DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW.

FOUNDATION OF LAW

FINAL DRAFT ON

PIL AS A TOOL FOR JUDICIAL ACTIVISM

Under The Guidance of: Submitted by:-

Mr. Manwendra Kumar Tiwari Sumit gehlot

Asst. Professor (Law) Rollno.145

Dr. RMLNLU 1sSemester

Signature of Professor Signature of student

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TABLE OF CONTENTS

1. Introduction...................................................................................................................1

2. Judicial Activism...........................................................................................................2

3. Reasons of Emergence of Judicial Activism.................................................................2

4. Public Interest Litigation (PIL).....................................................................................5

5. Origin & Development of PIL.......................................................................................5

6. PIL & Judicial Activism................................................................................................5

7. ROLE OF JUDICIAL ACTIVISM AND PIL IN CHANGING SOCIETAL NEEDS:

I .Labour Jurisprudence & PIL...............................................................................5

II. Women & Children............................................................................................6

III. Prisoners & PIL................................................................................................7

IV. Environment & PIL..........................................................................................2

V. Corruption & Judicial Activism........................................................................5

8. Conclusion.......................................................................................................................5

9. Bibliography....................................................................................................................2

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1. INTRODUCTION

Most social movements in India since the 1970s have actively used the Courts-especially the

Supreme Court-as a part of their struggles.1This has been possible because of the higher

Courts’ activism, especially under the guidance and action of Public Interest Litigation.

Through the instrument of Public Interest Litigation, the Court liberated itself from traditional

constraints in the legal system so as to reach out ‘to the weaker sections of Indian humanity.2

The Supreme Court of India has adopted a forward-looking approach since last few years,

particularly having regard to the socio-economic conditions prevailing in the country. In fact

there are two kinds of approaches which characterise the functioning of the highest Court in

every democracy. Either the Court adopts an activist approach or resigns itself to passive

role.3 In a country like India, judges adopt an activist approach to bring about social and

economic change and to improve the life conditions of the people and make basic human

rights available to them. The Supreme Court has revolved a new doctrine of judicial activism

with a view of making basic human rights meaningful and effective for the deprived and

exploited sections of humanity.

Judiciary is the third wing of the Government empowered to administer justice to the people

of India. The Courts are protectors of an individual’s Fundamental and Legal Rights when

they are violated. But in these days, access to Court is also a difficult task and especially

litigation has become costly and unaffordable for socially and economically backward

people. The traditional method of providing justice has operated to close the doors of Courts

to the poor and has caused denial of justice to millions of people. Only a person having ample

of time and money is able to afford the services of the judiciary.

Justice P.N. Bhagwati rightly observed that our system of administration of justice suffers

two serious defects, namely, delay and expense.4

Judicial Activism has opened up new dimensions for the judicial process and in the

administration of justice and has given a hope of the justice to the million starving people.

1 Balkrishan Rajgopal, ‘Judicial Governance and Ideology of Human Rights’, in C Raj Kumar, k Chockalingam(eds), Human Rights, Justice & Constitutional Empowerment, Oxford University Press,2007 as cited in Upadhyay, Videh ”PIL in India”, Lexis Nexis,2007,pno.331. 2 id.3 Sharma, DR. S.S., “Legal Services, “PIL & Para-Legal Services”, Central Law Agency, 2003, pno.204.4 In the forwarding note of the book by Justice G.M. Lodha,”Fumes, Flames and Fire”, unique traders, 1983, pno. VII as cited in Sharma, DR. S.S., “Legal Services, PIL & Para-Legal Services”, Central Law Agency, 2003, pno.203.

