Public Interest Litigation Heading Towards Publicity Interest Litigation
One of the most recent developments in the legal field that took place in
recent years for social reform and social well binge as well as for the
illiterate and poor people is the Public Interest Litigation. Until the PIL
justice is hardly serve to the poor people because they mostly don't realize
there something wrong done with them and if they realize then they don't know
that this was a legal wrong and there is punishment or compensation for them.
Even if they know about the legal wrong but don't go for the expensive litigation cause of their financial condition. And when the large number of people go under exploitation or common injustice then it is not possible for them to file a separate petition and seek justice. The first relief for the people who can't file petition of their own, is the reinterpretation of Locus Standi. according to old interpretation only the person who suffer loss or damage can file petition, but poor can't do that and for the social reform supreme court reinterpreted the term again. Now, anyone from the public at large or NGO's or social groups can file petition of behalf the person or community who has suffered loss or damages, or the damages for the society.
Aim of the project:
Research question/Hypothesis:
Hypothesis 1:
There is a risk of misused of Public interest litigation unless controlled by procedure
Hypothesis 2:
The public is interest litigation is the model for successful functioning of liberal democracy.
Research Methodology:
In the present study, the doctrinal type of research method has followed wherein a focus has been given to statutory provisions, case laws, articles in law journals, Periodicals, newspapers, websites, newspapers etc.
Public Interest is defined as follows:
Public Interest:
Something in which the public, the community at large has something pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interest of the particular localities, which may be affected by the matters in question. Interest shared by the citizens generally in the affairs of local, State or national government. PIL is a device to provide justice for the poor or helpless people.
It was initiated for the benefit of a class of people, who were deprived of their constitutional and legal rights because they were unable to have access to the courts on account of their socio-economic disabilities. As we see today most of the poor or oppressed community peoples get justice throughout the PIL. As the changing time and needs of the people courts trying to change in the court of poor's, in the serving justice Public Interest Litigation plays a major role.
Origin of PIL:
The term PIL originated in the United States in the mid-1980s. Since the nineteenth century, various movements in that country had contributed to public interest law, which was part of the legal aid movement. The first legal aid office was established in New York in 1876. In the 1960s the PIL movement began to receive financial support from the office of Economic Opportunity, this encouraged lawyers and public spirited persons to take up cases of the under-privileged and fight against dangers to environment and public health and exploitation of consumers and the weaker sections.
But India had to wait till 1986 when the then chief justice P.N. Bhagwati introduced public interest litigation (PIL) to the Indian judicial system. The original idea was to give marginalized citizens access to justice, but by the mid-1990s PILs had transformed the legal landscape with a flurry of high-profile cases. PILs have achieved a place of great importance in our legal system.
In India, the first PIL was filed in the year 1976 - Mumbai Kamgar Sabha v. M/s Abdul Bhai Faizullabhai and others [1976 (3) SCC 832]. The seed of the PIL was sown by Justice Krishna Iyer through this landmark judgement. Soon thereafter, with the efforts of Justice Bhagwati, the concept of the PIL evolved and developed to a great extent.
Development of PIL across world: India:
The public interest movement in India has been almost entirely initiated and driven by the judiciary, particular with the seeds to be sown by justice Krishna Iyer in 1976, the movement which continued with the remarkable efforts by justice P. N. Bhagawati, who even referred to as father of public interest litigation in India.
The Constitution of India provides the legal basis for the development of public interest litigation. Under article 32, the Supreme Court of India is given an original jurisdiction over all cases concerning fundamental freedoms enshrined in the Constitution. The Constitution also guarantees specific fundamental rights and non-justiciable directive principles of state policy and governance. It was this legal basis that was expansively interpreted by the Indian judiciary to allow standing to citizens and thereby facilitating access to justice.
So far as the Indian context is concerned, public interest litigation has a strong of constitutional basis also in procedural matters. the judiciary-driven movement of public interest litigation in India seems to be way beyond mere pursuit of constitutional and statutory rights and freedoms. United States: The emergence of public interest litigation in the U.S. dates back to the celebrated campaign that resulted in the decision in Brown v. Board of Education, 75 in which the U.S. Supreme Court declared unconstitutional a state's segregation of public school students by race.
The progressive movement of public interest litigation in United states is evident with the fact that the federal government has established a national agency, the Legal Services Corporation, to fund lawyers for the poor working in neighborhood offices that provided individual client service and also challenged government practices on a systemic, class wide basis. South Africa: In the South African context, public interest litigation could be viewed from two historical perspectives.
