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Public Interest Litigation vis--vis Constitutional Damages

Over the years, Public interest litigation has become one of the important tools of legal aid and has served to bring justice in many cases involving social and environmental concerns. Under public interest litigation, any public-spirited individual or group can move the court of law, under article 226 of constitution for High Courts and article 32 for Supreme Court, in case of breach of any fundamental right, to seek judicial redressed. Public Interest Litigation is a form of writ petition which can be filed by anybody, even if he or she is not directly affected by the perceived injustice. This has enabled environmentally- conscious, public-spirited individuals or groups, which are not an aggrieved party, to have easy access to the highest court of the nation. Public interest litigations become a collaborative effort between petitioner, state or public authority and the court, to redress the breach of fundamental right. The Supreme Court has played a pro-active role in enhancing the use of Public interest litigations. It has simplified technical procedures to encourage more grievances to be addressed through the mechanism. It has relaxed the requirement of formal writ to seek redress. Any member the public can move the court for social cause even through a letter, which would be entertained as a writ petition by the court. The Indian Public interest litigation is improved version of public interest litigation of USA. According to Ford foundation of USA Public Interest Law is the name that has recently been given to efforts that provide legal representation to previous unrepresented group and interests. Such groups and interests include the proper environmentalists consumers, racial and ethnic minorities and others.1

1. http.//www.legalserviceinindia.com.

The first reported case of public interest litigation in 1979 focused on the inhuman conditions of prisons and under trial prisoners. In Hussaniara Khatoon v. State of Bihar2, the public interest litigation was filed by advocate on the basis of news item published in the Indian Express, highlighting the plight of thousands of under trial prisoners languishing in various jails in Bihar. These proceeding led to the release of more than 40000 under trials light to speedy justice emerged as a basic fundamental right which had been denied to these prisoners. The same set pattern was adopted in subsequent cases. Public interest litigation means a legal action initiated in court of law for the enforcement of public interest or general interest in which the public or class of community have pecuniary interest or some interest by which their legal rights and liabilities are affected.3 Public interest litigation is meant for enforcement of fundamental and other legal rights of people who are poor, weak, ignorant of legal redresses system or otherwise in disadvantageous positions, due to their social or economic background. Such litigation can be initiated only for redresses of public injury, enforcement of public duty or indicating interest of public nature. It is necessary that petition is not filed for personal gain or private motive or for other extraneous consideration and is filed bonafide in public interest. Evolution of Public Interest Litigation The courts exercising their power of judicial review found to its dismay that the poorest of poor, depraved, illiterate, urban and rural unorganized labour sector, women, children, handicapped by ignorance, indigence and illiteracy and other downtrodden have either no access to justice or had been denied justice. A new branch of proceedings know as Social Interest Litigation or Public Interest Litigation was evolved with a view to render 2. Blacks Law Dictionary. 3. Guruvayur Devaswom Managing Committee v. C.K. Rajan, AIR 2004 SC 561.

complete justice to aforementioned classes of persons. It expanded its wings or course of time. The courts in Pro bono Publico granted relief to the inmates of prisons, provided legal aid, directed speedy trial, maintenance of human dignity and covered several other areas. Pro bono Publico constituted a significant state in present day judicial system. They provided dockets with much greater responsibility for rendering the concept of justice available to disadvantaged sections of society. Public interest litigation has come to stay and its necessity can not be overemphasized. The court in place of disinterested and dispassionate adjudicator becomes active participant in dispensation of justice. But with the passage of time, things started taking different shapes. The process was sometimes abused. Proceedings were initiated in the name of public interest litigation for ventilating private dispute. Some petitions were publicity oriented.4 Object of Public Interest Litigation Public Interest Litigation which has now come to occupy an important field in administration of law should not be Publicity Interest Litigation or Private Interest Litigation or Politics Interest Litigation. There must be real and genuine public interest involved in litigation and it cannot be invoked by person or body of persons to further his or their personal causes or satisfy his or their personal grudge and enmity. Court of justice should not be allowed to be polluted by unscrupulous litigants by resorting to extra ordinary jurisdiction. A person acting bonafide and having sufficient interest proceeding of public interest litigation will alone have locus standi can approach the courts to wide out violation fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration. These aspects were highlighted by Apex of Investigation court in Janta Dal v. H.S. Chaudhary 5 & Kazi Landup 4. AIR 1993 SC 892. 5. AIR 1994 SCW 2190.

