Public Interest Litigation:

A Boon or A Bane?

LOKESH MEWARA*

*STUDENT, FIRST YEAR, NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW,

RANCHI
BHOPAL (M ADHYA PRADESH )
CONTACT : 9479865242
EMAIL ID: mewaralokesh@gmail.com
1 PUBLIC INTEREST LITIGATION: A BOON OR A BANE?

Abstract

The article aims to highlight both the positive and negative sides of Public Interest Litigation.
It focuses on the intricacies and nuances of Public Interest Litigation and also seeks to trace
the origin of this practice in order to generate a better understanding of the concept behind it.
The relationship between judicial activism and PIL has been duly considered by the
researcher.

The article also highlights the ambit of PIL as per the guidelines of The Supreme Court of
India. It further emphasizes on the potential and influence of PIL through several case studies
which has been classified into three different phases.

The paper further elaborates upon the unwanted consequences of Public Interest Litigation
that threaten to worsen the present scenario of our legal system. The article also highlights the
significance of already existing burden due to backlog of pending cases as matter of concern
that gets bigger with more workload coming from PILs.

Keywords: Origin, judicial activism, case studies, phases, backlog

INTRODUCTION

Public Interest Litigation opens doors of access to legal remedies for those seeking it for the
protection of rights and interests of themselves, others or public from being violated. It
extends the practice of litigation from being merely a prerogative of the aggrieved party to a
remedy seeking process which can be of great utility for matters of public interest. PIL is a
concept that entrusts the practice of lawyers as one of highly public spirited individuals acting
in the best interests of society. It allows litigators to bring about the desired changes through
court ordered decrees.1 This is the reason why Prof. Upendra Baxi substitutes ‘Public Interest

1
Justice K.G. Balakrishnan, “Growth of Public Interest Litigation in India”, Address by Justice K.G.
Balakrishnan, Chief Justice of India Singapore Academy of Law, Fifteenth Annual Lecture October 8, 2008,
available.at
http://supremecourtofindia.nic.in/speeches/speeches_2008/8%5B1%5D.10.08_singapore_growth_of_public_inte
rest_litigation.pdf last accessed September 29, 2016, 19:22 IST.
2 PUBLIC INTEREST LITIGATION: A BOON OR A BANE?

Litigation’ with ‘Social Action Litigation’ 2 considering its effectiveness and potential to
precipitate favourable social changes.

The concept of Public Interest Litigation transforms the role of individual in initiating legal
proceedings.3 It does so by bringing about an expansion in the scope of individuals who
possess a locus standi4 i.e. the right of appearance in a court of justice, or before a legislative
body, on a given question.5 Considering high costs and time consuming nature of the process
of litigation, PIL seems to a perfect measure to counter the circumstantial bias which makes
justice inaccessible to the underprivileged class.

It encourages protection of fundamental rights of individuals by facilitating the aggrieved or

others acting in public interest to invoke the jurisdiction of High Courts or the Hon’ble
Supreme Court. It has successfully stood as a safeguard of rights and interests of public on
numerous occasions. Further in this research paper, the researchers will discuss some
important PILs that have made remarkable impact.

Being a strong and influential initiative certainly has shown its utility over the years, but like
every other practice, PIL has its drawbacks as well. What are these drawbacks? How do they
affect present scenario? How can the challenges they possess be overcome? The researchers
will attempt to answer these questions further.

