PIL AND ITS MISUSE

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This article was written by Harshvardhan Rajpurohit, a student of NUALS Kochi.         

Injustice anywhere is a threat to justice everywhere – Martin Luther King,Jr.

Public interest litigation is defined as any litigation by a public spirited person for the enforcement of constitutional and legal rights of those who are socially or economically backward and who cannot approach the court of law for relief being at such a disadvantageous position, it is the litigation for the nebulous entity.  PIL is a concept that deals with the public at large, where those who do not have the knowledge of their rights are helped in attaining justice.  It helps in protecting the weaker and the poorer section of the society.

A PIL can be generally filed by a person only when the interest of the Public at large is affected. A PIL can be filed under article 32 in the Supreme Court and under article 226 in the High Court. As far as article 32 is concerned, a person can approach the Supreme Court only when a fundamental right is violated but under Article 226 a person can approach the High Court for the violation of fundamental rights as well as other constitutional and legal rights.  In normal cases, it is seen that the aggrieved party i.e. the victim, who is affected files a case in a court of law i.e. the person should have an interest in the dispute. But in filing of Public Interest Litigation there is no such condition. Any person can file a Public Interest Litigation. The only condition being that the same has to be filed in Public Interest. Public Interest Litigation is litigation introduced in a court of law, not by the aggrieved party but by the court itself or by any other private party. It is not necessary, for the exercise of the court’s jurisdiction, that the person who is the victim of the violation of his or her right should personally approach the court. Public Interest Litigation is the power given to the public by courts to protect the interest of public at large.

Development in India

Pre – independence and early post independence years witnessed a plethora of cases where the public found it difficult to approach the court of law being economically or social backward and hence was introduced the concept of PIL  in the early 1970s. Thus the whole judicial system needed a boom to tackle this problem and ultimately Public Interest Litigation came into existence as a solution to the problem. The seeds of the concept of public interest litigation were initially sown in India by Krishna Iyer J., in 1976 in Mumbai Kamagar Sabha vs. Abdul Thai[1]  and was initiated in Akhil Bharatiya Sosail Karmchari Sangh (Railway vs. Union of India[2], wherein an unregistered association of workers was permitted to institute a writ petition under Art.32.

A PIL can be filed by any person that is even a person who is not affected or whose fundamental rights are not violated provided he is acting bonafide in the interest of the public at large. Earlier only a party whose rights were affected could file a case in the court of law but with the passage of time the need to relax the locus standi rule was felt.

The principle was enunciated by the court in the case of S.P.Gupta v. Union of India and Others where Bhagwati, J quotes:

“Any member of the public having sufficient interest can maintain an action for judicial redress for public inquiry arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision.” In the same case J. Bhagwati ad also stated that “the court has to innovate new methods and strategies to provide access to justice to large masses of people who are denied basic human rights, to whom liberty and freedom have no meaning.”

As a result any citizen of India or any consumer groups or social action groups can approach the apex court of the country seeking legal remedies in all cases where the interests of the general public or a section of the public are at stake. Further, public interest cases could be filed without investment of heavy court fees as required in private civil litigation.

Thus, PIL was seen as a relief for those who could only dream of getting Justice. One of the cases that deal with PIL is the Bandhua Mukti Morcha case[3]. The case basically deals with the working conditions of the labourers and the bonded labour as workers were forced to do the same. The petition was filed by an organization which was entertained by the Supreme Court and a committee was formed by the court to look into the matter. It was found out that the workers were being forced to do bonded labour.  The court explained the philosophy underlying PIL as follows: Where a person or class of persons to whom legal injury is caused by reason of violation of a fundamental right is unable to approach the court of judicial redress on account of poverty or disability or socially or economically disadvantaged position, any member of the public acting bona fide can move the court for relief under Article 32 and a certiorari also under Article 226, so that the fundamental rights may be meaningful not only for the rich and the well to do who have the means to approach the court but also for the large masses of people  who are living a life of want and destitution and who are by reason of lack of awareness, assertiveness and resources unable to seek judicial redress.

If not for PIL the workers in this case could have only dreamt of getting justice as they had no means (economic or social) to approach the Court of Law. Thus, PIL came as a boon to such classes of people. Also, unlike a private litigation in a PIL the court fee is nominal.