Dorji v. Central Bureau of investigation.6 A writ petitioner who comes to the court for relief in public interest must come not only with clean hands like any other writ petitioner but also with clean heart, clean mind and clean objective.7 It is necessary to take note of meaning of public interest litigation. Public interest a matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement but that in which a class of community have pecuniary interest or some interest by which their legal rights and liabilities are affected.8 Concept of Public Interest Litigation The administrative order on the petition filed by the petitioners, in public interest litigation, could not disentitle the petitioners of hearing and matter should have been considered by the court. In this connection, it may be noted that guidelines to be followed for entertaining letters/petitions received in court as public interest litigation were circulated by honble Supreme Court and on examination by public interest litigation cell it was found that as per the guidelines, the petition would not be cognizable as public interest litigation. There was no doubt that some letters/petitions sent to High Court can well be taken cognizance of and entertained as public interest litigation. But as to keep check on frivolous letter/petitions some guidelines have been evolved, in the light of which a cell has been constituted which scrutinizes the letters or petitions received as to whether they fall in the category of public interest litigation or not. If the cell comes to the conclusion that the subject matter was not covered by guidelines, it will then not be entertained as public interest litigation. The guidelines as provided are below 6. Ramyas Foundation v. UOI, AIR 1993 SC 852 & K.P. Srinivas v. R.M. Premchand, (1994) 6 SCC 620. 7. Strouds Judicial Dictionary, (IV Edn.). 8. (1991) SCC 598 at 604.

1. Bonded labour matter 2. Neglected children 3. Non-payment of minimum wages to workers and exploitation of casual workers and complaints of violation of Labour Law. 4. Petitions from jails complaining of harassment, for premature release and seeking release after having completed 14 years in jail, death in jail, released on personal bond, speedy trial as a right. 5. Petitions against police for refusing to register a case, harassment by police and death in police custody. 6. Petitions against atrocities on women, in particular harassment of bride, bride burning, rape, murder and kidnapping etc. 7. Petitions pertaining to environmental pollution, disturbances of ecological balance, drugs, food adulteration, maintenance of heritage and culture, antiques, forest and wild life and other matters of public importance. 8. Petitions from riot victims. 9. Petitions complaining of harassment or torture of villagers by co-villagers or by police from persons belonging to SC & STs and economically backward classes. 10. Family Pension. Matters which were not to be entertained as public interest litigation are indicated as below1. Landlord-Tenant matters 2. Service matter and those pertaining to pension and gratuity. 3. Administration to medical and other educational institutions. 4. Petitions for early hearing of cases pending in High Courts and Subordinate Courts. 5. Complaints against Central/State Government Department.

Lexically the expression PIL means a legal actions initiated in a court of law for the enforcement of public interest or general interest in which the public or class of community have pecuniary interest or some interest by which their legal rights and liabilities are affected. In Subhash Kumar v. State of Bihar8 observed that Right to live is fundamental right under article 21 of constitution and it includes the right of enjoyment of pollution-free water and air for full enjoyment of life. It anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to article 32 of constitution for removing the pollution of water or air which may be detrimental to quality of life. Life & Liberty Guaranteed under article 21 A person can not be deprived of his life except in accordance with reasonable and unarbitrary law. The expression life appearing in article 21 has been held to be a life with human dignity, a life where all human facilities, perceptions and sensitivities are given fullest scope of expression and to develop. Personal liberty guaranteed under article 21 is liberty of thought, liberty of expression, liberty of belief and faith and liberty of worship.9 Public Interest Litigation is a weapon which has to be used with great care and circumspections and judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in armory of law for delivering social justice to citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong and not publicity oriented on personal vendetta.