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The Fundamentals Rights enshrined in the Constitution have no meaning for the large masses

of people who are leading a life a poverty and destitution, unless a socio-economic structure

in which these rights become meaningful for them is created. The concept of Public Interest

Litigation intended to bring justice within the reach of poor masses and to people who are not

in a position to have access to Courts. It was initiated for the benefit of a class of people, who

had been denied their constitutional and legal rights as they could not have access to the

Courts on account of their socio-economic disabilities. Public Interest Litigation or PIL is

understood and treated as the citizens’ invocation and the use of the delivery of legal services

in aid of and as a tool of administration of justice.5

PIL is sometimes termed as active judicialism applied by the Higher Courts (Supreme Courts

and High Courts) for the public welfare.6 It is the function of activist court to convert the

claims of the poor, disabled masses into constitutional and legal rights.

By judicial activism the court has been trying to bring the enforcement of Fundamental

Rights within the reach of weaker sections.7

2. JUDICIAL ACTIVISM

Judicial activism is the view that the Supreme Court and other judges can and should

creatively (re)interprets the texts of the Constitution and the laws in order to serve the judges'

own visions regarding the needs of contemporary society. Judicial activism believes that

judges assume a role as independent policy makers or independent "trustees" on behalf of

society that goes beyond their traditional role as interpreters of the Constitution and laws. The

concept of judicial activism is the polar opposite of judicial restraint.8

Acc. to former Chief Justice of India A.M. Ahmadi, Judicial Activism is a necessary

adjunct function since the protection of public interest as opposed to private interest happens

to be its main concern.9

5 “ROIL Public Interest Litigation”, Universal Law Publishing, New Delhi, 2011, pno. 9.6 Sirohi, J. P. S.,” Public Interest Lawyering, Legal Aid and Para Legal Services”, Allahabad Law Agency, 2003, pno. 21. 7 Sharma, DR. S.S., “Legal Services, PIL & Para-Legal Services”, Central Law Agency, 2003, pno.2058 definitions.uselegal.com 9 A.M. Ahmadi, ’Judicial Process: Social Legitimacy and Institutional Viability’ (1996) as cited in Sathe, S.P., “Judicial Activism in India”, Oxford University Press, 2007 pno. 25.

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Any system that is not keeping pace with the changing society cannot survive for a long time.

Indeed, our judiciary has realised the changing situation and has shed the grab of traditional

method of administering justice. This is what we call “Judicial Activism”. The Supreme

Court of India has undertaken many ventures such as Bihar under trials; Bhagalpur blinding

etc.10. It has adopted a proactive approach regarding the peculiar socio-economic conditions

prevailing in the country. The judges have adopted an activist approach. In the climate of

exploitation, conflict and violence, Judges are not justified in invoking the doctrines of “self-

restraint” and passive attitude.

Judicial Activism deals with the political role played by the judiciary, like the other two

branches of the state viz., the Legislature and the Executive. The judiciary is required to act

impartially and impartiality means not only observe of personal bias or prejudice in judging

but also exclusion of irrelevant considerations, even his own political or religious views. Acc.

to Prof. Upendra Baxi-“Judicial Activism is that way of exercising judicial power which

seeks fundamental re-codification of power relations among the dominant institution of State,

manned by members of the ruling classes.”11

The expectation from the Higher Courts is increasing rapidly as the groups of citizens bring

their grievances daily. The role of judiciary is important because it is the final interpreter of

Fundamental Rights and it has a supreme social duty to eliminate injustice and exploitation in

the society. The judiciary has to make new procedures to meet the challenges and grievances

of the people. The policy of judicial self restraint created a situation in which minority

interests are not properly protected.12

In order to get rid of such problems, the Indian judiciary while adopting pro-

active approach pronounced glorious judgements for which the poor masses of the country

were waiting for long for ex. in the case Sheela Barse13, a letter addressed by Sheela Barse, a

journalist, complaining of custodial violence to women prisoners whilst confined in the

police lock-up in the city of Bombay was treated as a writ petition under Article 32 of the

constitution. The Supreme Court expressed hope that these directions will be carried out both

in letter and in spirit.