As far as the locus Standi of the petitioner is concerned, the petitioner has to prove that he is acting bonafide in the interest of the Public at large.  It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of Public Interest Litigation will alone have a locus standi and can approach the court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights.

Cases on the benefits of PIL:

In the case of Hussainara khatoon case[4] , a petition of Habeas Corpus was filed which disclosed a shocking state of administration of Justice in the state of Bihar. An alarmingly large number of men and women, children including, were behind prison bars for years awaiting trial in courts of law. The offences with which some of them were charged were trivial, which even if proved, would not warrant punishment for more than a few months, perhaps a year or two, and yet they remained in jail, deprived of their freedom, for periods ranging from three to ten years without even as much as their trial having commenced. The Court ordered immediate release of these under trials many of whom were kept in jail without trial or even without a charge.  Thus PIL has proven to be a mechanism for protection of Human rights by judicial monitoring of State institutions such as jails, women’s protective homes, juvenile homes, mental asylums, and the like. Through judicial invigilation, the court seeks gradual improvement in their management and administration. This has been characterized as creeping jurisdiction in which the court takes over the administration of these institutions for protecting human rights. It has helped the courts in creating a new regime of fundamental rights by expanding the meaning of fundamental right to equality, Life and Personal liberty.

Though India’s higher courts and, in particular, the Supreme Court have often been sensitive to the grim social realities, and have on occasion given relief to the oppressed, the poor do not have the capacity to represent themselves, or to take advantage of progressive legislation. In 1982, the Supreme Court conceded that unusual measures were warranted to enable people the full realization of not merely their civil and political rights, but the enjoyment of economic, social, and cultural rights, and in its far- reaching decision in the case of PUDR People’s Union for Democratic Rights vs. Union of India[5], it recognised that a third party could directly petition, whether through a letter or other means, the Court and seek its intervention in a matter where another party’s fundamental rights were being violated.

The rule of Law does not mean that the protection is only available to the rich. It means that the rules and the rights in this country are available to all the citizens equally and hence PIL as a medium for the poor to get justice. It is noteworthy to mention that PIL can be filed by any Public spirited person even in cases where the person filing it is not affected or no fundamentals of his stand violated.

Public Interest Litigation is a strategic arm of the legal aid movement which intended to bring justice. Rule of Law does not mean that the Protection of the law must be available only to a fortunate few. In a recent ruling of Supreme Court on ” GROWTH OF SLUMS” in Delhi through Public Interest Litigation initiated by lawyers Mr. B.L. Wadhera & Mr. Almitra Patel Court held that large area of public land is covered by the people living in slum area . Departments despite being giving a dig on the slum clearance, it has been found that more and more slums are coming into existence. Instead of “Slum Clearance”, there is “Slum Creation” in Delhi. As slums tended to increase; the Court directed the departments to take appropriate action to check the growth of slums and to create an environment worth for living.

Public interest litigation is a highly effective weapon in the armory of law for reaching social justice to the common man. It is a unique phenomenon in the Indian Constitutional Jurisprudence that has no parallel in the world and has acquired a big significance in the modern legal concerns. Concerned with the protection of Human Rights of the people it provides with a mechanism that helps those in need of Justice achieve the same. But with the passage of time there have been several concerns over the misuse of PIL. As was observed by J. Bhagwati  “ But we must be careful to see that the member of the public who approaches the court in case of this kind in acting Bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The court must not allowed its process to be abused by politicians and other …….”

Misuse of PIL

As has been seen in a plethora of cases, this phenomenon is being misused for private and political interests.

One can find such abuse in the case of Janta Dal v. H. S. Chaudhari[6]. In this case it can be seen how public interest litigation has been abused for political reasons. In 1986 the Government of India had placed orders for the purchase of Bofors Guns. Subsequently on april17, 1987 some leading newspapers of India published news that government officials had accepted bribes to seal the contract. On the other hand the Bofors denied these allegations made by the press. In the mean time the government changed and the Janta Dal came to power at the centre. On the substantial evidences and information available to the C.B.I, it registered a criminal case against three name and eleven unnamed accused under the relevant section of IPC and Prevention of corruption act , 1947. For the purpose of getting more information and evidences from the Swiss authority the CBI moved an application before the special Judge in order to issue the letter of rogatory to Switzerland for receiving necessary support and assistance in carrying out the relevant investigation. At this stage H. S . Chowdhari made an application in Public Interest under article 51-A before the special judge requesting the court not to issue the letter of rogatory unless the allegation and charges levied on the accused have been substantially proved. The special Judge dismissed the petition on the ground that the petitioner has no Locus Standi. Against this order Sri Chawdhari filed a criminal revision before the High Court of Delhi under section 397/482 of Criminal .Procedure. Code and prayed for the dismissal of the First Information Report(FIR). On this issue a single judge of the High Court held that the petitioner has no locus standi to file a petition and hence his petition was not maintainable.

