PROTECTION OF HUMAN RIGHTS THROUGH PUBLIC INTEREST LITIGATION IN INDIA

Author(s): Parmanand Singh

Source: Journal of the Indian Law Institute , April-December 2000, Vol. 42, No. 2/4,
Constitutional Law Special Issue (April-December 2000), pp. 263-283
Published by: Indian Law Institute

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 PROTECTION OF HUMAN RIGHTS THROUGH
PUBLIC INTEREST LITIGATION IN INDIA

Parmanand Singh*

I Introduction

SINCE EARLY 1980s the Supreme Court of India has developed a procedur
which enables any public spirited citizen or a social activist to mobilise
favourable judicial concern on behalf of the oppressed classes. The mediu
through which the access to justice has been democratised is called "Publ
Interest Litigation" (PIL). Indian PIL is home grown and is the product of
distinct social, historical and political forces and has nothing in common with
the American Public Interest Litigation. Professor Upendra Baxi, one of India'
foremost legal scholar, preferred to describe the new legal phenomenon
'Social Action Litigation' which was designed to be used only as an instrument
of social change genuinely on behalf of the victimised and oppressed class
American PIL, according to Baxi, was not so much concerned with stat
repression or governmental lawlessness or with the problems of the rural poo
as with "civic participation in governmental decision-making" and with
consumerism or environment.1 By changing the nomenclature, Baxi want
to avoid run-away extension of new legal strategy for focusing any conceivab
public interest issues. Baxi's anxieties proved to be true because over the year
PIL has overwhelmingly been appropriated for corporate, political and person
gains. Today PIL matters focus predominantly on issues concernin
environment, consumerism, governmental accountability and politic
governance. Today it is no more limited to the problems of the poor and the
disadvantaged.

This paper avoids the cases which would come within the category of
"civic participation" and focuses mainly on the core human rights issues raise
through PIL. An attempt has been made here to offer a critique of judici
responses to the issues of governmental lawlessness in general and problem

* Professor of Law, University of Delhi, India.

1 . Upendra Baxi, 'Taking Suffering Seriously: Social Action Litigation in the Supreme Court
India" in Baxi (ed.), Law and Poverty 387 (1988).

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264 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 42 : 2-4

of custodial violence, rape, custodial death, bonded and ch

particular. The role of National Human Rights Commission in pr
rights has also been discussed.

II The evolution of PIL

The British rule bequeathed to India a colonial legal heritage. The Anglo-
Saxon model of adjudication insisted upon observance of procedural
technicalities such as locus standi and adherence to adversarial system of
litigation. The result was that the courts were accessible only to the rich and
the influential people. The marginalised and disadvantaged groups continued
to be exploited and denied basic human rights. The emergency period (1975-
1977) further witnessed colonial nature of the Indian legal system. During
emergency state repression and governmental lawlessness was widespread.
Thousands of innocent people including political opponents were sent to jails
and there was complete deprivation of civil and political rights. The post-
emergency period provided an occasion for the judges of the Supreme Court
to openly disregard the impediments of Anglo-Saxon procedure in providing
access to justice to the poor. The judges also wanted to refurbish the image of
the Supreme Court severely tarnished by a judgment2 given during the
emergency which had tacitly supported the repressive regime. Notably two
Justices of the Supreme Court, Justice V.R. Krishna Iyer and RN. Bhagwati
recognised the possibility of providing access to justice to the poor and the
exploited people by relaxing the rules of standing. In the post-emergency period
when the political situations had changed, investigative journalism also began
to expose gory scenes of governmental lawlessness, repression, custodial
violence, drawing attention of lawyers, judges, and social activists. PIL emerged
as a result of an informal nexus of pro-active judges, media persons and social
activists.

The first reported case of PIL in 1979 focused on the inhuman conditions
of prisons and undertrial prisoners. In Hussainara Khatoon v. State of Bihar,3
the PIL was filed by an advocate on the basis of a news report highlighting the
plight of thousands of undertrial prisoners languishing in various jails in Bihar.
This litigation exposed the failure of criminal justice system and led to a chain
of proceedings resulting in the release of over 40,000 undertrial prisoners.
Right to speedy justice emerged as a basic fundamental right which had been
denied to these prisoners. This litigation also generated public debate on prison
reforms.

2. A.D.M. Jabalpur v. Shivkcuit S hukla, AIR 1976 SC 1207.

3. AIR 1979 SC 1360. This Case was finally disposed of in August 1995.

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2000] PROTECTION OF HUMAN RIGHTS THROUGH PUBUC INTEREST LITIGATION 265

In 1981 the case of Anil Yadav v. State of Bihar4 exposed horrific police
brutalities. A news report revealed that about 33 suspected criminals were
blinded by police in Bihar by putting the acid put into their eyes. In response to
a PIL, the Supreme Court deputed its Registrar to visit Bhagalpur and investigate
the truth. Through interim orders the court quashed the trial of blinded persons,
condemned the police for their cruel act and directed the State government to
bring the blinded men to Delhi for medical treatment. It also ordered speedy
prosecution of the guilty policemen. The court read right to free legal aid as a
fundamental right of every accused. Sessions judges throughout the country
were directed to inform each accused about his fundamental right to legal aid.

Anil Yadav signalled the growth of social activism and investigative

litigation. High publicity given to the achievement of PIL in this case encouraged
more and more PILs on prisons. A social activist moved the Supreme Court on
behalf of four tribal boys who had been languishing in jail as undertrials for
more than ten years and immediately got them released.5 The prison cases
gave rise to many new rights. In Citizen for Democracy v. State of Assam6 the
Supreme Court declared that the handcuffs and other fetters shall not be forced
upon a prisoner while lodged in jail or while in transport or transit from one
jail to another or to the court or back. In this case, a letter was sent to one of the
judges of the Supreme Court by a journalist stating that in a hospital in Gauhati,
Assam, TADA detenus were kept in one room handcuffed to the bed and tied
with a long rope to restrict their movement, inspite of the door being locked
from outside and armed policemen guarding them.

