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Presentation for the Inaugural Session

of the Study Tour on Comparative


Aspects of Public Interest Litigation in
India & China, October 16-23, 2011
Organizer: LASWEB, Kolkata, India
(Under the Auspices of the Danish
Institute for Human Rights China
Programme)

Any public-spirited person can file a Public Interest


Litigation case (PIL) on behalf of a group of persons,
whose rights or entitlements are affected
It is not necessary that the person filing a case should
have a direct interest or involvement in the matter of
litigation
A person in Mumbai can file a Public Interest Litigation
for malnutrition deaths in Orissa or protection of
environment in Tamil Nadu
Public Interest Litigation is not defined in any statute or
act. It has been interpreted by judges to consider and
examine the intent of public at large

public injury and public wrong caused by acts


or omissions of various state agencies or other
constituted public authorities
sufficient cause for enforcement fundamental
and constitutional rights of disadvantaged and
poor people
violation of rights transcending limits of
private concern, vested interest and ulterior
individual motif

Agencies, departments and constituted bodies of state


and central governments and not private parties and
non-governmental organizations/institutions
A Private party can be included in a PIL as a
Respondent, after making the concerned state
authority a party
As in the case of a private factory in Delhi, causing
pollution, people living in its vicinity or any other person
can file a PIL against the Government of India, the State
Pollution Board, making the private factory a respondent

Introduction of the Due Process clause to


expand fundamental nights in India
The subservient and deferential role of the
Supreme Court of India during the
Emergency period in the late 1970s
Interference of the Executive in judicial
appointments
Post emergency radical interpretations of
Articles 32 and 226 of the Constitution of
India wherein filing of PILs got legitimized
for effective assertion of constitutionally

Salient Features
Access and Standing
Procedural rules relaxed
Appointment of citizens as investigators / fact
finders
Non adversarial approach
No financial burden on petitioners

Boon
Citizens have an inexpensive legal remedy to
public issues concerning human rights ,
consumer and environmental protection

Bane
Increase in filing of frivolous cases with an intent
to strike deals with the victims of stay orders
People filing PILs which are based on private
interests disguised as public interests

PILs can be filed in a High Court or in the Supreme


Court, depending on the Nature of Case
Proceedings are conducted in the same manner as
in other normal litigations
Judges may constitute inquiry commissions to
investigate claims made in a PIL
Even a letter or a report deemed to have depicted
real-life issues can be used to initiate a PIL

PIL signifies a paradigm of legal justice


which locates the content of informal justice
within the formal justice delivery
system..Non Anglo-Saxon jurisdiction
induces courts to transcend the traditional
judicial function of adjudication and provide
remedies for social wrongs
The systemic impact of public interest
litigation is not necessarily or directly
related to its success in court.....the
litigation process may also have palpable
impacts on public discourse and policy

Interim Measures
Few Examples
Closing down a plant causing extensive air

pollution and reopening it subject to extensive


terms and conditions

Imposing strict deadlines on hotels operating

late in the night

Rural

Litigation & Entitlement Kendra


vs. State of U.P
Stoppage of mining operations which

were leading to environmental damage

Vellore

Citizens' Welfare Forum vs.


Union of India
Tanneries discharging toxic wastes in

Palar river were endangering the health of


the residents and these were asked to
shut down

MC Mehtas PIL(1985) for unleaded petrol won relief


only in 2001 because of the involvement of a mighty
private sector company.Still 2 out of 7 IOC refineries
produce leaded fuel..Public vigilance is the need of
the hour
Full impacts of judgments on crucial issues of noise
pollution like the use of fire-crackers and loud-speakers
are yet to be realized due to lack of awareness and
sensitization

A PIL pointed out that Taj Mahal was facing a


threat from pollution caused by the factories
situated nearby causing erosion of the
exterior white marble

Supreme Court banned the use of coke and


coal in the surrounding industries

The pollution in the area was substantially


reduced resulting in environmental
conservation

Strategic Areas of PILs Impact


Human Rights of the vulnerable
Economic , social and cultural
rights
Police accountability
Multifarious issues relating to
environmental
degradation/rejuvenation

over-extensive reliance on courtappointed commissions of


enquiry....allegations of bias and partial
evidence gathering
Problems arising out of alleged
dubiousness, preference and unfair
dealings of judges, legal practitioners and
para-legal court functionaries
the problem of backlogs and delays
caused by lack of infrastructure and human
resources remains a serious concern and

Allegation s have been raised on


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

While PIL has been partly


institutionalized, it remains dependent on

Problems phantom inter-meddlers


Create
evidentiary problems
The frequency of PIL cases in the Supreme
Court and the High Courts increased as
claimants and their lawyers learned how to
take advantage of the more liberal procedures
Courts saw that public interest litigants and
their lawyers were dressing up private
disputes in the name of PIL

Justice Pasayat of the Delhi High


Court, in the case of Ashok Kumar
Pandey v. State of W.B., described as
busybodies, meddlesome
interlopers, wayfarers or officious
interveners who approach the court
with extraneous motivation or for
glare of publicity
The contention that PILs weaken
policy formulation and
implementation in the legislative and
executive branches is typically

Challenges Ahead
Striking a balance between
allowing legitimate PILs and
discouraging the frivolous ones
Established PIL scholars like
Surya Deva has recommended
preventive measures like
building in economic
disincentives and confining
PILs primarily to cases where
access to justice is undermined