10 Justice Bhagwati, P.N., How the Supreme Court enforces, Citizens Rights, Extract from Indian Express, Delhi. Dated 31.1.1982 as cited in Sharma, DR. S.S., “Legal Services, PIL & Para-Legal Services”, Central Law Agency, 2003, pno.204.11 Wadehra, Dr. B.L. ,” Public Interest Litigation”, Universal Law Publishing”2009, pno. 160.12 Sharma, DR. S.S., “Legal Services, PIL & Para-Legal Services”, Central Law Agency, 2003, pno.20513 Sheela Barse v State of Maharashtra [1983] AIR 378 (SC).

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The issues, which are now coming before the Court, are not so much issues of individual

rights, but issues of the rights of the underprivileged sections of society. It illustrates how

society is changing against the interest of poor. Now it is the duty of activist court to convert

the claims of poor, disabled masses into constitutional or legal rights. By judicial activism the

Court has been trying to bring the enforcement of Fundamental Rights within the reach of the

weaker sections of society.

3. REASONS OF EMERGENCE OF JUDICIAL ACTIVISM

1 .Collapse of responsible Government:

When the legislature fails to make necessary laws in accordance with the changed scenario or

where executive fails to implement those laws, it results in erosion of the confidence in the

constitution and democracy amongst the citizens. In these kind of extra-ordinary

circumstances judiciary tries to take the legitimate step and the result is judicial legislation

and government by judiciary.14

2. Pressure on Judiciary:

In the changed circumstances the judiciary cannot remain inactive as Fundamental rights are

infringed of the citizens by the government or third parties. The citizens look up to the Courts

for the safeguard of their rights and freedom and this all leads to tremendous pressure on

judiciary to deal and aid with the suffering masses.

3. Judicial Enthusiasm:

The judiciary cannot be a mere spectator. The judges like to participate in the social reforms

and changes that take place in the changing times15. It encourages the Public Interest

Litigation and liberalises the principles of Locus Standi.

14 Wadehra, Dr. B.L.,” Public Interest Litigation”, Universal Law Publishing”2009, pno. 161.15id.

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4. Legislative Vacuum:

Inspite of the existence of large quantum of pre and post constitutional laws, there still may

be certain areas, which have not been legislated upon. It is therefore, upon judiciary to

indulge in judicial legislation and to make necessary laws and to meet the changing social

needs.

5. Constitution of India:

The Constitution of India itself contains provisions by which judiciary is given enough scope

to legislate:

Under Article 32 of the Indian Constitution, any citizen can approach directly the

Supreme Court for the enforcement of Fundamental Rights. Thus, the Supreme Court

has been designated as guardian of fundamental rights of the citizen.

Article 131 of the Constitution makes the Supreme Court the highest appellate Court

and it exercises this appellate jurisdiction in civil, criminal and constitutional matters.

Article 141 of the Constitution gives the authority to the Supreme Court to make

final declaration as to the validity of law and is binding on all.

4. PUBLIC INTEREST LITIGATION

In Indian law, Public interest litigation means litigation for the protection of the public

interest. It is litigation introduced in a court of law, not by the aggrieved party but by the

court itself or by any other private party. It is not necessary, for the exercise of the court’s

jurisdiction, that the person who is the victim of the violation of his or her right should

personally approach the court. Public interest litigation is the power given to the public by

courts through judicial activism. However, the person filing the petition must prove to the

satisfaction of the court that the petition is being filed for a public interest and not just as a

frivolous litigation by a busy body. It is a non-adversarial procedure evolved by the Supreme

Court. 16

Such cases may occur when the victim does not have the necessary resources to commence

litigation or his freedom to move court has been suppressed or encroached upon. The court 16 S.P. Gupta v Union of India [1982] AIR 149(SC).

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can itself take cognizance of the matter and precede suo motu or cases can commence on the

petition of any public-spirited individual.17An analytical perusal of PIL cases before the

Indian Supreme Court and High Courts shows that the courts have been really very liberal in

granting ‘standing’ to persons coming from different fields. It is apparent that the courts are

more concerned with the ‘kinds of issues’ raised than with the persons bringing those cases to

the courts.18

PIL is sought to be encouraged in the larger interest of public. Under PIL, the Supreme Court

allows any member of the public to seek judicial redress for a legal wrong done to a person or

to a determine class of persons, who by reasons of poverty, helplessness or disability or a

socially or economically disadvantaged position is unable to approach the court directly.

