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PREFACE
LL.B. Study Notes
304E Public interest Lawyering

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Refer : Bare acts are a good source, in any subject of law :


Study notes of 108 Constitutional Law Paper I.
Study notes of 111 Environmental Law.
Study notes of 204 Administrative Law.
Study notes of 212E Human Rights Law and Practice.
Study notes of 214K Legal Principles through Case Study.
http://epgp.inflibnet.ac.in/UploadedContent.php
http://lawtimesjournal.in/public-interest-litigation/
http://unpan1.un.org/intradoc/groups/public/documents/apcity/unpan047384.pdf
http://www.srdlawnotes.com
http://shodhganga.inflibnet.ac.in

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CONTENTS
304E Public interest Lawyering

Topic Page

Module-1 Public Interest Lawyering. 3

Module-2 Powers of the Courts to entertain Public Interest Litigation. 26

Module-3 Advantages, Disadvantages and Limitations of PILs. 40

Module-4 Judicial Pronouncements and Hypothetical Problems related to


66
PILs.

Module-5 Misc topics in PIL which do not fit in Modules-1-4. 81

Objectives of the course :


The entire paper is designed taking into consideration the development, growth,
popularity and importance of Public Interest Litigation in the country. It is expected from
the law students to thoroughly digest necessary principles, rules, cases and relevant
Constitutional provisions before initiating Public Interest Litigation. The object of the PIL
is to secure and protect the fundamental rights of people at large, more particularly the
rights of poor, illiterate and ignorant people. The study of relevant constitutional
provisions is also must.
In this course students will also study the concept of PIL by observing the trend of
Judicial Activism of the Courts as well as landmark decisions of the courts in important
areas like Human Rights, Environment Protection, Protection of Rights of Women,
prevention of Misuse of Powers by Public Officials etc. Students are expected to study
and prepare themselves by studying Hypothetical problems also. The new entrant to the
Bar must know that the Public Interest Litigation is not for gaining cheap popularity or
taking revenge or for obtaining personal benefit. The course is designed for imparting
theoretical as well as practical knowledge of Public Interest Litigation.

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Module-1 :
1) Public Interest Lawyering
1.1) Historical Background of PIL, Concept and Meaning,
1.2) Origin of PIL in other countries and in India
1.3) Development & Scope of PIL in India
1.4) When PILs can be filed and when cannot be filed ?
1.5) PIL as a silent Revolution
1.6) PIL Relaxation of the Principle of Locus Standi.

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MODULE-1 QUESTIONS :

What do you mean by Public Interest Litigation ? Explain in detail in which


circumstances the Public Interest Litigation can be initiated and when the court may
refuse to entertain it. (Oct-2013)
Discuss : Concept and Meaning of PIL.
What is Public Interest Litigation ? Write its origin, object, its development in India
and importance. (Nov-2014)
Explain in detail about the origin, nature and scope of Public Interest Litigation and
its development in India. (Apr-2016)
Define Public Interest Litigation. Who can apply for ? When application can be
filed ? Which court has jurisdiction ? (Nov-2012)
What do you mean by Public Interest Litigation ? Explain in detail in which
circumstances the Public Interest Litigation can be initiated and when the
court may refuse to entertain it. (Oct-2013)
Explain the judicial activism through public interest litigation. (Dec-2015)
Public Interest Litigation is a silent revolution. Discuss this statement with the
appropriate decisions of the Apex Court. (Apr-2016)
"Public Interest Litigation is the exception to the Rule of Locus Standi." Discuss this
statement with appropriate cases. (Nov-2011)
Public Interest Litigation is the Rule of Locus Standi, Explain. (Nov-2014)
Why public interest litigation is called an exception to the rule of locus standi ?
Write a short essay. (Dec-2015)
"Public interest litigation can be filed even by a person whose fundamental or
constitutional right is not violated." Discuss this statement by taking into
consideration decided cases of the Supreme Court. (Dec-2015)

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Discuss about the origin and development of the public interest litigation in India and
importance thereof. (Dec-2016)
Differentiate Public Interest Litigation & Private Interest Litigation .

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MODULE-1 ANSWERS :

What do you mean by Public Interest Litigation ? Explain in detail in which


circumstances the Public Interest Litigation can be initiated and when the court may
refuse to entertain it. (Oct-2013)
Discuss : Concept and Meaning of PIL.
What is Public Interest Litigation ? Write its origin, object, its development in India
and importance. (Nov-2014)
ANSWER :
Refer :
http://www.vakilno1.com/legal-advice/know-public-interest-litigation-pil.html
http://lawtimesjournal.in/public-interest-litigation/
https://en.wikipedia.org/wiki/Public_interest_litigation_in_India
http://www.legalblog.in/2011/02/public-interest-litigation-definition.html
http://www.lawyersclubindia.com/articles/Locus-Standi-has-widening-the-scope-
of-Public-Interest-Litigation-4094.asp
http://www.lawyersclubindia.com/articles/Expansion-of-Locus-Standi-A-Path-for-
Development-of-PIL-3428.asp
http://www.lawyersclubindia.com/articles/PUBLIC-INTEREST-LITIGATION-3111.asp
<Note : This answer is general on PIL, second question of Module-1 is India specific>
Intro : What is public interest?
Public interest Litigation, in simple words, 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 public at large is affected can be redressed by
filing a Public Interest Litigation in a court of law.
The High Court of Gujarat [Practice and Procedure for Public Interest Litigation]
Rules, 2010 defines PIL as follows,
Public Interest Litigation without limiting generality of the said expression shall
mean
a litigation undertaken for the purpose of redressing,

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genuine, substantive or larger public injury or public grievance


or for enforcing public duty
or for vindicating public interest
but shall not include a matter involving individual, personal or private
grievances of the petitioner or any one else.
Black's Law Dictionary has defined Public Interest Litigation as :-
"Public Interest - Something in which the public, the community at large, has
some interest (pecuniary or otherwise) by which their legal rights or liabilities
are affected.
It does not mean anything so narrow as mere curiosity, or as the interests of the
particular localities, which may be affected by the matters in question.
Interest shared by citizens generally in affairs of local, state or national
government...."
Advanced Law Lexicon has defined `Public Interest Litigation' as :-
"The expression `PIL' 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 has pecuniary interest or some interest by which their legal
rights or liabilities are affected."
It is not necessary, for the exercise of the courts 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 litigation introduced in a court of law,
not by the aggrieved party
but by the court itself or by any other private party.
Such cases may occur when the victim does not have the necessary resources to
commence litigation or his freedom to move court has been suppressed or
encroached upon.
In such cases, the court can itself take cognizance of the matter and proceed
suo motu or cases can commence on the petition of any public-spirited person.
Need for PIL :
Judiciary, being the sentinel of constitutional statutory rights of citizens has a
special role to play in any society.
Often, high costs and complicated procedure involved in litigation, makes equal
access to jurisdiction as a mere slogan in respect of millions of destitute and
underprivileged masses stricken by poverty, illiteracy and ignorance.
In many countries, concept of PIL throws open the portals of courts to public
spirited individuals and organizations
by widening the scope of locus standi to enable them to initiate litigation for
public good.

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The aim of PIL is to give to the common people access, through others, to the
courts to obtain legal redress.
Origin of PIL : Concept of PIL :
The concept of Public Interest Litigation originated in the United States of America
in late Nineteenth century.
In 1960s, United States of America witnessed a period of social unrest. As a result,
many institutional changes were made and significant reforms were introduced.
One such significant institutional reform was evolution of Public Interest
Litigation.
This encouraged lawyers and public spirited persons to,
take up cases of the under-privileged
and fight against dangers to environment and public health
and exploitation of consumers and the weaker sections.
Existing legal services system in USA of 1960s failed to protect the interest of
significant section of the population and significant interest groups.
These unrepresented or under-represented interest groups included not only the
poor and the disadvantaged but also ordinary citizens who could not afford lawyers
to represent them when their interests are affected by any action.
1963 : Gideon v. Wainwright, 372 U.S. 335 (1963), a landmark case in United
States Supreme Court history, formed the basis for the concept of PIL.
In the case, US Supreme Court unanimously ruled that states are required under
the Sixth Amendment to the US Constitution to provide counsel in criminal
cases to represent defendants who are unable to afford to pay their own
attorneys.
Facts, in the nutshell, of the Gideons case :
Clearance Larl Gideon sent a handwritten letter to the Supreme Court of
United States pleading before the Court that he was a poor man and the
Florida Trial Court had denied his request to appoint counsel for his defense
contrary to the American Constitution.
For interesting details visit http://www.uscourts.gov/educational-
resources/educational-activities/facts-and-case-summary-gideon-v-
wainwright
Result :
The 9 judges of the Supreme Court treated the letter as petition and allowed
his plea by relaxing the procedural law which created history.
This case led to recognition of the first Legal Aid Office (established in 1876)
in New York City as a primary defender in criminal matters.
Thus, Gideon case laid the foundation for building the structure of Public Interest
Litigation in USA and the world.

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Since 1960s, the concept of Public Interest Litigation in the USA has undergone
many changes and modifications.
Rule of Locus Standi :
How did the Rule of Locus Standi gradually changed,
from individual interest,
to special interest,
then to class interest,
and now to sufficient interest ?
Requirements for any litigation : There are three basic requirements to initiate any
litigation :
1. Injury (locus standi) :-
Plaintiff must have suffered (or imminent likelihood of suffering) injury .
An invasion of a legally protected interest that is concrete and particularized.
The injury must be,
actual or imminent,
distinct and palpable, not abstract.
Injury could be economic as well as non-economic.
2. Causation :-
There must be a causal connection between the injury and the conduct
complained of,
so that injury is fairly traceable to the challenged action of the defendant
and not the result of the independent action of some third party who is not
before the court.
3. Redressability :-
It must be likely, as opposed to merely speculative, that a favorable court
decision will redress the injury.
Locus standi is one of the basic requirement for initiating litigation.
And, traditionally, it is ONLY the injured person himself who has locus standi to
initiate litigation to remedy a wrong.
In law, standing or locus standi is the term,
for,
the ability of a party to demonstrate to the court,
his sufficient connection to the harm from the law (or action challenged),
to support that partys participation in the case.
Otherwise, the court will rule that the plaintiff lacks standing to bring the suit
and will dismiss the case without considering the merits of the claim.

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Importance/ benefits of PIL :


Public interest litigation (PIL) has a vital role in any civil justice system in that,
it could achieve those objectives which could hardly be achieved through
conventional private litigation.
PIL offers a ladder to justice to disadvantaged sections of society,
provides an avenue to enforce diffused or collective rights,
and enables civil society to not only spread awareness about human rights but
also allows them to participate in government decision making.
PIL contributes to good governance by keeping the government accountable.

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GO TO MODULE-1 QUESTIONS.
GO TO CONTENTS.

Explain in detail about the origin, nature and scope of Public Interest Litigation and
its development in India. (Apr-2016)
Define Public Interest Litigation. Who can apply for ? When application can be
filed ? Which court has jurisdiction ? (Nov-2012)
What do you mean by Public Interest Litigation ? Explain in detail in which
circumstances the Public Interest Litigation can be initiated and when the
court may refuse to entertain it. (Oct-2013)
Public Interest Litigation is a silent revolution. Discuss this statement with the
appropriate decisions of the Apex Court. (Apr-2016)
"Public Interest Litigation is the exception to the Rule of Locus Standi." Discuss this
statement with appropriate cases. (Nov-2011)
Public Interest Litigation is the Rule of Locus Standi, Explain. (Nov-2014)
Why public interest litigation is called an exception to the rule of locus standi ?
Write a short essay. (Dec-2015)
"Public interest litigation can be filed even by a person whose fundamental or
constitutional right is not violated." Discuss this statement by taking into
consideration decided cases of the Supreme Court. (Dec-2015)
Discuss about the origin and development of the public interest litigation in India and
importance thereof. (Dec-2016)
ANSWER :
Refer :
http://unpan1.un.org/intradoc/groups/public/documents/apcity/unpan047384.pdf
http://www.vakilno1.com/legal-advice/know-public-interest-litigation-pil.html

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http://lawtimesjournal.in/public-interest-litigation/
https://en.wikipedia.org/wiki/Public_interest_litigation_in_India
http://nja.nic.in/P-950_Reading_Material_5-NOV-15/1.judicial_activism
%20balakrishnan.pdf
http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=a4a599a3-ee92-
41da-aa0b-b4201b77a8bd&txtsearch=Subject:%20Jurisprudence
http://www.legalblog.in/2011/02/public-interest-litigation-definition.html
http://www.lawyersclubindia.com/articles/Locus-Standi-has-widening-the-scope-
of-Public-Interest-Litigation-4094.asp
http://www.lawyersclubindia.com/articles/Expansion-of-Locus-Standi-A-Path-for-
Development-of-PIL-3428.asp
http://www.lawyersclubindia.com/articles/PUBLIC-INTEREST-LITIGATION-3111.asp
<Note : This answer is India specific, first question of Module-1 is general on PIL >
Introduction : PIL in India :
PIL begun in India towards the end of 1970s and came into full bloom in the 80s.
Justice V R Krishna Iyer and Justice P N Bhagwati, honourable Judges of the
Supreme Court of India delivered landmark judgements which opened up new
vistas in PIL.
The Constitution of India recognises, as fundamental rights, many of the individual
rights that comprises the International Covenant on Civil and Political Right. These
include right
to life,
to equality,
to the freedom of speech and expression, etc,
and to seek judicial redress before the Supreme Court and any of the High
Courts of India for enforcement and protection of these rights.
The Supreme Court of India, since late 1970s, has been very vigilant against
encroachments upon fundamental rights,
and through innovative interpretation of the Constitution, considerably expanded
scope of FRs, particularly Art-21.
Features of PIL Concept :
Liberalisation of rule of Locus Standi
Epistolary Jurisdiction
Non- adversarial nature
Appointment of Commissions and amicus curiae
What is Rule of Locus Standi :
<Read from answer to previous question>

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Enforcement of Fundamental Rights :


The Writ Jurisdiction of Supreme Court can be invoked under Article 32 of the
Constitution for the violation of fundamental rights guaranteed under Part III of
the Constitution.
Constitutional Provisions for Fundamental Rights are meaningless unless there are
adequate safeguards to ensure enforcement of such provisions.
Since the reality of such rights is tested only through the judiciary, the safeguards
assume even more importance.
In addition, enforcement also depends upon the degree of independence of the
Judiciary and the availability of relevant instruments with the executive authority.
Constitutional provisions to enforce FRs : Indian Constitution, like most of Western
Constitutions, lays down certain provisions to ensure the enforcement of
Fundamental Rights. These are as under :
Art-13 : Any executive or legislative action, which infringes upon the
Fundamental Rights of any person or any group of persons, can be declared as
void by the Courts under Article 13 of the Constitution.
Writs : Extra-ordinary remedies : In addition, the Judiciary has the power to
issue the prerogative writs. These are the extra-ordinary remedies provided to
the citizens to get their rights enforced against any authority in the State.
These writs are Habeas corpus, Mandamus, Prohibition, Certiorari and Quo-
warranto.
Both, High Courts as well as the Supreme Court may issue the writs
Art-359 : State of Emergency :
Except during emergency (Art-359), FRs cannot be suspended by the State.
Art-32 : Article 32 is referred to as the "Constitutional Remedy" for enforcement
of Fundamental Rights.
Art-32 itself has been included as a Fundamental Rights and hence it cannot
be denied to any person.
Dr B R Ambedkar described Article 32 as the most important one, without
which the Constitution would be reduced to nullity.
It is also referred to as the heart and soul of the Constitution.
By including Article 32 in Part-III Fundamental Rights, the Supreme Court has
been made the protector and guarantor of these Rights.
FRs may also be enforced by way of normal legal procedures including a
declaratory suit or by way of defence to legal proceedings.
Need for PIL in India :
Judiciary, being the sentinel of constitutional statutory rights of citizens has a
special role to play in the constitutional scheme.

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The constitution of India made provisions for enforcement of FRs. However, socio-
economic reality of India was quite different.
Though the Constitution of India promised equal rights to all citizens, irrespective
of race, gender, religion, and other considerations,
and the "directive principles of state policy" as stated in the Constitution
obligate the State to provide to all citizens a minimum standard of living,
the promise could not been fulfilled due to various socio-economic factors.
great majority of the Indian people even have no assurance of,
two nutritious meals a day, safety of employment, safe and clean housing, or
such level of education as would make it possible for them to understand their
constitutional rights and obligations.
Everyday, Indian newspapers carry reports of the exploitation of vulnerable
sections of society - by landlords, factory owners, businessmen, and the state's
own functionaries, such as police and revenue officials.
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 legislations.
For the enforcement of fundamental rights one has to move the Supreme Court or
the High Courts directly by invoking Writ Jurisdiction of these courts.
However, high costs and complicated procedure involved in litigation, makes
equal access to jurisdiction as a mere slogan in respect of millions of destitute
and underprivileged masses stricken by poverty, illiteracy and ignorance.
The concept of PIL widens the scope of locus standi to enable any public spirited
individual or organization to initiate litigation for public good.
The Supreme Court of India, pioneered the Public Interest Litigation (PIL) thereby
throwing upon the portals of courts to public spirited individuals and organizations
working for a noble public cause. Following is the chronology of events :
1979 : In December 1979, Kapila Hingorane had filed a petition regarding the
condition of the prisoners detained in the Bihar jail, whose suits were pending in
the court.
The special thing about this petition was that it was not filed by any single
prisoner, rather it was filed by various prisoners of the Bihar jail.
The case got filed in the Supreme Court.
This petition was filed by the name of the prisoner, Hussainara Khatoon, hence
the petition came to be known as Hussainara Khatoon Vs State of Bihar.
In this case, the Supreme Court upheld that the prisoners should get benefit of
free legal aid and fast hearing.

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Because of this case 40,000 prisoners, whose suits were pending in the court,
were released from the jail.
1982 : In the case of PUDR [People's Union for Democratic Rights] vs. Union
of India, Justice P. N. Bhagwati,
Supreme Court conceded that unusual measures were warranted to enable
people to fully realize not merely their civil and political rights, but the
enjoyment of economic, social, and cultural rights.
SC recognised that a third party could directly petition the Court and seek its
intervention in a matter where another party's fundamental rights were being
violated.
In this case, relating to the Constitutional prohibition on "begar" (forced labor)
and traffic in human beings,
PUDR submitted that workers contracted to build the large sports complex at
the Asian Game Village in Delhi were being exploited.
PUDR asked the Court that work under exploitative and grotesquely
humiliating conditions, or work that was not even compensated by prescribed
minimum wages, was violative of fundamental rights.
Supreme Court noted, the rule of law does not mean ,
that the protection of the law must be available only to a fortunate few
or that the law should be allowed to be prostituted by the vested
interests for protecting and upholding the status quo under the guise of
enforcement of their civil and political rights.
The poor too have civil and political rights and rule of law is meant for them
also, though today it exists only on paper and not in reality.
If the sugar barons and the alcohol kings have the fundamental right to
carry on their business and to fatten their purses by exploiting the
consuming public,
have the farmers belonging to the lowest strata of society no
fundamental right to earn an honest living through their sweat and toil?
2003 : In Guruvayur Devaswom Managing Commit. And Anr. v. C.K. Rajan
and Ors , the Supreme Court held,
The Courts exercising their power of judicial review found to its dismay that,
the poorest of the poor, depraved, the illiterate, the urban and rural
unorganized labour sector, women, children, handicapped by 'ignorance,
indigence and illiteracy' and other down trodden,
have either no access to justice or had been denied justice.
Development of PIL in India : Judicial Activism : Change in rule of locus standi :
Judicial Activism and relation between FR & DP (Directive Principles of State Policy) :
After initial deviation (State of Madras v Champakam Dorairajan) the Supreme

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Court accepted that,


FRs are not superior to DPs on account of the latter being non-justiciable.
rather that FRs and DPs are complementary and the former are a means to
achieve the goals indicated in the latter {Kesavananda Bharti v State of Kerala
(1973), Minerva Mills Ltd v Union of India (1980), Unni Krishnan v State of AP
(1993)}
The issue was put beyond any controversy in Minerva Mills Ltd v Union of India
where the Court held that,
harmony and balance between fundamental rights and directive principles is an
essential feature of the basic structure of the Constitution.
Since then SC/HCs have employed DPs to derive new FRs.
Two judges of the Indian Supreme Court (Bhagwati and Iyer) prepared the
groundwork, from mid-1970s to early 1980s, for the birth of PIL in India.
This included,
modifying the traditional requirements of locus standi,
liberalising the procedure to file writ petitions,
creating or expanding FRs,
overcoming evidentiary problems,
and evolving innovative remedies.
The rise of PIL corresponds to the extent and level of judicial activism shown by the
Indian Supreme Court and High Courts.
Through its activism over the years, as Prof Upendra Baxi noted, the Indian
Supreme Court has arguably become the most powerful court in the world by
rewriting many parts of the Constitution.
Source of Judicial Activism : A number of factors contributed to the robust
development of PIL in India.
The first factor has been the constitutional framework relating to FRs and DPs .
It is clear that because of FRs and DPs, the Indian judiciary enjoyed a
comparative advantage in anchoring PIL vis--vis courts of those jurisdictions
(such as the United Kingdom and Australia) where there was no Bill of Rights.
Secondly, several constitutional provisions concerning the powers of the SC
helped the Court in coming up with innovative and unconventional remedies, which
in turn raised social expectations.
Art-141 provides that the law declared by the Supreme Court shall be binding
on all courts,
Art-142, allows the SC to pass any order for doing complete justice also
proved more than handy in PIL cases.
Art-144 provides that all authorities, civil and judicial, in the territory of India

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shall act in aid of the Supreme Court.


