TOPIC : WHY PILs ARE NECESSARY FOR SECURING A WELFARE STATE

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THE CONTEXT: In three recent decisions, the Supreme Court has passed substantive directions which can result in aid and the last mile delivery of welfare measures to the oppressed and beleaguered sections of our society. Though PIL is a very powerful tool in the hands of the people for securing their collective rights it is also not free of criticism at the same time. This article analyses the issue and necessity of PILs in India at present times in detail.

WHAT IS PUBLIC INTEREST LITIGATION (PIL)?

Public Interest Litigation means a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected. Therefore, PIL is a proceeding in which an individual or group seeks relief in the interest of the general public and not for its own purposes. PIL is a strategic arm of the legal aid movement and is intended to bring justice within the reach of the poor masses. It is a device to provide justice to those who individually are not in a position to have access to the courts.

HISTORICAL BACKGROUND OF PIL

• The term “PIL” originated in the United States in the mid-1960s. In the nineteenth century, various
• movements in that country contributed to public interest law, which is a part of the legal aid movement. The first legal aid office was established in New York in 1876.
• In the 1960s the PIL movement began to receive financial support from the office of economic opportunity. This encouraged lawyers and public-spirited persons to take up cases of the underprivileged and fight against various issues like–dangers to the environment, harms to public health, exploitation of vulnerable masses, exploitation of consumers and injustice to the weaker sections.
• In England, PIL made a mark during the years of Lord Denning in the 1970s. He as a petitioner brought several public issues to the court.

PIL IN INDIA

• The expression ‘Public Interest Litigation’ has been borrowed from American jurisprudence, where it was designed to provide legal representation to previously unrepresented groups like the poor, the racial minorities, unorganised consumers, and citizens who were passionate about environmental issues, etc.
• Public interest litigation is not defined in any statute or in any act. It has been interpreted by judges to consider the intent of the public at large.
• Public interest Litigation (PIL) means litigation filed in a court of law, for the protection of “Public Interest”, such as Pollution, Terrorism, Road safety, Constructional hazards etc. Any matter where the interest of the public at large is affected can be redressed by filing a Public Interest Litigation in a court of law.
• Public interest litigation is the power given to the public by courts through judicial activism. However, the person filing the petition must prove to the satisfaction of the court that the petition is being filed for public interest and not just as frivolous litigation by a busy body.
• The court can itself take cognizance of the matter and proceed suo motu or cases can commence on the petition of any public-spirited individual.

LANDMARK PIL CASES IN INDIA

GENESIS OF THE CONCEPT

• The seeds of the concept of public interest litigation were initially sown in India by Justice Krishna Iyer, in 1976 in Mumbai Kamgar Sabha vs. Abdul Thai.
• The first reported case of PIL was Hussainara Khatoon vs. the State of Bihar (1979) which focused on the inhuman conditions of prisons and under-trial prisoners that led to the release of more than 40,000 under-trial prisoners. The right to speedy justice emerged as a basic fundamental right which had been denied to these prisoners. The same set pattern was adopted in subsequent cases.

S.P. GUPTA VS. UNION OF INDIA – 1982

• A new era of the PIL movement was heralded by Justice P.N. Bhagawati in the case of S.P. Gupta vs. Union of India. In this case, it was held that “any member of the public or social action group acting bonafide” can invoke the Writ Jurisdiction of the High Courts (under article 226) or the Supreme Court (under Article 32) seeking redressal against violation of legal or constitutional rights of persons who due to social or economic or any other disability cannot approach the Court.
• By this judgment, PIL became a potent weapon for the enforcement of “public duties” where executive action or misdeed resulted in public injury. And as a result, any citizen of India or any consumer group or social action group can now 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.
• Justice Bhagwati did a lot to ensure that the concept of PILs was clearly enunciated. He did not insist on the observance of procedural technicalities and even treated ordinary letters from public-minded individuals as writ petitions.

M.C MEHTA VS. UNION OF INDIA – 1988

• A Public Interest Litigation was brought against Ganga water pollution so as to prevent any further pollution of Ganga water. Supreme Court held that petitioner although not a riparian owner is entitled to move the court for the enforcement of statutory provisions, as he is the person interested in protecting the lives of the people who make use of Ganga water.

INDIAN BANKS’ ASSOCIATION – 2004

• The Supreme Court in Indian Banks’ Association, Bombay & Ors. vs. M/s Devkala Consultancy Service and Ors held:- “In an appropriate case, where the petitioner might have moved a court in her private interest and for redressal of the personal grievance, the court in furtherance of Public Interest may treat it a necessity to enquire into the state of affairs of the subject of litigation in the interest of justice.”
• Thus, a private interest case can also be enlarged and seen in a broader aspect and be treated as a public interest case.

