COMPARATIVE STUDY AND GROWTH OF PUBLIC INTEREST LEGISLATION IN INDIA AND OTHER COUNTRIES BY - PAVANKUMAR GHANSHYAM TAPADIYA
COMPARATIVE STUDY AND GROWTH OF PUBLIC
INTEREST LEGISLATION IN INDIA AND OTHER COUNTRIES
AUTHORED BY - PAVANKUMAR GHANSHYAM TAPADIYA
LLM – 2nd Year, Roll No. 12
Modern Law College,
Pune
PUBLIC INTEREST
LITIGATION
Ø INTRODUCTION:
-
As name
suggest, Public Interest Litigation (PIL) is litigation to protect public
interest. Before 1980’s Indian courts can entertained litigations only from the
parties affected directly or indirectly. What is Locus standi to file case was to be strictly examined. Traditional
rule of locus standi that a petition
under Article 32 of Indian Constitution can only be filed by a person whose
fundamental right is infringed. Only aggrieved party entitled to knock door of
the court. Any person who was not personally affected could not file petition
under Article 32. In December 1979, Kapila
Hingorani had filed a petition in regards to the inhuman conditions of the
prisoners detained in the Bihar jail which is famously known as Hussainara Khatoon Vs State of Bihar[1]. This is a first case of Public Interest Litigation in India. The Supreme
Court bench headed by J. Bhagawati decided that prisoners should receive free legal aid and fast hearings. As a result,
40,000 prisoners were released from jail. Thereafter many cases touching public
at large filed in supreme court. Therefore, this is an important concept in law
and polity and is often seen in the news. Hence, it acquires importance in
recent days. In this research article, I tried to comparatively study and cover
all aspects PIL in India and overseas countries.
Ø
What is Public Interest
Litigation?
In Black's law Dictionary (Sixth Edition), Public
Interest is defined as follows:
Public Interest. – Something in which the
public, the community at large has something pecuniary interest, or some interest by which their
legal rights or liabilities are affected. It does not mean anything
so narrow as mere curiosity, or as the interest of the particular localities, which may be
affected by the matters in question. Interest shared by the citizens generally
in affair of local, State or national government.
Public interest
Litigation (PIL) means litigation filed
in a court of law, for
the protection of “Public Interest”. Any matter where
the interest of the public
at large is affected can be redressed by filing a Public Interest
Litigation in a court of law such as Pollution, Terrorism, Road safety,
Constructional hazards, etc.
·
The expression ‘Public Interest Litigation’ has been
borrowed from American jurisprudence, where it was designed to provide legal
representation to previously unrepresented groups like the poor, the racial minorities,
unorganized consumers, citizens who were passionate about the environmental
issues, etc.
·
PIL is not defined in any statute or in any act. It
has been interpreted by judges to
consider the intent of the public
at large. It is the power given
to the public by courts through judicial activism. However, the person filing
the petition must prove to the court’s satisfaction that the petition is being filed for public
interest and not just as a frivolous litigation by a busy body.
·
Public interest litigation is not defined in any
statute or in any act. It has been interpreted by judges to consider the intent
of public at large.
Some of the
matters which are entertained under Public Interest Litigation are Neglected
Children, Bonded Labour matters, Atrocities on Women, Non- payment of minimum
wages to workers, exploitation of casual workers, food adulteration,
Environmental pollution, and disturbance of ecological balance, Maintenance of
heritage and culture, etc.
Ø
Who Can File a PIL and Against Whom?
§ Any citizen
can file a public case by filing a petition:
§ Under Art
32 of the Indian Constitution, in the Supreme Court.
§ Under Art
226 of the Indian Constitution, in the High Court.
§ Under sec.
133 of the Criminal Procedure Code, in the Court of Magistrate.
However,
the court must be satisfied that the Writ petition fulfils some basic needs for
PIL as the letter is addressed by the aggrieved person, public spirited
individual and a social action group for the enforcement of legal or
Constitutional rights to any person who are not able to approach the court for
redress.
§ A Public
Interest Litigation can be filed against
a State/ Central Govt., Municipal Authorities, and not any private party. The
definition of State is the same as given under Article 12 of the Constitution
and this includes the Governmental and Parliament of India and the Government
and the Legislature of each of the States and all local or other authorities
within the territory of India or under the control of the Government of India.
Ø
Significance of PIL
·
The aim of PIL is to give to the common people access
to the courts to obtain legal redress.
·
PIL is an important instrument of social change and for maintaining the Rule of law and
accelerating the balance between law and justice.
·
The original purpose
of PILs have been
to make justice
accessible to the poor and the marginalised.