Thirdly, a relatively weak executive at the Centre after the assassination of the
then Prime Minister Mrs Indira Gandhi in 1984, the era of coalition governments
since the 1990s, and the growing gap between the constitutional promise and
reality provided a conducive environment for the growth of PIL.
In other words, through PIL the judiciary tried to fill in a governance vacuum
and sought to do what the two branches of the government should have done
but did not do.
Last but not the least, being a democratic country, the civil society in India easily
grabbed the opportunity to participate in governance through PIL.
Civil society also found that PIL could help them in highlighting social issues/
causes much more quickly rather than achieving the same result through long
social campaigns.
Instances of judicial activism are :
Following are some of the major instances of judicial activism :
Introducing the due process requirement in Art-21, despite its rejection by the
Constituent Assembly (Maneka Gandhi v Union of India);
employing DPs to create new FRs;
reading implied limitations in the form of basic feature on the power of
Parliament to amend the Constitution (Kesavananda Bharti v State of Kerala);
declaring judicial review a basic feature of the Constitution (Waman Rao v Union
of India, Sampath Kumar v Union of India, Chandra Kumar v Union of India);
developing series of principle in Environmental Jurisprudence (Polluter Pays
Principle, Public Trust Doctrine, Precautionary Principle, Principle of Absolute
Liability, Principle of Sustainable Development etc.)
and becoming, in effect, a self-appointed judiciary with almost no real
constitutional checks, (i) S C Advocates on Record Association v Union of India,
and (ii) Presidential Reference Re AIR 1999 SC 1,
Because of these landmark decisions, the judiciary became almost untouchable and
chartered its PIL path subject only to self-restraints.
Constitutional provisions :
Definition : Art-21 :
No person shall be deprived of his life and Personal Liberty except according to
procedure established by law.
Definition : Art-32 Constitution of India :
The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this part is guaranteed.
Definition : Art-141 :

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The law declared by the Supreme Court shall be binding on all courts within the
territory of India.
Art-142(1) :
The Supreme Court in the exercise of its jurisdiction may pass such decree or
make such order as is necessary for doing complete justice in any cause or
matter pending before it, and any decree so passed or order so made shall be
enforceable throughout the territory of India. . .
Definition : Art-144 :
All authorities, civil and judicial, in the territory of India shall act in aid of the
Supreme Court
Concept of PIL & liberalization of the rule of Locus Standi :
The aim of PIL is to give to the common people of this country access to the courts
to obtain legal redress.
1981 : In the case of S. P. Gupta v. Union of India, Justice P N Bhagwati
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
is unable to approach the court for relief,
THEN any member of public can maintain an application for an appropriate
direction, order or writ in the High Court under Article 226
and in case any breach of fundamental rights of such persons or
determinate class of persons, in this court under Article 32
seeking judicial redress for the legal wrong or legal injury caused to such
person or determinate class of persons.
Reasons for liberalization of the rule of Locus Standi :
According to Justice V R Krishna Iyer, PIL is a process, of obtaining justice for the
people, of voicing peoples grievances through the legal process.
1981 : In the case of Fertilizer Corporation Kamgar Union vs. Union of India,
Justice Krishna lyer enumerated the following reasons for liberalization of the
rule of Locus Standi :-
Restrictive rules about standing are in general inimical to a healthy system of
administrative law. If a plaintiff with a good case is turned away, merely because

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he is not sufficiently affected personally, that means that some government


agency is left free to violate the law, and that is contrary to the public interest.
Activism is essential for participative public justice.
Therefore, a public minded citizen must be given an opportunity to move the court
in the interests of the public.
Epistolary jurisdiction :
http://www.publishyourarticles.net/eng/articles2/epistolary-jurisdiction-a-breif-
analysis/2095/
Epistolary jurisdiction means a litigation originating from letters, media reports, etc
It is based on the idea of easy and effective access to justice for all without any
procedural burden, like petition being in a specific form/ format, etc.
Liberal interpretation of Art-32 :
Supreme Court observed that the term appropriate proceedings in Art-32 of
the Constitution does not refer to the form but to the purpose of proceeding :
ie so long as the purpose of the proceeding is to enforce a FR, any form will do.
This interpretation allowed the Court to develop epistolary jurisdiction by which
even letters or telegrams were accepted as writ petitions.
Since the intent was to improve access to justice for those who were otherwise too
poor to move the courts or were unaware of their legal entitlements, the Court
allowed actions to be brought on their behalf by social activists and lawyers.
In numerous instances, the Court took suo moto cognizance of matters involving
the abuse of prisoners, bonded labourers and inmates of mental institutions,
through letters addressed to sitting judges.
This practice of initiating proceedings on the basis of letters has now been
streamlined and has come to be described as epistolary jurisdiction.
1987 : In the case of Dr. Upendra Baxi And Ors. vs State Of U.P. And Ors Justice
P. N. Bhagwati of SC took notice of the poor conditions in which girls were living in
the Government Protective Home at Agra, which were abominable and girls were
being denied their right to live with basic human dignity.
Examples :
Similarly, a letter alleging the illegal limestone quarrying which devastated the
fragile environment in the Himalayan foothills around Mussoorie, was treated as
a Public Interest Litigation.
A journalist complained to the Supreme Court in a letter, that the national
coastline was being sullied by unplanned development which violated the central
government directive was treated as a Public Interest Litigation.
In a landmark judgment, in D K Basu v State of West Bengal, the court acted
upon a letter petition which drew attention to the repeated instances of custodial
deaths in West Bengal.

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The court further mandated that a relative of the arrested must be promptly
notified. It made clear that the failure to comply with this direction would be
punishable as contempt of court.
Other procedural innovations : Fact-finding commissions, Amicus Curiae :
In India we have adversarial form of litigation, and ordinarily, only the aggrieved
party has the right to seek redress under Article 32.
However, in Public Interest Litigation (PIL),
nature of proceedings does not fit into the framework of adversarial litigation ,
And, in reality, due to various socio-economic reasons, huge masses of populace
do not have access to justice.
Hence, the courtroom dynamics of PIL are substantially different from ordinary civil
or criminal appeals.
in most public interest-related litigation, the judges take on a far more active
role in the literal sense as well by posing questions to the parties as well as
exploring solutions. The orientation of the proceedings is usually more akin to
collective problem-solving rather than an acrimonious contest between the
counsels.
Since these matters are filed straightaway at the level of the Supreme Court or
the High Court, the parties do not have a meaningful opportunity to present
evidence on record before the start of the court proceeding.
To overcome this problem, our Courts have developed the practice of
(i) appointing fact-finding commissions consisting of experts in the
concerned fields or practicing lawyers to inquire into the subject-matter of
the case and report back to the Court, and
(ii) appointing senior counsels as amicus curiae.
Result : PIL, a silent revolution : :
Once the hurdles posed by,
locus standi
and the procedure to file writ petitions were removed,
the judiciary focused its attention to providing a robust basis to pursue a range
of issues under PIL.
This was achieved by liberal interpretation of existing FRs & by creating new FRs.
Here Art-21 proved to be the most fertile provision in the evolution of new FRs.
The rights to life and Personal Liberty is the back bone of the Human Rights in
India.
In the following cases the Supreme Court has taken the view that the provisions of
part III should be given widest possible interpretation.
and that every activity which facilitates the exercise of the named FR may be

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considered integral part of the Article 21 of the Constitution.


Maneka Gandhi (1978),
Sunil Batra (1978 prison jurisprudence),
M.H. Hoskot (1978 Right to Free Legal Aid)
and Hussainara Khatoon (1979 speedy trial),
Through innovative interpretation of constitutional provisions, SC acknowledged
that it had a mandate to advance the rights of the disadvantaged and poor, even if
this might be at the behest of individuals or groups who themselves may lack
standing to petition the court.
Totally new dimensions is given by the Supreme Court to Article 21 through Public
Interest Litigation to safeguard the fundamental freedom of the individuals who are
indigent, illiterate and ignorant.
Since late 1970s, the host of decisions of the Supreme Court on Article 21 of the
Constitution through Public Interest Litigation have unfolded the true nature and
scope of Article 21.
The courts evolved a jurisprudence of compassion. Established rules of procedural
propriety were altered to give place to substantive concerns of the deprivation of
rights.
The Courts which hitherto had been places of disinterested and dispassionate
adjudicators, became active participant in the dispensation of justice.
Thus, a new branch of proceedings known as 'Social Interest Litigation' or 'Public
Interest Litigation' was evolved with a view to render complete justice to
the poorest of the poor, depraved, the illiterate, the urban and rural unorganized
labour sector, women, children, people handicapped by 'ignorance, indigence
and illiteracy' and other down trodden people
who have either no access to justice or had been denied justice.
According to Professor Upendra Baxi, famous legal scholar, through innovative
interpretation of constitutional provisions and epistolary jurisdiction,
the rule of locus standi has been relaxed and courts recognized
that a person acting bonafide and having sufficient interest in the proceeding
of Public Interest Litigation or Social Action Litigation has a locus standi
and can approach the court to wipe out violation of fundamental rights and
genuine infraction of statutory provisions.
Provided, it is not done for personal gain or private profit or political motive or
any oblique consideration.
Today, Public interest litigation has come to stay and its necessity cannot be
overemphasized.
Scope of PIL : Subject matters of PIL :
Public Interest Litigation is meant for enforcement of fundamental and other legal

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rights of the people who are poor, weak, ignorant of legal redressal system or
otherwise in a disadvantageous position, due to their social or economic
background.
It is a settled law that when a person approaches the court of equity in exercise of
extraordinary jurisdiction,
he should approach the court not only with clean hands but with clean mind,
heart and with clean objectives.
he should be acting bonafide and not in personal garb of private profit or political
motivation or other oblique considerations.
he must inspire the confidence of the court and must be above suspicion.
he must point out that the legal rights have been infringed.
he must indicate how public interest was involved in the case.
Such litigation can be initiated only for redressal of a public injury, enforcement of
a public duty or vindicating interest of public nature.
It is necessary that the petition is not filed for personal gain or private motive or
for other extraneous consideration and is filed bona fide in public interest.
Prudential limitations (judicially created standing principles) :- Following are major
prudential limitations to admit a case as PIL :
Petitions received by post even though not in public interest can be treated as
writ petitions if so directed by the Honble Judge nominated for this purpose.
Individual petitions complaining harassment or torture or death in jail or by
police, complaints of atrocities on women such as harassment for dowry, bride
burning, rape, murder and kidnapping, complaints relating to family pensions
and complaints of refusal by police to register the case can be registered as writ
petitions, if so approved by the concerned Honble Judge.
If deemed expedient, a report from the concerned authority is called before
placing the matter before the Honble Judge for directions.
If so directed by the Honble Judge, even a letter may be registered as a writ
petition and there after listed before the Court for hearing.
For example, under PIL, Courts have granted relief to the inmates of the prisons,
provided legal aid, directed speedy trials, ordered maintenance of human dignity
and covered several other areas.
Following are some other areas where PILs have been entertained :
Environmental concerns :
Where some construction company is cutting down trees, causing
environmental pollution.
Where a factory / industrial unit is causing air pollution,
Air and water pollution.

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Jail Reforms and rights of under-trials : For directing the police / Jail authorities
to take appropriate decisions in regards to jail reforms, such as segregation of
convicts, delay in trial, production of under trial before the court on remand
dates.
Custodial Violence : Cases of police atrocity causing damage to individuals
health and reputation. Apex Court direction to the provided the medical Aid to
police blinding victims.
Child labor : For abolishing child labor, and bonded labor.
Child welfare : Release of children below the 16 years of age and give separate
treatment to the under trial juvenile offenders.
Sexual Harassment at work places : Where rights of working women are affected
by sexual harassment.
Flesh trade in protective home of Agra,
Workers exploitation : Resultants of payment less then minimum wages to the
workers.
Protection of poor and illerate pavement and slum dwellers,
Bihar blinding case at Bhagalpur in 1980,
Abolition of Bonded Labourers,
Corruption : For keeping a check on corruption and crime involving holders of
high political officer.
Public Utility :
For maintaining Roads, Sewer etc in good conditions.
Where, in an area / street there are no street lights, causing inconvenience to
commuters,
Public nuisance :
For removal of Big Hoarding and signboard from the busy road to avoid traffic
problem.
Where some "Banquet Hall" plays a loud music, in night causing noise
pollution.
Matters which cannot be taken under PIL :
The Supreme Court has issued guidelines under which following matters are not
coming within purview of PIL jurisdiction. Therefore no PIL petition in these cases
shall be entertained by the Courts,
(1) Disputes between Tenant and Landlord
(2) Petitions relating to service matters, pension, gratuity etc.
(3) Petitions for early hearing of cases pending in courts.
(4) Matters pertaining to admission to the Medical, Engineering or other
educational institutions.

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(5) Matters other than those mentioned above for which PIL writ may be filed in
dispute with any Government Department of the State or the Union.
When a private interest case can be treated as a public interest case :
The Supreme Court in Indian Banks Association, Bombay and ors v. M/s Devkala
Consultancy Service and Ors, held that
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.
Who can file a Public Interest Litigation ?
In normal cases, it is seen that the aggrieved party i.e. the victim, who is affected
has to file his case in a court of law. ie 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.
As it is said that PIL can be filed by any public spirited person. There should not be
interest of only himself.
It can be possible that in that in filing a PIL there in a small part of his benefit also
hidden. But it does not mean that he cannot file the PIL.
Essentials for person who wants to file a PIL :
He should be a member of the public acting bona fide and having sufficient
interest in instituting an action for redressal of public wrong or public injury.
He should not be a mere busy body or a meddlesome interloper (trespasser).
His action should not be motivated by personal gain or any other oblique
consideration.
PIL can be initiated,
1) By an individual :
2) By a voluntary organisation :
3) On the basis of some report or research paper or newspaper :
1) PIL by an individual :
In the case of M C Mehta V. Union of India
In a Public Interest Litigation brought against Ganga water pollution so as to
prevent any further pollution of Ganga water.
Supreme court held that petitioner, although not an owner of land on banks of
Ganga, 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

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make use of Ganga water.


Parmanand Katara V. Union of India6 -
Supreme Court held in the Public Interest Litigation filed by a human right
activist fighting for general public interest that,
it is a paramount obligation of every member of medical professional to
give medical aid to every injured citizen as soon as possible without waiting
for any procedural formalities.
2) PIL by a voluntary organisation :
Case of Council For Environment Legal Action V. Union Of India :
Public Interest Litigation filed by registered voluntary organization regarding
economic degradation in coastal area.
Supreme Court issued appropriate orders and directions for enforcing the laws
to protect ecology.
3) PIL on the basis of some report or research paper or newspaper :
Example : A report entitled "Treat Prisoners Equally HC" was published in The
Tribe.
Punjab & Haryana High Court quashed the provisions of jail manual dividing
prisoners into A , B & C classes after holding that there cannot be any
classification of convicts on the basis of their social status, education or habit
of living.
This is a remarkable ruling given by High Court by declaring paragraph No
576-A of the manual to be "Unconstitutional".
PIL can be filed against WHOM ?
PIL can be filed against State/ Central Govt., Municipal Authorities,
but not against any private party.
However private party can be include in this as a respondent after making
concerned state authority a party.
Different ways to file a PIL : The different ways PIL can be filed in the Supreme
Court and High Courts are ;
1. Sending letter petitions with relevant facts and documents to the Chief Justice
of the concerned court. The matter must be sent by registered post.
2. By directly filing the PIL through the Free Legal Service Committee of the
court.
3. Directly filing the PIL through a lawyer.
4. Filing the PIL through NGOs or PIL firms.
Which courts have jurisdiction in PIL :
Any public spirited citizen can move/approach the court for the public cause (in the
interests of the public or public welfare) by filing a petition :

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In the Court of Magistrate under CrPC Sec-133 (Conditional order for


removal of public nuisance).
In High Court under Art.226 of the Constitution; and
In Supreme Court under Art.32 of the Constitution;
Procedure to file a PIL :
With the view to regulate the abuse of PIL the apex court has framed certain
guidelines (to govern the management and disposal of PILs.)
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.
The court should not allow its process to be abused by politicians and others to
delay legitimate administrative action or to gain political objectives.
Prescribed court fee shall be paid by the petitioner. Note : this fee could be
different for different states.
Court may treat a letter as a PIL writ petition and take action upon it. But, it is not
that every letter may be treated as a PIL writ petition by the court. The court would
be justified in treating the letter as a writ petition only in the following cases-
(i) It is only where the letter is addressed by an aggrieved person or
(ii) A public spirited individual or
(iii) A social action group for enforcement of the constitutional or the legal rights
of a person in custody
or of a class or group of persons who by reason of poverty, disability or
socially or economically disadvantaged position find it difficult to approach the
court for redressal.
Even though it is very much essential to curb the misuse and abuse of PIL, any
move by the government to regulate the PIL results in widespread protests from
those who are not aware of its abuse and equate any form of regulation with
erosion of their fundamental rights.
Under these circumstances the Supreme Court of India is required to step in by
incorporating safe guards provided by the Civil Procedure Code in matters of
stay orders/ injunctions in the arena of PIL.
Conclusion :
By relaxing the requirements of locus standi, Courts have brought legal aid at the
doorsteps of the teeming millions of helpless victims;
Since 1980s, Judicial Activism has opened up a new dimension for the Judicial
process and has given a new hope to the millions who starve for their livelihood.
One can simply approach to the Court for the enforcement of fundamental rights by
writing a letter or post card to any Judge. That particular letters based on true facts
and concept MAY be converted to writ petition.

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Public Interest Litigation has proved a boon for the common men.
Supreme Court's pivotal role in expanding the scope of Public Interest Litigation as
a counter balance to the lethargy and inefficiency of the executive is commendable
PIL is a tool in hands of public spirited citizens who have a good motive behind the
PIL.
However, to prevent it from becoming a weapon in the hands of those litigants
who want to either misuse this concept for either commercial gain or publicity
the apex court has time and again laid down various guidelines.
Moreover, imposing costs, by SC/ HCs, on the frivolous public interest litigation,
menace of abuse of PIL is controlled to some extent.
Since it is an extraordinary remedy available at a cheaper cost to all citizens of the
country, it ought not to be used by all litigants as a substitute for ordinary ones or
as a means to file frivolous complaints.

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Differentiate Public Interest Litigation & Private Interest Litigation.


ANSWER :
Refer :
http://www.srdlawnotes.com/2017/02/difference-between-public-interest.html

Public Interest Litigation Private Interest Litigation


1) The phrase public interest Private Interest litigation is limited to
means something in which the private aspect
public, or the community at large
has some interest by which their
legal rights or liabilities are
affected.
2) In Public Interest Litigation rule In Private Interest Litigation rule of locus
of locus standi is NOT strictly standi is strictly followed and adversarial
followed. procedure is strictly complied with.
3) In Public Interest Litigation, Only a person whose fundamental or legal
though a person who is not right has been violated may initiate private
aggrieved but socially and interest litigation by filing a suit or petition
spiritually motivated can file for enforcement thereof.
petition.
4) Petition can be filed under Art- The Plaintiff has to file the case in a court
226 in the High Court or under having jurisdiction of the lowest grade.
Art-32 in the Supreme Court.

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Public Interest Litigation Private Interest Litigation


5) The Court Stamp fee Act is not In Private Interest Litigation, Plaintiff has to
applicable to PIL. pay Court stamp fee as per the valuation of
the suit property under the Court Stamp
fee Act.
6) In Public Interest Litigation, the In Private Interest Litigation, generally the
decision given by the Court is decisions given by the Court are binding on
having general application. parties only.
7) In Public Interest Litigation, the In Private Interest Litigation, the aggrieved
person approaching the court for person has to prove that he has suffered
redressal or public wrong or some loss or injury. In case of alleged
public injury has sufficient violation of right, he must in addition prove
interest in the proceeding and is that he has right.
acting in bonafide and not for
personal gain or private profit or
political motivation.

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Module-2 :
2) Powers of the Courts to entertain Public Interest Litigation :
2.1) Jurisdiction of the Courts to hear PILs :
2.1.1) Relevant Constitutional Provisions : PIL - part of Writ Jurisdiction
2.1.2) Powers of High Courts under Article 226 of the Constitution
2.1.3) Supreme Court Powers under Article 32 and Article 142 of the
Constitution
2.2) The High Court of Gujarat Practice and Procedure for Public Interest
Litigation Rules 2010 and proforma for filing PIL before the High Court of
Gujarat
2.3) Powers of Courts to award compensation in PILs
2.4) Precautions necessary for a lawyer before filing PILs

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MODULE-2 QUESTIONS :

Which court are having jurisdiction to hear Public Interest Litigation ? Describe their
powers. (Nov-2014)
Which courts are competent to entertain the public interest litigation ? Discuss in
detail the powers thereof. (Dec-2016)
Discuss : Supreme Court Powers under Article 32 and Article 142 to hear PIL.
Discuss : Powers of High Courts under Article 226 to hear PIL.
"Public Interest Litigation is a part of the Writ Petition." Discuss this statement by
explaining the Powers of different court to entertain the Public Interest Litigation.
(Oct-2013)
Explain the Salient features of the Gujarat High Court (Practice and Procedure
for Public Interest Litigation) Rules, 2010. (Oct-2013)
Discuss : proforma for filing PIL before the High Court of Gujarat.
Explain the process for PIL before the High Court of Gujarat taking into consideration
the provisions of the Gujarat High Court PIL Rules, 2010. (Apr-2016)
Write note : Main provisions of the Gujarat Highcourt PIL Rules 2010 and significance
thereof. (Dec-2016)
Write note : Development of compensatory jurisprudence through PILs. (Dec-
2016)
Discuss : Nilabanti behra vls. State of Orissa (1993) 2SCC 746. (Nov-2011)
Discuss : Nilabati Behra V/s. State of Orissa (AIR 1993 SC 1960) (Oct-2013)

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Write note : Rudul Shah vs. State of Bihar (AIR 1983 SC 1086) (Nov-2014)
Which precautions should be taken by a lawyer before initiating public interest
litigation ? (Dec-2015)
Discuss the matters to be considered by a lawyer preferring PILs and challenges
thereof. (Apr-2016)
Public interest litigation is not a publicity interest litigation Discuss this statement
and explain the precautions required to be taken by a lawyer before initiating Public
interest litigation. (Dec-2016)

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MODULE-2 ANSWERS :

Which court are having jurisdiction to hear Public Interest Litigation ? Describe their
powers. (Nov-2014)
Which courts are competent to entertain the public interest litigation ? Discuss in
detail the powers thereof. (Dec-2016)
Discuss : Supreme Court Powers under Article 32 and Article 142 to hear PIL.
Discuss : Powers of High Courts under Article 226 to hear PIL.
"Public Interest Litigation is a part of the Writ Petition." Discuss this statement by
explaining the Powers of different court to entertain the Public Interest Litigation.
(Oct-2013)
ANSWER :
Refer :
http://nja.nic.in/P-950_Reading_Material_5-NOV-15/1.judicial_activism
%20balakrishnan.pdf
http://www.vakilno1.com/legal-advice/know-public-interest-litigation-pil.html
http://www.legalserviceindia.com/articles/art222.htm
https://www.lawctopus.com/academike/role-judicial-activism-interpretation-article-
21/
http://shodhganga.inflibnet.ac.in/bitstream/10603/27937/12/12_chapter7.pdf
http://www.financialexpress.com/archive/writ-jurisdiction-of-high-courts/53998/
Which court are having jurisdiction ?
Any public spirited citizen can move/approach the court for the public cause (in the
interests of the public or public welfare) by filing a petition in,
1. Supreme Court under Art.32 of the Constitution;
2. High Court under Art.226 of the Constitution; and