Former Chief Justice P.N. Bhagwati termed it as Social Action Legislation because herein

the SC has settled the dismal problem of lack of ‘access to justice’ to the poor and oppressed

sections of Indian society by empowering volunteers’ representatives or organisations to

approach the court on behalf of the poor and oppressed.19

5. ORIGIN & DEVELOPMENT OF PIL

The concept of public interest litigation were initially sown in India by Krishna Iyer

J., in 1976 in Mumbai Kamgar Sabha vs. Abdul Bhai20 and was initiated in

Raihvaiy vs. Union of India(wherein an unregistered association of workers was

permitted to institute a writ petition under Art.32 of the Constitution for the redressal

of common grievances).

Krishna lyer J. enunciated the reasons for liberalization of the rule of Locus Standi

in Fertilizer Corporation Kamgar vs. Union of India 21(the Court established the

17 www.manupatrafast.com 18 Rao, Mamta, “PIL Legal Aid and Lok Adalats”, Eastern Book Company, 2004, pno.29. 19 id.20 Mumbai Kamgar Sabha v Abdul Bhai [1976] AIR 1455(SC).21 Fertilizer Corporation Kamgar v Union of India [1981] AIR 1981 149(SC).

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principle that decision taken by the management affecting their rights directly their

rights directly, the workers of a factory have the ‘locus standi’ to challenge that major

decision of management) and the ideal of ‘Public Interest Litigation’ was blossomed

in S.P. Gupta and others vs. Union of India22.

6. PIL AND JUDICIAL ACTIVISM

Activism, like beauty, is often in the eye of the beholder. Activism is essential for

participative public justice. In India, the opening up of access to courts to the poor, indigent

and disadvantaged sections of the nation through Public Interest Litigation, popularly known

by its acronym PIL, is unexceptionable judicial activism.23

 Public interest litigation today has great significance and drew the attention of all concerned.

The traditional rule of “Locus Standi” that a person, whose right is infringed alone can file a

petition, has been considerably relaxed by the Supreme Court in its recent decisions. Now,

the court permits public interest litigation at the instance of public spirited citizens for the

enforcement of constitutional or legal rights.24 Now, 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:

1. in Supreme Court under Art.32 of the Constitution;

2. in High Court under Art.226 of the Constitution; and

3. in the Court of Magistrate under Sec.133, Cr. P.C.

Therefore, a public minded citizen must be given an opportunity to move the court in the

interests of the public.

‘Judicial Activism’ which started from the mid-seventies injected the judicial stream which

brought about revolutionary change in the outlook of Indian judiciary. Till then the

22 S.P. Gupta and others v Union of India [1982] AIR 149(SC).23 www.thehindu.com 24 www.manupatrafast.com

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conservative tradition bound institution became sensitive to the need of the weaker sections,

downtrodden and traditionally oppressed classes of India.25

‘Public Interest Litigation’ or ‘Pro Bono Public Litigation’ is litigation at the instance of

public-spirited citizen espousing cause of others.26 From 1979, the judiciary led by the

Supreme Court in India became relevant to the nation in manner not contemplated by the

makers of the Constitution and became an active participant in the dispenser of social justice.

In 1979, Supreme Court advocate Kapila Hingorani drew the Court’s attention to a

series of articles in a newspaper exposing the plight of Bihar under trial prisoners,

most of whom had served pre-trial detention more than the period they could have

been imprisoned if convicted. Sunil Batra, a prisoner, wrote a letter to Justice

Krishna Iyer of the Supreme Court drawing his attention to torture by prison

authorities and the miserable conditions of prisoners in jails. This was taken up as a

petition and the Court passed orders for humane conditions in jails.