·
It is an important tool to make human rights reach
those who have been denied rights.
·
It democratises
the access of justice to all. Any citizen or organisation who is capable
can file petitions on behalf of those who cannot or do not have the means to do
so.
·
It helps in judicial monitoring of state institutions
like prisons, asylums, protective homes, etc.
·
It is an important tool for implementing the concept of judicial review.
·
Enhanced public participation in judicial review of
administrative action is assured by the inception of PILs.
Ø
Certain Weaknesses of PIL
·
PIL actions may sometimes give rise to the problem of competing rights. For
instance, when a court orders the closure of a polluting industry, the
interests of the workmen and their families who are deprived of their
livelihood may not be taken into account by the court.
·
It could lead to overburdening of courts with frivolous PILs by parties with vested
interests. PILs today has been appropriated for corporate, political and
personal gains. Today the PIL is no more limited to problems of the poor and the oppressed.
·
Cases of Judicial
Overreach by the Judiciary in the process of solving socio-economic or
environmental problems can take place through the PILs.
·
PIL matters concerning the exploited and disadvantaged
groups are pending for many years. Inordinate
delays in the disposal of PIL cases may render many leading judgments
merely of academic value.
Ø PIL in the USA
The United
States is the founder of the modern PIL, and has passed “Sherman Antitrust Act”
as early as 1890, which is the first officially statute to rule the PIL system.
There are
two means to file an environmental PIL in USA.
1. Lawsuit filed by the Attorney General,
and
2. Lawsuit filed by a citizen.
The lawsuit
filed by the Attorney General refers to PIL for environmental protection filed
by the Attorney General on behalf of the US federal government or state
governments against any citizen, legal person or other organizations that cause
environmental pollution and damage. Under the US Statutory Law, the lawsuit
filed by a citizen refers to PIL filed by a citizen against other citizens,
legal persons, organisations or state authorities whose illegal activities have
caused environmental pollution and damage. The permissible civil PIL in the
United States mainly includes “qui tam action”, antitrust litigation and
citizen suit in the field of environment law. The “qui tam” provisions
initially specified in “False Claims Act” of 1863 in the United States allow a
US citizen to file a civil action against any illegal activity defrauding the
government in order to recover the losses the government has suffered, and the
person filing an action can receive a portion of any penalty imposed under the
relevant law if the suit was successful. Since the federal government, rather
than the citizen filing a suit, is the main beneficiary from such suit, the
suit has the nature of PIL. The provisions of citizen PIL system in the field
of Antitrust Law are mainly included in the “Clayton Antitrust Act” of 1914 in
the United States, and the Article 15 of the law empowers any citizen, firm,
corporation and union to bring a lawsuit for injunctive relief in a court which
has jurisdiction over the parties. Since the field has influenced the PIL in
the United States most, the citizen suit in the field of environment is
prescribed in the Clean Air Act 1970 at the earliest, and this law begins to
include the provisions for citizen suit, empowers any citizen to receive
assistance from the federal government and supervise the law enforcement, and
improves the relevant proceedings on citizen suit.
Ø
PIL in Germany
Germany has
a more comprehensive legislation in PIL system and the relevant provisions of
PIL are included in Constitution of Germany, Administrative Procedure Law,
Civil Procedure Act and the Anti-Unfair Competition Law. The following focuses
on an analysis on the PIL system of Germany from the view of the subject filing
PIL.
1)
PIL filed
by citizens:-. The provisions of PIL filed by a citizen are mainly
included in Constitution of Germany where it is also defined as the “public
action”. The Constitution empowers all citizen of Germany to sue the German
Constitutional Court in the request that the unconstitutional law shall be
judged to be invalid by the German Constitutional Court as it deems certain
provisions in the existing Germany law violate the constitutional rights and
other rights regardless of whether infringement occurs or whether the
infringement case concerns the direct or indirect interest of the citizens
themselves.
2)
PIL filed
by a group:- The group PIL refers to a lawsuit brought by qualified
corporate body or agency under the law in order to protect the interest of an
unspecified majority of people when they have no intention or ability to bring
a suit since each of them suffers small losses from the case from which the majority suffer losses.
3)
PIL filed
by a Prosecutor:- Germany allows a prosecutor to bring PIL or
participate into PIL as the representative of public interest. As per the provisions of German Civil Procedure Act
of 1877, the prosecutor can bring lawsuits for
confirming the nullity of marriage, application of interdicted person and declaration of death of missing person
and so on, or participate into lawsuits in
trial.