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3. Court of Magistrate under CrPC Sec-133 (Conditional order for removal of


public nuisance).
1. Powers of Supreme Court to hear PIL :
Under the constitution of India, the Supreme Court is top-most judicial forum. SC is
greatly empowered to pass any order for doing complete justice.
Relevant Constitutional Provisions empowering the SC to hear PIL are as follows :
Art-21 :
Definition : No person shall be deprived of his life and Personal Liberty
except according to procedure established by law.
Expansion of the scope of art 21 of the Constitution and the growth of public
interest litigation caused,
new branches of human rights jurisprudence and environmental
jurisprudence.
Questions which seemed to be alien (few decades ago) to Art 32, became
integral part of it.
SC has even incorporated some of the directive principles of state policy within
the compass of the fundamental rights.
eg, it declared that the right to primary education was a fundamental right.
The right to life and personal liberty came to comprehend such diverse aspects
of human freedom such as,
the right to environment,
or the right to gender justice,
or the right to good governance, etc
which all became matters involving fundamental rights.
Art-32 :
Definition : Art-32(1) : The right to move the Supreme Court by appropriate
proceedings for the enforcement of the rights conferred by this part is
guaranteed.
Since Article 32 is itself fundamental right, it cannot be whittled down by a
legislation.
It can be invoked even where an administrative action has been declared
as final by the statute.
Under Art-32(2) SC has power to issue appropriate directions, or orders or
writs, including writs in the nature of habeas corpus, certiorari, mandamus,
prohibition and quo- warranto.
SC cannot turn down the petition simply on the ground that the proper writ or
direction has not been prayed for.
Art-141 :

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Definition : The law declared by the Supreme Court shall be binding on all
courts within the territory of India.
Art-142(1) :
Definition : The Supreme Court in the exercise of its jurisdiction may pass
such decree or make such order as is necessary for doing complete justice
in any cause or matter pending before it, and any decree so passed or order
so made shall be enforceable throughout the territory of India. . .
<Detailed discussion in Module-3>
Art-144 :
Definition : All authorities, civil and judicial, in the territory of India shall act
in aid of the Supreme Court.
2. Powers of High Courts to hear PIL :
The constitution gives wide powers to all High Courts to ensure that injustice is not
tolerated in any sphere.
Definition : Art 226 :
(1) Notwithstanding anything in Art-32,
every High Court shall have power, throughout the territories in relation to
which it exercises jurisdiction,
to issue to any person or authority, including in appropriate cases, any
Government, within those territories directions,
orders or writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, or any of them,
for the enforcement of any of the rights conferred by Part III and for any
other purpose.
Under article 226 concurrent powers have been conferred on the respective High
Courts for the enforcement of fundamental rights or any other legal rights.
It is important to note that the power of HC is not only to enforce fundamental
rights but also for any other purpose.
This makes its powers even wider than Supreme Court.
Here, any other purpose means any legal right of legal duty .
Discretionary nature of HC powers under Art-226 :
It is well established that the remedy provided for in Article 226 of the
Constitution of India is a discretionary remedy and the High Court has always
the discretion to refuse to grant such a relief in certain circumstances even
though a legal right might have been infringed.
Availability of an alternative remedy is one of such considerations which the High
Court may take into account to refuse to exercise its jurisdiction,
but this principle does not apply to the enforcement of fundamental rights

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either under Article 32 or under Article 226 of the Constitution.


ie HC can not refuse to hear petitions on enforcement of FRs.
The SC in Mohd. Yasin v Town Area Committee held that,
an alternative remedy is not a bar to move a writ petition in the High Court
to enforce a fundamental right.
This is the only exception.
In all other cases where no fundamental right is involved, it has been ruled that
the High Court would not exercise its jurisdiction under Article 226,
when an alternative, adequate, and efficacious legal remedy is available
and the petitioner has not availed of the same before coming to the High
Court.
Though, Article 226 is silent on this point;
the Courts have themselves evolved this rule as a kind of self imposed
restriction on their jurisdiction under Article 226.
The rule of exhaustion of a remedy before invoking jurisdiction under Article 226
has been characterised as a rule of policy, convenience and discretion rather
than a rule of law.
In a landmark case of L Chandra Kumar vs Union of India AIR 1997, SC has held
that
the power of judiciary over legislative action vested in a High Court is a basic
feature of the constitution and cannot be removed through constitutional
amendment.
Compare Art-32 and Art-226 :
Similarities :
Power of issuing writs comes under original jurisdiction (to hear the matter at
first instance) of both Supreme Court and High Courts. An aggrieved person has
option to move any of them.
So far as the fundamental rights are concerned,
the jurisdictions under Art 32 and 226 are concurrent and independent of each
other.
A person has a choice of remedies. He may move either the Supreme Court
under Art 32 or an appropriate High Court under Art 226.
Differences :
While Supreme Court has power to issue writs via article 32,
High Courts have this power via article 226.
If petitioners grievance is that his FR is violated, he can move any of SC or HC.
However, if a right other than a FR is violated, he will have to move the High
Court having jurisdiction.

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After being unsuccessful in the High Court on the issue of FR emforcement,


the petitioner cannot approach the Supreme Court under Art 32 for the same
cause of action, because, such a petition would be barred by res judicata.
However, he may choose to appeal (under Art-136) to the Supreme Court
against the decision of the High Court.
The jurisdiction of the High Courts under Art 226 is wider than that of the
Supreme Court under Art 32. While Supreme Court has power to issue writs for
enforcement of ONLY Fundamental rights,
High Courts can issue writs for enforcement of fundamental rights as well as
any other matter also.
Article 226 empowers the High Courts to issue writs for the enforcement of
any of the fundamental rights or for any other purpose.
It has been held that the words for any other purpose mean for the
enforcement of any statutory or common law rights.
During emergency, SC can not grant relief on suspension of FR. However,
HCs will continue to grant relief.
Supreme Court cannot refuse to exercise its writ jurisdiction mainly because
Article 32 itself is a fundamental right and supreme court is guarantor or
defender of fundamental rights.
However, for high courts, exercising the power to issue writs is discretionary.
Supreme Court can issue a writ against any person or authority within the
territory of India
while high court can issue such writ under its own territorial jurisdiction.
Thus, High courts writ jurisdiction is narrower in terms of territorial extent.

ARTICLE 32 ARTICLE 226

Fundamental Right Constitutional Right

Can Be Suspended During Cannot Be Suspended


Emergency

Limited Scope (fundamental Wider Scope (FR + Other Rights)


Rights Only)

Wider Jurisdiction (All Over India) Limited Jurisdiction (Concerned


State Only)

3. Court of Magistrate under CrPC Sec-133 :


<Read Procedure for removal of public nuisance from 302 Criminal Procedure
Code (CrPC)>

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GO TO MODULE-2 QUESTIONS.
GO TO CONTENTS.

Explain the Salient features of the Gujarat High Court (Practice and Procedure
for Public Interest Litigation) Rules, 2010. (Oct-2013)
Discuss : proforma for filing PIL before the High Court of Gujarat.
Explain the process for PIL before the High Court of Gujarat taking into consideration
the provisions of the Gujarat High Court PIL Rules, 2010. (Apr-2016)
Write note : Main provisions of the Gujarat Highcourt PIL Rules 2010 and significance
thereof. (Dec-2016)
ANSWER :
Refer :
http://gujarathighcourt.nic.in/notifications/notification-pil%20rules.pdf
https://web.archive.org/web/20160313131310/http://gujarathighcourt.nic.in/notifi
cations/notification-pil%20rules.pdf
http://www.advocatekhoj.com/library/lawareas/publicinterestlitigation/procedure.p
hp
What law governs a PIL?
The Supreme Court has issued guidelines on PIL :
http://www.supremecourtofindia.nic.in/circular/guidelines/pilguidelines.pdf
Different High Courts have separate rules for entertaining PILs.
For example,
Bombay High Court, PIL is governed by The Bombay High Court Public
Interest Litigation Rules, 2010
In the Gujarat High Court, PIL is governed by The High Court of Gujarat
[Practice and Procedure for Public Interest Litigation] Rules, 2010 at
http://gujarathighcourt.nic.in/notifications/notification-pil%20rules.pdf
General procedure :
A "Public Interest Litigation", is filed in the same manner, as a writ petition is filed.
In High Court :
Two (2) copies of the petition have to be filed. Also, an advance copy of the
petition has to be served on the each respondent, i.e. opposite party, and this
proof of service has to be affixed on the petition.
In Supreme Court :
If a Public Interest Litigation is filed in the Supreme court, then (4)+(1) (i.e. 5)
sets of petition has to be filed opposite party is served, the copy only when
notice is issued.

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Court Fees :
A Court fee of RS. 50, per respondent (i.e. for each number of opposite party,
court fees of RS. 50) has to be affixed on the petition.
Procedure :
Proceedings, in the PUBLIC INTEREST LITIGATION commence and carry on in
the same manner, as other cases.
However, in between the proceedings if the judge feels he may appoint a
commissioner, eg to inspect allegations like pollution being caused, trees being
cut, sewer problems, etc.
After filing of replies, by opposite party, and rejoinder by the petitioner, final
hearing takes place, and the judge gives his final decision.
Gujarat HC : PIL provisions :
PIL rules of Gujarat HC regulate practice and procedure of the Public Interest
Litigation, in the High Court of Gujarat.
The High Court of Gujarat [Practice and Procedure for Public Interest Litigation]
Rules, 2010, are made under,
powers conferred by Article 225 of the Constitution of India,
Sections 30, 32 & 40 of the Bombay Reorganization Act, 1960,
Clauses 13, 22, 24, 27, 28 and other enabling Clauses of the Letters Patent,
As per Rule-9 of the Gujarat HC PIL Rules 2010, these rules shall not apply to
cases where the High Court suo motu decides to treat any matter or issue as Public
Interest Litigation.
Rule-7 of Gujarat HC PIL Rules 2010 :
PIL shall be classified as Writ Petition (Spl.C.A.) No._____ / ____ (P.I.L.),
and shall usually be filed in the Central Filing Centre (C.F.C.) of the Registry like
any other Writ Petition for enforcement of the FRs.
Rule-3 : A Writ Petition filed in the High Court in the nature of Public Interest
Litigation, shall as far as possible be in Proforma I and shall disclose
(a) the petitioners social standing, professional status and his antecedents,
particularly with respect to his credentials for maintaining the petition in the
nature of PIL.
(b) nature and extent of the personal interest of the petitioner, if any, involved
in the cause.
(c) Whether the petitioner has ever faced contempt of Court proceedings and
outcome or status of such proceedings, if any.
(d) facts constituting the cause, in chronological order. If the Petition is based on
news report, it must be stated whether the petitioner has taken steps to verify
the facts personally.

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(e) nature of injury caused.


(f) in case the petitioner is an Organization,
the petition must be filed through an authorized Office-bearer of the
Organization concerned,
disclosing additional details of any other PIL previously filed, by such
Organization with case number, status of the case and brief statement of its
outcome if the case is finally disposed of.
(g) the petition shall contain a declaration that the petition is filed purely in
Public Interest and not at the instance of any person or organization other than
the petitioner.
(h) full details of the source from which the costs of the litigation including the
lawyers fees are being borne.
(i) The petition must further contain averments as to how the public interest is
involved.
(j) that the cause involved is purely in public intent and that there is no personal
gain, private motive or oblique motive behind filing the PIL.
(k) the Constitutional or statutory provision or administrative instruction, which
has been violated.
The grounds for grant of interim relief and the nature of urgency, if any,
involved must also be mentioned along with a precise prayer-clause.
Rule-3A of the Gujarat HC PIL Rules 2010 :
The impose Court may exemplary costs or adopt other appropriate methods to
ensure curbing of frivolous Petitions, wrongly describing them as Public Interest
Petitions filed by busy bodies for extraneous consideration or ulterior motive.
Rule-5 : Epistolary Jurisdiction : Letters / Petitions to be entertained as Public
Interest Litigations may include the following categories :
(i) Bonded Labour matters.
(ii) Neglected children.
(iii) Non-payment of minimum wages to workers and exploitation of casual
workers and similar violations of Labour Laws.
(iv) Petitions from jails complaining of harassment or for premature release and
seeking release after having completed 14 years in jail, death in jail, release on
personal bond, speedy-trial as a fundamental right.
(v) Petitions against police for refusing to register a case, harassment by police
and death in police custody.
(vi) Petitions against atrocities on women, in particular, harassment of bride,
bride-burning, rape, murder, kidnapping, etc.
(vii) Petitions complaining of harassment or torture of villagers by from persons
belonging to SC/ST and Economically Backward Classes.

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(viii) Petitions pertaining to environmental pollution, disturbance of ecological


balance, drugs and food adulteration, forest and wild-life and other matters of
public importance, for direction to Civil Authorities to perform their duties; e.g.
Locality deprived of electricity or water supply.
Sanitation.
Bad roads causing accidents / deaths.
Problems relating to health hazards etc.
(ix) In respect of riot-victims.
....
(xiii) Any other matter as the Court may deem fit and proper in public interest.
Rule-6 : Private matters concerning,
(i) threat to or harassment of the petitioner by private persons,
(ii) seeking enquiry by an agency other than local police,
(iii) seeking police protection,
(iv) landlord-tenant dispute
(v) service matters,
(vi) admission to educational institutions
(vii) early hearing of matters pending in High Court and Subordinate Courts,
(viii) maintenance of wife, children and parents
would not ordinarily be considered as matters of public interest.

Gujarat HC : Proforma for filing PIL :
(Proforma - I)
PROFORMA FOR FILING OF PUBLIC INTEREST PETITION IN THE HIGH COURT OF
GUJARAT AT AHMEDABAD
EXTRAORDINARY ORIGINAL JURISDICTION
WRIT PETITION NO._____ OF_____ (P.I.L.)
In Re: __________________________________ (e.g. Pollution Matter)

IN THE MATTER OF
... Petitioner(s);
... Respondent(s).
Versus

To,
The Honble Chief Justice ________ and the companion Judges of the High Court of

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Gujarat.

The humble petition of the Petitioner(s) above named.

MOST RESPECTFULLY SHOWETH
1. The present Petition under Articles 226 and/or 227 of the Constitution of India is
being filed by way of public interest litigation and the petitioner has no personal
interest (if he has any personal interest such interest must be disclosed). The
Petition is being filed in the interest of __________ (give particulars of the class of
persons for whose benefit the Petition is filed).
2. That the petitioner is (give short background of the petitioner; if the petitioner is
an organization, the names of the office-bearers must be furnished). The petitioner
has earlier filed/not filed any other public interest petition (if filed, details of such
Public Interest Litigation filed including the case number and the Court, status and
brief description of the order passed must be given. It must also be stated whether
in any of such cases any cost has been awarded for or imposed against the
petitioner; and whether any appreciation or structure has been passed).
3. That the petitioner is filing the present petition purely in Public Interest on his
own and not at the instance of any other person or organization. The litigation cost,
including the advocates fees and the traveling expenses are being borne by the
petitioner himself. (if not, disclose the source of funds).
4. That the facts of the case in brief are as follows :
(narrate the facts leading to the filing of the petition in chronological order by
making paras as 4.1, 4.2 and so on making sure all disclosures and declarations
required under the Rules are made).
5. The source of information of the facts pleaded, is based on ___________. (If
news report, whether the applicant has verified the facts by personally visiting the
place, talking to other people or from the reporter/editor of the newspaper
concerned. If the petitioner does not wish to disclose the source, he may say so
with reasons).
6. That the petitioner has/has not made a representation in this regard to the
authorities (If yes, give details of such representation and reply, if any, received
from the authority concerned along with copies thereof. If not, reason for not
making any representation).
7. That to the best of knowledge of the petitioner, no public interest petition
(whether filed by the petitioner himself or by anyone else) raising the same issue is
filed before this Honble Court of before any other Court. (If filed, give details
thereof).
8. That the present petition has been filed on the following amongst other
grounds :

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GROUNDS
(State separate grounds with specific mention of violation of particular
constitutional or statutory provision or any administrative instruction.)
9. That the petitioner is seeking interim relief on the following grounds :
GROUNDS FOR INTERIM RELIEF
(Specify grounds for grant of interim relief and the nature of urgency involved.)
10. The petitioner has not filed any other appeal or application either before this
Court or Supreme Court of India or before any other Courts on the same subject
matter of this petition.
11. The petitioner has no other alternative efficacious remedy but to approach this
Hon'ble Court by way of this petition.
12. That the petitioner prays that this Honble Court may be pleased to :
PRAYER / S
[ Set out the relief/s including interim relief if any, claimed.]

DRAWN & FILED BY
Advocate for the petitioner
Place:
Date :

AFFIDAVIT
I, ___________________ aged about _____ years, petitioner herein to hereby
state of solemn affirmation that what has been stated here-in-above in para. Nos.
1 to 9 is true to my knowledge and I believe the same to be true and correct. Para.
Nos. 10 to 11 are the formal contentions. Para 12 is the prayer clause.
SOLEMNLY AFFIRMED ON THIS ___ DAY OF _____, 2010 AT AHMEDABAD.
________________
DEPONENT
Identified by me :
Clerk

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Write note : Development of compensatory jurisprudence through PILs. (Dec-


2016)
Discuss : Nilabanti behra vls. State of Orissa (1993) 2SCC 746. (Nov-2011)
Discuss : Nilabati Behra V/s. State of Orissa (AIR 1993 SC 1960) (Oct-2013)

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Write note : Rudul Shah vs. State of Bihar (AIR 1983 SC 1086) (Nov-2014)
ANSWER :
Refer :
<Search Development of Compensatory Jurisprudence
in study notes of 212E Human Rights Law and Practice.

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Which precautions should be taken by a lawyer before initiating public interest


litigation ? (Dec-2015)
Discuss the matters to be considered by a lawyer preferring PILs and challenges
thereof. (Apr-2016)
Public interest litigation is not a publicity interest litigation Discuss this statement
and explain the precautions required to be taken by a lawyer before initiating Public
interest litigation. (Dec-2016)
ANSWER :
Refer :
http://www.lawyersclubindia.com/articles/PUBLIC-INTEREST-LITIGATION-3111.asp
Read following points from Module-1 : <not repeated for the sake of brevity>
Scope of PIL : Subject matters of PIL.
Matters which cannot be taken under PIL/
Who can file a Public Interest Litigation ?
PIL can be filed against WHOM ?
Different ways to file a PIL.
Which courts have jurisdiction in PIL.
Procedure to file a PIL.
Points to be followed BY A LAWYER when filing PIL :
Gujarat HC PIL Rules 2010 provide good guidelines for this subject .
1. Discuss the legal issue with the affected people thoroughly.
Find if the subject matter is fit for a PIL.
Find if the petitioners are public spirited or are they motivated by private/
extraneous consideration.
Find if similar subject matter petition has ever been files/ decided by the court.
Find antecedents of petitioner and their eligibility.
2. Find out whether the matter infringes on fundamental rights of the people or not

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if so, identify which fundamental rights have been violated.


3. Help the people to decide,
(assertive action) whether legal action must be taken in the court to enforce
their rights
(defensive action) or to prevent the violation of their rights.
4. Write out the petition with all the facts and details, etc in a prescribed proforma .
5. Specify in the petition the type of relief wanted.
8. Get the signatures of all the affected people, if possible.
7. Collect all the available documents, paper clippings, photographs, investigation
reports, certificates and affidavits related to the issue, etc and attach them to the
main petition as annexure.
8. If possible, consult another socially conscious lawyer or the members of the local
legal aid society before sending the petition.
9. Send the registered petition to the competent authority like,
Registrar of the Court,
Chairman of the High Court Legal Services Committee of the respective HC.
or to the Chairman of the Supreme Court Legal Services Committee, New Delhi.
Public Interest Litigation is not litigation for gaining publicity :
<Discussed in Module-3. Search publicity interest litigation in this doc>

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Module-3 :
3) Advantages, Disadvantages and Limitations of PILs :
3.1) Advantages of PIL :
3.1.1) PIL : Blessings for poor and illiterate persons
3.1.2) PIL : protecting Human Rights of Prisoners (Including Article 21),
persons in police custody
3.1.3) PIL : An effective tool for protection of Environment
3.1.4) PIL : Necessary to prevent politicians / Executives from exercising
arbitrary powers
3.1.5) PIL : Necessary to issue guidelines in the event of lacuna of law in
any situation (Article 142)
3.1.6) PIL : Necessary for Protecting Women's Rights and safety
3.1.7) PIL : Necessary for maintaining independence and impartiality of
Judiciary
3.1.8) Other advantages of PIL
3.2) Disadvantages of PILs :
3.2.1) PIL : Breach of doctrine of Separation of Powers
3.2.2) PIL : Responsible for Judicial over-activism
3.2.3) Often difficult for the Executives to obey orders due to financial
constraints, shortage of time or for other reasons
3.3) Limitations of PILs :
3.3.1) Every wrong cannot be rectified through PIL
3.3.2) Impossible to curtail the misuse of PIL by the Courts
3.3.3) Consumption of time during litigation
3.3.4) Problems of implementation of orders through administrative
agencies and practical difficulties to implement the orders

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MODULE-3 QUESTIONS :

Advantages, Disadvantages and Limitations of Public Interest Litigations. (Nov-2014)


Explain : Advantages and disadvantages of public interest lawyering. (Dec-2015)
Discuss the cases decided by the Supreme Court relating to protection of Human
Rights. (Nov-2012)