2
Dr. Swapna Deka Madrinath, “Judicial Activism in Post Emergency Era”, Notion Press, 2015, last accessed
September 29, 2016, 22:43 IST.
See Also Dr. Jaswal Nishtha et. al., “Human Rights and the Law”, APH Publication, 1996, p. 141 last accessed
September 29, 2016, 22:43 IST.
3
Fowkes James, “Civil Procedure in Public Interest Litigation: Tradition, Collaboration and the Managerial
Judge”, Cambridge Journal of International and Comparative Law (1)3, pp. 235–253(2012), available at
http://joomla.cjicl.org.uk/journal/article/54 last accessed September 29, 2016, 15:58 IST.
4
Sharma Mritunjay et. al., “Public Interest Litigation: A Conceptual Framework”, Interscience Management
Review (IMR), ISSN: 2231-1513, Volume-2, Issue- 3, 2012, available at
http://interscience.in/IMR_Vol2Iss3/paper5.pdf last accessed September 29, 2016, 16:33 IST
5
Black’s Law Dictionary, Edi. 4, St. Paul, Minn. West Publishing Co., 1968, available at
http://www.nationallibertyalliance.org/files/docs/Books/Black's%20Law%204th%20edition,%201891.pdf last
accessed October 09, 2016, 16:27 IST.
3 PUBLIC INTEREST LITIGATION: A BOON OR A BANE?

ORIGIN AND EVOLUTION OF PUBLIC INTEREST LITIGATION

The term “Public Law Litigation” was coined by Prof. Abram Chayes of Harvard Law
School.6 It is also referred as “cause lawyering” or “social activism” in the field of litigation.
In the United States, emergence of this practice is associated with the case of Brown v. Board
of Education7, in which the Court declared it unconstitutional to separate students on racial
grounds in a public school.8

PIL emerged with the growth of judicial activism during the post emergency period in India.
In the late 1970s, i.e. immediately after the emergency period was over the Supreme Court of
India started to participate in the citizens’ battle for enforcement of social and economic rights
as well as protection of their political and civil liberties.9

Objective behind the phenomenon of PIL was to boost judicial activism through
reinforcement of the rights of poor and the downtrodden by means of relaxation in the rules of
locus standi. Aim of this initiative was betterment of conditions regarding rights of citizens
after the political emergency (1975-1977) in which many were deprived of their rights.10

Justice P.N. Bhagwati and Justice Krishna Iyer played an important role in the emergence of
this phenomenon during the post emergency movement of judicial activism. First case of PIL
in India was case of Hussainara Khatoon v. State of Bihar, which was about the plight of
thousands of under trial prisoners.11

6
Chayes Abram, “The Role of the Judge in Public Law Litigation”, 89 Harv. L. Rev. 1281 (1976).
7
Brown v. Board of Education 347 U.S. 483 (1954).
8
Hershkoff Helen, “Public Interest Litigation: Selected Issues and Examples”, available at
http://siteresources.worldbank.org/INTLAWJUSTINST/Resources/PublicInterestLitigation%5B1%5D.pdf last
accessed October 09, 2016, 22:43 IST., 22:10 IST.
9
Anonymous, “Judicial Activism And Public Interest Litigations”, available at
http://shodhganga.inflibnet.ac.in:8080/jspui/bitstream/10603/28290/13/13_chapter%205.pdf last accessed
October 11, 206, 15:29 IST.
10
Sarbani Sen, “Public Interest Litigation in India: Implications for Law and Development”, Mahanirban
Calcutta Research Group (2012).
11
Elahi Manzoor, “Public Interest Litigation in India”, available at
http://www.academia.edu/3349357/Public_Interest_Litigation_PIL_in_India last accessed October 11,2016 ,
16:40 IST.
4 PUBLIC INTEREST LITIGATION: A BOON OR A BANE?

The rule of PIL was explained by Justice P.N. Bhagwati in the case, S.P. Gupta v. President
of India12, also known as the judges’ transfer case. Since then, Public Interest Litigation has
been a common and influential practice in the Indian justice system.

PIL GUIDELINES BY THE SUPREME COURT OF INDIA

Petitions falling under the following categories only will be treated as Public Interest
Litigation:-13

1. Bonded labour matters.

2. Family Pension.
3. Neglected Children.
4. Petitions from riot-victims.
5. Exploitation of workers and non-payment of their minimum wages and issues related
with violation of Labour Laws (except in matter of individual cases).
6. Petitions containing the issues related with jails complaining of harassment, death in
jail, torture, transfer, release on personal bond, speedy trial and after having completed
14 years prisoners seeks release. All this things are the repercussions of ‘Hussainara
Khatoon’ cases.
7. Petitions against police if there is death and harassment in police custody and police
refuse to register a case.
8. Petitions against brutal acts executed on women like rape, murder, harassment of
bride, kidnapping, bride burning etc.
9. Petitions concerned with maintenance of historical monuments, environmental
pollution, ecological balance, drugs, forest, wildlife, marine life, food adulteration and
other matters of public importance falls under the ambit of PIL.
10. Petitions containing the issues related with harassment or torture of villagers by police
from persons belonging to SC and ST or economically backward classes or by co-
villagers.