The first one belongs to era where human rights activists and civil society organizations sought to fight using loopholes in the laws and the internal contradictions of the system. The second one is a more direct and constitutionally recognized use of access to justice and public interest locus standi guarantees to eradicate inequality, social ills, in every sphere of life.
The South African Constitution has adopted a very liberal locus standi for those who seek to litigate in the public interest the rights enshrined in the Bill of Rights of the Constitution. With regard to access to justice, section 34 of the Constitution provides that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing in a court or, where appropriate, another independent and impartial forum.
In the journey of public interest litigation, the contribution of NGOs cannot be undermined. The human rights NGOs in South Africa that are engaged in human rights lawyering in general and public interest litigation either act as parties in litigation or intervene as amicus curiae.
Cases related to public interest litigation:
There was also reference of the Hon'ble Supreme Court in Balco Employees' Union (Regd.) versus Union of India and others (2002)2 SCC 333 held as under:
"77. Public interest litigation, or PIL as it is more commonly known, entered the Indian judicial process in 1970. It will not be incorrect to say that it is primarily the judges who have innovated this type of litigation as there was a dire need for it.
At that stage, it was intended to vindicate public interest where fundamental and other rights of the people who were poor, ignorant or in socially or economically disadvantageous position and were unable to seek legal redress, were required to be espoused. PIL was not meant to be adversarial in nature and was to be a co-operative and collaborative effort of the parties and the Court, so as to secure justice for the poor and the weaker sections of the community who were not in a position to protect their own interests. Public interest litigation was intended to mean nothing more than what words themselves said viz., litigation in the interest of the public." [I]
The court held that petitioner has not prima facie satisfied the contents of the petition to be entertained as PIL. The date of elections is yet to be announced, therefore, the instant petition is clearly pre-mature and has been filed with an oblique motive to seek publicity. Lastly and more importantly, it is the sole prerogative and within the exclusive domain of the State Government to hold or not and when to hold the elections and while doing so we have no doubt in our mind that the state would take into consideration all relevant factors including the situation of the Covid-19 pandemic. In view of the given circumstances, we have no doubt in our mind that the instant petition is nothing but a publicity oriented petition and not a public interest Litigation. Accordingly, the instant petition is dismissed, so also pending application(s), if any.
The parties are left to bear their own costs I Balco Employees v. UOI and Ors (2002) 2 SCC 333. II Sailesh Sharma v. State of HP & Ors (2020) Vishaka and Ors. Vs State of Rajasthan ((1997) 6 SCC 241) was one of the landmark cases of Public Interest Litigation with which emerged a guideline for prevention of sexual harassment at work place.
The main issues raised were as under:
This particular case began with a protest against the implementation of Sardar Sarovar Dam projects by the environmentalists, farmers and the Adivasi's on Narmada river as the Adivasi's Comparative Public Law Kirit P.Mehta School Of Law7 of Madhya Pradesh and Maharashtra suffered displacement due to the constructions of dams across River Narmada. As it consisted of mega dams and large scale industry were a part of their plans.
The Supreme Court had ordered to obtain an environmental clearance prior to proceeding with the project and to abide by the guidelines set by Department of Environment in the Ministry of Environment and Forests of the Union Government. Pre- requisites of the guidelines:
In this case, the petition against the project was allowed as the project also affected the water clearances and channels as well as the flora and fauna This is a case of National importance. It led to displacement of poor indigenous, loss of forest.
Effectiveness of Public Interest Litigation in India:
The effectiveness of PIL is evident with the fact in recent time it has dominated the public perception of the Supreme Court in India. The scope of court's duty has widened to formulate policies making it mandatory for states to follow than just providing remedy through writ jurisdiction. The classic example of this is the well-known case of Vishakha Vs. State of Rajasthan [(1997) 6 SCC 241], in which group of women's organization collectively file a PIL against government of Rajasthan, raising question of rights of working under article 14, 19 and 21 of the constitution of India.
The case resulted in what popularly known as Vishakha Guidelines formulated by supreme court since there was no law at that time protecting the women against sexual harassment at workplace. The instrument of PIL has been often used by Indian judiciary for the cause of environmental protection. It has proven to be effective tool in securing environment protection.
It will be unfair to missed out the significant contribution made by renowned public interest attorney Mahesh Chandra Mehta popularly known as M.C. Mehta who is single-handedly winning numerous landmark judgments of Supreme Court since 1984. The Public Interest Litigation though officially appear in 1970 it was already present in some form or another, for instance by incorporating influence of several countries the framers of Indian constitution have adopted the idea of Judicial Review.