The news reports and magazine articles pertaining to children put in jails,
employment of child and bonded labour, custodial gang rape, fake encounter
deaths, and so on began to form the basis of early PIL. In 1981 Justice P.N.
Bhagwati in S.P. Gupta v. Union of India1 articulated the concept of PIL as
follows:

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 or any burden is imposed in contravention
of any constitutional or legal provision or without authority of law or
any such legal wrong or legal injury or illegal burden is threatened
and such person or determinate class of persons by reasons of poverty,
helplessness or disability or socially or economically disadvantaged
position(sic.) unable to approach the court for relief, any member of
public can maintain an application for an appropriate direction, order

4. AIR 1982 SC 1008.

5. Kadra Palladia v. State of Bihar, AIR 1981 SC 939.
6. (1995) 3 SCC 743, 750.
7. 1981(Supp) SCC 87, 210.

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266 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 42 : 2-4

or writ in the High Court under Article 226 and in ca

breach of fundamental rights of such persons or determin
persons, in this Court under Article 32 seeking judicial re
the legal wrong or legal injury caused to such person or d
class of persons.

Ill Features of PIL

It is thus clear that PIL was evolved basically to protect the human rig
of the poor, the ignorant and oppressed people who due to lack of reso
and knowledge were unable to seek legal redress. It emerged as the most e
ordinary innovation in the Indian judicial process which has no parallel in
world. Through the mechanism of PIL, the courts seek to protect human ri
in the following ways:

(1) By creating a new regime of human rights by expanding the meani

fundamental right to equality, life and personal liberty. In this proces
right to speedy trial, free legal aid, dignity, means and livelihood, educa
housing, medical care, clean environment, right against torture, se
harassment, solitary confinement, bondage and servitude, exploitation
so on emerge as human rights. These new reconceptualised rights prov
legal resources to activate the courts for their enforcement through P

(2) By démocratisation of access to justice. This is done by relaxing

traditional rule of locus standi. Any public spirited citizen or social ac
group can approach the court on behalf of the oppressed classes. Court
attention can be drawn even by writing a letter or sending a teleg
This has been called epistolary jurisdiction.

(3) By fashioning new kinds of reliefs under the court's writ jurisdiction.
example, the court can award interim compensation to the victim
governmental lawlessness. This stands in sharp contrast to the An
Saxon model of adjudication where interim relief is limited to preserv
the status quo pending final decision. The grant of compensation in
matters does not preclude the aggrieved person from bringing a civil
for damages. In PIL cases the court can fashion any relief to the victim

(4) By judicial monitoring of State institutions such as jails, women's prot

homes, juvenile homes, mental asylums, and the like. Through jud
invigilation, the court seeks gradual improvement in their management
administration. This has been characterised as creeping jurisdiction in w
the court takes over the administration of these institutions for protec
human rights.

(5) By devising new techniques of fact-finding. In most of the cases the c

has appointed its own socio-legal commissions of inquiry or has depute

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2000] PROTECTION OF HUMAN RIGHTS THROUGH PUBLIC INTEREST LITIGATION 267

its own officials for investigation. Sometimes it has taken the help of
National Human Rights Commission or Central Bureau of Investigation
(CBI) or experts to inquire into human rights violations. This may be
called investigative litigation.

IV Governmental lawlessness and repression

Custodial violence

In 1981 two law professors drew the attention of the Supreme Court to
the barbaric conditions of the inmates of Agra Protective Home for women.
The letter petition, after some initial difficulties, succeeded in securing humane
conditions for the inmates.8 The horrific conditions of institutions for mentally
ill in Ranchi and Delhi were chronicled by R.C. Narain v. State of Bihar9 and
B R.Kapoor v. Union of India10 and in response to PIL, the administration of
these institutions was taken out of the hands of local administration and broad
guidelines were issued for the better management of these mental asylums. In
all these cases commissions were appointed, inquiries conducted and progress
had been monitored by Supreme Court judges. The human rights of mentally
ill patients were also protected by another PIL which secured release of these
patients from jails in Bihar. Many of these patients had been declared same yet
they were kept in jail from 20 to 30 years.11

In a landmark judgment the Supreme Court ruled that every injured person
has a fundamental right to get immediate medical treatment and that a hospital
cannot refuse to treat a medico-legal case.12 Five women prisoners in Bombay
city jail were subjected to custodial violence. The Supreme Court issued
guidelines applicable to whole of Maharashtra requiring that only police women
be used to guard or interrogate women suspects of prisoners.13

The publicity given to the effects of communal riots, police firings, police
excesses, encounter deaths, army excesses, terrorism and insurgency gave rise
to a large number of PIL proceedings coupled with mushroom growth of Non-
Governmental Organisation (NGOs) and Social Action Groups (SAGs). The
response of the courts in handling the cases of police excesses has been mixed
one. Immediately after the assassination of Prime Minister Indira Gandhi in
1984 a communal riot occurred in Delhi and other parts of the country in which
many members of Sikh community lost their lives. A civil liberties group
approached Delhi High Court for appointment of a commission of inquiry and

8. Upendra Baxi v. State of Uttar Pradesh, 1981(3)SCALE 1136.

9. 1986 (Supp) SCC 576.
10. AIR 1990 SC 752.
1 1 . Veena Sethi v. State of Bihar, (1982) 2 SCC 583.
12. Partnanad Katara v. Union of India, AIR 1989 SC 2039.
13. Sheela Bar se v. State of Maharashtra, AIR 1983 SC 378.