In public interest litigations , misuse comes in various forms. Publicity, private interest, political rivalry, or other oblique motives can be a motive for its misuse. The tragedy is that it retards the flow of justice delivery system. A spirit of moderation is needed but a consistent jurisprudence is not at all easily possible to evolve for retarding abuse. In PIL cases, the most crucial question for the court is to measure the seriousness of the petitioner, and to see whether he is actually the champion of the cause of the persons or groups he is representing. The effect of public interest litigation should go beyond the sphere of the parties present in the proceedings, and it is to be noted that public interest litigation must be accompanied by adequate judicial control so as to prevent this technique from being used as an instrument of coercion, blackmail or for other motives.

A vexatious litigation under the colour of public interest litigation brought before the court for vindicating any personal grievances, deserves rejection at the threshold . It is necessary to take note of the fact that a writ petitioner who comes to the Court for relief in public interest must come not only with clean hands like any other write petitioner but also with clean heart, clean mind and clean objective. While tracing its growing abuse, Law commission of India recommended a ‘Code of conduct’ for the regulation of PIL cases in India.

In a series of judgments justice Arjith Pasayat has reiterated the principles that PIL were not meant to advance political gain and political scores under the guise of PIL In Ashok kumar v State of W.B. Court laid down certain conditions on which the court has to satisfy itself while entertaining PIL

The Court has to be satisfied about
a) the credentials of the applicant
b) the prima facie correctness or nature of the information given by him.
The information being not vague and in definite; the information should show gravity and seriousness involved. Court has to strike a balance between two conflicting interest;
i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of the others;
ii) avoidance of public mischief and to avoid mischievous petition seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the court cannot afford to be liberal. Although Supreme Court issued guidelines on entertaining letter petitions as PILs, and not reluctant in imposing penalty on vexatious litigants, abuses on PIL Jurisdiction is on a rise. . Now a time has come to make a sound rule on regulating abuses on PIL.

MISUSE happens in all sorts of matters; rival business groups are settling scores by resort to PILs. Persons who describe themselves as “public spirited persons” and others as “social organisations” spring up overnight to canvass these causes. A case in point is the judgment of Chief Justice Sabharwal in TN Godavarman Thirumaulpad v. Union of India[7]. Following the decision in Janata Dal’s case, the learned judges observed that howsoever genuine a cause brought before a court by a public interest litigant may be, the court has to decline its examination at the behest of a person whose bona fides and credentials are in doubt. It was held that the applicant, who was a man of scarce means, had spent huge amounts in litigation and was obviously nothing but a name lender; costs of rupees one lac were imposed on him. Such petitions are increasingly being filed in relation to matter of projects of public importance by unsuccessful tenderers, but the use of public interest litigation in such cases needs to be deprecated.

In Ashok Kumar Pandey’s case[8], Justice Pasayat observed:

“The other interesting aspect is that in the PILs, official documents are being annexed without even indicating as to how the petitioner came to possess them. In one case, it was noticed that an interesting answer was given as to its possession. It was stated that a packet was lying on the road and when out of curiosity the petitioner opened it, he found copies of the official documents. Whenever such frivolous pleas are taken to explain possession, the courts should do well not only to dismiss the petitions but also to impose exemplary costs.”

A judge need not be a rocket scientist to see through bogus matters. For instance, when public interest litigation is being pursued by lawyers, whose huge fees are well known, there is likely to be more than meets the eye. This is particularly so when lawyers “fly down” to various cities and different fora to settle corporate scores or stop public projects, developments or tenders. Given the fact that money has various colours, one should not accept at face value, the protestation that the advocates are not charging fees. This may seem so officially, but there are other ways of being compensated. There are cases which are fought not only in the High Court but pursued in the Supreme Court with great vigour. The cost of travel and stay at five star hotels is staggering, but no one seems to be willing to ask the questions as to who is footing such costs. In a judgment on public interest litigation rendered by Justice Pasayat, he has laid down the following tests:

“The court has to be satisfied about: (a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; and (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike balance between two conflicting interests: (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the court cannot afford to be liberal.”