This very principle has levelled up the power of the courts to interfere in the policy formulation of the other wings of the government and PIL is the result of such interference. Conclusion: Human right protection forms the basis of public interest litigating as it refers to as human claim made to political institution.
However, the access to justice under PILs has not been heard in every corner of the country and hence, many sections of the society still remain weaker and continue to suffer as they are not aware of their rights. Thus, in order to provide a real purpose to the concept of PIL, the courts of law must ensure its implementation and keep in mind that it respects the principle of Constitutionalism and Separation of Powers enshrined in the spirit of the Indian Constitution.
End-Notes:
Even if they know about the legal wrong but don't go for the expensive litigation cause of their financial condition. And when the large number of people go under exploitation or common injustice then it is not possible for them to file a separate petition and seek justice. The first relief for the people who can't file petition of their own, is the reinterpretation of Locus Standi. according to old interpretation only the person who suffer loss or damage can file petition, but poor can't do that and for the social reform supreme court reinterpreted the term again. Now, anyone from the public at large or NGO's or social groups can file petition of behalf the person or community who has suffered loss or damages, or the damages for the society.
Aim of the project:
- To analyse whether the instrument public interest litigation is actually effective in India.
- To make a comparative study Public interest litigation in foreign countries where it is effective
- To study the reason behind the delayed caused in deciding the public interest litigation
- To study and discover the new methods and technique for the effective implementation of public interest litigation in Indian courts.
Research question/Hypothesis:
Hypothesis 1:
There is a risk of misused of Public interest litigation unless controlled by procedure
Hypothesis 2:
The public is interest litigation is the model for successful functioning of liberal democracy.
Research Methodology:
In the present study, the doctrinal type of research method has followed wherein a focus has been given to statutory provisions, case laws, articles in law journals, Periodicals, newspapers, websites, newspapers etc.
Public Interest is defined as follows:
Public Interest:
Something in which the public, the community at large has something pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interest of the particular localities, which may be affected by the matters in question. Interest shared by the citizens generally in the affairs of local, State or national government. PIL is a device to provide justice for the poor or helpless people.
It was initiated for the benefit of a class of people, who were deprived of their constitutional and legal rights because they were unable to have access to the courts on account of their socio-economic disabilities. As we see today most of the poor or oppressed community peoples get justice throughout the PIL. As the changing time and needs of the people courts trying to change in the court of poor's, in the serving justice Public Interest Litigation plays a major role.
Origin of PIL:
The term PIL originated in the United States in the mid-1980s. Since the nineteenth century, various movements in that country had contributed to public interest law, which was part of the legal aid movement. The first legal aid office was established in New York in 1876. In the 1960s the PIL movement began to receive financial support from the office of Economic Opportunity, this encouraged lawyers and public spirited persons to take up cases of the under-privileged and fight against dangers to environment and public health and exploitation of consumers and the weaker sections.
But India had to wait till 1986 when the then chief justice P.N. Bhagwati introduced public interest litigation (PIL) to the Indian judicial system. The original idea was to give marginalized citizens access to justice, but by the mid-1990s PILs had transformed the legal landscape with a flurry of high-profile cases. PILs have achieved a place of great importance in our legal system.
In India, the first PIL was filed in the year 1976 - Mumbai Kamgar Sabha v. M/s Abdul Bhai Faizullabhai and others [1976 (3) SCC 832]. The seed of the PIL was sown by Justice Krishna Iyer through this landmark judgement. Soon thereafter, with the efforts of Justice Bhagwati, the concept of the PIL evolved and developed to a great extent.
Development of PIL across world: India:
The public interest movement in India has been almost entirely initiated and driven by the judiciary, particular with the seeds to be sown by justice Krishna Iyer in 1976, the movement which continued with the remarkable efforts by justice P. N. Bhagawati, who even referred to as father of public interest litigation in India.
The Constitution of India provides the legal basis for the development of public interest litigation. Under article 32, the Supreme Court of India is given an original jurisdiction over all cases concerning fundamental freedoms enshrined in the Constitution. The Constitution also guarantees specific fundamental rights and non-justiciable directive principles of state policy and governance. It was this legal basis that was expansively interpreted by the Indian judiciary to allow standing to citizens and thereby facilitating access to justice.
So far as the Indian context is concerned, public interest litigation has a strong of constitutional basis also in procedural matters. the judiciary-driven movement of public interest litigation in India seems to be way beyond mere pursuit of constitutional and statutory rights and freedoms. United States: The emergence of public interest litigation in the U.S. dates back to the celebrated campaign that resulted in the decision in Brown v. Board of Education, 75 in which the U.S. Supreme Court declared unconstitutional a state's segregation of public school students by race.
