation to promote environmental protection. The Supreme Court and the High Courts removed the barriers to strangers presenting petitions on behalf of the poor and ignorant. The basic ideology behind the adoption of PIL is that the poor should not be denied access to justice, a lack of knowledge or financial resources PIL allows a public-spirited individual or organisation to continue to exist petition on behalf of the poor and uneducated. In the area of environmental protection, PIL has proved to be an effective tool.

In Rural Litigation and Entitlement Kendra vs. State of U.P. the Supreme Court prohibited continuance of mining operations terming it to be adversely affecting the environment. In Indian Council for Enviro-Legal Action vs. Union of India, the Supreme Court cautioned the industries discharging inherently dangerous Oleum and H acid. The court held that such type of pollution infringes right to wholesome environment and ultimately right to life.

In another case M.C. Mehta vs. Union of India the Supreme Court held that air pollution in Delhi caused by vehicular emissions violates right to life under Art. 21 and directed all commercial vehicles operating in Delhi to switch to CNG fuel mode for safeguarding health of the people.

In Church of God (Full Gospel )in India vs. KKR Majestic Colony Welfare Association 48 the Supreme Court observed that noise pollution amounts to violation of Art.21 of the Constitution.

In landmark case Vellore Citizens' Welfare Forum vs. Union of India the Supreme Court allowed standing to a public spirited social organization for protecting the health of residents of Vellore. In this case the tanneries situated around river Palar in Vellore (T.N.) were found discharging toxic chemicals in the river, thereby jeopardizing the health of the residents. The Court asked the tanneries to close their business. In this manner, our judiciary has used the tool of PIL quite effectively for the cause of environmental protection.

But the judiciary has shown wisdom in denying false petitions seeking to advance private interests through PIL as evident from the decision of the Supreme Court in Subhash Kumar vs. State of Bihar. Hence, PIL has proved to be a great weapon in the hands of higher courts for protection of environment & our judiciary has certainly utilized this weapon of PIL in best possible manner.

Problems Regarding The Exercise Of Judicial Activism Through Public Interest Litigation

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.
  1. 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 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.
     
  2. Inefficient use of limited judicial resources:
    If properly managed, the PIL has the potential to contribute to an efficient disposal of people's grievances. But considering that the number of per capita judges in India is much lower than many other countries and given that the Indian Supreme Court as well as High Courts is facing a huge backlog of cases, it is puzzling why the courts have not done enough to stop non-genuine PIL cases. In fact, by allowing frivolous PIL plaintiffs to waste the time and energy of the courts, the judiciary might be violating the right to speedy trial of those who are waiting for the vindication of their private interests through conventional adversarial litigation. A related problem is that the courts are taking unduly long time in finally disposing of even PIL cases. This might render "many leading judgments 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.
     
  3. 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 and this is clear from the observation of Dwivedi J. in Kesavananda Bharati v State of Kerala:
    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 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 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 selfrestraint and moved on to legislate, settle policy questions, take over governance, or monitor executive agencies.

Prof. M. P. 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 face to liberalization-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 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.

Overuse-induced non-seriousness:
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 victimized 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. Based on the above problems, certain solutions need to be devised and implemented by the Judiciary to ensure that the sanctity of Judicial Activism in the country is kept intact and at the same time interests of all classes of stakeholders are addressed in a proper and judicious manner.

Conclusion:
The judicial activism manifested in the strategy of PIL paves the way for the participation of public spirited and enlightened people in India's development process and displays the potentiality of the legal system to offer justice to the poor and the oppressed. The strategy has brought to light many a medieval practices still prevalent in India such as relief to prisoners, plight of women in protective homes, victims of the flesh trade and children of juvenile institutions and exploitation of the bonded and migrant labourers, untouchables, tribal etc.

The attempt has been made to show how in taking up such cases, the Supreme Court is emerging as the guardian of the rights and liberties of the victims of repression, cruelty and torture. Hence the Supreme Court of India in its activist role vis-a-vis PIL has taken a goal-oriented approach in the interest of justice by simplifying highest technical and anachronistic procedures. By enlarging the scope of Article 32 and by accelerating the process of socio-economic revolution, it has brought justice to the doorstep of the weak, the unprivileged and exploitative section of society and therefore, has revolutionized constitutional jurisprudence in the 1980's.

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 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 marginalized 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 fulfil 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, and amicus curie briefs should be offered for not discouraging legitimate PIL cases. This is important because given the original underlying rationale for PIL, it is likely that potential plaintiffs would not always be resourceful.

Bibliography:
Articles:
  • Public interest litigation- Malaika
  • Judicial review- Diganth Raj sehgal
  • Doctrine of judicial review in India- Fayaz ahmed bhat
  • Role of PIL in Environmental protection- Pinky Dass
  • Role of PIL in Environment Protection- Aishwarya Sandeep
  • Judicial Activism to PIL- Ayush verma
Books:
  • Public interest litigation by Dr Sampat Jain 2002
  • Constitution of India- V.N. Shukla
Written By: Monish J (3rd year law student Christ university Lavasa, Pune)

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