Ø
PIL in the United
Kingdom
The legislation
and provisions related to PIL are mainly included in “Crown Procedure Act”,
“British Civil Law” and “Rules of Civil Procedure”, and there are two forms of
action: the procurator action and representative action, class action.
1)
PIL filed
by a British Prosecutor :- As per the provisions of “Crown Procedure Act” and the
third edition of “Code for Crown Prosecutors” revised in 1994, the prosecutor is entitled to bring suits on behalf of
the royal family when the interest of British royal family has been violated.
In the United Kingdom, the civil procedures allowing prosecutor to be involved
in are as follows: (a) The civil lawsuits
concerning the interest
of royal family.
The Attorney General, acting as the representative of the
royal family, is empowered to
bring a suit against the tort-feasor in the name of the king or the royal
family when the interest of the royal family has been violated. (b) Lawsuits
denounced by citizens. The Attorney General is allowed to participate into a
lawsuit upon application by the citizen and on behalf of the citizen who
revealed the lawsuit concerning the violation of public interest in order to
stop the activities disturbing public order and causing harm on public property
or to enforce the public duty. The Attorney General can file a lawsuit
independently if the activities above were found to be harmful to the public
interest. (c) Lawsuits to confirm illegitimate and legitimate children. As per
the provisions of “Civil Procedure Act”, when the party applies to the court for
confirming illegitimate and legitimate children, the application form must be
submitted to the Attorney General who has jurisdiction over it, and the
Attorney General will be involved in the hearing and trial as the defendant.
2)
The representative action, class action
of British action:-
The British mass claim includes representative action
and class action. The representative action is where a group has a common claim
in the case of mass claim, and therefore, one or more than one of them are
allowed to participate into the lawsuit as representative (s) of the group. The
decision of the court has binding effect on other persons in the class. The
class action is a suit involving a large number of people in the case of mass
claim, and these persons form a group to bring a suit on behalf of the group or
members in absence due to their common claim. The “Rules of Civil Procedure” of
the United Kingdom allows the parties or the court itself to bring a class
action. The decision and verdict the court made have a binding effect on all
members involved. Any member refusing to accept the ruling can appeal against
the decision and verdict after approval by the court which made the decision
and verdict.
Ø
PIL in China
The “Civil
Procedure Act” newly revised in 2012 introduced the PIL system within the scope
of civil procedure for the first time, which is a major breakthrough of PIL in
China. The Article 55 stipulates that the eligible institutions and related
organizations under the law can bring an action against the activities in
violation of the social public benefit including the pollution of environment,
the infringement on legitimate rights and interests of a majority of consumers.
But the provisions are too simple, and the lack of relevant supporting
measures, in practice it is difficult to implement. At present, in China’s
current legislative system concerning the public interest litigation, although
the direct provisions of the public interest litigation system, but these
provisions are too scattered and simple, no relevant judicial interpretations
complement, also no real sense of the public interest litigation procedures,
and has not formed the unified public interest litigation system, it is
difficult to operate in the judicial practice, also it is difficult to reflect
its value. Compared with the USA, Britain, Germany, India and other countries
are relatively perfect and mature system of public interest litigation, a
considerable gap. Therefore, to put forward the following suggestions for
China’s public interest litigation system to improve.
Ø PIL in Germany
It has more
comprehensive legislation in the PIL system. The relevant provisions of PIL are
included in the Constitution of Germany, the Administrative Procedure Law,
Civil Procedure Act, and the Anti-Unfair Competition Law. The following focuses
on an analysis of the PIL system of Germany from the view of the subject filing
PIL. In Germany, PIL is confined to alleged violations of the federal natural
protection act and associated provisions. Only associations officially recognized by the environmental authorities are eligible to initiate a PIL
Ø COMPARATIVE STUDY
OF PIL
IN INDIA
AND OTHER
COUNTRIES: -
As stated
earlier, USA is a first country who officially introduced PIL in the
legislation. In India, the concept of PIL has been taken from American
jurisprudence and introduced by Justice P.N. Bhagawati. However, model evolved
in America is not suitable in India as our country is developing. Therefore,
PIL in India can seen improvement of the American model of PIL. Indian PIL
system is more oriented towards giving equal and fair access to unrepresented
and poor section of society. Whereas, American PIL system is more oriented
towards providing funds so the people can participate.
GROWTH OF PIL IN INDIA
Ø SOME LANDMARK JUDGMENTS OF PIL WHICH BROUGHT REARKABLE
CHANGE IN INDIA: -
The seeds
of the concept of Public Interest Litigation were initially sown in India by Justice Krishna Iyer, in 1976 in Mumbai Kamagar Sabha vs. Abdul Thai.