VISHAKA V. STATE OF RAJASTHAN – 1997

• The judgement of the case recognized sexual harassment as a violation of the fundamental constitutional rights of Article 14, Article 15 and Article 21. The guidelines subsequently led to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

ACTORS RESPONSIBLE FOR THE GROWTH OF PILs IN INDIA

THE CHARACTER OF THE INDIAN CONSTITUTION

• India has a written constitution which through Part III (Fundamental Rights) and Part IV (Directive Principles of State Policy) provides a framework for regulating relations between the state and its citizens and between citizens inter-se.

JUDICIAL ACTIVISM

• Although social and economic rights given in the Indian Constitution under Part IV are not legally enforceable, courts have creatively read these into fundamental rights thereby making them judicially enforceable. For instance, the “right to life” in Article 21 has been expanded to include the right to free legal aid, right to live with dignity, right to education, right to work, freedom from torture, bar fetters and handcuffing in prisons, etc.
• In PIL cases where the petitioner is not in a position to provide all the necessary evidence, either because it is voluminous or because the parties are weak socially or economically, courts have appointed commissions to collect information on facts and present it before the bench.

JUDICIAL INNOVATIONS

• Judicial innovations to help the poor and marginalised: For instance, in the Bandhua Mukti Morcha, the Supreme Court put the burden of proof on the respondent stating it would treat every case of forced labour as a case of bonded labour unless proven otherwise by the employer.
• Similarly in the Asiad Workers judgment case, Justice P.N. Bhagwati held that anyone getting less than the minimum wage can approach the Supreme Court directly without going through the labour commissioner and lower courts.

LIBERAL INTERPRETATION OF LOCUS STANDI

• The liberal interpretation of locus-standi where any person can apply to the court on behalf of those who are economically or physically unable to come before it has helped. Judges themselves have in some cases initiated suo moto action based on newspaper articles or letters received.

PROGRESSIVE SOCIAL LEGISLATIONS

• India has some of the most progressive social legislation to be found anywhere in the world whether it be relating to bonded labour, minimum wages, land ceiling, environmental protection, etc. This has made it easier for the courts to haul up the executive when it is not performing its duties in ensuring the rights of the poor as per the law of the land.

SIGNIFICANCE OF PILs

• The aim of PIL is to give the common people access to the courts to obtain legal redress. It is an important instrument of social change for maintaining the Rule of law and accelerating the balance between law and justice.
• The original purpose of PILs has been to make justice accessible to the poor and the marginalised, an important tool to make human rights reach those who have been denied.
• It democratises the access of justice to all. Any citizen or organisation who is capable can file petitions on behalf of those who cannot or do not have the means to do so.
• It helps in judicial monitoring of state institutions like prisons, asylums, protective homes, etc. And serves as one a tool for implementing the concept of judicial review.
• Enhanced public participation in judicial review of administrative action is also assured by PILs.

CERTAIN WEAKNESSES OF PILs

COMPETING RIGHTS 

• PIL actions may sometimes give rise to the problem of competing rights. For instance, when a court orders the closure of polluting industry, the interests of the workmen and their families who are deprived of their livelihood may not be taken into account by the court.

FRIVOLOUS PILS

• As the PILs have gained popularity many people started using PIL as a tool for harassment as frivolous cases are filed without heavy court fees as compared to private litigations. It could lead to overburdening of courts also. PILs today have also been appropriated for corporate, political and personal gains. Today the PIL is no more limited to problems of the poor and the oppressed.
• Examples:

Ø  PIL to postpone the exam after Kumbh Mela – dismissed by Uttarakhand HC and fine of Rs 50,000 imposed.

Ø  PIL challenging the developmental works undertaken by the Odisha government at the premises of Puri Jagannath Temple – Dismissed by SC.

Ø  Juhi Chawla PIL against 5G – dismissed by Delhi HC.

OVERBURDENING OF COURTS

• 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.

JUDICIAL OVERREACH

• Cases of Judicial Overreach by the Judiciary in the process of solving socio-economic or environmental problems can take place through the PILs.

MISUSE

• PIL is being misused by the public agitating for private grievances in the grab of public interest by seeking publicity rather than supporting the public cause.