In 1980, two professors of law wrote a letter to the editor of a newspaper describing

the barbaric conditions of detention in the Agra Protective House for Women which

was made the basis of a writ petition in the Supreme Court. The exploitation of

workmen at construction sites in violation of labour laws was brought to the attention

of the Supreme Court by a letter. The slave-like condition of bonded labourers in

quarries was brought to the attention of the Court by a social activist organisation. A

journalist moved the court against the evictions of pavement dwellers of Bombay.

Several cases of this type followed.

In dealing with such cases, the Court evolved a new regime of rights of citizens and

obligations of the State and devised new methods for its accountability.

25 Santosh Negde: PIL and Control of Government Indian Bar review, Vol. XV Nos. 1& 2 Jan-June,1998 p. 1 as cited in Wadehra, Dr. B.L.,” Public Interest Litigation”, Universal Law Publishing”2009, pno. 162.26 Shukla, V.N., “Constitution of India”, pno. 226 as cited in Wadehra, Dr. B.L.,” Public Interest Litigation”, Universal Law Publishing”2009, pno. 163.

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In 1982, Justice P.N. Bhagwati correctly stated the purpose of PIL as it originated. He

emphasised that PIL “a strategic arm of the legal aid movement which is intended to bring

justice within the reach of the poor masses, who constitute the low visibility area of

humanity, is a totally different kind of litigation from the ordinary”.27

In Public Interest Litigation (PIL) vigilant citizens of the country can find an inexpensive

legal remedy because there is only a nominal fixed court fee involved in this. Further,

through the so-called PIL, the litigants can focus attention on and achieve results pertaining

to larger public issues, especially in the fields of human rights, consumer welfare and

environment.28

7. ROLE OF JUDICIAL ACTIVISM AND PIL IN CHANGING SOCIETAL NEEDS

Public interest litigation is an extremely important jurisdiction exercised by the Supreme

Court and the High Courts. The Courts in a number of cases have given important directions

and passed orders which have brought positive changes in the country. The Courts’ directions

have immensely benefited marginalised sections of the society in a number of cases. It has

also helped in protection and preservation of ecology, forests, marine life, wildlife etc. The

Courts’ directions to some extent have helped in maintaining probity and transparency in the

public life.29

1. LABOUR JURISPRUDENCE AND PIL:

In Bandhu Mukti Morcha v Union of filed India30, the 3-judge bench of the Court

entertained a petition filed by an organisation dedicated to the cause of release of

bonded labourers. The bench considered the allegation that large number of labourers

from Maharashtra, Madhya Pradesh, Uttar Pradesh and Rajasthan were working in

inhuman and intolerable conditions in stone quarries situated in Faridabad and some

of them were bonded labourers. The Court issued number of directions to Central and

State Government to free the bonded labourers.

27 www.thehindu.com 28 www.manupatrafast.com 29 www.legalblog.in 30 Bandhu Mukti Morcha v Union of India [1984] AIR 802 (SC).

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2. Women & Children:

In Gaurav Jain v Union of India31, the Supreme Court issued number of directions

for the rescue and rehabilitation of child prostitutes and establishment of Juvenile

Homes for them.

In Vishakha v State of Rajasthan32, the Court issued number of guidelines and

norms to protect and to enforce the fundamental and human rights of working women,

against the sexual harassment.

In Lakshmikant Pandey v Union of India33, the Supreme Court laid down various

principles and norms which should be followed in determining whether child should

be allowed to be adopted by the foreign parents.

3. Prisoners & PIL:

In Hussainara khatoon v Home Secretary, Bihar34, the Supreme Court held that

keeping under trials in prison without any trial for long durations, violates their right

to speedy trial implicit in Article 21 if the Indian Constitution.

In Rudal Shah v State of Bihar35, wherein the petitioner was acquitted by the Court

of Sessions in 1968 but he was released from jail in 1982, (after 14 years) for

inexplicable reasons, the Supreme Court as an intensive measure awarded the

compensation of Rs. 35,000 for deprivation of his liberty.