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268 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 42 : 2-4

a direction to CBI to conduct an investigation into the role of

these prayers, the high court, held that in PIL there could be no
directions in PIL could be given only if they were effective. A
court, there was no need to distrust the police and politicia
equally concerned with human rights.14 The response of
surprising. The statement that in PIL there could be no preced
The judicial response was frustrating in another case brought be
Court. A PIL was filed about the killing of many innocent people
with police in Uttar Pradesh in 1 982. Another PIL related to dea
people in police 'encounters' in Tamil Nadu in 1980-81 whil
trying to eliminate Naxalites. These petitions were disposed
Kalbagh v. State ofU.P.15 In an order passed in 1989 the Sup
that these matters fell within the domain of the state governm
the first instance, the concerned governments should be appro

In striking contrast to the above approach of judicial reluct

police their adversaries, the Supreme Court became very cr
'Police Raj' in the country while hearing a PIL alleging police br
judicial officer in Nadiad, Gujarat. In this case a telegram
association of Delhi judicial officers to the Supreme Court
handcuffing and brutal torture of the Chief Judicial Magistrat
streets by certain police officers. The Supreme Court conde
brutalities in strongest terms and ordered their punishment in
its contempt poser.16 A civil liberties group drew the Supreme C
to the police atrocities committed against poor people who wer
to a police station in Delhi to work there without wages. On
police beating. The court awarded Rs.50,000 as interim comp
next of kin of the deceased and ordered the recovery of th
delinquent policemen.17 A nine year old child was beaten to dea
response to a PIL the mother of the child got Rs. 75,0
compensation.18 Illegal detention of a boy aged 21 years was re
Police Commissioner who paid no heed to the complaint. The co
inquiry which revealed 51 injuries on the person of the boy as a
he had died in police custody. The High Court of Delhi awar
as compensation to the next of kin of the deceased.19

14. PUCL v. Ministry of Home Affairs , AIR 1985 Del 268. But in R. Gandh
AIR 1989 Mad 205, the High Court of Madras granted compensation for violation
the Sikh community in the riot after the assassination of Smt. Indira Gandhi in
15. AIR 1989 SC 1452.
16. Delhi Judicial Service Association, 7 is Hazari Court Delhi v. State of Gujarat, AIR 1991 SC
2176.

17. PUDR v. Commissioner of Police, Delhi , 1989 (1) SCALE 1 14.

18. Saheli v. Commissioner of Police, Delhi , AIR 1990 SC 513.
19. G e eta v. Lt. Governor, Delhi, 1998 Delhi Law Times 822.

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2000] PROTECTION OF HUMAN RIGHTS THROUGH PUBLIC INTEREST LITIGATION 269

These are few instances of custodial violence where the only way to protect
human rights has been to grant compensation. The compensation jurisprudence
was most clearly articulated by the Supreme Court in 1993 in Nilabati Behera
v. State of Orissa20 in response to a PIL alleging death of a boy 22 years in
police custody. The court evolved the principle of public law doctrine of
compensation for violation of human rights. According to this doctrine, liability
of the state for violation of human rights is absolute and admits of no exception
such as sovereign immunity. In this case the court awarded Rs. 1,50,000 to the
mother of the boy as compensation for custodial death. In a landmark judgment
of 1997, D.K. Basu v. State of West Bengal ,21 the Supreme Court has given
extensive directions applicable to whole of India as to the procedure to be
followed by the police upon the attest of a person and the minimum facilities
available to such persons. This PIL originated in 1986 alleging deaths in police-
lockup in Calcutta in July and August 1986. The Chairman of Legal Aid
Services, West Bengal addressed a letter to the Chief Justice of India stating
that custodial violence was not just restricted to West Bengal but occurred all
over the country. The letter requested the Supreme court to call for reports
about give compensation to victims of custodial violence and that procedural
safeguards be ordered by the court.

Compensation jurisprudence for custodial violence is one of the positive

achievements of PIL but compensation awards seem to be arbitrary and look
more like a charity. There is little evidence that the guilty policemen have
actually been punished. Even in those cases where prosecution has been
launched, the cases remain pending for years in the absence of judicial
monitoring of the proceedings.

Terrorism and insurgency

The sovereign remedy of granting compensation has becomes a judicial

commonplace in all kinds of human rights violations. A Punjab advocate along
with his wife and two year old child was abducted. Later he was killed. The
Bar Association of the High Court of Punjab and Haryana brought a PIL. The
inquiry revealed the involvement of Punjab police officers in the abduction
and murder. In a series of orders given in 1994 and 1996 the Supreme Court
directed the Punjab Government to pay as compensation Rs. 1,00,000 to the
parents of the deceased.22 The abduction and elimination of advocates in Punjab
became a routine matter. In another PIL the Supreme Court directed the CBI to

20. AIR 1993 SC 1961. The idea of awarding interim monetary relief was articulated in early
cases of Rudal Shah v. State of Bihar, AIR 1983 SC 1086; Sebastian M. Hongary v. Union of India,
AIR 1 984 SC 57 1 ; Bhim Singh v. State of J & K, AIR 1 986 SC 494.
21. (1997) 1 SCC 416.
22. Punjab and Haryana High Court Bar Association, Chandigarh v. State of Punjab, (1994) 1
SCC 616, and (1996) 4 SCC 742.