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Explain how the human rights of poor and illiterate persons can be protected by
Public Interest Litigation, taking into consideration the role of the Supreme Court.
(Nov-2011)
Discuss : Public interest litigation is blessing for poor and illiterates. (Dec-2015)
Public interest litigation is helpful in protecting the rights of poor and illiterate
people Discuss this statement with decided case of the Apex Court. (Dec-2016)
Explain in detail the facts and ratio laid down : Bandhua Mukti Morcha v/s Union of
India (AIR 1984 SC 802) (Apr-2016)
How the rights of prisoners and arrestees are protected by the Public interest
litigation ? Discuss. (Dec-2016)
Write note : D.K. Basu V/s. State of West Bengal (AIR 1997 SC 610) (Nov-2014)
Explain : D K Basu -vs- State of West Bengal (AIR 1997 SC 610) (Dec-2016)
How Public Interest Litigation helps to prevent custodial violence Explain. (Nov-
2011)
Discuss in detail the role of the Public Interest Litigation in rendering justice in cases
of the custodial death and custodial violence. (Apr-2016)
Public Interest Litigation is the best instrument for the protection of custodial
violence. ? (Nov-2012)
Public Interest Litigation is an important instrument to prevent Custodial violence.
(Nov-2014)
Explain : Public interest litigation and custodial violence. (Dec-2015)
Public interest litigation is the best instrument for the protection of Environment.
Discuss this statement in details. (Nov-2012)
Explain the steps taken by the Supreme Court for the protection of
Environment through public interest litigation with the help of decided cases. (Nov-
2011)
Discuss : M. C. Mehta vs Union of India (AIR 1997 SC 735) (Taj Trapezium Case)
(Nov-2011)
Discuss : Narmada Bachao Andolan V/s. Union of India (AIR 2000 SC 3751)
(Oct-2013)
Explain in detail the facts and ratio laid down : Narmada Bachao Andolan v/s Union
of India (AIR 2000 SC 3751) (Apr-2016)
Write note : Rural litigation and Entitlement Kendra Vs. State of U.P. (1985)
(2SCC 43) (Nov-2014)
Write explanatory note on - Public Interest Litigation An effective tool for the
protection of Environment. (Oct-2013)
Explain the steps taken by the Supreme Court in PIL regarding Environment Security
with decided cases. (Nov-2014)

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Public interest litigation has played major role in protecting India's environment.
(Dec-2015)
Discuss in detail the contribution of PILs in the protection and preservation of
Environmental in India along with relevant cases. (Apr-2016)
Discuss : PIL : Necessary to prevent politicians and Executives from exercising
arbitrary powers.
Public Interest Litigation is the effective way to prevent the politicians from
misusing or arbitrarily exercising their powers." Discuss the statement with
decided cases of the Supreme Court. (Oct-2013)
Public Interest Litigation puts proper restriction upon the powers of politician Explain.
(Nov-2014)
Public Interest Litigation is an effective tool to prevent politicians from misusing their
powers. Discuss this statement with the appropriate decisions of the Supreme Court
of India. (Apr-2016)
Discuss : Inherent powers of SC to do complete justice.
Explain in detail with the decided cases how the Supreme Court of India through
Public Interest Litigation and Article-142 of the Constitution of India supplements
the Legislature by indirectly discharging legislative functions. (Oct-2013)
Explain with the decided cases of the Supreme Court, the contribution of Public Interest
Litigation in preventing sexual harassment to women. (Nov-2011)
Discuss : Vishakha V/s. State of Rajasthan (AIR 1997 SC 3011) (Nov-2012, Oct-
2013)
Discuss the guideline declared by the Supreme Court in the case of Vishakha Vls.
State of Rajasthan about sexual harassment. (Dec-2015)
Explain in detail the facts and ratio laid down : Vishaka v/s State of Rajasthan (AIR
1997 SC 3014) (Apr-2016)
Explain : Chairman Railway Board Vs. Chandrima Das (AIR 2000 SC 988) (Nov-
2012)
Write note : Indian Railway Board V/s. Chandrima Das (AIR 2000 SC 988) (Nov-
2014)
Discuss about the role of the Public Interest Litigation in maintaining the independence
and impartiality of judiciary. (Oct-2013)
Explain the contribution of Public Interest Litigation in maintaining independent and
impartial Judiciary. (Apr-2016)
Explain : Advantages and disadvantages of public interest lawyering. (Dec-2015)
Discuss about the limitations of the Public Interest Litigation. (Oct-2013)
Explain : Demerits of Public Interest Litigation (Nov-2012)
Advantages, Disadvantages and Limitations of Public Interest Litigations. (Nov-2014)

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Explain : Misuse and limitations of public interest litigation. (Dec-2015)


Public interest litigation is not a pill or penicillin for every wrong Discuss this
statement in the light of various decisions of the Supreme Court and explain the
limitations of PILs. (Dec-2016)
Explain : SC advocates on Record Association -vs- Union of India (1991) 4 SCC
699 (Dec-2016)

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MODULE-3 ANSWERS :

Advantages, Disadvantages and Limitations of Public Interest Litigations. (Nov-2014)


Explain : Advantages and disadvantages of public interest lawyering. (Dec-2015)
ANSWER :
Refer :
http://unpan1.un.org/intradoc/groups/public/documents/apcity/unpan047384.pdf
Advantages of PIL : <disadvantages and limitations of PIL discussed in a separate
answer>
List of advantages/ benefits of PIL :
1. Liberal interpretation of the rule of Locus Standi :
2. Ever expanding interpretation of Art-21 to include DP as FR :
3. Procedural innovations :
4. Lesser costs to litigants :
5. Promotion of Rule of Law :
6. PILs triggering legislative reforms :
7. PILs help cool down controversial policy issues :
8. Concept of PIL helped judiciary gain public confidence :
9. Trans-judicial influence :
1. Liberal interpretation of the rule of Locus Standi :
The most important contribution of PIL has been to bring courts closer to the
disadvantaged sections of society
such as prisoners, destitute, child or bonded labourers, women, and scheduled
castes/ tribes.
By taking up the issues affecting these people, PIL truly became a vehicle to bring
social revolution through constitutional means, something that the founding fathers
had hoped.

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2. Ever expanding interpretation of Art-21 to include DP as FR :


Equally important is the part played by PIL in expanding the jurisprudence of
fundamental (human) rights in India.
DPs {Directive Principles of State Policy} are not justiciable but the courts
imported some of these principles into the FRs thus making various socio-economic
rights as importantat least in theoryas civil and political rights.
This resulted in the legal recognition of rights,
such as education, health, livelihood, pollution-free environment, privacy and
speedy trial.
3. Procedural innovations :
These include,
development of Epistolary Jurisdiction,
PILs being taken outside adversarial system of justice. Proceedings are usually
more akin to collective problem-solving rather than an acrimonious contest
between the counsels.
Since in PILs, parties do not have a meaningful opportunity to present evidence on
record before the start of the court proceeding, our Courts have developed the
practice of
(i) appointing fact-finding commissions consisting of experts in the concerned
fields or practicing lawyers to inquire into the subject-matter of the case and
report back to the Court, and
(ii) appointing senior counsels as amicus curiae.
4. Lesser costs to litigants :
With the help of PILs vigilant citizens and NGOs can find an inexpensive legal
remedy because there is only a nominal fixed court fee involved in this type of
litigation.
5. Promotion of Rule of Law :
PIL became an instrument to promote
rule of law, demand fairness and transparency, fight corruption in
administration, and enhance the overall accountability of the government
agencies.
The underlying justification for these public demands and the judicial intervention
was to strengthen constitutionalism
a constant desire of the civil society to keep government powers under check.
This resulted in the judiciary giving directions to the government to follow its
constitutional obligations.
6. PILs triggering legislative reforms :
Through PIL, judiciary also triggered legislative reforms and filled in legislative gaps

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in important areas.
Just to illustrate,
the Supreme Court in the Vishaka case laid down detailed guidelines on sexual
harassment at the workplace.
Similarly welcome, were guidelines on arrest and detention laid down by the
Court in Basu.
To what extent these guidelines have been successful in achieving the intended
objectives and whether courts were justified in acting like a legislature are moot
points.
Nevertheless, such guidelines, which were totally in consonance with the
mandate of the Indian Constitution as well as various international covenants
ratified by the Indian government, helped in enhancing sensitivity to these
issues.
7. PILs help cool down controversial policy issues :
The Indian judiciary, courtesy PIL, has helped in cooling down a few controversial
policy questions on which the society was sharply divided.
One could think of the controversy about
the reservation of seats for SCs/ STs and other backwards classes in
employment or educations institutions,
the government policies of liberalisation and privatisation,
and the contested height of the Narmada dam as examples of this kind of
contribution.
8. Concept of PIL helped judiciary gain public confidence :
On a theoretical level, PIL has helped the Indian judiciary to gain public confidence
and establish legitimacy in the society.
The role of an independent judiciary in a democracy is of course important.
Given that judges are neither elected by public nor are they accountable to
public or their representatives ordinarily, the judiciary is susceptible to public
criticism for representing the elite or being undemocratic and anti-majoritarian.
Therefore, it becomes critical for the judiciary to be seen by the public to be not
only independent but also in touch with social realities.
9. Trans-judicial influence :
One positive contribution of PIL in India, which has extended outside the Indian
territory, deserves a special mention.
Just like Indian courts being influenced by the US judicial decisions to establish the
PIL jurisprudence in the 1970s,
the Indian PIL jurisprudence has also in turn contributed to the trans-judicial
influenceespecially in South Asiain that courts in Pakistan, Sri Lanka,

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Bangladesh and Nepal have cited Indian PIL cases to develop their own PIL
jurisprudence.
In a few cases, even Hong Kong courts have cited Indian PIL cases (particularly
cases dealing with environmental issues).
Given that the civil society that is following the development of PIL in China is
familiar with the Indian PIL jurisprudence, it is possible that Indian PIL cases might
be cited even before the Chinese courts in the future.

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GO TO MODULE-3 QUESTIONS.
GO TO CONTENTS.

Discuss the cases decided by the Supreme Court relating to protection of Human
Rights. (Nov-2012)
Explain how the human rights of poor and illiterate persons can be protected by
Public Interest Litigation, taking into consideration the role of the Supreme Court.
(Nov-2011)
Discuss : Public interest litigation is blessing for poor and illiterates. (Dec-2015)
Public interest litigation is helpful in protecting the rights of poor and illiterate
people Discuss this statement with decided case of the Apex Court. (Dec-2016)
ANSWER :
Refer :
http://shodhganga.inflibnet.ac.in/bitstream/10603/8112/16/16_chapter%207.pdf
Intro :
Judiciary in every country has an obligation and a Constitutional role to protect
Human Rights of citizens.
As per the mandate of the Constitution of India, this function is assigned to the
superior judiciary namely the Supreme Court of India and High courts.
The Supreme Court of India is perhaps one of the most active courts when it comes
into the matter of protection of Human Rights. It has great reputation of
independence and credibility.
The preamble of the Constitution of India encapsulates the objectives of the
Constitution-makers
to build a new Socio-Economic order where there will be Social, Economic and
Political Justice for everyone and equality of status and opportunity for all.
This basic objective of the Constitution mandates every organ of the state, the
executive, the legislature and the judiciary working harmoniously to strive to
realize the objectives as enumerated as Fundamental Rights and Directive

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Principles of State Policy.


The major contributions of the judiciary to the Human Rights jurisprudence have
been two fold :
(1) the substantive expansion of the concept of Human Rights under Article 21
of the Constitution, and
(2) the procedural innovation of Public Interest Litigation.
Importance of Art-32 of the Constitution :
Art-32(1) :
The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this part is guaranteed.
By virtue of Article 32, the SC has expanded the ambit of Judicial Review to include
review of all those state measures, which either vilate the Fundamental Rights or
violative of the Basic Structure of the Constitution.
The power of Judicial Review exercised by SC is intended to keep every organ of
the state within its limits laid down by the Constitution and the laws.
It is in exercise of the power of Judicial Review that, the Supreme Court has
developed the strategy of Public Interest Litigation.
The right to move to the Supreme Court to enforce Fundamental Rights is itself a
Fundamental Right under Article 32 of the Constitution of India.
This remedial Fundamental Right has been described as the Cornerstone of the
Democratic Edifice as the protector and guarantor of the Fundamentals Rights.
It has been described as an integral part of the Basic Structure of the Constitution.
Whenever, the legislative or the executive decision result in a breach of
Fundamental Right, the jurisdiction of the Supreme Court can be invoked.
Hence the validity of a law can be challenged under Article 32 if it involves a
question of enforcement of any Fundamental Rights.
Concept of PIL & liberalization of the rule of Locus Standi :
<discussed in Module-1>
PIL and protection of Human Rights :
As a result of this broad view of Locus Standi permitting Public Interest Litigation or
Social Action Litigation, the Supreme Court of India has considerably widened the
scope of Article 32 of the Constitution.
The Supreme Court has jurisdiction to give an appropriate remedy to the aggrieved
persons in various situations.
Following are some areas Human Rights where PILs have been entertained :
HR of Clean Environment :
<Read Clean environment : an inevitable Human Right from study notes of
212E Human Rights Law and Practice>

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HRs of arrestees/ under-trials/ prisoners, Custodial Vilance, Jail Reforms :


<Read Rights against Inhuman Treatment of Prisoners from study notes of
212E Human Rights Law and Practice>
Custodial violence : <Read D.K. Basu v State of West Bengal from study
notes of 214K Legal Principles through Case Study>
<Read Right to have Interview with Friends, Relatives and Lawyers from
study notes of 212E Human Rights Law and Practice>
<Read Right to Speedy Trial from study notes of 212E Human Rights Law
and Practice>
<Read Rights against Solitary Confinement and Bar Fetters from study
notes of 212E Human Rights Law and Practice>
<Read Rights against Hand Cuffing from study notes of 212E Human Rights
Law and Practice>
HRs of poor and illeterate :
<Read Right to Legal Aid from study notes of 212E Human Rights Law and
Practice>
Bhagalpur blinding : https://en.wikipedia.org/wiki/1980_Bhagalpur_blindings
Bonded labor : <Read Bandhua Mukti Morcha v. Union of India from study
notes of 214K Legal Principles through Case Study>
Workers exploitation : Resultants of payment less then minimum wages to
the workers.
HRs of children :
Child labor : The SC in M.C.Mehta v. State of T.N noted that menace of child
labour was widespread.
SC issued wide ranging directions in the context of employment and
exploitation of children in Sivakasi prohibiting employment of children
below the age of 14 and making arrangements for their education by
creating a fund and providing employment to the parents or abled bodied
adults in the family.
Juvenile welfare : Release of children below the 16 years of age and give
separate treatment to the under trial juvenile offenders.
<Read Neglected Juveniles from study notes of 307K Rehabilitation of
Criminals & Juveniles>
<Work on case study on the subject>
HRs of Women :
Sexual Harassment at work places : <Read Visakha v. State of Rajasthan
from study notes of 214K Legal Principles through Case Study>
Inhuman living conditions at protective home at Agra :

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In the case of Dr. Upendra Baxi And Ors. vs State Of U.P. And Ors Justice
P. N. Bhagwati of SC took notice of the poor conditions in which girls were
living in the Government Protective Home at Agra, which were abominable
and girls were being denied their right to live with basic human dignity.
<Work on case study of https://indiankanoon.org/doc/1916816/ >
Maintenance to Muslim Divorced Women :
<Read Mohd. Ahmed Khan v. Shah Bano Begum from study notes of
214K Legal Principles through Case Study>
<Read Danial Litifi's case from study notes of 214K Legal Principles
through Case Study>

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Explain in detail the facts and ratio laid down : Bandhua Mukti Morcha v/s Union of
India (AIR 1984 SC 802) (Apr-2016)
ANSWER :
Refer :
<Read Bandhua Mukti Morcha v. Union of India from study notes of 214K Legal
Principles through Case Study>

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How the rights of prisoners and arrestees are protected by the Public interest
litigation ? Discuss. (Dec-2016)
Write note : D.K. Basu V/s. State of West Bengal (AIR 1997 SC 610) (Nov-2014)
Explain : D K Basu -vs- State of West Bengal (AIR 1997 SC 610) (Dec-2016)
How Public Interest Litigation helps to prevent custodial violence Explain. (Nov-
2011)
Discuss in detail the role of the Public Interest Litigation in rendering justice in cases
of the custodial death and custodial violence. (Apr-2016)
Public Interest Litigation is the best instrument for the protection of custodial
violence. ? (Nov-2012)
Public Interest Litigation is an important instrument to prevent Custodial violence.
(Nov-2014)
Explain : Public interest litigation and custodial violence. (Dec-2015)
ANSWER :
Refer :

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<Read Rights against Inhuman Treatment of Prisoners from study notes of 212E
Human Rights Law and Practice>
<Read D.K. Basu v State of West Bengal from study notes of 214K Legal
Principles through Case Study>

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Public interest litigation is the best instrument for the protection of Environment.
Discuss this statement in details. (Nov-2012)
Explain the steps taken by the Supreme Court for the protection of
Environment through public interest litigation with the help of decided cases. (Nov-
2011)
Discuss : M. C. Mehta vls. Union of India (AIR 1997 SC 735) (Taj Trapezium Case)
(Nov-2011)
Discuss : Narmada Bachao Andolan V/s. Union of India (AIR 2000 SC 3751)
(Oct-2013)
Explain in detail the facts and ratio laid down : Narmada Bachao Andolan v/s Union
of India (AIR 2000 SC 3751) (Apr-2016)
Write note : Rural litigation and Entitlement Kendra Vs. State of U.P. (1985)
(2SCC 43) (Nov-2014)
Write explanatory note on - Public Interest Litigation An effective tool for the
protection of Environment. (Oct-2013)
Explain the steps taken by the Supreme Court in PIL regarding Environment Security
with decided cases. (Nov-2014)
Public interest litigation has played major role in protecting India's environment.
(Dec-2015)
Discuss in detail the contribution of PILs in the protection and preservation of
Environmental in India along with relevant cases. (Apr-2016)
ANSWER :
Refer :
Steps taken by the Supreme Court for the protection of Environment :
<Read Contribution of Judiciary in Environment Protection through from study
notes of 111 Environmental Law>
M. C. Mehta vls. Union of India (AIR 1997 SC 735) (Taj Trapezium Case) :
<Read M. C. Mehta vs. Union of India (AIR 1997 SC 735) (Taj Trapezium Case)
from study notes of 214K Legal Principles through Case Study>
Narmada Bachao Andolan V/s. Union of India :
<Read Narmada Bachao Andolan V/s. Union of India from study notes of 214K

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Legal Principles through Case Study>


Rural litigation and Entitlement Kendra Vs. State of U.P. :
<Read Rural litigation and Entitlement Kendra Vs. State of U.P. from study notes
of 214K Legal Principles through Case Study>

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Discuss : PIL : Necessary to prevent politicians and Executives from exercising


arbitrary powers.
Public Interest Litigation is the effective way to prevent the politicians from
misusing or arbitrarily exercising their powers." Discuss the statement with
decided cases of the Supreme Court. (Oct-2013)
Public Interest Litigation puts proper restriction upon the powers of politician Explain.
(Nov-2014)
Public Interest Litigation is an effective tool to prevent politicians from misusing their
powers. Discuss this statement with the appropriate decisions of the Supreme Court
of India. (Apr-2016)
ANSWER :
Answer can be constructed on following basis :
1. http://www.legalservicesindia.com/article/article/abuse-of-administrative-
discretion-756-1.html
2. Public Trust Doctrine :
M. C. Mehta v. Kamal Nath (1997) 1 SCC 388
<Read from 214K Legal Principles through Case Study>
3. Due process of Law under Article 21 of the Constitution :
Maneka Gandhi v. Union of India
<Read from 214K Legal Principles through Case Study>
4. Arbitrary allotment of petrol outlets :
Common Cause v Union of India (1996) 6 S.C.C. 530
5. In the case of Vineet Narain v. Union of India [(1998) 1 SCC 226], a
journalist filed a PIL against the CBI & Revenue Authorities that these authorities
are not working properly and these have become corrupt and incompetent.
SC held :-
There are ample powers conferred by Article 32 read with Article 142 to
make orders,
which have the effect of law by virtue of Article 141
and there is mandate to all authorities to act in aid of the orders of this

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Court as provided in Article 144 of the Constitution.


In a catena of decisions of this Court, this power has been recognised and
exercised, if need be, by issuing necessary directions to fill the vacuum till
such time the legislature steps in to cover the gap or the executive discharges
its role.
6. Other examples of scores of PIL,
where, in an area / street there are no street lights, causing inconvenience to
commuters.
where some "Banquet Hall" plays a loud music, in night causing noise pollution.
where some construction company is cutting down trees, causing environmental
pollution.
for removal of Big Hoarding and signboard from the busy road to avoid traffic
problem.
for maintaining Roads, Sewer etc in good conditions or any other area of public
interest.

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Discuss : Inherent powers of SC to do complete justice.


Explain in detail with the decided cases how the Supreme Court of India through
Public Interest Litigation and Article-142 of the Constitution of India supplements
the Legislature by indirectly discharging legislative functions. (Oct-2013)
ANSWER :
Refer :
http://www.nja.nic.in/17%20Complete%20Justice.pdf
http://www.supremecourtcases.com/index2.php?
option=com_content&itemid=5&do_pdf=1&id=308
http://www.insightsonindia.com/2017/05/18/2-supreme-courts-use-vast-powers-
article-142-done-tremendous-good-many-deprived-sections-however-time-
institute-checks-balances-discuss/
http://www.thehindu.com/opinion/op-ed/article-142-and-the-need-for-judicial-
restraint/article18474919.ece
Intro :
Fiat justitia, ruat caelum. Let justice be done, though the heavens may fall.
Articles 32, 136, 142, 226 of the Constitution strengthen the desires of imparting
complete justice.
These provisions are part of discretionary jurisdiction of the courts and have often
been invoked in matters requiring the court to intervene and ensure that rights and

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entitlements of persons are duly protected.


The functioning of the apex court is largely governed by its endeavor to ensure that
justice is done.
It does not function as a conventional court intending to decide matters between
parties following the rigors of procedure, though is not marked by complete
absence of it.
Rather, the Supreme Courts functioning may be termed as more of a supervisory
jurisdiction ensuring that any decision of a court or tribunal has not lead to
injustice to any of the parties.
It is for this very purpose that the apex court was entrusted with great plenary
power in the form of Articles 136 and 142.
Article 136 provides a discretion to the Supreme Court to grant a special leave
to appeal against any judgment, decree, determination, sentence or order of a
court.
Such right to appeal is not an automatic right and only if the Court is of the
opinion that the matter is such as requires the interference by the apex court
is the leave granted.
More details at http://www.nja.nic.in/17%20Complete%20Justice.pdf
Article 142 says that the Supreme Court in the exercise of its jurisdiction may
pass such decree or make such order as is necessary for doing complete justice
in any cause or matter pending before it.
Inherent powers of SC to do complete justice :
Indian constitution has separation of powers as a basic feature.
This requires that each organ of the three institutions viz Executive, Legislature
and Judiciary act in their domain.
Article 142 of the constitution allows SC to pass decrees that must be enforced.
This was provided so that any injustice can be rectified.
Art-142(1) :
The Supreme Court in the exercise of its jurisdiction may pass such decree or
make such order as is necessary for doing complete justice in any cause or
matter pending before it, and any decree so passed or order so made shall be
enforceable throughout the territory of India. . .
It is to be noted that this article uses the word `complete justice` rather than the
term `justice`.
This is because complete justice travels much beyond the concept of giving
justice to a party.
Complete justice strives at imparting justice not just for one side alone, but for all.
Even if a party has wronged another, the court cannot become an instrument to
perpetuate wrong upon him.