The progressive movement of public interest litigation in United states is evident with the fact that the federal government has established a national agency, the Legal Services Corporation, to fund lawyers for the poor working in neighborhood offices that provided individual client service and also challenged government practices on a systemic, class wide basis. South Africa: In the South African context, public interest litigation could be viewed from two historical perspectives.
The first one belongs to era where human rights activists and civil society organizations sought to fight using loopholes in the laws and the internal contradictions of the system. The second one is a more direct and constitutionally recognized use of access to justice and public interest locus standi guarantees to eradicate inequality, social ills, in every sphere of life.
The South African Constitution has adopted a very liberal locus standi for those who seek to litigate in the public interest the rights enshrined in the Bill of Rights of the Constitution. With regard to access to justice, section 34 of the Constitution provides that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing in a court or, where appropriate, another independent and impartial forum.
In the journey of public interest litigation, the contribution of NGOs cannot be undermined. The human rights NGOs in South Africa that are engaged in human rights lawyering in general and public interest litigation either act as parties in litigation or intervene as amicus curiae.
Cases related to public interest litigation:
- Sailesh Sharma v. State of HP & Ors on 17 December, 2020
- CWP No. 5879 of 2020 Decided on: 17.12.2020
- Coram: Hon'ble Mr. Justice Tarlok Singh Chauhan,
There was also reference of the Hon'ble Supreme Court in Balco Employees' Union (Regd.) versus Union of India and others (2002)2 SCC 333 held as under:
"77. Public interest litigation, or PIL as it is more commonly known, entered the Indian judicial process in 1970. It will not be incorrect to say that it is primarily the judges who have innovated this type of litigation as there was a dire need for it.
At that stage, it was intended to vindicate public interest where fundamental and other rights of the people who were poor, ignorant or in socially or economically disadvantageous position and were unable to seek legal redress, were required to be espoused. PIL was not meant to be adversarial in nature and was to be a co-operative and collaborative effort of the parties and the Court, so as to secure justice for the poor and the weaker sections of the community who were not in a position to protect their own interests. Public interest litigation was intended to mean nothing more than what words themselves said viz., litigation in the interest of the public." [I]
The court held that petitioner has not prima facie satisfied the contents of the petition to be entertained as PIL. The date of elections is yet to be announced, therefore, the instant petition is clearly pre-mature and has been filed with an oblique motive to seek publicity. Lastly and more importantly, it is the sole prerogative and within the exclusive domain of the State Government to hold or not and when to hold the elections and while doing so we have no doubt in our mind that the state would take into consideration all relevant factors including the situation of the Covid-19 pandemic. In view of the given circumstances, we have no doubt in our mind that the instant petition is nothing but a publicity oriented petition and not a public interest Litigation. Accordingly, the instant petition is dismissed, so also pending application(s), if any.
The parties are left to bear their own costs I Balco Employees v. UOI and Ors (2002) 2 SCC 333. II Sailesh Sharma v. State of HP & Ors (2020) Vishaka and Ors. Vs State of Rajasthan ((1997) 6 SCC 241) was one of the landmark cases of Public Interest Litigation with which emerged a guideline for prevention of sexual harassment at work place.
The main issues raised were as under:
- Whether sexual harassment at works place leads to gender inequality?
- Whether International Laws would be applied by the Court in the absence of any available measures?
- Whether the employer has any responsibility in case the employee is sexually harassed?
This particular case began with a protest against the implementation of Sardar Sarovar Dam projects by the environmentalists, farmers and the Adivasi's on Narmada river as the Adivasi's Comparative Public Law Kirit P.Mehta School Of Law7 of Madhya Pradesh and Maharashtra suffered displacement due to the constructions of dams across River Narmada. As it consisted of mega dams and large scale industry were a part of their plans.
The Supreme Court had ordered to obtain an environmental clearance prior to proceeding with the project and to abide by the guidelines set by Department of Environment in the Ministry of Environment and Forests of the Union Government. Pre- requisites of the guidelines:
- Pre-impoundment census of flora & fauna, particularly the rare & endangered species, in submergence areas;
- Census of animal population and available grazing areas;
- Land-use pattern in the area with details of extent & type of forest;
- Pre-impoundment survey of fish habitat and nutrients levels;
- Groundwater level, its quality, and existing water use pattern;
- Mineral resources, including injurious minerals, in the impoundment.
- Living conditions of affected tribal/aboriginals etc.
In this case, the petition against the project was allowed as the project also affected the water clearances and channels as well as the flora and fauna This is a case of National importance. It led to displacement of poor indigenous, loss of forest.