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270 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 42 : 2-4

investigate into the abduction of advocates. Directions wer

government to provide security to the families of the adv
militants.23

In 1995 a telegram was sent to one of the judges of the S

stating that Jaswant Singh Khalra, General Secretary, human R
Shiromani Akali Dal had been abducted by Punjab police. Kh
moved the Supreme Court by way of a petition alleging that he
picked up by the police at the instance of a Senior Superinte
who had been threatening her husband with dire consequenc
withdraw writ petitions challenging police excesses, custodial de
cremation of unclaimed dead bodies in large scale. In Paramj
of Punjab24 the Supreme Court directed the CBI to investigate i
and report. The inquiry revealed the truth in the allegations. Ref
cremation of persons labeled as unidentified by the Punjab p
remarked: "Our faith in democracy and rule of law assures us t
this type can happen in this country but the allegations in
horrendous as they are need thorough investigation".25 The
directed the Punjab government to grant sanction to prosecute th
officers. The government was also directed to pay Rs. 1,00,000
to Paramjit Kaur. On December 13, 1996 the court placed on rec
of CBI which confirmed that over 585 bodies of persons who ha
been identified had in fact been cremated after being labeled as
The Court held that the families of those identified were entitled to receive
compensation to be determined by NHRS.26 Later, a technical question was
raised about the authority of NHRC to investigate a matter after the expiry of
one year from the date of incident.27 In Paramjit Kaur v. State of Punjab28 the
Supreme Court declared that in the exercise of its power under article 32 it
was open for the court to ask any authority in India to act in aid of the Supreme
Court as laid down in article 144. The Supreme Court can direct NHRC to deal
with any matter. In such a situation the NHRC would function pursuant to the
court's direction and not under the Protection of Human Rights Act 1993. In
another PIL the Supreme Court awarded Rs. 2,00,000 as compensation to the
parents of a person killed as a result of criminal conspiracy of Punjab police.29

23. Navkiran Singh v. State of Punjab, (1995) 4 SCC 591.

24. (1996) 7 SCC 20.
25. /¿/.at 26.
26. (1996) 8 SCALE 6.
27. Section 36 (2) of the Protection of Human Rights Act, 1 993 states that NHRC shall not inquire
into any matter after the expiry of one year from the date on which the act constituting violation of
human rights is alleged to have been committed.
28. (1998) 5 SCALE 219.
29. Ranjit Kumar v. Secretary of Home Affairs, Punjab , 1996 (2) SCALE 51.

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2000] PROTECTION OF HUMAN RIGHTS THROUGH PUBLIC INTEREST LITIGATION 27 1

The human rights problem in Jammu and Kashmir has always remained
problematic. The situation of terrorism and armed militancy is more acute in
this area than any other part of the country. The violations of human rights in
Jammu and Kashmir have not been litigated before the courts. The only available
PIL on this matter is Hazratbal episode. The militants laid a siege on the
Hazratbal shrine in Srinagar and kept innocent people as hostages. Out of 21
persons the condition of two was reported to be very serious. In response to a
PIL the Supreme Court affirmed the judgment of the High Court that the
government should not put any hurdle in the supply of food and water to the
hostages. In a series of directions issued by the court the authorities were
required to prepare food packets and supply them to the inmates at the iron bar
fencing of the shrine.30

There are few cases of army excesses. In one case about 81 tribais lost
their lives on account of Army Test Firing Range in a place in Madhya Pradesh.
A PIL resulted in the closure of test firing range.31 Through a PIL the Supreme
Court was informed about the loss of life of several villagers due to
indiscriminate firing in certain villages in Nagaland by para-military forces.
The court ordered a judicial inquiry into the incident.32

The Assam Disturbed Areas Act 1955 and the Armed Forces (Special
Powers) Act 1958 confer wide ranging powers to the Army, preventing judicial
intervention in army excesses. Even the NHRC has no power to hear complaints
against armed forces.

Violence against women

Women's issues have increasingly been brought before the Supreme Court
with the growth of women's movement and investigative journalism exposing
harassment for dowry, rape, sexual harassment and discrimination. It is widely
perceived that investigation into crimes against women have been unsatisfactory
and in some cases even the judges have shown gender bias. Then there are
complaints about long delays in final disposal of cases not only in lower courts
but also in higher courts. We mentioned here a couple of PIL proceedings
involving gender issues.

In Delhi Domestic Working Women 's Forum v. Union of India,33 the PIL
arose out of indecent sexual assault by seven army personnel against six
domestic servants travelling in train from Ranchi to Delhi. The Supreme
Court, with a view to assisting rape victims, has laid down various broad
guidelines. These guidelines include the legal assistance, anonymity,

30. State of J & K'. J & K High Court Bar Association, 1994 (Supp) 3 SCC 708.
31 . Sudip Majumdar v. State ofM.P. , (1996) 5 SCC 368.
32. PUCL v. Union of India, 1996 (3) SCALE 5.
33. (1995) 1 SCC 14.

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272 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 42 : 2-4

compensation and rehabilitation to rape victims. The Natio

for Women was directed to evolve a scheme for providing adeq
to these victims. In another significant pronouncement, Vi
Rajasthan, 34 the Supreme Court declared that sexual harass
at workplace constitutes violation of gender equality and r
which are fundamental rights. Taking note of the fact that th
and penal laws in India did not provide adequate safeguards
harassment at work place, the court laid down 12 guidelines
by every employer to ensure prevention of sexual har
importantly, the court ruled that all courts in India must constr
of fundamental rights in the light of international conven
such conventions were not inconsistent with fundamental righ
Before we conclude this section it would be worthwhile to mention a case
to show the deficiencies of the criminal justice system in handling rape cases.
One Guntaben was gang raped by policemen in Gujarat. She was stripped
naked by policemen before a crowd and subsequently raped by several
policemen in the cabin of a truck. An advocate filed a PEL. The incident occurred
in 1986. The investigation ordered by the Supreme Court took evidence of 504
persons and even then the CBI took many years to complete the investigation.
The hearing was adjourned several times. The CBI report revealed that the
State government failed to take action against the policemen despite the report
of the inquiry commission appointed by the Supreme Court. The case heard
several times between 1986 and 1993 and two commissions were appointed.
Pending the completion of inquiries by the State government, the Supreme
Court awarded Rs. 50,000 as compensation to Guntaben by its order in 1993.35
A news report revealed the rape of 25 tribal women in certain areas of Western
Tripura by army personnel of Assam Rifles. In response to a PIL the inquiry
report confirmed rape of some of these women. The Assam Rifles and the
State government did their best to hush up the crimes. Due to the failure of the
State of file a timely reply the case remained pending for long time.36

The judicial response in addressing the injustices to women has not been
satisfactory. Even where the courts have directed inquiries, this has taken many
years. Recourse to PIL has been futile in many cases relating to custodial rape.
The broad guidelines issued by the Supreme Court on rape trial and sexual
harassment have remained largely of academic interest.