The misuse of public interest litigation will stop only if the courts are vigilant. In every matter, the first question that the courts must ask themselves is whether the petitioners are bona fide, whether the concern of the petitioner is real or whether there is something more than meets the eye. I am not suggesting that all public interest litigations should be viewed with suspicion; far from it. Justice P B Savant (who retired as a judge of the Supreme Court) once told me that a judge should develop a strong sense of smell. If something stinks, then he must be extra careful. It is the right judicial instinct and the skill of the judiciary which will stop the misuse of public interest litigations and restore it to its pristine and useful character.

A PIL is to be used as an effective weapon in the armory of law for delivering social justice to citizens. The court must not allow its process to be abused for oblique considerations. The petition of such persons should be thrown out at the threshold and in appropriate cases exemplary costs should be imposed. PIL cannot be invoked by a person or body of persons to satisfy his or its personal grudge and enmity. If such petitions under article 32 were entertained it would amount to abuse of process of the Court, preventing speedy remedy to other genuine petitioners from this court. Personal interest cannot be enforced through the process of this court under article 32 of the Constitution in the garb of a Public Interest Litigation. A person invoking the jurisdiction of this court under article 32 must approach this court for the vindication of the fundamental rights of affected persons and not for the vindication of his personal grudge or enmity. It is the duty of this court to discourage such petitions and to ensure that the course of justice is not obstructed or polluted by unscrupulous litigants by invoking the extra ordinary jurisdiction of this court for personal matters under the garb of the Public Interest Litigation. It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of Public Interest Litigation will alone have a locus standi and can approach the court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly, a vexatious petition under the colour of PIL brought before the court for vindicating any personal grievance deserves rejection at the threshold. It must be noted that once the court has accepted the Public Interest Litigation, its withdrawal is not permissible unless the court permits the same.

CONCLUSION

PIL is thus a mechanism which helps the poor get justice. The innovation of this legitimate instrument proved beneficial for the developing country like India. PIL has been used as a strategy to combat the atrocities prevailing in society. It would be appropriate to conclude by quoting Cunningham, “Indian PIL might rather be a Phoenix: a whole new creative arising out of the ashes of the old order.” the great strength of the judiciary must be utilized for public good and always in public interest in the service of the people. In order to curb frivolous litigation by proper check at entry and quick disposal is the main remedy.  Judicial system can suffer no greater lack of credibility than a perception that its order can be flouted with impunity. This court must refrain from passing orders that cannot be enforced, whatever the fundamental right may be and however good the cause. It serves no purpose to issue some high profile mandamus or declaration that can remain only on paper. Although usually the Supreme Court immediately passes interim orders for relief, rarely is a final verdict given, and in most of the cases, the follow-up is poor. The courts therefore, need to keep a check on the cases being filed and ensure the bona fide interest of the petitioner and the nature of the cause of action, in order to avoid unnecessary litigations. Vexatious and mischievous litigation must be identified and struck down so that the objectives of PIL aren’t violated. The founding fathers of our country envisaged the judiciary as “a bastion of rights and justice.” The tools of judicial review, activism and action in public interest through PILs are the tools to achieve complete independence of justice machinery and due discharge of duties.

[1]Kamagar Sabha v. Abdul Thai, A.I.R 1976 S.C. 1455(India).

[2]Raliway v. Union of India, A.I.R. 1981 S.C. 298(India).

[3] Bandhua Mukti Morcha case, A.I.R. 1984 S.C. 802(India).

[4] Hussainara Khatoon & Ors v. Home Secretary, State Of Bihar, A.I.R 1979 S.C. 1369.

[5] People’S Union For Democratic rights v. Union Of India & Others, A.I.R. 1982 S.C. 1473.

[6] Janata Dal vs H.S. Chowdhary and Ors, A.I.R. 1993 S.C. 892.

[7] TN Godavarman Thirumaulpad v. Union of India, no. 202 of 1995.

[8] Ashok Kumar Pandey vs The State Of West Bengal on 18 November, 2003, no. 199 of 2003.