12
S.P. Gupta v. President of India & Others 1982 SC 149.
13
Supreme Court of India “ COMPILATION OF GUIDELINES TO BE FOLLOWED FOR ENTERTAINING
LETTER/PETITIONS RECEIVED” available at
http://supremecourtofindia.nic.in/circular/guidelines/pilguidelines.pdf last accessed on October 16, 2016 at 22 :
00 IST
5 PUBLIC INTEREST LITIGATION: A BOON OR A BANE?

For petitions concerning family matters like maintenance of wife, parents and children,
the petitioners may file a Petition under section 125 of Cr. P.C. or a suit in the competent
Court.

Petitions received by the PIL cell will be first screened by Cell and petitions falling under
the panorama of above mentioned categories will be placed before a Judge. The Hon’ble
Chief Justice of India will nominate the judge for petitions falling under the ambit of PIL.

Following categories will not fall under the ambit of PIL:-

1. Landlord-Tenant matters.
2. Petitions for cases pending in High Courts and Subordinated Courts.
3. Admission to educational institution.
4. Service matter and those concerned with Pension and Gratuity.
5. Complaint against Central/State government and its functionaries except those matters
related with the above mentioned item No. 1 to No. 10.

“For filing a petition any public spirited citizen can access the court:

1. In the Supreme Court under Article 32 of the Constitution of India.

2. In the High Court under Article 226 of the Constitution of India.
3. In the Court of Magistrate under Section 133 of the Code of Criminal procedure.”14

PIL – A REFORMER IN INDIAN LEGAL SYSTEM

PIL plays the role of a crusader in our country and in the entire world. It can be seen as a boon
in the hands of activists and litigators who have a good motive and as a curse in the hands of
those intending to misuse it. There is an immediate need to promote the use of PIL for desired
purposes and to prevent it from those who want to either misuse it or use it as a tool for
commercial gain or publicity. PIL is a reformer for our Indian legal system and the people of
India. It gives power, authority to the people and enforces their right to go for legal action if
they find any loopholes in their milieu.

SOME IMPORTANT PILS: CASES AND VERDICTS

14
Pritam Kumar Ghosh, “JUDICIAL ACTIVISM AND PUBLIC INTEREST LITIGATION IN INDIA”
Galgotias Journal of Legal Studies, ISSN. 2321-1997, GJLS Vol. 1, No. 1, 2013, available at
http://shodhganga.inflibnet.ac.in:8080/jspui/bitstream/10603/20809/13/13_chapter%205.pdf last accessed on
October 16, 2016 at 22 : 15 IST.
6 PUBLIC INTEREST LITIGATION: A BOON OR A BANE?

Researches demarcated the cases of PIL in three different phases.

Phase – 1: It considers the cases where guidelines, directions and order were passed by the
courts to preserve and protect the fundamental right to life of those groups of society, who are
unable to access the law courts because of poverty, illiteracy and abstinence.

Cases of Phase – 1

1. In his judgement in S.P. Gupta v. President of India & Others 15, Justice P.N. Bhagwati
explained the traditional rule as an “ancient vintage” and substituted it with a modern
way of standing – “ where a legal injury is suffered by a person or by a determinate
class of persons because of the violation of the constitutional or legal right and such
person or determinate class of persons unable to approach the court for aid and relief
by reason of helplessness, poverty, disability and socially or economically backward
position in such case any person from the public can file an application for an
appropriate direction, writ or order, in the High Court under Article 226 and in the
Supreme Court under Article 32.”16
2. In Anil Yadav and Others v. State of Bihar,17 a petition was filed regarding the brutal
act of blinding of under-trial prisoners at Bhagalpur in the State of Bihar. According to
reports prisoners’ eyes were pierced with needles and acid was poured into them. The
courts passed orders to ensure that such monstrous acts of brutality and inhumanity are
not repeated.