34. ( 1 997) 6 SCC 241 . This principle was reiterated in Apparel Export Promotion Council v. A.K.
Chopra, AIR 1999 SC 634.
35. P. Rathinam v. Union of India, 1987 (2) SCALE 317; 1993 (2) SCALE 126.
36. All India Democratic Women s Association v. State of Tripura, W.P. (C) No. 385 of 1988 and
W.P. (Cr.) No. 366 of 1988 (Unreported).

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2000] PROTECTION OF HUMAN RIGHTS THROUGH PUBLIC INTEREST LITIGATION 273

Bonded Labour

In India the bonded labour system continues to be the most perniciou

form of human bondage. Under such system a worker continues to serve his
master in consideration of a debt obtained by him or his ancestors. Bondage
can be intergenerational or child bondage or loyalty bondage or bondage throug
land allotment. According to an early study there were 26,17,000 bonded
labourers only in ten States.37 Most of these labourers come from lowest strat
of the society such as the untouchables, adivasis or agricultural labourers. It
occurred to the Indian government only in 1976 to pass a central legislation,
Bonded Labour System (Abolition) Act 1976. After the Act came into for
bonded labour system has been abolished atleast on paper and the practice of
bonded labour has been made punishable.

Most of the PIL proceedings on bonded labour seek to implement the Act
The first major PIL on this issue was Bandhua Mukti Morcha v. Union
India ,38 filed in 1981 and decided on December 16, 1983. The action wa
brought for the identification, release and rehabilitation of hundreds of bonde
labours working in the stone quarries of Haryana. The opinion of Justic
P.N.Bhagwati going beyond the Act, defined bonded labour which was forced
by economic hardship. The court issued 21 directions to Haryana government
During the proceedings, the court monitored its own directions and appointed
a number of commissions of inquiry. Unfortunately most of the directio
remained unimplemented for many years. The Court acknowledged its limite
capacity in monitoring the schemes or rehabilitation. Ultimately, in 1992 the
court recounted the history of the case and was shocked that there was not the
slightest improvement in the conditions of the workers of the stone quarries.3
The litigation ended up with one more warning to the government to b
responsive to judicial directions.

In Neeraja Chaudhary v. State ofM.P.,40 a letter was sent to the Supreme

Court stating that many bonded labourers who were released by Bandhua Mukt
Morcha case had returned home but were awaiting rehabilitation even aft
six month of their release. The Supreme Court directed the appointment
Vigilance Committee for the rehabilitation of these starving people. Despi
the initial failure of Bandhua Mukti Morcha case in terms of effectivenes
PIL were brought before the courts for the liberation of bonded labourer in
Madhya Predesh,41 Tamil Nadu,42 Bihar43 and other states.

37 . M. Sharma, "Bonded Labour in India: A National Survey On the Incidence of Bonded Labour
Final Report , Academy of Gandhian Studies, Hyderabad , (1981).
38. (1984) 4 SCC 161.
39. Bandhua Mukti Morcha v. Union of India, AIR 1992 SC 38.
40. AIR 1984 SC 1099; (1984) 4 SCC 161.
41. Mukesh Advani v. State ofM.P. , AIR 1985 SC 1363.
42. H. P. Sivaswamy v. State of Tamil Nadu , 1983 (2) SCALE 45.
43. T. Chakkachalv. State of Bihar, JT 1992(1) SC 106.

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274 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 42: 2-4

In our view the public interest actions focusing on the pl

labourers have to some extent helped the implementation of
problem, however, in the implementation of this Act is tha
placed only on the identification, release and rehabilitation of
There is no effort to punish the owners of these labourers. Th
of bonded labourers would be achieved not by cutting them
support system but rather by allowing them to work where
The Government must ensure them a reasonable wage a
conditions.

Children

Public interest actions on children have sought the implementation of

constitutional and statutory obligations towards children.44 Early PIL cases
focused on the children in prisons. In 1981 the Supreme Court's attention was
drawn to a news report about sexual exploitation of children by hardened
criminals in Kanpur jail.45 The Court directed the District Judge, Kanpur to
visit the jail and report. The report confirmed the crime of sodomy committed
against the children. The court directed the release of the children from jail
and their shifting to children's home. No punishment was given to the
administrators of the jail. Another PIL exposed the inhuman conditions of
children in Tihar Jail, Delhi.46 Sexual exploitation of children in Orissa jails
also formed the subject matter of PIL.47

A major PIL on juveniles in jails was filed by a journalist in 1985. The

petition asked for release of children below the age of sixteen and for
information on the number of such children. The court was also asked to ensure
that adequate facilities were provided for the children in the form of juvenile
courts, home and schools, that district judges should be directed to visit jails
and so on. There were many orders from 1985 onwards which remained
unimplemented for a long time.48 In the meantime Parliament passed Juvenile
Justice Act 1986. The court's attention was now diverted to the implementation
of Act. Being disappointed with many adjournments and repeated non-
compliance of judicial directions the petitioner tries to withdraw the petition
which was declined.49 Then the Supreme Court Legal Aid Committee pursued
the case. In its final order in 1989 the Supreme Court stressed the need to
create juvenile courts, homes and schools. A committee of advocates was

44. Article 15(3), 24, 39(e), 39(f) and 45 of the Constitution of India; Juvenile Justice Act, 1986;
Child Labour (Prohibition and Regulation) Act, 1986.
45. Munna v. State of UP, (1982) 1 SCC 545.
46. Sanjay Suri v. Delhi Administration, 1987 (2) SCALE 276.
47. M.C. Mehta v. State of Orissa, W.P. (Cr) 1504 of 1984 (Unreported).
48. Sheela Bar se v. Union of India, AIR 1986 SC 1773.
49. Sheela Barse v. Union of India, AIR 1988 SC 221 1.