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The expression `complete justice` engrafted in Article 142 is of wide amplitude.


In Shahid Balwa v. Union of India & Ors., the court said that,
Article 136 read with Article 142 of the Constitution of India enables this Court
to pass such orders, which are necessary for doing complete justice in any
cause or matter pending before it
and, any order so made, shall be enforceable throughout the territory of
India.
The power to do complete justice under Article 142 is in the nature of a corrective
measure whereby equity is given preference over law to ensure that no injustice is
caused.
Equipped with such great discretionary powers, the Supreme Court has often taken
up the task of ensuring that honest parties are not the ultimate suffers and that the
guilty/or the wrong is ultimately punished.
When does SC exercise powers under Art-142 ?
Power under Article 142 is very wide and can be used to pass any order which the
court thinks is necessary for doing complete justice between the parties.
There can be no straight jacket formula for its exercise nor there can be any fetters
or limited scope of application for the powers under Article 142 is plenary in nature.
It seeks to ensure that no injustice is caused by the rigors of law or due to the
perversity of findings recorded by the courts below or such cases.
It acts as an equity jurisdiction without losing the characteristics of being an action
in accordance with law.
Article 142 is used as a tool to balance the conflicting interests of the parties and to
ensure that ultimately, the righteous succeeds.
However, the power is to be exercised only in exceptional circumstances for
furthering the ends of justice and not in a casual and a mechanical manner.
The purpose of Article 142 is to do effective, real and substantial justice,
coextensive and commensurate with the needs of justice in a given case in order to
meet any exigency that may arise.
However, it is not to be exercised in a case where there is no basis in law which
can form an edifice for building up a superstructure.
Keeping these principles in mind, the apex court has not hesitated to exercise its
power under Article 142, though fully aware of the restraints in judicial decision
making process, in order to do complete justice.
Basis for SC discharging legislative/ law making functions under Art-142 :
In the case of M.C. Mehta v. Union of India [(1987) 1 SCC 395], the Supreme
Court, while discussing the ambit and scope of Article 32 of the Constitution, held
as under :
We have already had occasion to consider the ambit and coverage of Article 32

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in the Bandhua Mukti Morcha v. Union of India and we wholly endorse what has
been stated by one of us namely, Bhagwati, J. as he then was in his judgment in
that case in regard to the true scope and ambit of that article.
It may now be taken as well settled that Article 32 does not merely confer power
on this Court to issue a direction, order or writ for enforcement of the
fundamental rights,
but it also lays a constitutional obligation on this Court to protect the
fundamental rights of the people
and for that purpose this Court has all incidental and ancillary powers
including the power to forge new remedies and fashion new strategies
designed to enforce the fundamental rights.
Instances of SC discharging legislative/ law making functions under Art-142 :
In the case of Vineet Narain v. Union of India [(1998) 1 SCC 226], the Court
held :-
There are ample powers conferred by Article 32 read with Article 142 to make
orders,
which have the effect of law by virtue of Article 141
and there is mandate to all authorities to act in aid of the orders of this Court
as provided in Article 144 of the Constitution.
In a catena of decisions of this Court, this power has been recognised and
exercised, if need be, by issuing necessary directions to fill the vacuum till such
time the legislature steps in to cover the gap or the executive discharges its role .
Vishaka & Ors vs State Of Rajasthan & Ors is one more such instance wherein a
three-Judge Bench of this Court gave several directions to prevent sexual
harassment of women at the workplace.
Taking into account the absence of enacted law to provide for effective
enforcement of the right of gender equality and guarantee against sexual
harassment, Verma, C.J. held that,
guidelines and norms given by the Court will hold the field until legislation
was enacted for the purpose.
It was clarified that this Court was acting under Article 32 of the Constitution
and the directions would be treated as the law declared by the Court under
Article 141 of the Constitution. (para 16)
In Damodar S. Prabhu v. Sayed Babalal H, the court framed the guidelines relating
to compounding of Sec. 138 of Negotiable Instruments Act 1881 proceedings.
The SC reasoned that,
it was aware that framing such guidelines may amount to judicial law making,
thereby breaching the perimeters of its jurisdiction,
however, in order to do complete justice, the court would be justified in

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framing such guidelines in cases where there is compete legislative vacuum.


In Amarnath shrine case Court On Its Own Motion vs Union Of India & Ors,
SC issued 23 points of guidelines to the State of Jammu and Kashmir and the
Amarnathji Shrine Board,
to provide a fair opportunity to the pilgrims to complete their yatra to the Holy
Cave with human dignity, safety to their lives and with basic amenities being
provided to them
In Laxmi Kant Pandey v. Union of India,
SC formulated an entire scheme for regulating inter-country and intra-country
adoption of Indian children by foreign adoptive parents.
CAN Supreme Court powers under Art-142 be used to supersede a statute ?
No. Article 142 being curative in nature cannot be construed as powers which
authorise the court to ignore the substantive rights of a litigant while dealing with a
cause pending before it.
Power under Art-142 cannot be used to '"supplant" substantive law applicable to
the case or cause under consideration of the court.
In Laxmidas Morarji v. Behrose Darab Madan, the SC held that:
Article 142 being in the nature of a residuary power based on equitable
principles, the Courts have thought it advisable to leave the powers under the
article undefined.
The power under Article 142 of the Constitution is a constitutional power and
hence, not restricted by statutory enactments.
Though the Supreme Court would not pass any order under Article 142 of the
Constitution which would amount to supplanting substantive law applicable or
ignoring express statutory provisions dealing with the subject,
at the same time these constitutional powers cannot in any way, be controlled
by any statutory provisions.
In M.S. Ahlawat v. State of Haryana & Anr, the court held that under Article 142,
the court cannot altogether ignore the substantive provisions of a statute and pass
orders concerning an issue which can be settled only through a mechanism
prescribed in another statute.
While reviewing its earlier order, the court corrected its order punishing the
petitioner under Section 195 of Code of Criminal Procedure, 1973 holding that
the requirements of the provisions cannot be ignored in exercise of powers
under Article 142.
In J. Jayalalithaa & Ors. v. State of Karnataka & Ors, SC held that
the court should not exercise its powers under Article 142 of the Constitution
when such an exercise would be contrary to law.

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Explain with the decided cases of the Supreme Court, the contribution of Public Interest
Litigation in preventing sexual harassment to women. (Nov-2011)
Discuss : Vishakha V/s. State of Rajasthan (AIR 1997 SC 3011) (Nov-2012, Oct-
2013)
Discuss the guideline declared by the Supreme Court in the case of Vishakha Vls.
State of Rajasthan about sexual harassment. (Dec-2015)
Explain in detail the facts and ratio laid down : Vishaka v/s State of Rajasthan (AIR
1997 SC 3014) (Apr-2016)
Explain : Chairman Railway Board Vs. Chandrima das (AIR 2000 SC 988) (Nov-
2012)
Write note : Indian Railway Board V/s. Chandrima Das (AIR 2000 SC 988) (Nov-
2014)
ANSWER :
Refer :
Vishakha V/s. State of Rajasthan (AIR 1997 SC 3011) :
Read from 214K Legal Principles through Case Study
Chairman Railway Board Vs. Chandrima das (AIR 2000 SC 988) :
Read from 214K Legal Principles through Case Study

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Discuss about the role of the Public Interest Litigation in maintaining the independence
and impartiality of judiciary. (Oct-2013)
Explain the contribution of Public Interest Litigation in maintaining independent and
impartial Judiciary. (Apr-2016)
ANSWER :
Refer :

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Explain : Advantages and disadvantages of public interest lawyering. (Dec-2015)


Discuss about the limitations of the Public Interest Litigation. (Oct-2013)
Public interest litigation is not a publicity interest litigation Discuss this

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statement and explain the precautions required to be taken by a lawyer before


initiating Public interest litigation. (Dec-2016)
Public Interest Litigation is not litigation for gaining publicity. Explain. (Nov-2011)
Public Interest Litigation application is not advertisement application. Discuss.
(Nov-2012)
"Public Interest Litigation is not an instrument for a Lawyer to gain publicity."
Explain. (Nov-2014)
Explain : "Public interest litigation is not an instrument for getting publicity." (Dec-
2015)
Explain : Demerits of Public Interest Litigation (Nov-2012)
Advantages, Disadvantages and Limitations of Public Interest Litigations. (Nov-2014)
Explain : Misuse and limitations of public interest litigation. (Dec-2015)
Public interest litigation is not a pill or penicillin for every wrong Discuss this
statement in the light of various decisions of the Supreme Court and explain the
limitations of PILs. (Dec-2016)
ANSWER :
Refer :
http://unpan1.un.org/intradoc/groups/public/documents/apcity/unpan047384.pdf
https://www.lawteacher.net/free-law-essays/litigation-law/public-interest-
litigation.php
http://www.legalblog.in/2011/02/public-interest-litigation-definition.html --->
search ABUSE OF THE PUBLIC INTEREST LITIGATION
http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=a4a599a3-ee92-
41da-aa0b-b4201b77a8bd&txtsearch=Subject:%20Jurisprudence
http://www.srdlawnotes.com/2016/06/what-is-public-interest-litigation.html --->
search "Limitation on public interest litigation
http://www.legalservicesindia.com/article/article/public-interest-litigation-a-critical-
evaluation-1844-1.html
Intro : Public interest litigation is not a pill or penicillin for every wrong
PIL has led to new problems such as,
an unanticipated increase in the workload of the superior courts,
lack of judicial expertise to determine factual matters,
gap between the promise and reality,
abuse of process,
friction and confrontation with fellow organs of the government,
and dangers inherent in judicial populism.
It seems that the misuse of PIL in India, which started in the 1990s, has reached to

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such a stage where it has started undermining the very purpose for which PIL was
introduced.
In other words, the dark side is slowly moving to overshadow the bright side of the
PIL concept.
Instances of abuse of PIL : There have been instances of blatant misuse of the
process of PIL. For instance, some so-called public-spirited lawyers knocked at the
door of the courts :
to call back the Indian cricket team from Australia after the controversial Sydney
test match.
to regulate the treatment of wild monkeys in Delhi
against the practice of private schools to conduct admission interviews for very
young children.
to seek ban on the publication of allegedly obscene and nude photographs in
newspapers.
against Richard Geres public kissing of an Indian actress, Ms Shilpa Shetty;
against an alleged indecent live stage show on New Years Eve;
against the marriage of former Miss World, Ms Aishwarya Rai, with a tree to
overcome certain astrological obstacles in her marriage.
to challenge the constitutional validity of the IndoUS civil nuclear agreement.
List of disadvantages and limitations of PIL :
1. Breach of doctrine of Separation of Powers.
2. Judicial over-activism/ populism.
3. Executive difficulties to obey orders due to financial constraints, shortage of
time or for other reasons.
4. Problems of implementation due to structure of administration : practical
difficulties to implement the orders.
5. Every wrong cannot be rectified through PIL : Public interest litigation is not
a pill or penicillin for every wrong.
6. Impossible to curtail the misuse of PIL by the Courts.
7. Consumption of time during litigation.
8. Ulterior purpose : PIL has become publicity interest litigation :
9. Symbolic justice :
10. Overuse-induced non-seriousness :
<Detailed discussion follows>
1. Breach of doctrine of Separation of Powers :
Although the Indian Constitution does not follow any strict separation of powers, it
still embodies the doctrine of checks and balances, which even the judiciary should
respect.

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However, the judiciary on several occasions did not exercise self-restraint and
moved on to legislate, settle policy questions, take over governance, or monitor
executive agencies.
PIL is a weapon which must be used with great care and circumspection; the courts
need to keep in view that under the guise of redressing a public grievance PIL does
not encroach upon the sphere reserved by the Constitution to the executive and
the legislature.
Moreover, there has been a lack of consistency in judicial activism.
While, the Supreme Court did not hesitate to intrude on policy questions but in
other cases it hid behind the shield of policy questions.
eg the judiciary intervened (i) to tackle sexual harassment as well as custodial
torture and (ii) to regulate the adoption of children by foreigners,
but it did not intervene (i) to introduce a uniform civil code, (ii) to combat
ragging in educational institutions, (iii) to adjust the height of the Narmada
dam, or (iv) to provide a humane face to liberalisation - disinvestment polices.
It is doubtful if the judiciary has been (or would be) able to enhance the
accountability of the other two wings of the government through PIL.
In fact, the reverse might be true. ie the judicial usurpation of executive and
legislative functions might make these institutions more unaccountable, because
they know that judiciary is always there to step in should they fail to act.
2. Judicial over-activism/ populism :
Courts should refrain from perceiving themselves as crusaders constitutionally
obliged to redress all failures of democracy.
Neither they have this authority nor could they achieve this goal .
Judges are human beings, but it would be unfortunate if they admit PIL cases on
account of raising an issue that is (or might become) popular in the society.
Conversely, the desire to become peoples judges in a democracy should not hinder
admitting PIL cases which involve an important public interest but are potentially
unpopular.
The fear of judicial populism is not merely academic is clear from the following
observation of Dwivedi J. in Kesavananda Bharathi v Union of India :
The court is not chosen by the people and is not responsible to them in the
sense in which the House of People is.
However, it will win for itself a permanent place in the hearts of the people and
augment its moral authority if it can shift the focus of judicial review from the
numerical concept of minority protection to the humanitarian concept of the
protection of the weaker section of the people.
3. Executive difficulties to obey orders due to financial constraints, shortage of time or
for other reasons :

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No need to elaborate.
4. Problems of implementation due to structure of administration : practical difficulties
to implement the orders :
This may be the case sometimes.
5. Every wrong cannot be rectified through PIL : Public interest litigation is not
a pill or penicillin for every wrong :
<Read Scope of PIL : Subject matters of PIL from Module-1 of this doc>
6. Impossible to curtail the misuse of PIL by the Courts :
Though SC has given guidelines to regulate entertaining PIL, there may be lapses
occasionally.
7. Consumption of time during litigation :
If properly managed, the PIL has the potential to contribute to an efficient disposal
of peoples grievances.
But considering that the number of per capita judges in India is much lower than
required and given that the Indian Supreme Court as well as High Courts are
facing a huge backlog of cases, it is puzzling why the courts have not done
enough to stop frivolous PIL cases.
In fact, by allowing frivolous PIL plaintiffs to waste the time and energy of the
courts, the judiciary might be violating the right to speedy trial of those who are
waiting for the vindication of their private interests through conventional
adversarial litigation.
A related problem is that the courts are taking unduly long time in disposing even
PIL cases.
The fact that courts need years to settle cases might also suggest that probably
courts were not the most appropriate forum to deal with the issues in hand as PIL.
8. Ulterior purpose : PIL has become publicity interest litigation :
There are questions, if the term Public in PIL is replaced by private or publicity.
One major rationale why the courts supported PIL was its usefulness in serving the
public interest. It is doubtful, however, if PIL is still wedded to that goal.
Almost any issue is presented to the courts in the guise of public interest because
of the allurements that the PIL jurisprudence offers (e.g. inexpensive, quick
response, and high impact).
It is not always easy to differentiate public interest from private interest.
Often, PIL is misused by people,
agitating for private grievances in the grab of public interest,
and seeking publicity rather than espousing public causes.
It is required that courts do not allow public in PIL to be substituted by private
or publicity by being more vigilant gate-keepers.

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PIL could achieve many of important policy objectives of the State.


However, the Indian PIL experience also shows us that it is critical to ensure that,
PIL does not become a back-door to enter the temple of justice to fulfill private
interests, settle political scores or simply to gain easy publicity.
In Vikas Vashisht v. Punjab and Haryana High Court,
It was argued that proceeding on en mass casual leave by 25 judges amounted
to strike by the judges.
A division bench of the Supreme Court consisting of R.C. Lahoti CJ and G.P.
Mathur J dismissed a PIL on July 2004 on the ground that,
what purported to have been filed by way of PIL was nothing more than a
publicity interest litigation as it was filed on the basis of a newspaper report.
9. Symbolic justice :
Another major problem with the PIL project in India has been of PIL cases often
doing only symbolic justice, with very little impact on ground.
Two facets of this problem could be noted here.
First, judiciary is often unable to ensure that its guidelines or directions in PIL
cases are complied with, for instance, regarding sexual harassment at workplace
(Vishaka case) or the procedure of arrest by police (D.K. Basu case).
No doubt, more empirical research is needed to investigate the extent of
compliance and the difference made by the Supreme Courts guidelines. But it
seems that the judicial intervention in these cases have made little progress
in combating sexual harassment of women and in limiting police atrocities in
matters of arrest and detention.
Second, instance of symbolic justice is provided by the futility of over conversion
of DPs into FRs and thus making them justiciable.
Not much is gained by recognising rights which cannot be enforced or fulfilled .
It is arguable that creating rights which cannot be enforced devalues the very
notion of rights as trump.
A judge may talk of right to life as including right to food, education, health,
shelter and a horde of social rights without exactly determining who has the
duty and how such duty to provide positive social benefits could be enforced.
So, the PIL project might dupe disadvantaged sections of society in believing that
justice has been done to them, but without making a real difference to their
situation.
10. Overuse-induced non-seriousness :
PIL should not be the first step in redressing all kinds of grievances even if they
involve public interest.
In order to remain effective, PIL should not be allowed to become a routine affair
which is not taken seriously by the Bench, the Bar, and masses.

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The overuse of PIL for every conceivable public interest might dilute the original
commitment to use this remedy only for enforcing human rights of the victimised
and the disadvantaged groups.
If civil society and disadvantaged groups lose faith in the efficacy of PIL, that would
sound a death knell for the very concept of PIL.
Indias response to abuse of PIL and changes in concept of PIL :
An attempt to curb the misuse of the PIL was made in 1996 when a private
member Bill was introduced in the Rajya Sabha.
FAILED attempt to enact, Public Interest Litigation (Regulation) Bill , which had
proposed that petitioners filing frivolous PIL cases should be put behind bars
and pay the damages.
However, the Bill could not receive the support of all political parties. It lapsed.
Supreme Court as well as High Courts have tried to send strong messages on a
case-to-case basis whenever they noticed that the process of PIL was misused.
In some cases, the courts have gone to the extent of imposing a fine on
plaintiffs who abused the judicial process.
On a few occasions, the Supreme Court also expressed its displeasure on how
the High Courts have admitted PIL cases.
1. SC Guidelines : Supreme Court has taken was to compile a set of Guidelines to
be Followed for Entertaining Letters/ Petitions Received by it as PIL.
The Guidelines, which were based on the full-court decision of December 1,
1988, have been modified on the orders/ directions of the Chief Justice of India
in 1993 and 2003.
The Guidelines provide that ordinarily letter/ petitions falling under one of the
following 10 categories will be entertained as PIL :
bonded labour matters;
neglected children;
non-payment of minimum wages;
petitions from jails complaining of harassment, death in jail, speedy trial as a
fundamental right, etc.;
petitions against police for refusing to register a case, harassment by police
and death in police custody;
petitions against atrocities on women, in particular harassment of bride,
bride-burning, rape, murder, kidnapping, etc.;
petitions complaining harassment or torture of persons belonging to SC/ ST;
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;

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petitions from riot-victims; and


family pensions.
The Guidelines also prescribe that petitions related to following matters shall
not be admitted as PIL :
related to landlord-tenant matters,
service matters
and admission to educational institutions
PIL Cells of SC/ HCs have been entrusted the task of screening letters/ petitions
as per these Guidelines and then placing them before a judge.
2. PIL format :
As noted before, in view of the epistolary jurisdiction developed by the courts,
PIL petitions need not follow the required format; a mere postcard could suffice.
However, in order to balance this exceptional power/ procedure, the Guidelines
were amended in 2003 to provide that it,
may be worthwhile to require an affidavit to be filed in support of the
statements contained in the petition whenever it is not too onerous a
requirement.
<detailed PIL format discussed elsewhere in this doc>
Continuing abuse of PIL :
Despite the twin-strategy (i) SC Guidelines and (ii) PIL Format, employed by the
judiciary to curb the misuse of PIL, it seems that still many frivolous PIL cases
reach before the courts.
While hearing a bunch of PILs seeking guidelines on premature release of
convicts serving life imprisonment in various prisons, the Supreme Court
expressed its frustration on the misuse of the PIL device. Noting that,
around 95% PILs are frivolous, the Court observed that PIL has become a
nuisance and that time has come to impose a penalty on those who file
PIL for frivolous reasons.
One possible explanation why it has proved difficult to curb the misuse of PIL could
be that,
because the very notion of PIL is based on flexibility, it is not easy for the courts
to keep the door open and at the same time stop busybodies at the gate.
Conclusion :
Indian PIL experience shows us that it is critical to ensure that PIL does not
become a facade to fulfill private interests, settle political scores or gain easy
publicity.
Although, there is significant continuing abuse of PIL, the judiciary might not like to
roll-back its power to intervene as guardian of the interests of disadvantaged

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sections or to make the Government accountable in selected cases.


Judiciary in a democracy should also not use PIL as a device to run the country on
a day-to-day basis or enter the legitimate domain of the executive and legislature.
Not single genuine PIL case shall be excluded, even if that results in some non-
serious PIL cases being entertained.
The challenge is to strike a balance in allowing legitimate PIL cases and
discouraging frivolous ones.

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Explain : SC advocates on Record Association -vs- Union of India (1991) 4 SCC


699 (Dec-2016)
ANSWER :
Refer :

<Read SC advocates on Record Association -vs- Union of India from 214K Legal
Principles through Case Study>

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Module-4 :
4) Judicial Pronouncements and Hypothetical Problems related to PILs :
4.1) Important Judicial Pronouncements of the Supreme Court in various areas
like Human Rights, Environment, Protection of FRs of people at large,
Compensation to victims etc. (Latest important cases may be taken into
consideration)
4.2) For laying down important Principles like: Polluter Pays Principle, Public
Trust Doctrine, Precautionary Principle, Principle of Absolute Liability,
Principle of Sustainable Development etc.
4.3) Problems of PILs based on Hypothetical Facts

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MODULE-4 QUESTIONS :

Discuss : Judicial pronouncements of SC in the area of Human Rights. <discussed in


Module-3>
Discuss : Judicial pronouncements of SC in the area of Environment. <discussed in
Module-3>
Discuss : Judicial pronouncements of SC in the area of Compensation to victims.
<discussed in Module-2>
Discuss : Judicial pronouncements on Public Trust Doctrine.
Discuss : Judicial pronouncements on Polluter Pays Principle.
Discuss : Judicial pronouncements on Precautionary Principle.
Discuss : Judicial pronouncements on Principle of Absolute Liability.
Discuss : Judicial pronouncements on Principle of Sustainable Development.
Discuss : Problems of PILs based on Hypothetical Facts.