The first
reported case of PIL was Hussainara
Khatoon vs. State of Bihar (1979) that focused on the inhuman conditions of
prisons and under trial prisoners.
A new era
of the PIL movement was heralded by Justice
P.N. Bhagawati in the case of S.P.
Gupta vs. Union of India[2]
(Judges transfer case).
o In this
case it was held that “any member of the public or social action group acting
bonafide” can invoke the Writ Jurisdiction of the High Courts (under article
226) or the Supreme Court (under Article 32) seeking redressal against
violation of legal or constitutional rights of persons who due to social or
economic or any other disability cannot approach the Court.
o By this
judgment PIL became a potent weapon for the enforcement of “public duties”
where executive action or misdeed resulted in public injury. And as a result,
any citizen of India or any consumer groups or social action groups can now
approach the apex court of the country seeking legal remedies in all cases
where the interests of general public or a section of the public are at stake.
o Justice
Bhagwati did a lot to ensure that the concept of PILs was clearly enunciated.
He did not insist on the observance of procedural technicalities and even
treated ordinary letters from public-minded individuals as writ petitions.
o Bihar Legal Support Society Vs. Chief Justice of India[3],
the Supreme Court made it clear that the strategy
of public interest legislation has been evolved by this court
in a view to bringing
justice within the easy reach
of poor and the disadvantaged sections of the community.
o Indian Banks’ Association, Bombay & Ors. vs. M/s
Devkala Consultancy Service and Ors held :- “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.” Thus, a private interest case can also be treated as
public interest case.
o M.C Mehta vs. Union of India[4]: 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 a riparian owner 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 make use of Ganga water.
o Vishaka v. State of Rajasthan[5]: The
judgement of the case recognized sexual harassment as a violation of the
fundamental constitutional rights of Article 14, Article 15 and Article 21.
o Hussainara Khatoon v. State of Bihar[6]
This PIL was filed to draw the attention
of the court towards the situation in Bihar where
the persons had been in detention due to pending
trails for more than the maximum punishment which is fixed by law for a
particular offense. The court ordered to make speedy trials and also ordered to
release 40,000 under trail persons who were under detention for more than the
maximum period of punishment fixed by law for any offense.
o Rural Litigation and Entitlement Kendra Vs. State of
Uttar Pradesh[7]
(lime stone case) This PIL was filed
in the year 1983. This was the first of its kind PIL which was filed for the
protection of the environment. In this case, the petitioner appealed the court
for the closure of the lime-stone quarries which was on a lease as it was
polluting the environment, causing an
ecological imbalance and was hazardous for humans as well as animate and inanimate things whereas
the respondents in this case which were the state and units of lime-stone
quarries argued that this close down
will lead to impact the owners who have invested a large amount of money as
they would be thrown out from their respective businesses. This close down
would also impact the livelihood of the workers who are working in the quarries
as this would lead to their unemployment. The court in this case ordered the
closure of lime-stone quarries falling under certain categories.
o Bandhua Mukti Morcha Vs. Union of India[8]
An organisation that was committed to the release of bonded labour
brought a case involving the release of bonded labour before the Supreme Court.
Public interest litigation, according to the Court, "is not in the nature
of adversary litigation but is a challenge and an opportunity to the Government
and its officers to make basic human rights meaningful to the deprived and
vulnerable sections of the community and to assure them social and economic
justice which is the signature tune of our Constitution,” The Court emphasised
that any member of the of the public acting in good faith may approach the
court for relief under Article 32 in cases where a person or a class of people's
Fundamental Rights have been violated, resulting in any legal injury,
and such a person is unable to approach the court due to poverty or being in a
socially or economically disadvantaged position. Therefore, courts amply
demonstrated through these judgements that fundamental rights apply to all
people, not just the wealthy and well- off who can access the courts, as well
as the larger ordinary masses who are poor, illiterate, underprivileged, and
marginalised and are unable to access the court due to a lack of awareness and
resources. But throughout the years, the purpose of public interest litigation
has expanded and is now not just limited to resolving the complaints of the
poor and disadvantaged people. Instead of being utilised to address a specific
person's complaints, it is being utilised to address a specific person's
complaints, it is being
used to address the problems that affect the general
public and society as a whole. Such public grievances could not be brought
before the Court by anyone under the more archaic and traditional locus standi norm.