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2000] PROTECTION OF HUMAN RIGHTS THROUGH PUBLIC INTEREST LITIGATION 275

appointed to prepare a draft scheme for the proper implementation of the Act.
PIL in this case ultimately effective as today the country has no juvenile
delinquents in jails.50

We may now briefly address to the problem of child labour. PIL on child
labour began in early 1980s in response to a large number of news reports
exposing the exploitation of children in fire works and match factories of
Sivakasi in Tamil Nadu and in carpet industries in Mirzapur, Uttar Pradesh.
The investigation journalism coupled with PIL cases led to the passing of Child
Labour (Prohibition and Regulation) Act 1986. This Act prohibits the
employment of children in hazardous industries.

In response to a PIL the Supreme Court appointed a commission of inquiry

on the child labour in carpet industries in Uttar Pradesh. The report indicated
high incidence of child labour. With the help of local administration these
children were released.51 In 1986 a major PIL was brought before the Supreme
Court complaining that thousands of children were employed in match factories
in Sivakasi, Tamil Nadu.52 These children were exposed to fatal accidents
occurring frequently in the manufacturing process of matches and fire works.
The court directed the state government to enforce Factories Act and to provide
facilities for recreation, medical care and basic diet to the children during
working hours and facilities for education. The court also advocated a scheme
of compulsory insurance for both adults and children employed in hazardous
industries. Every employee had to be insured for a sum of Rs.50,000. A
committee was appointed to monitor the judicial directions. It is rather surprising
that although the Child Labour (Prohibition and Regulation) Act 1986 has
banned the employment of children in manufacture of matches yet the court in
this case permitted the child labour in the process of packing because "tender
hands of the young workers were more suitable to the task." The court here
failed to recognise that manufacture and packing of matches is inseparable. In
a sense, in this case the response of the court on child labour was superficial.

In its final judgement delivered in 1996 the Supreme Court directed that
the offending employer of child labour in match factories will pay Rs.20,000
which would then be deposited in a Child-Labour-Rehabilitation-Cum- Welfare-
Fund.53 The Children illegally employed would receive education at the cost
of the employer. This is a happy development.

50. SCLAC v. Union of India, (1989) 2 SCC 325. On 17th March 1989 the court again issued
directions to every district judge to report to the court as to the exact position of juveniles in jails,
setting up of juvenile homes, special homes and observation homes. In SCLAC v. Union of India,
(1989) 4 SCC 738 the court expressed its satisfaction that except in Andaman and Nicobar, a Union
Territory, no state had kept the children in jails.
51. Bandhua Mukti Morcha v. Union of India, 1986 (Supp) SCC 553.
52. M.C. Menta v. State of Tamil Nadu, AIR 1991 SC 417.
53. M.C. Mehta v. State of Tamil Nadu, 1996 (1) SCALE 42.

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276 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 42 : 2-4

The above discussion shows that in cases involving prisons

have ultimately provided impressive results. But the PIL
labour has been unsatisfactory. Some countries still conti
purchase goods made through the employment of child
reference is being made to International Conventions on the ri
The real solution lies not in the displacement of child
compensation to them but in launching a massive developmen
especially in irrigation so that the land owning parents exper
recovery might withdraw their children from exploitative la
Problem of child labour cannot be eliminated by judicial activ
face of capitalist development and global power relations.
of data on the prosecution of the employers of the child labo

V Role of National Human Rights Commission (N

Composition
National Human Rights Commission came into being through an
Ordinance Promulgated on 23 September 1993 presumably under some foreign
pressure. The Ordinance was replaced by an Act called Protection of Human
Rights Act 1993 which received Presidential assent in January 1994.
Appointments to NHRC are made with the consultation of committee consisting
of the Prime Minister (Chair), Speaker of Lok Sabha, Minister-in-charge of
the Ministry of Home Affairs, Leaders of opposition in Lok Sabha and Rajya
Sabha, and Deputy Chairman, Rajya Sabha.54 The NHRC consists of a
chairperson who must have been a Chief Justice of the Supreme Court, one
member who is or has been, a Judge of the Supreme Court, one member who
is or has been the Chief Justice of a High Court and two members to be appointed
from amongst persons having knowledge of or practical experience in matters
relating to human rights. Besides the above, the chairpersons of the National
Commission for Minorities, the National Commission for the Scheduled Castes
and Scheduled Tribes and the National Commission for Women are the ex-
officio members of the commission.55 The members of NHRC can be removed
by President only on the ground of proved misbehaviour or incapacity on an
inquiry by the Supreme Court.56

Functions, powers and procedure

The function of the Commission is to inquire into complaints of violation

of human rights. It can also intervene in a judicial proceeding involving
allegation of human rights violations visit any state institution, promote

54. S.4, Protection of Human Rights Act, 1993.

55. Id., s. 2.
56. Id., s. 5.

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2000] PROTECTION OF HUMAN RIGHTS THROUGH PUBLIC INTEREST LITIGATION 277

research on human rights, spread human rights literacy, encourage social

activism, and review the existing human rights laws and recommend measures
for their effective implementation.57 The Commission enjoys the powers of
the civil court while inquiring into the complaints under the Act.58 It enjoys
investigation power and can utilise the services of any governmental
investigative agency.59

While inquiring into the complaints of violations of human rights, the

Commission may call for information or report from the concerned
government or any authority and satisfy itself as to the action taken by the
government in the matter. It may make its own inquiries if there is no response
from the concerned government.60

After the completion of the inquiry under the Act, the Commission may
take any of the following steps.61 It may:
(i) recommend prosecution of the guilty public servant;
(ii) approach the Supreme Court or High Court for appropriate directions;
or

(iii) recommend the sanction of interim monetary relief to the victim or his
or her family.