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MODULE-4 ANSWERS :

Discuss : Judicial pronouncements on Public Trust Doctrine.


ANSWER :

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Refer :
https://en.wikipedia.org/wiki/M._C._Mehta_v._Kamal_Nath
http://www.ielrc.org/content/e0007.pdf
http://www.ielrc.org/content/e9615.pdf
Intro :
The Public Trust Doctrine is the principle that,
certain resources are preserved for public use,
and the government is required to maintain them for the reasonable use of the
public.
The doctrine enjoins upon the government to protect the resources for the
enjoyment of the general public rather than to permit their use for private
ownership or for commercial purposes.
The State as Trustee is under a legal duty to protect the natural resources. These
resources meant for public use cannot be converted into private ownership.
Doctrine of Public trust :
Under the Roman Law these resources were either owned by no one (Res Nullious)
or by every one in common (Res Communious).
However, under the English common law the Sovereign could own these
resources but the ownership was limited in nature,
the Crown could not grant these properties to private owners if the effect was
to interfere with the public use in navigation of fishing.
Resources that were suitable for these uses were deemed to be held in trust
by the Crown for the benefit of the public.
"Doctrine of the Public Trust" is founded on the principles that,
certain ecologically fragile resources such as rivers, sea-shore, forests, air, etc
have a great importance to the people as a whole,
and that these resources were held by the Sovereign/ Government in trusteeship
for the free and unimpeded use of the general public.
and that it would be wholly unjustified to make them a subject of private
ownership.
THUS,
these resources being a gift of nature, they should be made freely available to
everyone irrespective of the status in life.
the Public Trust Doctrine enjoins upon the Government to protect these
resources for the enjoyment of the general public rather than to permit their use
for private ownership or commercial purposes.
Public Trust Doctrine in Indian Context :
The watershed, in development of the Doctrine of Public Trust in India, came about

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after the decision of the Supreme Court in the M. C. Mehta v. Kamal Nath case
wherein Justice Kuldip Singh while delivering the judgment relied extensively on
the Doctrine of Public Trust.
<Note : For detailed discussion on the case M. C. Mehta v. Kamal Nath refer to
study notes on 214K Legal Principles through Case Study>
Art-48A :
The state shall endeavor to protect and improve environment and to safeguard
the forests and wild life of the country.
The States trusteeship duties have been expanded to include a right to a healthy
environment.
Three restrictions on governmental authority are often thought to be imposed
by the Public Trust Doctrine :
1. the property subject to the trust must not only be used for a public purpose,
but it must be made available for use by the general public;
2. the property may not be sold, even for a fair cash equivalent; and
3. the property must be maintained for particular types of uses.
Case-laws :
M. C. Mehta v. Kamal Nath (1997) 1 SCC 388
<Read this from study notes on 214K Legal Principles through Case Study>
Conclusion :
Ecologically fragile resources such as earth, mountains, rivers, oceans, forests, air,
etc are not to be frittered away or exhausted by any one generation.
Every generation owes a duty to all succeeding generations to develop and
conserve these natural resources in the best possible way.
Present generation did not inherit these resources from previous generation,
rather Present generation borrowed these resources from future generations.

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Discuss : Judicial pronouncements on Polluter Pays Principle.


ANSWER :
Refer :
https://en.wikipedia.org/wiki/Polluter_pays_principle
http://www.legalserviceindia.com/article/l54-Interpretation-of-Polluter-Pays-
Principle.html
Intro :
'Polluter pays principle' and Precautionary Principle play very significant role in

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Sustainable Development.
The Environment Protection Act, 1986 expressly empowers the government
to take all such measures as it deems necessary or expedient for the purpose of
protecting and improving the quality of environment.
Thus, it includes,
Precautionary principle :
precautionary actions to avoid environmental damage, as well as,
Polluter pays principle :
subsequent actions to recover environmental costs as well as direct costs to
the people or property from the polluter.
Polluter pays principle :
The Polluter Pays principle was first expounded by the Organization for Economic
Co-Operation and Development (OECD), in its recommendation for guiding
principles concerning international economic aspects of environmental policies,
where it stated that
the cost of environmental degradation should be taken into account by
industries,
and that the polluter should bear the cost of carrying out measures as stated by
public authorities in order to ensure that the environment is in a suitable state.
The Polluter Pays Principle exposes the polluter to two fold liability namely :
(i) Compensation to the victims of pollution; and
(ii) Ecological restoration
This principle was further expounded in the Brundtland Report.
The principle holds polluters absolutely liable for the pollution, rather than the
government.
For instance, a factory that produces a potentially poisonous substance as a by-
product of its activities is usually held responsible for its safe disposal.
This ensures that economic development does not come at the cost of
environmental degradation.
In simple words The Polluter Pays Principle is the commonly accepted practice
that,
those who produce pollution should bear the costs of
(i) managing it to prevent damage to human health or the environment,
(ii) restoring the environment back to its un-polluted state.
THUS, according to polluter pays principle,
manufacturers and importers of products should bear (Extended Producer
Responsibility) the responsibility for the environmental impacts of their products
throughout the product life-cycle, including,

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upstream impacts inherent in the selection of materials for the products,


impacts from manufacturers production processes itself,
and downstream impacts from the use and disposal of the products.
Polluter Pays Principle in Indian Context :
In Vellore Citizens Welfare Forum v. Union of India (1996)5 SCC 647, the Supreme
Court of India
interpreted Polluter Pays Principle as an absolute liability for harm to the
environment which liability extends,
not only to compensate the victims of pollution,
but also to the cost for restoring the environmental degradation, because
remediation of the damaged environment is an integral part of the process of
"Sustainable Development".
ie, the polluter is liable to pay for,
the costs to the individual sufferers
as well as the cost of reversing the damaged ecology.
Rio Declaration of 1992 :
The Polluter Pays Principle finds prominent place in the Rio Declaration.
Principle 16 of the Declaration proclaims that
national authorities should endeavor to promote the internationalization of
environmental costs
and the use of economic instruments, taking into account the approach that
the polluter should bear the cost of pollution, with due regard to the public
interest
and without distorting international trade and investment.
Criticism of Polluter Pays Principle :
Despite its different impact on pollution, the doctrine of Polluter Pays Principle is
limited in the sense that
it can be applied only at the remedial stage i.e. after the pollution has already
taken place.
In other words one can say that Polluter Pays Principle, in a sense, condones the
polluter provided he pays-up !
or Polluter Pays Principle means one may pay and pollute.
Case-laws :
Vellore Citizens Welfare Forum v. Union of India (1996)5 SCC 647
<Read this from study notes on 214K Legal Principles through Case Study>
Indian Council for Enviro-Legal Action v. UOI & Ors. (AIR 1996 SC 1446)

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Discuss : Judicial pronouncements on Precautionary Principle.


ANSWER :
Refer :
https://www.lawctopus.com/academike/precautionary-principle/
Intro :
The precautionary principle in environmental law originated first in Germany in the
1970s,
where the legislation noted that if there is a high possibility of risk of harmful
events occurring,
then preventive measures must be ordered.
The precautionary principle is based on the theory that
it is better to err on the side of caution to prevent environmental harm which
may become irreversible
Precautionary Principle :
A substance or activity posing a threat to the environment
should be prevented from adversely affecting it,
even if there is no conclusive scientific proof linking that particular substance or
activity to the environmental damage.
Sustainable Development & Precautionary Principle :
The Principle is based on the theory that
it is better to be on the side of caution and prevent environmental harm which
may indeed become irreversible.
Precautionary Principle plays a significant role in determining whether the
development process is sustainable or not.
Precautionary Principle underlies sustainable development
which requires that the developmental activity must be stopped and prevented if
it causes serious and irreversible environmental damage.
Rio Declaration :
The Precautionary Principle has been given utmost importance in the United
Nations Conference on Environment and Development held at Rio in 1992.
Principle 15 of the Rio Declaration states :
In order to protect the environment, the precautionary approach shall be widely
applied by the States according to their capabilities,
where there are threats as serious as of irreversible environmental
degradation.

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Essential ingredients of Precautionary Principle :


1. Environmental measures by Governments & statutory authorities (like pollution
boards),
must anticipate, prevent and attack the causes of environment degradation .
2. Where there are threats of serious and irreversible damage,
lack of scientific certainty should not be used as a reason for postponing
measures to prevent environmental degradation.
Precautionary Principle in Indian Context :
1996 : In India Vellore Citizens Welfare Forum v. Union of India (1996) 5 SCC
647, is the first case where Precautionary Principle became the basis for a
judgement by our Supreme Court.
the Precautionary Principle is a part of the environmental law of the country.
<Read this from study notes on 214K Legal Principles through Case Study>
1997 : In M. C. Mehta v. Kamal Nath (1997) 1 SCC 388
the Supreme Court of India affirmed the decision in Vellore Citizens Welfare
Forum v Union on India
upholding the precautionary principle as part of the environmental law of
India
<Read this from study notes on 214K Legal Principles through Case Study>
1999 Comprehensive review : In AP Pollution Control Board v. Prof. M V Nayudu
AIR 1999 SC 812, the SC comprehensively reviewed the precautionary principle.
The Supreme Court discussed the earlier decision in Vellore Citizens Welfare
Forum v Union of India where it was held that
1. precautionary principle, and
2. shifting of the burden of proof onto the developer or industrialist to ensure
that,
a. there would not be environmental impact, or
b. that environmental impact can and will be mitigated,
are part of the environmental law of the country .
2000 : Exception to shifting of the burden of proof onto the developer :
In Narmada Bachao Andolan v. Union of India AIR 2000 SC 3751, the Court was
called upon to decide various legal questions arising from the Sardar Sarovar
Project involving the construction of a dam on the Narmada River.
Here, since there is uncertainty of environment impact of Sardar Sarovar Dam,
according to the Precautionary Principle, it ought to be the burden on Union of
India to prove that proposed change in eco-system would not harm the
environment.
However, SC held that

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Merely, there being a change in enviroment, is no reason to presume that


there will be ecological disaster.
When beneficial impact of the project is known then the principle of
sustainable development would ALSO come into play
it shall be ascertained IF mitigating steps against adverse impact are and
can be taken to preserve the ecological balance.
Conclusion :
Despite widespread endorsement of precaution as a strategy in many (but not all)
cases,
there is no single agreed statement or understanding of Precautionary Principle.
Nor is it clear whether the PP is meant to be an aspirational principle or a
binding rule.
PP is neither a well defined nor a stable concept.
Rather, it has potential to become the repository for a jumble of adventurous
beliefs,
that challenge the status quo of political power, ideology and environmental
rights.

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Discuss : Judicial pronouncements on Principle of Absolute Liability.


ANSWER :
Refer :
Study notes of (i) 111 Environmental Law, and (ii) 208 Legal Methods & Legal
Theories,
http://shodhganga.inflibnet.ac.in/bitstream/10603/71969/7/07_chapter%205.pdf
https://en.wikipedia.org/wiki/Strict_liability
https://en.wikipedia.org/wiki/Rylands_v_Fletcher
https://en.wikipedia.org/wiki/Absolute_liability
What is meant by Liability ?
In law, liable means "responsible or answerable in law; legally obligated."
Legal liability concerns both civil law and criminal law and can arise from various
areas of law, such as contracts, torts, taxes, etc.
Burden of proof is on the claimant of compensation to prove liability.
Which theories of liability are available in a given case depends on nature of the
law in question.
Classification of liability : Liability can be classified in to,

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Civil and criminal and tortious.


Remedial and penal.
Strict or Absolute and vicarious.
Here, the discussion shall be limited to strict liability and absolute liability ONLY .
Rylands v Fletcher :
Decision by the House of Lords in the case of Rylands v Fletcher established a new
area of English tort law.
Facts of the case :
Fletcher employed contractors to build a reservoir, playing no active role in its
construction.
When the contractors discovered a series of old coal shafts improperly filled with
debris, they chose to continue work rather than properly blocking them up.
The result was that on 11 December 1860, shortly after being filled for the first
time, Fletcher's reservoir burst and flooded a neighbouring mine, of Rylands,
causing 937 worth of damage
Rylands brought a claim under negligence against Fletcher,
The arbitrator decided that the contractors were liable for negligence, since they
had known about the old mine shafts.
Fletcher, however, had no way of knowing about the mine shafts and so was not
liable.
Settled law, at that time, in English courts was to focus on the intention behind
the actions rather than the nature of the actions themselves. It was required on the
part of claimant to show
that defendant was at fault
and that defendant had intention to cause harm,
or that defendant was negligent.
Accordingly, the majority ruled in favour of Fletcher (defendant), because claimant
failed to prove any intension.
However, Bramwell B in his dissenting judgment, argued that the claimant
(Rylands) had the right to enjoy his land free of interference from water, and
that as a result the defendant (Fletcher) was guilty of trespass and the
commissioning of a nuisance.
The claimant (Rylands) went for appeal.
Bramwell's dissenting argument was affirmed, both by
the Court of Exchequer Chamber
and the House of Lords
House of Lords, in the case of Rylands v Fletcher developed following new principle
of Strict Liability.

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What is strict liability ?


Generally a man is held liable for his wrongful acts which is a general rule,
and the claimant is required to prove fault, negligence or intention on the part
of defendant,
However, wrongs of strict liability are those acts for which a defendant is
responsible irrespective of the existence of defendants
fault
or negligence
or wrongful intent.
Provided
claimant himself did not cause the injury
or injury is caused due to an act of god.
Rule in Rylands v Fletcher : Principle of Strict Liability :
Where the defendant, for his own purposes, brings on his lands and collects and
keeps there
anything likely to do mischief if it escapes,
must keep it in at his peril,
the claimant is NOT required to prove any of fault, negligence or intention on
the part of defendant,
and the defendant shall be liable, even in NO FAULT case,
Provided, the defendant may take the defence that,
mistake of fact (the escape was due to the Claimants own fault);
or inevitable accident (the escape was the consequence of an act of God).
Examples of valid defences against strict liability :
Mistake of fact :
In R. v Prince a person who abducted a girl under the legal age of consent
was held criminally liable, although he honestly believed her to be of the age
of consent, because the act of taking away the girl itself is a wrongful act.
Inevitable accident :
In Ryan v Youngs the sudden death of the driver of a motor vehicle due to
heart- failure as a result of which the accident was caused, was held to be a
mere inevitable accident and the defendants were held not liable.
Need for change in rule of strict liability :
For following 2 reasons, the rule of strict liability laid down in Rylands v. Fletcher,
proved to be rather ineffective to counter the dangerous use of ones property,
1. pre-requirements,
non-natural use of land,

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use of a dangerous thing,


element of escape
which were essential for establishing a liability under the principle of strict
liability,
2. exceptions,
mistake of fact
inevitable accident
which were also provided as valid defences in the principle of strict liability,
Above two points proved to be substantial loopholes in the Principle of Strict
Liability as laid down by the House of Lords in Rylands v. Fletcher,
which loopholes help defendant person/ enterprises to escape their liability
under one or the other pretext.
What is Absolute Liability ?
Principle of Absolute Liability has its origin in the Supreme Court judgment in what
is famously called an Oleum Gas Case.
Oleum Gas Case is formally known as M C Mehta v. Union of India 1987 SCR
(1) 819
Absolute Liability refers to the NO fault theory liability in which
the wrongdoer is held absolutely liable for any act of omission or commission
without any defenses/ exceptions which are available to the Rule of
Strict Liability (Rylands v. Fletcher).
Simply stated,
absolute liability is a stricter form of strict liability,
Principle of Absolute Liability is applicable only to those people,
who deal with hazardous substances
or who are involved in activities that are inherently dangerous .
As a result such people become absolutely liable to pay full compensation for any
harm, caused to anyone, resulting from such hazardous substances or hazardous
activities.
And that the defences of Strict Liability are NOT available in cases of harm
caused by handling of hazardous substances or inherently dangerous activities.
What is Hazardous Substance ?
Hazardous substance means any substance or preparation which, by reason of
its chemical or physio-chemical properties or handling, is liable to cause harm to
human beings, other living creatures, plants, micro-organism property or the
environment.
Case Laws : Following cases greatly influenced development of the Principle of
Absolute Liability,

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Dec-1985 : M C Mehta v. Union of India (Oleum Gas leak at Sri Ram Foods &
Fertilizers).
Technically speaking, the Principle of Absolute Liability was developed in the
Oleum Gas leak case.
<Read this from study notes on 214K Legal Principles through Case Study>
Dec-1984 : Union Carbide Corporation vs Union Of India (Bhopal Gas Disaster
case)
It is widely accepted that the awakening to the risks posed by hazardous
industries was caused by the Bhopal Gas Disaster.
<Read this from study notes on 214K Legal Principles through Case Study>

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Discuss : Judicial pronouncements on Principle of Sustainable Development.


ANSWER :
Refer :
<Study notes of 111 Environmental Law>
Stockholm Convention of 1972 :
The first major cohesive argument on environment vs. development was at the
United Nations Conference on the Human Environment, 1972, also known as the
Stockholm Convention.
The conference included both developed and developing countries and was a major
step towards recognising the protection of the environment as an issue of
international concern.
The Stockholm Declaration was regarded as an advisory statement of purpose,
called soft law which, though not binding, could be influential in establishing good
practice standards.
Effect of convention in India : As a consequence of the Stockholm Convention, in
1976 following articles were incorporated through Constitutional Amendment
Art-48A :
The State shall endeavour to protect and improve the environment and to
safeguard the forests and wild life of the country.
Art-51A(g) :
It shall be the duty of every citizen of India
(g) to protect and improve the natural environment including forests, lakes,
rivers and wild life, and to have compassion for living creatures;
Brundtland Commission 1983 :
Post Stockholm Declaration 1972, concerns for the environment continued to grow.

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There was continuing widespread deforestation, industrial pollution and


environmental degradation.
The ozone hole, the warming of the earth, increased carbon dioxide in the
environment all added to the growing environmental concerns.
In 1983, a need was felt to link environmental concerns with industrial
development and growth.
With this in mind, the United Nations, in 1983, established World Commission for
Environment and Development (WCED), which was chaired by Dr Brundtland,
then Prime Minister of Norway.
In 1987 WCED submitted its report (called Brundtland Report).
The Report is also known as Our Common Future,
Earth Summit of 1992 :
Earth Summit of 1992 in Rio was another important development towards reaching
an international consensus on the issues pertaining to sustainable development and
the environment.
The Rio summit signaled the emergence of a proper system of international
environmental law.
The fact that nations around the world cohesively agreed to certain standards
regarding sustainable development shows the importance of these conferences in
establishing international environmental law.
What is Sustainable Development? :
Brundtland definition of Sustainable Development :
Sustainable Development is development that meets the needs of the
present without compromising the ability of future generations to meet their
own needs.
We cannot betray future generations. They will judge us harshly if we fail in
sustainable Development.
We can expect a decline in the quality of life,
if we continue to use up natural resources as we do at present,
if we ignore the plight of the poor,
if we continue to pollute and produce waste,
Sustainable development is a way of living from natures income rather than on
its capital account. ie it is economic progress,
which meets all of our needs
without leaving future generations with fewer resources than we enjoy.
We have to meet the needs of all sections of society particularly the
underprivileged.
And while meeting these needs we have to make sure that what we take from

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nature does not increase the degradation of the earths natural resources and
threatens biodiversity.
Nature is finite and we need to set a limit to our consumption of natural
resources.
We did not inherit the earth from our parents, we borrowed it from our children.
There is a need for a strategic approach to maintaining a balance between social,
economic and environmental challenges.
Sustainable Development and all-inclusive growth :
Sustainability recognizes an integrated view of the world that links a communitys
economy, environment and society.
The view emphasizes the fact that humans are a part of nature.
And that, in order to survive, the poor are forced to engage in economic
activities that are unsustainable.
The interaction of poverty and environmental destruction sets off a downward
spiral of ecological deterioration.
The world as a whole is steadfast in its commitment towards achieving a balance
between the environmental, economic and social development.
The agenda of Sustainable Development is also an all-inclusive growth .
That means a pattern of development that involves all sections of the community
the well off, the poor, men and women.
Such a pattern of growth is based on the need to preserve the diversity of the
eco-system.
Sustainable Development involves :
Preservation of biological diversity in terrestrial, freshwater and marine systems;
Sustainable use of resources and minimizing the depletion of resources;
Caring for the environment;
Improving the quality of life including social and economic concerns;
Conservation of natural capital both for renewable and non-renewable resources;
Conservation of natural and cultural diversity;
Limits on natural resource utilization and assimilation of wastes;
Efficiency of resource utilization by all societies;
Social equity through poverty reduction and gender equity;
Reduction of emission of greenhouse gases;
Reduction in use of ozone depleting substances;
Reduction in air pollution;
Reduction in use of chemical fertilizers;
Stopping desertification; and

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Stopping deforestation
What leads to un-sustainability? :
Let us try and understand the threats to Sustainable Development.
In short, economic disparity, social inequality and environmental degradation are
threats to sustainability.
Some of the causes of un-sustainability are as follows :
increasing human population;
over exploitation of resources to meet human needs like fuel, fodder and shelter;
activities like fishing, agriculture, overuse of fresh water, deforestation and
industrialization;
land clearing/ soil degradation, pollution, loss of biodiversity, climate change;
social degradation due to factors like increasing unemployment, armed conflicts,
urbanization, poverty, income inequity.
Case-Law :
Vellore Citizens Welfare Forum v. Union of India (1996)5 SCC 647
<Read this from study notes on 214K Legal Principles through Case Study>
Conclusion :
In order to attain Sustainable Development,
nations have to ensure that there are institutional mechanisms in place to
achieve sustainable development in all three areas of economy, society and
environment.
These institutional mechanisms shall make certain that there is a sustained,
organized and coordinated effort at all levels to bring about socio economic
development and environmental sustainability.

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Discuss : Problems of PILs based on Hypothetical Facts.


