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PREFACE
LL.B. Study Notes
304E Public interest Lawyering
CONTENTS
304E Public interest Lawyering
Topic Page
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.
MODULE-1 QUESTIONS :
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 .
MODULE-1 ANSWERS :
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.
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.
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
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>
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.
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
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
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
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.
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.
(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
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.
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
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)
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)
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
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
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.
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.
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 :
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
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.
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
MODULE-3 QUESTIONS :
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)
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)
MODULE-3 ANSWERS :
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,
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.
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
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>
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>
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 :
<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>
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
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
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
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 :
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.
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 :
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.
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;
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
MODULE-4 QUESTIONS :
MODULE-4 ANSWERS :
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
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.
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,
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>
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
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.
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>
MODULE-5 QUESTIONS :
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)
MODULE-5 ANSWERS :
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
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
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.
"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 :
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
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 :
{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
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)
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.
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.
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;
Explain the importance of law journals and magazines while initiating public
interest litigation. (Dec-2015)
ANSWER :
Refer :
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 :
Discuss : People's Union for Civil Liberties vs. Union of India (AIR 1997 SC 568)
(Telephone Tapping Case) (Nov-2011)
ANSWER :
Refer :
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 :
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/
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
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)