3. In M.C. Mehta v. State of Tamil Nadu & Others18, while the court was proceeding with
cases of child labour and it found out that children employed as child labour face the
problems of poverty, lack of opportunity for gainful employment, inadequacy of
income and poor standard of living. The court also found that it is possible to detect

15
S.P. Gupta v. President of India & Others 1982 SC 149.
16
Anonymous “Public Interest Litigation: Definition, Origin and Evolution: Supreme Court” available at
http://www.legalblog.in/2011/02/public-interest-litigation-definition.html last accessed on October 28,2016, 23:
30 IST.
17
Anil Yadav and Others v. State of Bihar and Bachcho Lal Das, Superintendent, Central Jail, Bhagalpur, Bihar
(1982) 2 SCC 195.
18
M.C. Mehta v. State of Tamil Nadu & Others (1996) 6 SCC 756.
See also Anonymous, “Judgements of Supreme Court on child labour” available at
http://nhrc.nic.in/documents/LibDoc/Child_Labour_C.pdf last accessed on October 28, 2016, 23: 30 IST
7 PUBLIC INTEREST LITIGATION: A BOON OR A BANE?

child labour in organized sector and it was established that utmost attention is required
for detection and problem solving in unorganized sector.19

4. In D.K. Basu v. State of West Bengal,20 “the court held that custodial death is one of
the most embarrassing occurrences in our society. The rights embodied in Article 21
and Article 22(1) of the Constitution of India must protect all. The expression ‘life or
personal liberty’ in Article 21 includes right to live with human dignity and also
includes the prevention of individuals from torture, fear and assault by the State and
its representatives. The court passed orders to follow the guidelines sincerely.”

5. In Vishaka and Others & v. State of Rajasthan,21 the court provided guidelines and
directions regarding the Articles 14, 19 and 21 of the Constitution of India for the
enforcement of rights of working women and also gave norms for the protection of
rights of women at workplace.

Phase – 2: It considers the cases relating to the protection of environment, wildlife, forest,
marine life, river, historical monument, ecology, etc.22

Cases of Phase – 2

1. In Subhash Kumar v. State of Bihar,23 the court observed that under the panorama
of Article 21 of the Constitution of India, people also have the right to enjoyment
of pollution free air and water, which stands out to be an amelioration of society
and environment. If anything deteriorates and endangers the quality of life in
abolition of laws then a person has the right to manage an application under

19
Supra note 14.
20
D.K. Basu v. State of West Bengal (1997) 1 SCC 416.
21
Vishaka and & v. State of Rajasthan and Others (1997) 6 SCC 241, AIR 1997 SC 3011, (1998) BHRC 261,
(1997) 3 LRC 361, (1997) 2 CHRLD 202, available at
http://www.equalrightstrust.org/ertdocumentbank/Microsoft%20Word%20-%20Vishaka_edited.pdf last
accessed on October 28,2016 , 22:00 IST.
22
Supra note 2.
23
Subhash Kumar v. State of Bihar and Others, AIR 1991 SC 420 available at
http://www.ielrc.org/content/e9108.pdf last accessed on October 28,2016, 23:00 IST.
8 PUBLIC INTEREST LITIGATION: A BOON OR A BANE?