ANSWER :
Refer :

<work on this>

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Module-5 :
5) Misc topics in PIL which do not fit in Modules-1-4.
5.1) <Identify and move this questions to their rightful place in Modules-1-4, OR let
them stay here as Misc topics in PIL>

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MODULE-5 QUESTIONS :

Write note : Objects of Legal Services Authorities Act (Nov-2011)


Explain : Constitution and function of national legal service authority. (Nov-
2012)
Explain : Person-entitled to legal services. (Nov-2012)
Write note : Persons entitled to get free legal services. (Nov-2011)
Explain the provisions regarding legal aid under the Criminal Procedure Code, Civil
Procedure Code and the Indian Constitution. (Nov-2012)
Explain : Accounts and Audit of Legal Aid Fund. (Nov-2012)
Explain : Free legal aid and legal aid clinic. (Nov-2012)
Legal Aid is in tune with the Constitutional Mandate of Equality and Equal justice
Discuss. (Nov-2011)
"Lok Adalats are the best arrangements to get speedy justice Explain. (Nov-2011)
Define Lok Adalat. Explain its procedure and importance. (Nov-2012)
Explain : constitution and functions of State Bar council (Nov-2012)
Write note : Contribution of Non Governmental Organizations in Para-legal
Services. (Nov-2011)
Explain : Kinds of para legal services. (Nov-2012)
Write note : Legal literacy camps. (Nov-2011)
Explain the importance of law journals and magazines while initiating public
interest litigation. (Dec-2015)
Discuss : Murli Deora vls. Union of India (AIR 2000 SC 40) (Nov-2011)
Explain : Murli Deora -vs- Union of India (2001) 8 SCC 765 (Dec-2016)
Discuss : People's Union for Civil Liberties vs. Union of India (AIR 1997 SC 568)
(Telephone Tapping Case) (Nov-2011)
Explain in detail the facts and ratio laid down : Peoples Union for Civil Liberties v/s
Union of India (Right to exercise option of NOTA) (2013) 10 SCC 1 (Apr-2016)
Discuss : Lily Thomas V/s. Union of India (Ban on contesting election to the accused

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who is convicted by trial courts for more than 2 Years' imprisonment) (Writ Petition
490/2005 SC) (Oct-2013)
Explain : Lili Thomas -vs- Union of India (2013) 7 SCC 653 (Dec-2016)

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MODULE-5 ANSWERS :

Write note : Objects of Legal Services Authorities Act (Nov-2011)


Explain : Constitution and function of national legal service authority. (Nov-
2012)
ANSWER :
Refer :
http://epgp.inflibnet.ac.in/UploadedContent.php Law Access to justice
5634_et_07et.pdf
http://www.srdlawnotes.com/2017/03/the-constitution-composition.html
http://www.legalserviceindia.com/articles/legaut.htm
Intro :
Legal Aid scheme was first introduced by Justice P.N. Bhagwati under the Legal Aid
Committee formed in 1971.
According to him, the legal aid means,
providing an arrangement in the society so that,
the machinery of administration of justice becomes easily accessible,
and is not out of reach of those who have to resort to it for enforcement of
rights given to them by law"
The poor and illiterate should be able to approach the courts and their ignorance
and poverty should not be an impediment in the way of their obtaining justice from
the courts.
Meaning of legal aid :
Legal aid as defined, deals with legal aid to poor, illiterate, who don't have access
to courts.
However, one need not be a litigant to seek aid by means of legal aid.
Legal aid is available even to someone who is not a litigant .
This Act came in to force on 9th of November, 1995.
Hon. Mr. Justice R.N. Mishra the then Chief Justice of India played a key role in the
enforcement of the Act.

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Constitutional base for Legal Services Authorities Act 1987 :


Definition : Art-39A : Equal justice and free legal aid : Directive Principle :
The State,
shall secure that the operation of the legal system promotes justice, on a
basis of equal opportunity,
and shall, in particular, provide free legal aid, by suitable legislation or
schemes or in any other way,
to ensure that opportunities for securing justice are not denied to any citizen
by reason of economic or other disabilities.
Articles 14 and 22(1) also make it obligatory for the State to ensure,
equality before law,
arrestees right to know grounds of arrest and engage lawyer of his choice.
Legal aid strives to ensure that constitutional pledge is fulfilled in its letter and
spirit and equal justice is made available to the poor, downtrodden and weaker
sections of the society.
Supreme Court on Legal Aid :
Art-21 and SC in case of Hussainara Khatoon v. State of Bihar :
The linkage between Article 21 and the right to free legal aid was forged in the
decision in Hussainara Khatoon v. State of Bihar
where the court was appalled at the plight of thousands of under-trials
languishing in the jails in Bihar for years on end without ever being
represented by a lawyer.
The court pointed out that,
Article 39-A emphasised that free legal service was an inalienable element of
'reasonable, fair and just' procedure, and
the right to free legal services was implicit in the guarantee of Art- 21.
In his inimitable style Justice Bhagwati declared :
there can be no doubt that speedy and reasonably expeditious trial, is an
integral and essential part of the fundamental right to life and liberty
enshrined in Article 21.
Legal aid is really nothing else but equal justice in action.
Legal aid is in fact the delivery system of social justice.
If free legal services are not provided to such an accused,
the trial itself may run the risk of being vitiated as contravening Article 21
and we have no doubt that every State Government would try to avoid
such a possible eventuality.
Observations by Justice Bhagwati in Hussainara Khatoon v. State of Bihar, received
additional push from another astute architect of human rights jurisprudence,

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Justice Krishna Iyers order in the case of M.H. Hoskot v. State of Maharashtra.
Objectives & scope of Legal Services Authorities Act 1987 :
Legal Services Authorities Act 1987 was enacted to give a statutory base to legal
aid programmes throughout the country on a uniform pattern.
Legal Services Authorities Act was enacted to constitute legal services authorities
for providing free and competent legal services to the weaker sections of the
society
to ensure that opportunities for securing justice were not denied to any citizen
by reason of economic or other disabilities
and to organize Lok Adalats to ensure that the operation of the legal system
promoted justice on a basis of equal opportunity.
The Act extends to the whole of India, except the State of Jammu and Kashmir.
Rules and Regulations under the Act :
The provisions of this Act have the overriding effect over other Acts which helps in
implementation of the provisions of this Act without any confusion.
If the confusion arises despite of having such overriding effect, then the central
and the state governments have been given the power to make rules and
regulations for the effective and efficient implementation of the provisions.
National Legal Services Authority :
National Legal Services Authority is the apex authority for providing legal services
under the Legal Services Authorities Act, 1987.
Composition :
Sec-3 of the Legal Services Authorities Act, 1987 :
(1) The Central Government shall constitute a body to be called the National
Legal Services Authority to exercise the powers and perform the functions
conferred on under this Act.
(2) The Central Authority shall consist of
Chief Justice of India shall be the Patron-in-Chief;
A serving or retired Judge of the SC shall be the Executive Chairman;
Such number of other members, possessing such experience and
qualifications, as may be prescribed.
Qualification for Members :
A Person shall not be qualified for nomination as a Member of the Central
Authority unless he is -
1) An eminent person in the field of Law; or
2) A person of repute who is interested in the implementation of the Legal
Services Schemes;
or an eminent social worker who is engaged in the upliftment of the weaker

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sections of the people.


Thus, people who are not from legal background have also been given an
opportunity to be a part of this authority. The reason being, when task is of
amicable settlement of disputes by mediation or conciliation, then people with
social background can be more efficient.
Funds and Audit :
There are sufficient provisions for funds to implement the provisions of this Act.
The Act also provide very strict check against the misuse of the fund by proper
maintaining of accounts and auditing of these accounts at regular interval of
time.
Such provisions eliminate the chance of the corruption in National Legal Services
Authority.
Functions :
Sec-4 of the Legal Services Authorities Act, 1987 : The Central Authority shall
perform all or any of the following functions, namely :
To lay down policies and principles for making legal services available under
the provisions of the Act;
To frame the most effective and economical schemes for the purpose of
making legal services available under the provisions of this Act;
To utilize the funds at its disposal and make appropriate allocations of funds
to the State Authorities and District Authorities;
To take necessary steps by way of social justice litigation with regard to
consumer protection, environmental protection or any other matter of special
concern to the weaker sections of the society
and for this purpose, give training to social workers in legal skills;
To organize legal aid camps, especially in rural area, slums or labour colonies
with the dual propose of educating the weaker sections of the society as to
their rights,
To encourage the settlement of disputes through Lok Adalats and by way of
negotiations, arbitration and conciliation;
To undertake and promote research in the field of legal services with special
reference to the need for such services among the poor;
To do all things necessary to ensure commitment to the fundamental duties of
citizens under Part IV-A of the Constitution;
To monitor and evaluate implementation of the legal aid programmes at
periodic intervals
To provide grants-in-aid for specific schemes to various voluntary social
service institutions
To take appropriate measures for spreading legal literacy and legal awareness

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amongst the people and, in particular, to educate weaker sections of the


society.
To make special efforts to enlist the support of voluntary social welfare
institutions working at the grass-root level,
To coordinate and monitor the functioning of
State Authorities,
District Authorities,
Supreme Court Legal Services Committee,
High Court Legal Services Committees,
Taluk Legal Services Committees
and voluntary social services institutions and other legal services
organizations
and give general directions for the proper implementation of the legal
services programmes,
Thus functions of the authority are very wide to cover all possible acts necessary
for the achievement of the object of this Act.
Central Authority shall act in coordination with other governmental and non-
governmental agencies, universities and others engaged in the work of
promoting the cause of legal services to the poor.
State Legal Services Authority :
It is not possible for the National Legal Services Authority to implement the
provisions of this Act without the assistance of other subsidiary authorities.
So every State is bound to constitute State Legal Services Authority in its territory.
Composition :
Sec-6 of the Legal Services Authorities Act, 1987 :
(1) Every State Government shall constitute a body to be called the Legal
Services Authority for the State to exercise the powers and perform the
functions of a State Authority under this Act.
(2) A State Authority shall consist of
The Chief Justice of the High Court who shall be the Patron-in-Chief;
A serving or retired Judge of the High Court to be nominated by the
Governor, who shall be the Executive Chairman;
Such number of other members, possessing such experience and
qualifications as may be prescribed by the State Government,
State Legal Services Authority consists of members from bench, bar, police
department, legislative department, law colleges and social workers.
Functions :
Sec-7 of the Legal Services Authorities Act, 1987 :

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Functions of the National Legal Services Authority are as follows :


(1) to give to effect to the policy and directions of the Central Authority.
(2) the State Authority shall perform all or any of the following functions :
(a) give legal service to persons who satisfy the criteria laid down;
(b) conduct Lok Adalats, including Lok Adalats for High Court cases;
(c) undertake preventive and strategic legal aid programmes; and
(d) perform such other functions as the State Authority may fix.
The State Legal Services Authority
coordinates the working of the other subsidiary authorities at district level and
give its report to the National Legal Services Authority.
State Legal Services Authority also gives the directions given by National Legal
Services Authority to District Legal Services Authority,
there by acting as a link between District Legal Services Authorities and
National Legal Services Authority.
Conclusion :
The implementation of this Act in the light of its object reveals that it is a very
good legislation for the amicable and speedy disposal of disputes.
For the proper implementation of the provisions of the Legal Services Authorities
Act, 1987 various authorities have been created at national, state, district and
taluka level.
These authorities have also been established at the level of Supreme Court and
High Court.

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GO TO MODULE-5 QUESTIONS.
GO TO CONTENTS.

Explain : Person-entitled to legal services. (Nov-2012)


Write note : Persons entitled to get free legal services. (Nov-2011)
ANSWER :
Refer :
http://epgp.inflibnet.ac.in/UploadedContent.php Law Access to justice -
5634_et_07et.pdf
http://www.srdlawnotes.com/2017/03/application-for-legal-aid-and.html
Intro :
Inadequate representation of case before the court due to lack of legal assistance is
a very big reason for injustice and delayed justice.

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Providing free legal aid to those people who cant afford the legal assistance in the
eyes of the law as mentioned under section 12 of the Act is a positive step towards
imparting of justice on equitable basis.
Application for legal aid :
A person who desires to seek legal aid from the State Authority shall apply in the
prescribed form.
Application shall be addressed to the Secretary of the National/ State Authority and
it must be duly signed by applicant or bear his thumb impression in case the
applicant is an illiterate person.
The application for grant of legal aid should also be accompanied by an affidavit
stating applicant's entitlement.
People entitled to free legal services :
Sec-12 Criteria for giving legal services Every person who has to file or defend a
case shall be entitled to legal services under this Act if that person is
(a) A member of a SC or ST.
(b) A victim of trafficking in human beings or beggar as referred in Art-23 of the
Constitution;
(c) A woman or a child;
(d) A person with disability as defined in section 2(i) of the Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act
1995
(e) A victim of a mass disaster, ethnic violence, caste atrocity, flood, drought,
earthquake or industrial disaster;
(f) An industrial workman;
(g) In custody, including
custody in a protective home within the meaning of clause (g) of section 2 of
the Immoral Traffic (Prevention) Act, 1956,
or in a Juvenile home within the meaning of clause (j) of section 2 of the
Juvenile Justice Act, 1986,
or in a psychiatric hospital or psychiatric nursing home within the meaning of
clause (g) of section 2 of the Mental Health Act, 1987;
(h) if the case is before a court other than the Supreme Court,
In receipt of annual income, less than rupees nine thousand or such other
amount as may be prescribed by the State Government
or if the case is before the Supreme Court
In receipt of annual income, less than rupees twelve thousand or such
other higher amount as may be prescribed by the Central Government,.
Sec-13 Entitlement of legal services

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(1) Persons who satisfy the criteria specified in section 12,


shall be entitled to receive legal services
provided that the concerned Authority is satisfied that such person has a
prima facie case to prosecute or to defend.
(2) An affidavit made by a person as to his income may be regarded as sufficient
for making him eligible to the entitlement of legal services,
unless the concerned Authority has reason to disbelieve such affidavit.

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Explain the provisions regarding legal aid under the Criminal Procedure Code, Civil
Procedure Code and the Indian Constitution. (Nov-2012)
Explain : Accounts and Audit of Legal Aid Fund. (Nov-2012)
Explain : Free legal aid and legal aid clinic. (Nov-2012)
Legal Aid is in tune with the Constitutional Mandate of Equality and Equal justice
Discuss. (Nov-2011)
ANSWER :
Refer :
http://shodhganga.inflibnet.ac.in/bitstream/10603/12650/10/10_chapter%206.pdf
http://www.legalserviceindia.com/articles/legaut.htm
Intro :
A just society is the one where justice prevails throughout alike.
To have equal right to approach the court is rendered useless if the right can't be
exercised. It is then, nothing more than a paper promise.
The rich and influential can approach the courts because they have means, but the
poor have to face injustice simply because they have no money to hire a lawyer.
It is therefore in the interest of justice to establish a social order when the poor not
only have the right but also the means to seek justice.
The idea of legal aid to the poor is, thus a step in this direction".
Distinction between legal aid in civil and criminal proceedings : Legal Aid is essential
irrespective of cases, whether it is criminal case or civil case, when a party to the
case/suit is indigent, because audi alterm partem is one of the principles of natural
justice, which cannot be departed from. However, following are some differences :
a) A person is invariably defending himself against the state in criminal
proceedings,
whereas in civil proceedings the person may very often be invoking the legal
process for relief.

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b) Disputes arising in criminal jurisdiction are bound by rigid rules of procedure.


The problems of the civil legal system have inspired innovative methods of
dealing with the problem of access to the system. It has inspired the growth of
altemative dispute resolution mechanism.
c) In criminal cases, a skilled lawyer becomes a necessity for providing procedural
fairness. Much of a criminal trial is taken up with issues of procedure and proof
which are beyond the grasp and understanding of the accused.
With regard to participation of lawyers in the system, civil legal aid lends itself to
co-option of paralegals that can be trained to provide help this area.
d) Accessibility of lawyers : In criminal cases involving clients held in custody would
require lawyers to visit their clients to seek instructions. In practice, however, this
does not easily happen because visits by lawyers to jails are infrequent and still
made difficult by the rules in prison manuals. Hence, in criminal cases there is
STRONG need for legal aid.
In civil cases, litigants are free to choose and meet with their friends, relatives
and lawyers to seek guidance.
e) In criminal proceedings, the Court is under obligation to provide all accused with
a competent lawyer. Criteria for legal aid are not hard and fast.
While in civil proceedings, there are three criteria namely, the economic status
(means) test, the prima facie test and the interests of justice test, to determine
eligibility for legal aid.
Legal Aid under CrPC :
<read from study notes of 302 Criminal Procedure Code (CrPC)>
Legal Aid under CPC :
<read from study notes of 301 Civil Procedure Code (CPC) & Limitation>
Legal Aid under the Constitution of India :
<work on this>
Accounts and Audit of Legal Aid Fund :
<work on this>
Legal aid clinic :
<work on this>

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"Lok Adalats are the best arrangements to get speedy justice Explain. (Nov-2011)
Define Lok Adalat. Explain its procedure and importance. (Nov-2012)
ANSWER :
Refer :

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http://epgp.inflibnet.ac.in/UploadedContent.php Law Access to justice -


5634_et_07et.pdf
http://www.legalserviceindia.com/articles/legaut.htm
http://www.srdlawnotes.com/2017/01/what-is-lok-adalats.html
http://www.srdlawnotes.com/2017/01/what-are-benefits-of-lok-adalat.html
http://www.srdlawnotes.com/2017/03/difference-between-permanent-lok-
adalat.html
Intro :
The introduction of Lok Adalats added a new chapter to the justice dispensation
system of this country and succeeded in providing a supplementary forum to the
litigants for conciliatory settlement of their disputes.
In the case of P.T. Thomas v. Thomas Job, the Honble Supreme Court elaborately
explained the meaning and benefits of Lok Adalat as follows :
The "Lok Adalat" is an old form of adjudicating system prevailed in ancient India
Its validity has not been taken away even in the modern days too.
The word 'Lok Adalat' means 'People Court'.
This system is based on Gandhian Principles.
It is one of the components of Alternative Dispute Resolution System.
Indian Courts are overburdened with the backlog of cases and involve a lengthy,
expensive and tedious procedure.
the Court takes years together to settle even petty cases.
Lok Adalat provides alternative device for expeditious and inexpensive justice .
In Lok Adalat proceedings there are no victors and loosers and thus no enmity .
Experiment of 'Lok Adalat' as an alternate mode of dispute settlement has come
to be accepted in India, as a viable, economic, efficient and informal one.
There is no court fee and if court fee is already paid the amount will be refunded
if the dispute is settled at Lok Adalat according to the rules.
Need and Objectives of Lok Adalat :
One of the objects of the Legal Services Authorities Act 1987 is,
to settle the disputes speedily through Lok Adalat .
Indian Courts are overburdened with work and it takes years to settle the disputes
before the formal courts.
As we know that justice delayed is justice denied so need was felt for the
constitution of alternate dispute mechanism to settle the disputes speedily without
following the technicality of formal procedure.
The Lok Adalat is recognized as one of the alternate dispute resolution mechanism
capable of settling the dispute speedily, cheaply and amicably.

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Object of Lok Adalat is to reduce burden on the Courts so that the problem of law's
delay may be solved and to settle the disputes quickly by counseling and
discussions, etc.
Scope of Lok Adalat :
All legal services authorities can organize Lok Adalats at such intervals and places
and for exercising such jurisdiction and for such areas as it thinks fit.
The scope of Lok Adalat is very wide to
include most of the cases pending in the court and about to come before the
court for settlement.
The Lok Adalat have no jurisdiction in cases relating to an offence not
compoundable under any law.
The Authority or Committee organizing the Lok Adalat may on receipt of an
application from any one of the parties to matter referred above refer such matter
to the Lok Adalat for determination.
Organisation of Lok Adalats :
According to Sec-19 :
(1) Every State Authority or District Authority or SC Legal Services Committee or
HC Legal Services Committee or Taluk Legal Services Committee
may organise Lok Adalats
at such intervals and places
and for exercising such jurisdiction
and for such areas as it thinks fit.
Composition Lok Adalat and qualification of it members :
Sec-19 :
(2) Every Lok Adalat shall consist of such number of
(a) serving or retired judicial officers; and
(b) other persons, of the area as specified by the competent Authorities.
(3) The experience and qualifications for Lok Adalats organised by the SC Legal
Services Committee shall be such as may be prescribed by the Central
Government in consultation with the Chief Justice of India.
(4) The experience and qualifications for Lok Adalats organised by other than SC
Legal Services Committee shall be such as may be prescribed by the State
Government in consultation with the Chief Justice of the High Court.
Qualifications : According to Rules framed under the Act, a person shall not be
qualified to be included in the Lok Adalat unless he is
a member of the legal profession
or a person of repute who is specially interested in the implementation of the
Legal Services Schemes and Programmes

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or an eminent social worker who is engaged in the upliftment of the weaker


sections of the society.
Jurisdiction of Lok Adalat :
According to Sec-19(5), a Lok Adalat shall have jurisdiction to determine and to
arrive at a compromise or settlement to a dispute in respect of
(i) any case pending before; or
(ii) any matter which is falling within the jurisdiction of, and is not brought
before, any Court for which the Lok Adalat is organised:
Provided that the Lok Adalat shall have no jurisdiction in respect of any case or
matter relating to an offence not compoundable.
Nature/ features of Lok Adalat :
It is supplementary to the judicial system and not a substitute thereof .
Lok Adalat as an alternative mode of dispute settlement has come to be accepted
in India as a viable, economic, sufficient and informal one.
Lok Adalats deliver informal, cheap and expeditious justice to the common man by
way of settling disputes,
which are pending in courts
and also those, which have not yet reached Courts
by negotiations, conciliation and by adopting persuasive, common sense and
human approach to the problems of the disputants,
with the assistance of specially trained and experienced members of a Team of
Conciliators.
The Lok Adalat is not a Court. It may be taken as a para-judicial institution .
The Lok Adalat has the power to specify its own procedure.
A matter is referred to the Lok Adalat after giving a reasonable opportunity of being
heard to the other party.
Every Lok Adalat acts with utmost expedition to arrive at a compromise or
settlement between the parties.
None of the parties can be forced to compromise before the Lok Adalat if the terms
of settlement fail to convince them.
The award of Lok Adalat is final and binding on the parties. The provision of finality
of award is a good provision to put an end to the litigation which is in the interest
of justice.
IN CASE no award is made by the Lok Adalat on the ground that no compromise or
settlement could be arrived,
the record of the case is returned by it to the court, from which the reference
has been received for disposal in accordance with law.
parties shall be advised to seek remedy in the court.