It is thus clear that the NHRC has no power to take any binding
decisions. It has to depend either on the apex court of high court or the
concerned governments. Its recommendations have no legal weight. The
commission receives thousands of complaints from individuals and civil
liberties groups and in majority of cases it calls for information or report
from the concerned government. In most of the cases it uses 'post office'
procedure which consists of asking the state governments to investigate
the incidents of human rights violations and inform it about the action taken.
In some cases it asks the CBI to investigate and report. The investigative
power possessed by it is very rarely exercised.

Performance of NHRC

An analysis of annual report of NHRC for the year 1995-96 would be

sufficient to show the effectiveness of NHRC in protecting human rights.

Terrorism and insurgency

The commission's role has been limited to the visit of certain areas of
terrorism and insurgency especially in Jammu and Kashmir, North-East States

57. Id., s. 12.

58. Id., s. 13.
DV. id., s. 14.
60. Id., s. 17.
61. Id., s. 18.

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278 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 42 : 2-4

and Punjab. It kept a 'close touch' with CBI investig

'disappearance' of J.S.Khalra in the presence of Punjab po
press report about the death of a person in army custody the
notice to the defence ministry as a result of which a cour
ordered.62

Custodial deaths , rape and torture

The commission has required every District Magistrate/Superintendent

of police to report to the commission every incidence of custodial death or
rape. This is a welcome step but has no legal weight. From the available data,
the commission notes the increase in the number of custodial deaths. It has
recommended that India should become a party to the 1 984 Convention Against
Torture and Other Forms of Cruel, Inhuman and Degrading Treatment or
Punishment. It is a different matter that the government has paid no heed to
this recommendation. The commission has also recommended interim
compensation in every incident of custodial death. The report advocates
amendments in law of evidence and criminal procedure.63

Systematic reform: police , prisons and other centres of detention

The report favours the implementation of 1979 report of Police Reforms

Commission suggesting complete independence of police from political
interference. The Commission's visits to various jails in the country has revealed
gross overcrowding, squalor and maladministration and therefore it suggests
the need to amend Indian Prison Act 1 894. The conditions of homes for juvenile
were found to be equally appalling crying out for reform.64

Handling of complaints: illustrative cases

The report gives illustrative cases handled by the commission. TABLE-I

gives the glimpse of the way the NHRC functions.

62. National Human Rights Commission: Annual Report 1995-1996, para 3.1-3.13.
63. Id. 3.14-3.22.
64. Id. 3.23-3.38.

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2000] PROTECTION OF HUMAN RIGHTS THROUGH PUBLIC INTEREST LITIGATION 279

TABLE!

Place Incident Outcome

1. South Goa Custodial death Commission called for

1994 (Reported by District information and report. The
Magistrate) State government reported
its decision to prosecute the
police officers.

2. Uttar Pradesh Custodial death Commission called for

1994 (Reported by report. On receiving the
Amnesty report from the state
International) government it recommended
prosecution of the guilty
policemen.

3. Bihar Custodial death The Commission sent its

1 986- 1 99 1 (Reported by State investigation t
government) concerned cities and
recommended action against
guilty policemen.

4. Nagaland Custodial death Upon Commission's

1994 (Reported by a intervention compensation
police officer) (Rs. 1,00, 000) paid to the
victim's relatives by
Ministry of Defence.

5. Tamil Nadu Custodial Rape The state government

1994 (Reported by a reported its intention to
Collector) launch prosecution against
the guilty policemen and
award of Rs. 1 ,00,000 as
compensation to rape victim.

6. Madhya Pradesh Rape The Commission wrote to

1994 (Reported by Sakshi Chief Secretary to take
an, NGO) action. Subsequently a case
was regis-tered against the
alleged culprit.

7. Rajasthan Rape The Commission wrote a

1994 ( Suo moto action) letter to the Chief Minister

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280 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 42 : 2-4

to file an appeal against the

acquittal of the accused by
the trial court.

8. Maharashtra Sexual abuse of a The NHRC's investigation

Minor girl (Reported officer visited the place.
By PUCL) Upon commission's
intervention a case of rape
and torture was registered
against the accused.

9. Kerala Stripping of Upon Commission's

teenagers intervention compensation
In police-lock up ( Suo paid to the victim and the
moto action). police officers suspended.

10. Karnataka Police high- Commission's Investigation

1995 handedness team visited the affected
(Reported by a leader area. The state g
of opposition). assured action.

11. West Bengal Mistreatment by Commission recommended

1995 Police (Reported by CID inquiry. Inquiry
Victim) established the guilt of
police officers. The
commission suggested
action against them.

12. Punjab Police Killing The Commission expressed

1993 (Reported by PUCL) its concern over State
government's report about
the innocence of the police.

13. Bihar Killing of an activist Commission recommended

1995 In police firing (Suo expeditious investigation
Moto action) and payment of
compensation to the next of
kin of the deceased.

14. Arunachal Violation of Rights of Commission issued directions

Pradesh 1994- Chakma Refugees to the State government
1995 (Reported by NGOs) which proved futile. Then it
moved the Supreme Court

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2000] PROTECTION OF HUMAN RIGHTS THROUGH PUBLIC INTEREST LITIGATION 281

which issued directions to

the government.

15. Manipur Torture and Killing of Commission recommended

1994-1995 Kuki Refugees by expeditious solution of the
militants (Reported by problem between Nagas and
NGO) Kukis.

16. Haryana Killing's by fire- Commission calls for report

1995 cracker's blast from government.
(Suo moto action) Recommended
compensation to the next of
kin of the deceased persons.