Article 32 of the Constitution for removing the pollution from air and water, as it
hampers the quality of life.
2. In Re. Noise pollution,24 the court was considering the problem of noise pollution.
The court opined that it is indispensable to aware people towards the hazardous
effects of noise pollution because people are generally unaware about the ill
effects of noise pollution.
3. In M.C. Mehta v. Kamal Nath,25 court held that Articles 48(A) and 51-A(g) are
now onwards considered under the panorama Article 21 of the Constitution. Any
basic environmental elements, namely air, water and soil, are disturbed, which are
necessary for life and it would be hazardous to life then it falls under the ambit of
Article 21. If the fundamental rights, i.e., Article 14 and 21 are violated by
disturbing or unbalancing the environment then award is given by court not only
for the recovery of ecological imbalance, but also for the victims, who suffered
from disturbance.
4. In M.C. Mehta v. Union of India,26 in order to protect and preserve the historical
monument Taj Mahal from deterioration by sulphur dioxide emission from
industries near the Taj Mahal, the court imposed a ban on the use of coal/coke
which was used by 299 industries.
5. In M.C. Mehta and Another v. Union of India,27 (Oleum gas leakage case) the
court held that those enterprises which are engaged in a hazardous or inherently
dangerous industry or which hampers the health and safety of the workers in the
factory and people residing in surrounding area, hold an absolute duty to ensure
the safety of individuals. The court also directed that the enterprise must pursue
the highest standards of safety and if any harm results due to such activity, the
enterprise is absolutely liable for such harm and no defence is available under
absolute liability.

24
Re. Noise Pollution AIR 2005 SC 3136, 2005 (3) AWC 2685 SC, 2005 (5) BomCR 553, 121 (2005) DLT 547
SC, 2005 (4) JCR 4 SC, JT 2005 (6) SC 210, (2005) 5 SCC 733 available at http://indiankanoon.org/doc/929541/
last accessed on May 21, 2015, 00:30 IST.
25
M.C. Mehta v. Kamal Nath and Others (2000) 6 SCC 213.
26
M.C. Mehta v. Union of India and Others, AIR 1997 SC 734.
27
M.C. Mehta and Another v. Union of India and Others AIR 1987 SC 1086, 1987 SCR(1) 395, JT 1987 (1) 1,
1986 SCALE (2) 1188 available at http://indiankanoon.org/doc/1486949/ last accessed on May 21, 2015, 08:00
IST.
9 PUBLIC INTEREST LITIGATION: A BOON OR A BANE?

6. “In the Metropolitan city of Delhi all public transport is converted from diesel
engine to CNG engine on the directions of High Court of Delhi and Supreme
Court to curb the pollution level.”28

Phase – 3: Phase – 3 throws light on those cases in which the courts’ direction is aimed at
maintaining proper functioning of important elements in governance i.e., reliability,
transparency and integrity.

Cases of Phase – 3

1. According to the allegation in Vineet Narain and Others v. Union of India,29 the
central investigation agencies like CBI and Revenue authorities had failed to perform
their legal duty and did not comply according to their legal obligation. During
investigation they were not performing their legal duties and they were influenced by
the politicians and bureaucrats. Then the Supreme Court issued many directions under
which the incumbent of public offices are given certain powers to use only in the
matters of public interest.
2. According to the allegation in Rajiv Ranjan Singh ‘Lalan’ and Another v. Union of
India,30 there was an embezzlement of public funds and distortion of accounts
involving the scam of hundreds of crores of rupees in the State of Bihar under the
department of Animal Husbandry. The respondents had also interfered in the process
of appointment of public prosecutor. The court issued directions to tide over this
problem.
3. In M.C. Mehta v. Union of India and Others,31 an order had been passed by the
Governor of Uttar Pradesh refusing to grant approval for the prosecution of Chief
Minister and Environment Minister in ‘Taj Heritage Corridor Project’ case after they
were found responsible. A question arose before the court whether the Supreme Court
considered the reliability of order passed by the Governor of U. P. It was held that the
judiciary can interfere and take into consideration any matter where judiciary finds the
lacunas in the performance of duty by the executive or the legislature and when it
finds the actions of the executive or the legislature to be ultra-vires.
28
Anumita Roychowdhury, “CNG programme in India: The future challenges” p. 10 available at
http://www.cseindia.org/userfiles/cngfuture_pdf.pdf last accessed on October 28,2016, 08:20 IST.
29
Vineet Narain and Others v. Union of India and Another, AIR 1998 SC 889.
30
Rajiv Ranjan Singh ‘ Lalan’ and Another v. Union of India and Others (2006) 6 SCC 613.
31
M.C. Mehta v. Union of India and Others (2007) 12 SCALE 91.
10 PUBLIC INTEREST LITIGATION: A BOON OR A BANE?