o Peoples Union for Democratic Rights Vs. Union of India.[9]
The court now permits Public Interest Litigation or Social Interest Litigation
at the instance of "Public Spirited Citizens" for the enforcement of constitutional & legal rights of any
person or group of persons who because of their socially or economically
disadvantaged position are unable to approach court for relief. Public interest
litigation is a part of the process
of participate justice and standing in civil litigation of that pattern must
have liberal reception at the judicial door steps.
o Centre for Enquiry
into Health & Allied
Themes (CEHAT) vs. Union of India[10]
A PIL was filed by a social action organized for a direction for the
effective implementation of the law banning sex selection and sex
determination. The Court has expressed its deep concern over the non- action of
the executive in preventing pre-natal sex determination leading to female
foeticide. In this PIL the Supreme Court issued several directions to the
government to create public awareness about the new law through advertisements throughout the country through both
electronic and print media. The Court had referred to all its earlier
directions to the Central and State Governments and found it very fortunate
that they have not been implemented.
o Paramanand Katara Vs. Union of India[11]
(Professional ethics and medical scam case)
This was also called the medical and healthcare case. It was held in the PIL that the
right to life is paramount and hence overriding medical-legal formalities in
case of emergencies was permissible as once life was lost it could not be restored.
Saving one’s life should be a paramount priority for
doctors. Every medical doctor has a professional obligation to extend their
services with due expertise for protecting life. It was also held that a doctor
in the medical profession should not be dragged unnecessarily in for
interrogation or completing formality by the police or lawyers.
o Citizen for Democracy Vs. State of Assam All humans
whether a prisoner or not have basic fundamental rights that should not be infringed.
Citizen for democracy v State of
Assam took into consideration the rights of prisoners and the fact of whether
handcuffing was justifiable or not. It laid down directions and procedures to
be followed while handcuffing inmates like no police authority can handcuff any of the jail inmates during his transit from one jail
to another or the court and back etc. If these guidelines laid down were
violated, then the officers or police would be subject to punishment.
o
Sheela
Barse Vs. Union of India[12] Supreme
Court awards Rs. 10,000/- cost of public interest litigation to the petitioner
who was not in legal profession but brought an important matter before court
for its consideration.
o
Ban of
smoking in public places[13]
The Supreme Court has directed all state and union territories to immediately
issue order banning smoking in public places and public transportations
including railways. The order banning smoking at public places includes
hospital, health institutions, public offices, court building, educational
institutions, libraries and auditoriums.
o Delhi Domestic Working Women’s forum Vs. Union of
India[14]
(Rape on working women -guidelines for rehabilitation and compensation)
PIL filed to expose the pathetic plight of four domestic servants who were
subjected to indecent sexual assault by seven army personnel. The supreme court
laid down several guidelines.
o Electronic reform – Union of India Vs. Association for
Democratic Reforms[15]
The Supreme Court directed election commission to issue a notification
making it compulsory for those contesting elections to make antecedents at the
time of nomination for the benefits of voters. But the parliament amended
electoral law. Association for Democratic Reforms filed PIL challenging validity of
law. The supreme court held that parliament has no legislative competence to
direct the state authorities to disobey the order of the court. Justice Shah
said, the judgment was arrived at cleaning the democracy of
unwarranted elements and give the country a competent legislature.
Ø Conclusion
·
Public Interest Litigation has produced astonishing
results which were unthinkable three decades ago. Degraded bonded labourers,
tortured under trials and women prisoners, humiliated inmates of protective
women’s home, blinded prisoners, exploited children, beggars, and many others
have been given relief through judicial intervention.
·
A trend of permitting PIL and considered wide scope of
Article 32 of Indian Constitution is welcomed. It creates sense of
responsibility in public authorities.
·
The greatest contribution of PIL has been to enhance
the accountability of the governments towards the human rights of the poor.
·
The PIL develops a new jurisprudence of the
accountability of the state for constitutional and legal violations adversely
affecting the interests of the weaker elements in the community.
·
However, the Judiciary should be cautious enough in
the application of PILs to avoid Judicial Overreach that are violative of the
principle of Separation of Power.
·
Besides, the frivolous PILs with vested interests must
be discouraged to keep its workload manageable.
[1] AIR 1979 SC 1360
[2] AIR 1982 SC 149
[3] (1986) 4 SCC 767
[4] AIR 1987 SC 1087
[5] (1997) 6 SCC 241
[6] AIR 1979 SC 1360
[7] AIR 1985 SC 652
[8] AIR 1984 SC 802
[9] AIR 1982 SC 1473
[10] 2003 (7) SCALE
345.
[12] (1986)3 SCC 596
[13] Murli S. Deora Vs Union of India (2001)
[14] (1995) 1 SCC 14
[15] AIR 2002 SC 2112