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the court shall proceed to deal with such case from the stage which was reached
before such reference.
Principles of natural justice :
It is also an accepted fact that justice hurried is justice buried.
Hence, in order to save the time it need not to follow the formal procedure
but is bound to follow the principle of natural justice so that both the parties
to dispute get an opportunity of fair representation.
Powers provided to Lok Adalat are sufficient to impart justice without compromising
on its quality.
Finality of award :
Award of Lok Adalat is given the status of a decree , its proceeding is deemed to
be judicial proceeding.
It is given the status of civil court having all the power of summoning,
requisition, discovery and receiving of evidence on affidavit.
Benefits of Lok Adalat :
No Court Fee - There is no Court fee and if Court fee is already paid the amount
will be refunded if the dispute is settled at Lok Adalat according to the rules.
Procedural Flexibility and Speedy trial - The basic features of Lok Adalat are the
procedural flexibility and speedy trial of the disputes. There is no strict application
of procedural laws like Civil Procedure Code and Evidence Act while accessing the
claim by Lok Adalat.
Directly interaction with the Judge - The parties to the dispute can directly interact
with the Judge through their Counsel which is not possible in Regular Courts of
Law.
Better understanding by legal + non-legal bench - As bench of Lok Adalat MAY
consist of members from legal AND non-legal background, it is in a better position
to understand the dispute of the parties and convincing them to arrive at a
settlement or compromise.
Experience of members from legal background helps in understanding the fate of
the case in the eyes of law
and experience of the members from non-legal background helps in conciliation
of parties to settle the dispute amicably before the Lok Adalat.
Expeditious and inexpensive justice - Lok Adalat provides alternative resolution or
devise for expeditious and inexpensive justice.
Lok Adalat saves not only time but also huge expenditure on judicial proceedings
in the current judicial system.
It provides quick justice at nominal expenditure to both the parties.
Relationship between Sec-12 & 20 :

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{Sec-12 Criteria for giving legal services, and Sec-20 Cognizance of cases by Lok
Adalats}
In the case of State of West Bengal v. Union of India, the Honble Supreme Court
clarified the relationship between sections 12 and section 20 of the Act as follows :
The power of the trial Court under sub-section (1) of Section 20 in making
reference of any particular case to a Lok Adalat operates independently of
Section 12 of the Act
The power of the concerned Authority or the Committee under sub-section (2) of
Section 20 organising the Lok Adalat is controlled by the criteria prescribed by
Section 12.
If parties to dispute refer matter to Lok Adalat,
then they need not to fall in the category of people entitled for legal aid as
provided in the Act.
If legal services authority refer a case to Lok Adalat,
then parties associated with the dispute should only be those who are entitled
for free legal aid as per section 12 of the Act.
Permanent Lok Adalat :
Intro : Legal Services Authorities (Amendment) Act, 2002 :
The word Lok-Adalat means People's Court. Lok-Adalat is another alternative to
Judicial Justice.
Compared to the Lok Adalat, the Permanent Lok Adalat has one additional
power, that of deciding the dispute on merit if parties fail to arrive at the
settlement or compromise.
Permanent Lok-Adalat decides the dispute on merit, IN CASE,
parties fail to reach at an agreement
AND the dispute does not relate to any offence.
Permanent Lok-Adalat is Permanent in nature, and any party to a dispute may
make an application to the Permanent Lok-Adalat for settlement of the dispute
before the dispute is brought before any Court.
Permanent Lok Adalat has jurisdiction in respect of one or more public utility
services as defined in Sec-22A(b) of the Legal services Authority Act 1987.
Permanent Lok Adalat is one of the Component of ADR system.
Legal Services Authorities (Amendment) Act, 2002 makes provisions in relation
to the establishment, powers and functions of the Permanent Lok Adalat.
What is Public Utility Service ?
According to Sec-22A(b), Public Utility Service means and includes :
Transport service for the carriage of passengers or goods by air, road or
water; or postal, telegraph or telephone service; or

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Supply of power, light or water to the public by any establishment; or


System of public conservancy or sanitation; or service in hospital or
dispensary; or Insurance service
Any service which the Central Government or the State Government, as the
case may be, may, in the public interest, by notification, declare to be a public
utility service for the purposes of this chapter
Need and objectives for Permanent Lok Adalats
There are many reasons for overburdening of Indian Courts.
One reason is lack of personal interest of party in settlement of public utility
services disputes, which reach to the Indian Courts in large number .
Officials involved in public utility services, hardly give any attention to
settlement of disputes quickly.
So the need was felt for the establishment of the permanent alternate dispute
resolution mechanism especially for the settlement of public utility services
disputes.
Major drawback in the scheme of Lok Adalats is that,
the system of Lok Adalats is mainly based on compromise or settlement
between the parties. However,
IF the parties do not arrive at any compromise or settlement ,
THEN the case is either returned to the court of law or the parties are
advised to seek remedy in a court of law.
ie there is NO resolution of the dispute.
This causes unnecessary delay in the dispensation of justice.
This problem can be tackled to a great extent IF Lok Adalats are also given
power to decide the cases on merits,
in case parties fails to arrive at any compromise or settlement.
Further, the cases which arise in relation to public utility services (eg BSNL,
Electricity, etc) need to be settled urgently so that people get justice without
delay even at pre-litigation stage without having to go to the regular courts.
In 2002, it was proposed to amend the Legal Services Authorities Act, 1987,
to set up Permanent Lok Adalats,
for providing compulsory pre-litigative mechanism for conciliation and
settlement of cases relating to public utility services.
The main aim of Permanent Lok Adalat is to settle the public utility disputes
quickly and finally.
Basis for Permanent Lok Adalat : Abdul Hasan and National Legal Services
Authority Vs. Delhi Vidyut Board and others :
The petitioner filed a writ petition before Delhi High Court for restoration of

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electricity at his premises, which was disconnected by the Delhi Vidyut Board
(DVB) on account of non-payment of Bill.
Court Held : His lordship Hon'ble Mr. Justice Anil Dev Singh passed the order
giving directions for setting up of permanent Lok Adalats.
Art-39A of the Constitution provides for equal justice and free legal aid.
It is, therefore clear that the State has been ordained to secure a legal
system, which promotes justice on the basis of equal opportunity.
The language of Article-39A is couched in mandatory terms. This is made
more than clear by the use of the twice-occurring word "shall" in Art-39 A.
The legal system,
should be able to deliver justice expeditiously on the basis of equal
opportunity
and provide free legal aid to secure that opportunities for securing justice
are not denied to any citizens by reasons of economic or other disabilities.
It was in this context that the parliament enacted the Legal Services Authority
Act-1987.
The need of the hour is frantically beckoning for setting up Lok-Adalats on
permanent and continuous basis.
What we do today will shape our tomorrow.
Lok Adalat is between an ever-burdened Court System and alternative dispute
resolution machinery including an inexpensive and quick dispensation of
justice.
The Lok Adalat and alternative dispute resolution experiment must succeed
otherwise the consequence for an over burdened court system would be
disastrous.
The system needs to inhale the life giving oxygen of justice.
Above Delhi HC decision triggered establishment of Permanent Lok Adalats
across the nation.
Establishment of Permanent Lok Adalats According to Sec-22B(1) :
Notwithstanding anything contained in section 19 (Organisation of Lok Adalats),
the Central Authority or every State Authority shall,
by notification, establish Permanent Lok Adalats
at such places
and for exercising such jurisdiction in respect of one or more public utility
services
and for such areas as may be specified in the notification.
Composition of Permanent Lok Adalats According to Sec-22B(2) :
Every Permanent Lok Adalat established for an area notified under Sec-22B(1)

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shall consist of
(a) a person who is, or has been,
a district judge or additional district judge or has held judicial office higher
in rank than that of a district judge,
shall be the Chairman of the Permanent Lok Adalat;
and (b) two other persons having adequate experience in public utility service
to be nominated by the Central/ State Government
and the other terms and conditions of the appointment of the Chairman and
other persons shall be such as may be prescribed by the Central Government.
Scope and Jurisdiction : According to Sec-22C(1) :
Any party to a dispute may, before the dispute is brought before any court, can
make an application to the Permanent Lok Adalat for the settlement of dispute.
It does not have jurisdiction in respect of any matter relating to an offence not
compoundable under any law.
It also has no jurisdiction in the matter where the value of the property in
dispute exceeds ten lakh rupees.
The Central Government, may, by notification, increase the limit of ten lakh
rupees specified in the second proviso in consultation with the Central Authority.
Procedure : According to Sec-22C :
(2) After an application is made to the Permanent Lok Adalat,
no party shall invoke jurisdiction of any court in the same dispute.
(3) Where an application is made to a Permanent Lok Adalat it
(a) shall direct each party to the application to file before it a written
statement, stating therein
the facts and nature of dispute under the application,
points or issues in such dispute
and grounds relied in support of, or in opposition to, such points or issues,
as the case may be,
and such party may supplement such statement with any document and
other evidence which such party deems appropriate
(b) may require any party to the application to file additional statement before
it at any stage of the conciliation proceedings;
(c) shall communicate any document or statement received by it to all the
other parties, to enable such other party to present reply thereto.
(4) When statement, additional statement and reply, if any, have been filed, it
shall conduct conciliation proceedings between the parties to the application
(5) The Permanent Lok Adalat shall assist the parties in their attempt to reach
an amicable settlement of the dispute in an independent and impartial manner.

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(6) It shall be the duty of the every party


to cooperate in good faith with the Permanent Lok Adalat in conciliation of the
dispute
and to comply with the directions of the Permanent Lok Adalat to produce
evidence and other related documents.
(7) Settlement and award :
When a Permanent Lok Adalat is of opinion that there exist elements of
settlement which may be acceptable to the parties,
it may formulate the terms of a possible settlement of the dispute
and give to the parties concerned for their observations
and in case the parties reach at an agreement on the settlement of the
dispute,
they shall sign the settlement agreement
and the Permanent Lok Adalat shall pass an award in terms thereof and
furnish a copy of the same to each of the parties concerned.
(8) Where the parties fail to reach at an agreement/ settlement, the
Permanent Lok Adalat shall,
if the dispute does not relate to any offence, decide the dispute .
Informal nature of procedure : According to Sec-22D :
The Permanent Lok Adalat shall, while conducting conciliation proceedings or
deciding a dispute on merit
be guided by the principles of natural justice, objectivity, fair play, equity and
other principles of justice,
and shall not be bound by,
the Code of Civil Procedure, 1908
and the Indian Evidence Act, 1872 (1 of 1872).
Finality of award : According to Sec-22E :
Every award of the Permanent Lok Adalat is final and binding .
It shall not be called in question in any original suit, application or execution
proceeding.
It is deemed to be a decree of a civil court.
It is always by a majority of the persons constituting the Permanent Lok Adalat.
The Permanent Lok Adalat may transmit any award made by it to a civil court
having local jurisdiction as if it were a decree made by that court.
Benefits of Permanent Lok Adalat :
Appointment of members from the legal and non-legal background make the
board of adjudicators more efficient for understanding the disputes of parties

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and settling their disputes quickly and amicably.


Permanent Lok Adalat has conciliatory as well as adjudicatory power but there
are enough provisions under the Act to put the check of the arbitrary exercise of
power.
To save the time in settlement of disputes it need not to follow the formal
procedure but it is bound to follow the principle of natural justice.
If the arbitrary act or misconduct is proved on the part of the board of
settlement, then they can be removed from the board and the award passed by
such persons will not enjoy the status of finality.
Therefore, it can be said that the establishment of the Permanent Lok Adalat
is a very useful mechanism for settlement of the public utility services
disputes amicably and quickly.
Difference Between Lok Adalat and Permanent Lok Adalat :

Permanent Lok Adalat Lok Adalat


1 Permanent Lok-Adalat is Lok-Adalat is temporary in nature.
Permanent in nature.
2 Any Party to a dispute may make Any party and Legal Service Authority
an application to the Permanent may also refer the dispute to Lok Adalat.
Lok-Adalat for settlement of the
dispute.
3 Permanent Adalat has jurisdiction A Lok-Adalat has Jurisdiction to settle
in respect of one or more public Any case pending before ; or Any matter
utility services as defined in Legal which is falling within its Jurisdiction
Services Authority Act. Lok Adalat has no Jurisdiction in respect
an offence which is not compoundable.

4 Jurisdiction of Permanent Lok In case of the Lok Adalat there is no such


Adalat is limited to the matter limitation.
where the value of the Property in
dispute does not exceed ten lakh
rupees.

Conclusion :
The Legal Services Authorities Act has provided sufficient powers to its officers
engaged in the implementation of provisions of this Act.
They have been given the status of the public servant and the immunity from
action for any thing done in good faith has been provided.
It can be said that this Act is a golden gift for the general public as on one hand it
provides free legal aid to needy people and promoted speedy disposal of disputes
on the other hand it also helps the judiciary by reducing its workload.

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Explain : constitution and functions of State Bar council (Nov-2012)


ANSWER :
Refer :
http://www.srdlawnotes.com/2017/02/the-constitution-powers-and-functions.html
Intro :
The Advocate Act, 1961, has made provisions for the establishment of Bar
Councils.
The Bar Council will be two patterns - Bar Council of India and State Bar Council.
Under Section 3 of the Act State Bar Council will be established.
Under Section 4, a Bar Council of India will be established.
State Bar Councils :
Sec-3 of the Advocate Act, 1961 provides for State Bar Councils.
Establishment :
There shall be a Bar Council
(a) for each State to be known as the Bar Council of that State;
Note : There may be a single bar council for 2 or more states/ Union
Territories.
Composition : A State Bar Council shall consist of the following members :
(a)
in the case of the State Bar Council of Delhi, the Additional Solicitor General of
India ex officio
in the case of the State Bar Council of Assam, Nagaland, Meghalaya, Manipur
and Tripura, the Advocate General ex officio;
in the case of the State Bar Council of Punjab and Haryana, the Advocate-
General ex officio;
and in the case of any other State Bar Council, the Advocate-General of the
State, ex officio;
(b)
in the case of a State Bar Council with an electorate not exceeding five
thousand, fifteen members,
in the case of a State Bar Council with an electorate exceeding five thousand
but not exceeding ten thousand, twenty members,
and in the case of the State Bar Council with an electorate exceeding ten
thousand, twenty-five members, elected in accordance with the system of

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proportional representation by means of the single transferable vote from


amongst advocates on the electoral roll of the State Bar Council :
Provided that one-half of such elected members shall be persons who have for
at least ten years been advocates on a State roll,
Term of Office :
Section 8 Provides term of the office of the Members of the State Bar Council -
The term of office of an elected member of a State Bar Council (other than an
elected member thereof referred to in section 54)
shall be five years from the date of publication of the result of his election:
Provided that, the Bar Council of India may, by order, extend the said term for a
period not exceeding six months.
Functions of State Bar Council : Section 6(1) of the Advocate Act 1961 makes
provisions in respect of the functions of the State Bar Council.
(1) to admit persons as advocates on its roll;
(2) to prepare and maintain such roll;
(3) to entertain and determine cases of misconduct against advocates on its roll;
(4) to safeguard the rights, privileges and interests of advocates on its roll;
(5) to promote the growth of Bar Associations for the purposes of effective
implementation of the welfare schemes
(6) to promote and support law reform;
(7) to conduct seminars and organise talks on legal topics by eminent jurists and
publish journals and paper of legal interest;
(8) to organise legal aid to the poor in the prescribed manner;
(9) to manage and invest the funds of the Bar Council;
(10) to provide for the election of its members;
(11) to visit and inspect Law Universities;
(12) to perform all other functions conferred on it by or under this Act;
Other functions :
To do all other things necessary for discharging the aforesaid functions.
To Issue Certificates of Enrollment -
To Maintain Roll of Advocates -
Funds of Bar Council :
A State Bar Council may constitute one or more funds in the prescribed manner
for the purpose of
(a) giving financial assistance to organise welfare schemes for the indigent,
disabled or other advocates;
(b) giving legal aid or advice in accordance with the rules made in this behalf;

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(c) establishing law libraries.


A State Bar Council may receive any grants, donations, gifts or benefactions for
all or any of the purposes specified in sub- section (2) which shall be credited to
the appropriate fund or funds constituted under that sub-section.
Admission as an Advocate on a State Roll -
Section 22 of Advocate Act 1961 provides that, there shall be issued a certificate
of enrollment in the prescribed form by the State Bar Council to every person
whose name is entered in the roll of advocates maintained by it under this Act.
Every person whose name is so entered in the State roll shall notify any change
in the place of his permanent residence to the State Bar Council concerned
within ninety days of such change.
A person may be enrolled as an advocate by the State Bar Council if he fulfills
the Conditions required for admission as an advocate Under section 24 of the
Advocate Act, 1961.
Conditions laid down in this section for admission as an advocate, may be
enrolled as an advocate by the State Bar Council, namely :
a) He is a citizen of India.
b) He has completed the age of twenty one years.
c) He has obtained the degree of Law.
d) He fulfills such other conditions as may be specified in the rules made by
the State Bar Council.
e) He has paid, in respect of enrollment, stamp duty, and an enrollment fee
payable to State Bar Council.
Application for enrollment :
An application for enrollment shall be made in the prescribed form to the State
Bar Council within whose jurisdiction the applicant proposes to practice.
The application is referred to enrollment Committee of State Bar Council.
The application may be allowed or rejected. Where the Enrollment Committee of
Bar Council propose to refuse any such application, it shall refer such application
for the opinion of the Bar Council of India.
It may be noted that Section 26A of Advocate Act,
empower a State Bar Council to remove from the State Roll the name of any
Advocate who is dead or from whom a request has been received to that
effect.
Section 27 of The Act Provides that,
where a State Bar Council has refused the application of any person for
admission as an advocate on its roll,
no other State Bar Council shall entertain an application for admission of

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such person as an advocate on its roll, except with the previous consent in
writing of the State Bar Council which refused the application and of the
Bar Council of India.
Maintain Roll of Advocates -
Section 17 of Advocate Act, 1961 provides that,
every State Bar Council shall prepare and maintain a roll of advocates in
which shall be entered the names and addresses of,
all persons who were entered as advocates on the roll of any High Court
under the Indian Bar Councils Act, 1926
and who at any time express an intention in the prescribed manner to
practice within the jurisdiction of the Bar Council
also enroll all other persons who are admitted to be advocates on the roll
of the State Bar Council under this Act on or after the appointed date.
Each such roll of advocates shall consist of two parts -
the first part containing the names of senior advocates
and the second part, the names of other advocates.
Section 19 of the Advocate Act, 1961, requires the State Bar Council to send
copies of rolls of advocates to the Bar Council of India.
It provides that every State Bar Council shall send to the Bar Council of India
an authenticated copy of the roll of advocates prepared by it for the first
time under this Act
and shall thereafter communicate to the Bar Council of India all alterations
in, the additions to, any such roll, as soon as the same have been made.
Powers of State Bar Council :
a) Power to make rules :
The State Bar Council has been empowered to make rules to carry on the
purposes of section 16 to Section 27 of the Advocate Act, 196,
dealing with the admission and enrollment of advocate,
Section 28(1) provides that the State Bar Council may make rules to carry out
the purposes of chapter III (Section 16 to section 28) of the Act but this rules
shall not effective unless approved by Bar Council of India.
b) Power to punish Advocate :
The State Bar Council has Power to punish an advocate for professional
misconduct and other misconduct.
The Disciplinary Committee of the State Bar Council may make any of the
following order -
dismiss the complaint or, where the proceedings were initiated at the instance
of the State Bar Council, direct that the proceedings be filed;

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reprimand the advocate;


suspend the advocate from practice for such period as it may deem fit;
remove the name of the advocate from the State roll of advocates.
c) To appoint Committees and Staff Members :
A bar Council establishes several committees to its function under this Act
including disciplinary committee, executive Committee, Enrollment Committee,
etc.
Every such committee is allotted a distinct function to carry.
d) To Maintain Accounts and Conduct Audit :
Section 12 of Advocate Act 1961 provides that every Bar Council shall cause to
be maintained such books of accounts and other books in such form and in such
manner as may be prescribed.
The accounts of a Bar Council shall be audited by auditors duly qualified to act as
auditors of companies under the Companies Act, 1956 (1 of 1956), at such times
and in such manner as may be prescribed.
A State Bar Council shall send a copy of its accounts together with a copy of the
report of the auditors thereon to the Central Government and shall cause the
same to be published in the Gazette of India

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Write note : Contribution of Non Governmental Organizations in Para-legal


Services. (Nov-2011)
Explain : Kinds of para legal services. (Nov-2012)
ANSWER :
Refer :

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Write note : Legal literacy camps. (Nov-2011)


ANSWER :
Refer :

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Explain the importance of law journals and magazines while initiating public
interest litigation. (Dec-2015)
ANSWER :
Refer :

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Discuss : Murli Deora vls. Union of India (AIR 2000 SC 40) (Nov-2011)
Explain : Murli Deora -vs- Union of India (2001) 8 SCC 765 (Dec-2016)
ANSWER :
Refer :

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Discuss : People's Union for Civil Liberties vs. Union of India (AIR 1997 SC 568)
(Telephone Tapping Case) (Nov-2011)
ANSWER :
Refer :

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Explain in detail the facts and ratio laid down : Peoples Union for Civil Liberties v/s
Union of India (Right to exercise option of NOTA) (2013) 10 SCC 1 (Apr-2016)
ANSWER :
Refer :

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Discuss : Lily Thomas V/s. Union of India (Ban on contesting election to the accused
who is convicted by trial courts for more than 2 Years' imprisonment) (Writ Petition
490/2005 SC) (Oct-2013)
Explain : Lili Thomas -vs- Union of India (2013) 7 SCC 653 (Dec-2016)
ANSWER :
Refer :
https://dullbonline.wordpress.com/2017/09/03/lily-thomas-v-union-of-india-2013-
7-scc-653-2/

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*** End-of-Compilation ***


Source : Public domain print/ internet contents.
URLs of some such resources are listed herein above.
Credits/ copyrights duly acknowledged.

Suggested Readings :
Kailas Rai : Public Interest Lawyering
Dr. B. L. Wadehra, Public Interest Litigation, Universal Law Book Publication
V. N. Shukla, Constitutional Law of India, Eastern Book Company
M. P. Jain, Constitutional Law of India, Eastern Book Co.
Pandey J. N., Constitution of India,
M. P. Jain, Constitutional History of India
Dr. N. V. Paranjape, Public Interest Litigation, Legal Aid & Services, Lok Adalats & Para-
Legal Services, Central Law Agency
Dr. S. S. Sharma, Legal Services, Public Interest Litigation and Para-legal Services,
Central Law Agency
S. Bava, Public Interest Litigation, Allahabad Law Agency
O. P. Tewari, Public Interest Litigations, Allahabad Law Agency
Mamta Rao, Public Interest Litigation (Legal Aid and Lok Adalats), Eastern Book
Company
Dr. S. R. Myneni, Public Interest Lawyering, Legal Aid and Para Legal Services, Asia Law

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House
G. B. Reddy, Judicial Activism in India : Gogiya Law Agency, Hyderabad
Public Interest Litigation: P. S. Narayana : Asia Law House
Reputed Law Journals and Legal Software for perusal of Latest Cases on PIL
www.gujarathighcourt.nic.in (for Gujarat High Court PIL Rules, 2010)

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