THE DARK SIDE OF PUBLIC INTEREST LITIGATION

PIL has amassed enormous momentum and popularity in the past few decades. It is easy to
ignore the ill effects and unwanted outcomes of this practice. There are many problems that
arise out of various traits of this public spirited form of lawyering which are needed to be
dealt with effectively and immediately.

Expansion in locus standi32, which is one of the basic characteristics of PIL many a times acts
as the cause of mala fide proceedings. The Supreme Court has recently criticized the practice
of filing PIL for the sake of publicity or other ill motives. The statement highlighted the fact
that a substantial amount of resources in terms of judicial time and efforts are spent on such
cases.33

With PIL flourishing rapidly, there is a chance that judiciary might overdo the practice of
interfering with legislature and executive. The threat of judicial activism turning into judicial
adventurism daunts the Indian legal system in present times.34

Moreover, PIL if not used in the right way, adds up to the already existing burden on Indian
judiciary which has not yet been able to struggle its way out of the tremendous backlog of
pending cases. As accepted by the Supreme Court, PIL petitions eat up a considerable amount
of judicial time.35 This practice of delay and adding up of unnecessary burden strangulates the
judicial system in the shackles of backlog of pending work.

CONCLUSION

32
Ashok Desai and S Muralidhar, “Public Interest Litigation: Potential and Problems”, International
Environmental Law Research Centre, available at http://www.ielrc.org/content/a0003.pdf last accessed October
28, 2016, 18:00 IST.
33
J. Venkatesan, “Do not file PIL for publicity says Supreme Court”, The Hindu, April 15, 2006 available at
http://www.thehindu.com/todays-paper/tp-national/do-not-file-pil-for-publicity-says-supreme-
court/article3147808.ece last accessed October 28, 2016, 18:19 IST.
See also K.T. Sangameswaran, “PIL has to be used with great care, says court”, The Hindu, April 3, 2010
available at http://www.thehindu.com/todays-paper/tp-national/tp-tamilnadu/pil-has-to-be-used-with-great-care-
says-court/article743606.ece last accessed October 28, 2016, 18:24 IST.
34
Justice A.S. Anand, “Protection of Human Rights- Judicial Obligation or Judicial Activism”, Krishna Rao
Memorial Lecture, (1997) 7 SCC (Journal) 11 at 23.
35
Supra Note 31.
11 PUBLIC INTEREST LITIGATION: A BOON OR A BANE?

The practice of Public Interest Litigation has tremendous potential. This potential can be used
for serving both constructive and destructive purposes. If practiced in true public spirit for
social litigation, PIL has proven to be an effective and handy tool. This is evident from many
of the aforementioned cases which are examples of the effectiveness and might of such a legal
practice.

The decision whether a matter falls under the ambit of PIL or not, is very crucial. It must be
taken with utmost diligence by the PIL cell. In a country like India, where there is already an
enormous amount of backlog of pending cases, it is not affordable, in terms of time and
capital, to take up unnecessary matters as PIL, to add to the burden. PILs filed as public stunts
or with mala fide intentions need to be detected and taken care of as early as possible. The
PIL cell should be well equipped and efficient in detecting the mettle of a case in its very
initial stages. This will save a lot of time and other resources of our legal system.

It is also important that, in the name of PIL, judicial activism does not overstep its limitations
in interference with the functioning of legislature and executive. 36 Interference of judiciary
should be restricted to be considered only as a last resort for smooth and effective functioning
of government.

All in all, Public Interest Litigation is an effective tool of enforcement of rights of the
deprived or underprivileged people seeking justice. It should be practiced with due care and
respect for the resources it consumes.

36
Supra Note 34.