4. Environment & PIL:

This is the area where PIL played an important role from 1980 till now. The judiciary through

judicial activism increased the arena of Section 21 of the Constitution.36

31 Gaurav Jain v Union of India [1997] AIR 3012 (SC).32 Vishakha v State of Rajasthan [1997] AIR 241 (SC).33 Lakshmikant Pandey v Union of India [1992] AIR 118 (SC).34 Hussainara khatoon v Home Secretary, Bihar [1980] 1 AIR 81(SC).35 Rudal Shah v State of Bihar [1983] AIR 1086(SC).36 Wadehra, Dr. B.L.,” Public Interest Litigation”, Universal Law Publishing”, 2009, pno. 166.

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In M.C. Mehta v Union of India37, PIL was filed by the Lawyer complaining about

the leak of petroleum gas from the units of M/s. Shriram Foods to the persons in the

vicinity. The Court issued the direction to the industry and also to the Union of India

to prevent any future leakage and also awarded a sum of Rs. 10,000 each.

In M.C. Mehta v Union of India38, PIL was filed alleging that Delhi’s air had

become one of the highest polluted in the world due to pollution being caused by the

addition of about one lakh new motor vehicles every year.

The Supreme Court in the above case directed the Delhi

Administration to furnish complete list of prosecutions launched against the heavy

vehicles, for causing pollution by infringement of various requirements of law.

5. Corruption & Judicial Activism:

The Apex Court has made number of decisions with regard to the corruption charges.

In Dinesh Trivedi v Union of India39, PIL was filed by Member of Parliament in

conjunction with NGO seeking direction to the Government of India to make public

the Vohra Committee Report along with supporting materials and also seeking

declaration that Official Secrets Act is unconstitutional. The Court held that under

Article 19(1) (a), the citizens have a right to know but like all rights, it is also subject

to certain reasonable restrictions. The Court directed that high level committee be

appointed by the President of India in consultation with the Prime Minister and Lok

Speaker which can monitor the investigation and take necessary action.

37 M.C. Mehta v Union of India [1987] AIR 965(SC). 38 M.C. Mehta v Union of India [1991] 2 SCC 353.39 Dinesh Trivedi v Union of India [1997] 4 SCC 306.

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8. CONCLUSION

Through the device of Public Interest Litigation, the Supreme Court has made a positive

contribution to enforce the rights of prisoners, workers, pensioners, consumers, victims of

environmental pollution and others. PIL has played an important role in ensuring that there is

accountability of administration to the people, there is a rule of law in all spheres of public

life and also in areas like maintaining the independence of judiciary. In fact, scope of PIL has

been widened considerably in recent years as the ambit of ‘public interest’ has undergone a

metamorphosis. Now, the beneficiaries of PIL are not only the socially and economically

disadvantaged sections of society but also the entire society at large. Through PIL it has been

ensure that victims of violation of fundamental rights have been paid adequate monetary

compensation, by way of fundamental rights recognised and enforced by the higher judiciary

through judicial activism40.

It is actually a welcome move because no one in the country can deny

that even PIL activists should be responsible and accountable. In any way, PIL now does

require a complete rethink and restructuring. Anyway, overuse and abuse of PIL can only

make it stale and ineffective. 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.

40 Wadehra, Dr. B.L.,” Public Interest Litigation”, Universal Law Publishing”, 2009, pno. 168.

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9. BIBLIOGRAPHY

BOOKS REFERRED:

Upadhyay, Videh ”PIL in India”.

Sharma, DR. S.S., “Legal Services, “PIL & Para-Legal Services”.

“ROIL Public Interest Litigation”, Universal Law Publishing, New Delhi.

Sirohi, J. P. S.,” Public Interest Lawyering, Legal Aid and Para Legal Services”.

Sathe, S.P., “Judicial Activism in India”.

Wadehra, Dr. B.L.,” Public Interest Litigation”.

Rao, Mamta, “PIL Legal Aid and Lok Adalats”.

SITES REFERRED:

www.thehindu.com

www.legalblog.com

www.mauopatrafast.com

definitions.uselegal.com

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