Effectiveness of Public Interest Litigation in India:
The effectiveness of PIL is evident with the fact in recent time it has dominated the public perception of the Supreme Court in India. The scope of court's duty has widened to formulate policies making it mandatory for states to follow than just providing remedy through writ jurisdiction. The classic example of this is the well-known case of Vishakha Vs. State of Rajasthan [(1997) 6 SCC 241], in which group of women's organization collectively file a PIL against government of Rajasthan, raising question of rights of working under article 14, 19 and 21 of the constitution of India.
The case resulted in what popularly known as Vishakha Guidelines formulated by supreme court since there was no law at that time protecting the women against sexual harassment at workplace. The instrument of PIL has been often used by Indian judiciary for the cause of environmental protection. It has proven to be effective tool in securing environment protection.
It will be unfair to missed out the significant contribution made by renowned public interest attorney Mahesh Chandra Mehta popularly known as M.C. Mehta who is single-handedly winning numerous landmark judgments of Supreme Court since 1984. The Public Interest Litigation though officially appear in 1970 it was already present in some form or another, for instance by incorporating influence of several countries the framers of Indian constitution have adopted the idea of Judicial Review.
This very principle has levelled up the power of the courts to interfere in the policy formulation of the other wings of the government and PIL is the result of such interference. Conclusion: Human right protection forms the basis of public interest litigating as it refers to as human claim made to political institution.
However, the access to justice under PILs has not been heard in every corner of the country and hence, many sections of the society still remain weaker and continue to suffer as they are not aware of their rights. Thus, in order to provide a real purpose to the concept of PIL, the courts of law must ensure its implementation and keep in mind that it respects the principle of Constitutionalism and Separation of Powers enshrined in the spirit of the Indian Constitution.
End-Notes:
- Cliffe Dekker hofmeyr, basic to basic locus standi litigation, south Africa,17th feb 2019.
- Comparative Public Law KIRIT P.MEHTA SCHOOL OF LAW
- Meaning of PIL In Black's law Dictionary (Sixth Edition)
- Black, H. C. (1891). Black's law dictionary
- Anushka sarraf, public interest litigation: genesis and evolution. http://www.legalserviceindia.com/legal/article542-public-interest-litigation-genesis-and-evolution.html Last seen on 11/1/2021
- Mumbai Kamgar Sabha v. M/s Abdul Bhai Faizullabhai and others [1976 (3) SCC 832].
- Comparative Public Law KIRIT P.MEHTA SCHOOL OF LAW 4
- Sailesh Sharma v. State of HP & Ors (2020) https://www.livelaw.in/news-updates/himachal-pradesh-high-court-pills-public-intrest-mischief-167461 Last seen on 11/01/2021
- Balco Employees v. UOI and Ors (2002) 2 SCC 333 https://www.livelaw.in/news-updates/himachal-pradesh-high-court-pills-public-intrest-mischief-167461 last seen on 11/01/2021
- Comparative Public Law KIRIT P.MEHTA SCHOOL OF LAW 6
- LIVELAW NETWORK, 'The Attractive Brand Name Of Public Interest Litigation Can't Be Used For Suspicious Products Of Mischief': Himachal High Court Livelaw.in (2020), http://www.livelaw.in/newsupdates/himachal-pradesh-high-court-pils-public-interest-mischief-167461?infinitescroll=1 (last visited Jan 9, 2021).
- 5 Public Interest Litigation (PIL) in India, Lawyered.in (2017), https://www.lawyered.in/legaldisrupt/articles/public-interest-litigation-pil-india/ (last visited Jan 7, 2021).
- 2 Dev Rai, Case Analysis - Vishaka Vs. State of Rajasthan https://blog.ipleaders.in/case-analysis-vishakaors-v-state-of-rajasthan-ors-1997-6-scc-241-landmark-case-on-sexual-harassment/ (2020), https://blog.ipleaders.in/case-analysis-vishaka-ors-v-state-of-rajasthan-ors-1997-6-scc-241-landmark-caseon-sexual-harassment/ (last visited Jan 7, 2021). 3 Narmada Bachao Andolan Vs. Union of India & Others on 18 October, 2000 - Legitquest, https://www.legitquest.com, https://www.legitquest.com/case/narmada-bachao-andolan-v-union-of-indiaothers/1001 (last visited Jan 9, 2021).
- Comparative Public Law KIRIT P.MEHTA SCHOOL OF LAW 8
Award Winning Article Is Written By: Ms.Sharayu Ravindra Kelkar
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