Presentation for the Inaugural Session of the Study Tour on Comparative Aspects of Public Interest Litigation in India & China, October 16-23, 2011Organizer: LASWEB, Kolkata, India(Under the Auspices of the Danish Institute for Human Rights’ China Programme)

The Astor, Kolkata, October 17, 2011

•Any public-spirited person can file a Public Interest Litigation case (PIL) on behalf of a group of persons, whose rights or entitlements are affected

•It is not necessary that the person filing a case should have a direct interest or involvement in the matter of litigation

•A person in Mumbai can file a Public Interest Litigation for malnutrition deaths in Orissa or protection of environment in Tamil Nadu

•Public Interest Litigation is not defined in any statute or act. It has been interpreted by judges to consider and examine the intent of public at large

•public injury and public wrong caused by acts or omissions of various state agencies or other constituted public authorities

•sufficient cause for enforcement fundamental and constitutional rights of disadvantaged and poor people

•violation of rights transcending limits of private concern, vested interest and ulterior individual motif

•Agencies, departments and constituted bodies of state and central governments and not private parties and non-governmental organizations/institutions

•A “Private party” can be included in a PIL as a “Respondent”, after making the concerned state authority a party

•As in the case of a private factory in Delhi, causing pollution, people living in its vicinity or any other person can file a PIL against the Government of India, the State Pollution Board, making the private factory a respondent

•Introduction of the ‘Due Process’ clause to expand fundamental nights in India

•The subservient and deferential role of the Supreme Court of India during the Emergency period in the late 1970s

•Interference of the Executive in judicial appointments

•Post emergency radical interpretations of Articles 32 and 226 of the Constitution of India wherein filing of PILs got legitimized for effective assertion of constitutionally guaranteed rights

Salient Features•Access and Standing

•Procedural rules relaxed

•Appointment of citizens as investigators / fact finders

•Non adversarial approach

•No financial burden on petitioners

BoonCitizens have an inexpensive legal remedy to

public issues concerning human rights , consumer and environmental protection

BaneIncrease in filing of frivolous cases with an intent

to strike deals with the victims of stay ordersPeople filing PILs which are based on private

interests disguised as public interests

PILs can be filed in a High Court or in the Supreme Court, depending on the “Nature of Case”

Proceedings are conducted in the same manner as in other normal litigations

Judges may constitute inquiry commissions to investigate claims made in a PIL

Even a letter or a report deemed to have depicted real-life issues can be used to initiate a PIL

•PIL signifies a paradigm of legal justice which locates the content of informal justice within the formal justice delivery system…..Non Anglo-Saxon jurisdiction induces courts to transcend the traditional judicial function of adjudication and provide remedies for social wrongs

•The systemic impact of public interest litigation is not necessarily or directly related to its success in court.....the litigation process may also have palpable impacts on public discourse and policy

•Judgements and investigations relating to PILs generate far-reaching socio-political inputs for civil society campaigns

Interim Measures

Few Examples

Closing down a plant causing extensive air pollution and reopening it subject to extensive terms and conditions

Imposing strict deadlines on hotels operating late in the night

Rural Litigation & Entitlement Kendra vs. State of U.P Stoppage of mining operations which

were leading to environmental damage

Vellore Citizens' Welfare Forum vs. Union of India Tanneries discharging toxic wastes in

Palar river were endangering the health of the residents and these were asked to shut down

MC Mehta’s PIL(1985) for unleaded petrol won relief only in 2001 because of the involvement of a mighty private sector company….Still 2 out of 7 IOC refineries produce leaded fuel…..Public vigilance is the need of the hour

Full impacts of judgments on crucial issues of noise pollution like the use of fire-crackers and loud-speakers are yet to be realized due to lack of awareness and sensitization

A PIL pointed out that Taj Mahal was facing a threat from pollution caused by the factories situated nearby causing erosion of the exterior white marble

Supreme Court banned the use of coke and coal in the surrounding industries

The pollution in the area was substantially reduced resulting in environmental conservation

Strategic Areas of PILs’ Impact

Human Rights of the vulnerable

Economic , social and cultural rights

Police accountability

Multifarious issues relating to environmental degradation/rejuvenation

Accountability of public authorities

•over-extensive reliance on court-appointed commissions of enquiry....allegations of bias and partial ‘evidence gathering

•Problems arising out of alleged ‘dubiousness’, ‘preference’ and ‘unfair dealings’ of judges, legal practitioners and para-legal court functionaries

•the problem of backlogs and delays caused by lack of infrastructure and human resources remains a serious concern and appears to underlie a recent retrenchment in PIL matters

Allegation s have been raised on grounds of:

•Courts exceeding their institutional capacity; reversing constitutional priorities; usurping both legislative and administrative functions; violating the rule of law; riding roughshod over traditional rights and succumbing to machinations of power and politicization of constitutional adjudication;

•While PIL has been partly institutionalized, it remains dependent on personal orientations of individual judges

Problems phantom inter-meddlers Create

•evidentiary problems

•The frequency of PIL cases in the Supreme Court and the High Courts increased as claimants and their lawyers learned how to take advantage of the more liberal procedures

•Courts saw that public interest litigants and their lawyers were “dressing up” private disputes in the name of PIL

•Justice Pasayat of the Delhi High Court, in the case of Ashok Kumar Pandey v. State of W.B., described as “busybodies, meddlesome interlopers, wayfarers or officious interveners who approach the court with extraneous motivation or for glare of publicity”

•The contention that PILs weaken policy formulation and implementation in the legislative and executive branches is typically “dressed up” as a concern for separation of powers and judicial intervention on sector governance

Challenges Ahead

•Striking a balance between allowing ‘legitimate’ PILs and discouraging the ‘frivolous’ ones

•Established PIL scholars like Surya Deva has recommended preventive measures like building in ‘economic disincentives’ and confining PILs primarily to cases where access to justice is undermined by some kind of ‘disability’