GUIDELINES TO BE FOLLOWED FOR ENTERTAINING PIL CASES – SUPREME COURT

PETITIONS ALLOWED UNDER PILs

Letter petitions falling under the following categories alone will ordinarily be entertained as Public Interest Litigation:-

1. Bonded Labour matters.
2. Neglected Children.
3. Non-payment of minimum wages to workers and exploitation of casual workers and complaints of violation of Labour Laws (except in individual cases).
4. Petitions from jails complaining of harassment and seeking release after having completed 14 years in jail, death in jail, transfer, release on personal bond, and speedy trial as a fundamental right.
5. Petitions against police for refusing to register a case, harassment by police and death in police custody.
6. Petitions against atrocities on women, in particular harassment of bride, bride burning, rape, murder, kidnapping etc.
7. Petitions complaining of harassment or torture of villagers by co- villagers or by police from persons belonging to Scheduled Caste and Scheduled Tribes and economically backward classes.
8. Petitions pertaining to environmental pollution, disturbance of ecological balance, drugs, food adulteration, maintenance of heritage and culture, antiques, forest and wildlife and other matters of public importance.
9. Petitions from riot -victims.
10. Family Pension.

Ø  All letter-petitions received in the PIL Cell will first be screened in the Cell and only such petitions as are covered by the above-mentioned categories will be placed before a Judge to be nominated by Hon’ble the Chief Justice of India for directions after which the case will be listed before the Bench concerned.

PETITIONS NOT ALLOWED UNDER PILs

Cases falling under the following categories will not be entertained as Public Interest Litigation and these may be returned to the petitioners or filed in the PIL Cell, as the case may be:

1. Landlord-Tenant matters.
2. Service matter and those pertaining to Pension and Gratuity.
3. Complaints against Central/ State Government Departments and Local Bodies except those relating to item Nos. (1) to (10) above.
4. Admission to medical and other educational institutions.
5. Petitions for early hearing of cases pending in High Courts and Subordinate Courts.

 THREE CASES WHICH HIGHLIGHT THE SIGNIFICANCE OF PILS IN PRESENT TIMES

BUDHADEV KARMASKAR VERSUS STATE OF WEST BENGAL & ORS. – 2022

The Supreme Court issued a slew of directions in the exercise of its extraordinary powers under Article 142 of the Constitution so as to ensure basic human rights and dignity for sex workers across the country. The directions were necessitated on account of executive inertia (and also resistance) in bringing about much-needed reform for the betterment of the lives of sex workers. Since the Union Government had been dragging its feet on the subject matter pertaining to the inclusion and rehabilitation of sex workers for a considerable period of time, these directions were a long-time coming. Significant directions passed by the court include:

• A reiteration of the law that consensual sex work by adult sex workers is not a criminal offence;
• A legal affirmation of the fact that sex workers are entitled to equal protection of the laws;
• An injunction against the police authorities to cease and desist from meting out brutal and violent treatment on sex workers;
• Issuance of Aadhar Cards to sex workers without any possibility of any revelation of their identity as sex workers.

By passing such directions, the Supreme Court has made significant strides in removing sex workers from the fringes of society.

GAURAV KUMAR BANSAL VERSUS MR. DINESH KUMAR & ORS. – 2021

This case pertains to the implementation of the Mental Health Care Act, 2017, which the court noted was ‘tardy’ at various levels by most states and union territories (‘UTs’).

1. The court noticed that several States were simply re-designating existing establishments as halfway homes to demonstrate compliance under the Act. Accordingly, the bench directed all states and UTs to submit reports regarding the progress made towards establishing halfway homes. The court is now monitoring the progress made by states and UTs in establishing halfway homes across India. The bench in its directions had made it abundantly clear that it expects the process of establishment of such halfway homes is completed in an expeditious manner.
2. Another disturbing practise which drew the ire of the court was that in certain states, persons who were overstaying in mental health care institutions (due to poverty and despondency) were being transferred to beggar homes and custodial institutions. The court took cognizance of this insensitive practice and passed urgent directions to ensure that such practices are proscribed since they fall foul with the provisions of the Mental Health Care Act.

Under the Mental Health Care Act, 2017, “mental health care” is a broad and all-encompassing concept which includes not just ‘diagnosis’ and ‘treatment’, but also ‘care’ and ‘rehabilitation’ of persons suffering from mental illness. The Act gives every such person the right to access “mental healthcare” and treatment from mental health services run or funded by the State. Such services include accommodation in community-based establishments called “Half-way Homes”. These halfway homes are supposed to facilitate the process of rehabilitation of persons who have undergone mental healthcare treatment.