17. Punjab Kidnapping by Upon the intervention of the

1994 police commission, action initiated
(Reported by against the guilty police
victim's father) officer.

18. Bihar Encounter deaths Upon the intervention of

1994 (Reported by commission action initiated
victim's wife) against the police.
Recommended
compensation of 1,00,000 to
the widow.

19. Gujarat Communal Killings Upon the intervention of the

1993 (Reported by commission compensation of
relatives) Rs. 2,00,000 sanctioned by
the government to heirs of
persons killed in communal
riot after the demolition of
Babri Masjid.

20. Orissa Discriminatory Upon the intervention of the

1995 Treatment to a life Commission, the Orissa
Convict (reported by Government remitted the
Victim's wife)

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282 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 42 : 2-4

An analysis of the above cases handled by the Commission sh

most of the cases it has followed the 'post office' procedure, na
notice, calling for a report and recommending the sanction of c
action against the culprits. The report shows that the Comm
rarely exercised its own investigative powers. In one case, it had
case of Chakma refugees to the Supreme Court. The Chakm
emigrated from Bangladesh and settled in Arunachal Pradesh wer
to their life from a militant group. The Supreme Court directed
government would ensure protection of life and liberty of thes
April 1999 the NHRC had recommended to the Rajasthan g
sanction compensation of Rs. 2,50,000 to the parents of a kidna
by the police during a rescue operation.66

In June, 1999 it has taken up the complaints by the disp

from Kashmir valley, alleging that the violence perpetrated by
was designed to eliminate Kashmiri pandits. The NHRC has
to the Central Government to enhance the assistance given
migrants.67

In sum, it may be said that the performance of the com

more in the nature of suggestions and recommendations wh
of any legal weight.

VI Concluding remarks

PIL has undoubtedly produced astonishing results which wer

two decades ago. Degraded bonded labourers, tortured undertrai
prisoners, humiliated inmates of protective women's home, blin
exploited children and many others have been liberated th
intervention. What happened to them after their liberation is, howe

The greatest contribution of PIL has been to enhance the acc

of the governments towards the human rights of the poor. The
alone cannot provide effective responses to state lawlessness but
seek a culture formation where political power becomes increasi
to human rights. When people's rights are invaded by dominant
emerges as a medium of struggle for protection of their human
legitimacy which PIL enjoys in the Indian legal system is unpre
activism interrogates power and makes the courts as people's co

In early 1980s PIL was understood as a medium through w

process was made easily accessible to those who were on their ow
approach the court. Today PIL is being used to cure all ills afflic

65. National Human Rights Commission v. State ofArunchal Pradesh , 1996

66. The Hindustan Times, Delhi, April 25, 1999.
67. The Hindustan Times, Delhi, June 12 and 14, 1999.

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2000] PROTECTION OF HUMAN RIGHTS THROUGH PUBLIC INTEREST LITIGATION 283

society. The overload of judicial commitments has resulted in massive flow of

justice-seekers demanding relief from all kind of anxieties, miseries and
injustice. Almost anything under the sun is now attracting judicial attention.
Insanitary structures, garbage, pollution, preservation of cultural heritage,
political corruption, disease, unemployment, housing, failure of education and
drug policy, and a horde of other 'public interest' issues are raised in PIL. It
seems that PIL matters today focus more and more on the interests of the
Indian middle-classes rather than on the oppressed classes. PIL seeking order
to ban Koran ,68 transmission of T.V. serials,69 implementation of consumer
protection law,70 removal of corrupt ministers,71 invalidation of irregular
allotment of petrol pumps72 and government accommodation,73 prosecution
of politicians and bureaucrats for accepting bribes and kickbacks through
Hawala transactions,74 better service conditions of the members of lower
judiciary,75 removal of Governor from office76 or quashing selection of
university teachers,77 are some blatant examples espousing middle class
interests. Unfortunately now a days PIL is initiated and controlled by elites
and is governed by their own choices and priorities. Different social action
groups have different agendas and ideologies. Most of these groups lack
sustained commitment to any specific victimised group. PIL actions are
largely episodic and in response to the happening of an event published in
newspapers. It is submitted that an overuse of PIL for every public interest
matter might dilute the original commitment to use this remedy only on behalf
of the oppressed classes.

There is yet another disturbing feature. Some PIL matters concerning

the exploited and disadvantaged groups are pending for many years.
Inordinate delays in the disposal of PIL cases may render many leading
judgments merely of academic value. Then there is the problem of wilful
defiance of judicial directions. Surprisingly, the courts are unwilling to punish
the violators of their own orders through the exercise of their contempt power.
Frequent defiance of judicial order might also dilute the credibility of the
courts. Be that as it may, PIL has come to stay in India and cannot easily be
wished away. Some initial successes of PIL, however, cannot certify that it
shall always remain an effective instrument for protection of human rights.
The future of PIL will depend upon who uses it and for whom.

68. Chandanmal Chopra v. State of West Bengal, AIR 1986 Cal 104.
69. Oddessey Lok Vidyayana Sanghatan v. Union of India, (1988) 1 SCC 168.
70. Common Cause v. Union of India, (1996) 2 SCC 752.
71. D. Satyanarayana v. N.T. Rama Rao, AIR 1988 AP 144.
72. Centre for Public Interest Litigation v. Union of India, 1995 (Supp) 3 SCC 382.
73. Shiv Sagar Tiwari v. Union of India, (1996) 6 SCC 558.
74. Vineet Narain v. Union of India, (1996) 2 SCC 199.
75. All India Judges Association v. Union of India, AIR 1992 SC 165.
76. Kasturi Radha v. President of India, AIR 1990 Mad 116.
77. Bishwajeet Sinha v. Dibrugarh University, AIR 1991 Gau 27.

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