RAJNEESH KUMAR PANDEY & ORS. VERSUS UNION OF INDIA & ORS. -2021

The Supreme Court passed a detailed judgment in October 2021 containing several directions (which are applicable pan-India) for imparting inclusive and quality education to children with special needs (‘CwSN’).

• The court declared in no uncertain terms that CwSN are entitled to have access to free, inclusive, and quality education under the Right of Children to Free and Compulsory Education Act, 2009.
• The bench further observed that for meaningful and effective imparting of education and training to CwSN, different norms and standards ought to be followed; for that purpose, the concerned schools are obliged to create posts of rehabilitation professionals/special education teachers commensurate to the number of CwSN students in the given school.

Ø  The bench noted that no norms and standards had been prescribed by the union government for the appointment of rehabilitation professionals or special teachers for schools admitting CwSN. Accordingly, the bench directed the Union Government to notify the norms and standards of pupil-teacher ratio, and also separate norms for special teachers who alone can impart education and training to CwSN in the general schools. Once these norms were specified, state governments and schools were required to create commensurate permanent posts, and thereafter make appointments for rehabilitation professionals/special teachers who can cater to the needs of CwSN.

• Till such norms were specified by the Union Government, the court prescribed different pupil-teacher ratios for children with different disabilities to be adopted across India. For instance, for children with cerebral palsy, a pupil-teacher ratio of 8:1 was prescribed by the court, and for children with intellectual disability, Autistic Spectrum Disorder and specific learning disabilities, a pupil-teacher ratio of 5:1 was prescribed.

PILs ARE NECESSARY FOR SECURING A WELFARE STATE – AN ANALYSIS

PIL as a tool is also working as an important instrument of social change, for the welfare of every section of society. The innovation of this legitimate instrument proved beneficial for developing country like India and is often used as a strategy to combat the atrocities prevailing in society. Public Interest Litigation has produced astonishing results which were unthinkable three decades ago – degraded bonded labourers, tortured under trials and women prisoners, humiliated inmates of protective women’s homes, blinded prisoners, exploited children, beggars, and many others have been given relief through judicial intervention. The greatest contribution of PIL has been to enhance the accountability of the governments towards the human rights of the poor. The PIL develops a new jurisprudence of the accountability of the state for constitutional and legal violations adversely affecting the interests of the weaker elements in the community. The very purpose behind the judicial innovation of public interest litigation – which is the constitutional promise of a social and economic transformation to usher in an egalitarian social order and a welfare state shall not be defeated and for that, the Judiciary should be cautious enough in the application of PILs to avoid Judicial Overreach that are violative of the principle of Separation of Power. Besides, the frivolous PILs with vested interests must be discouraged to keep its workload manageable.

THE WAY FORWARD:

• It is time for the judiciary to do a reality check on the advent of PIL petitions which flooded the courts. The court must be careful to see that the petitioner who approaches it is acting bona fide and not for personal gain, private profit or political or other oblique considerations.
• Civil Society Organisations can play a proactive role in making people aware of their rights and even file PILs on their behalf on a matter of significant cause, also condemning misuse of PILs in the light of larger national good.
• Former Attorney General Soli Sorabjee has also advocated for 3 basic rules for regulating abuse of PIL:

• Reject dubious PIL at the threshold and in appropriate cases with exemplary costs.
• In cases where the important project or socio-economic regulations are challenged after gross delay, such petitions should be thrown out the very threshold on the ground of latches. Just because a petition is termed as PIL does not mean that ordinary principles applicable to litigation will not apply.
• PIL petitioners should be in strict terms such as providing indemnity or giving an adequate undertaking to the court to make good the damage if PIL is ultimately dismissed.

THE CONCLUSION: Public interest can be defended with such judicial interventions to prevent the violation of rights of sizeable segments of society who, due to poverty, ignorance, social status and economic disadvantage, cannot themselves assert those rights. Quite often, they are not even aware of those rights. Without PILs, corruption, nepotism and bias in executive actions will remain unchallenged. Courts must maintain a constant vigil over the executive and the legislature. Otherwise, all rights secured to citizens under our constitution will become worthless. The rule of law is the accepted norm for all civilised societies and the courts in India have a duty to enforce that rule of law. The Supreme Court must ignore those with frivolous motives and who represent the interest of the few and not the larger public interest. As a constitutional court, it must continue to serve the nation and its citizens.

Mains Practice Question:

1. What is public interest litigation? How do they help in securing the welfare nature of the state?
2. PILs are an effective way to seek justice for the people at large. Discuss how the recent judgements by the Supreme Court in PIL cases have restored the rights of a sizeable section of society.
3. Discuss the evolution of public interest litigation in India.