9.Sunkara Satyanaryana v. State of A.P.,2000 CrLJ 1297.

Is there a connection between Public Interest Litigation and Fundamental Rights One should be able to file public interest litigation whenever there is public interest that needs to be addressed. There does not have to be a violation of specific fundamental right. In Janta Dal v. H.S. Chowdhary10, the operative part of judgment is: Only a person acting bonafide and having sufficient interest in proceeding of public interest litigation will alone have locus standi and can approach the court to wipe out the tears of poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly, vexatious petition under the colour of Public Interest Litigation brought before the court for vindicating any personal grievance, deserves rejection at the threshold. In another case, where court says such litigation can not per se on behalf of poor and downtrodden, unless the court is satisfied that there has been violation of article 21 and persons adversely affected are unable to approach the court.11 The strange thing is that the Supreme Court seems have just quietly gone from allowing public interest litigations only been there is an accompanying fundamental right infraction to allow public interest litigations even without fundamental right infractions. If all Public interest litigations were relating to fundamental rights, then all should fall within constitution field. But the number of search hits for two are different with first being greater, showing that Public Interest Litigations are not necessarily for the enforcement of fundamental rights.12 10.(1992) 4 SCC 305. 11. Balco Employees Union v. UOI, (2002)2 SCC 333. 12. Ashok kumar Pandey v. State of W.B.

1943) 318 U.S. 490 (495); R. v. Lewisham Guardians, (1897) 1 Q.B. 498; Chiranjit v. Union of India, (1950) SCR 869; Rao Bahadur v. State of U.P., (1953) SCR 1188 (1202). While in U.K., the foregoing rule is known as the rule of locus standi or standing of the Petitioner before the court, who complains of a violation of his human right. While this rule still applies in the generality of cases, an exception has been introduced in the case of laws which affect the public in generality, but the persons who are directly affected are not likely to come to Court to assert their rights. In such cases, an association or an individual has been allowed to fight for the public cause and challenge the constitutionality of the law or order, through the Petitioner may not be able to show that he has been directly injured or affected by it.15 He may move the Court for enforcement of a public right provided he is not a mere busybody, but a person having a reasonable concern with the matter to which his application relates.16 The doctrine of public interest litigation, so evolved, has been describe by the house of Lords itself as a change in legal policy,- even though the change started by the modest process of liberalizing the meaning of the expression person aggrieved17 or sufficient interest18 In U.S.A., it has been held that where a fundamental right guaranteed by the First Amendment to the Constitution is clearly and directly violated by a statute, society itself has an interest to challenge the statute to maintain the guaranteed right, so that in such a case a person may be allowed to move the Court even though the applicant himself has not been

15. Blackburn v. A.G., (1971) 2 All ER 1830 (1833) C.A.; R.v. Greater L.C.C., (1976) 3 All ER 184 (C.A.). 16. I.R.C. v. National Fed., (1981) 2 All ER 93 (104, 116) (HL); R.v.H.M,. Treasury; (1985) 1 All ER 589 (595) C.A. 17. A.G. Gambia v. Pierre, (1961) AC 617. 18. R. v. H.M. Treasury, (1985) 1 All ER 589 (595) C.A.

directly affected by the statute.19 While in India, the principle behind this doctrine was thus explained by the Indian Supreme Court: 20 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 is by reason of poverty, helplessness or disability on socially or economically disadvantaged position, unable to approach the court for relief, any member of the public or social action group can maintain an application for an appropriate direction, order or writ in the High Court under article 226 and in case of breach of any fundamental right of such person or class of persons, in this court under article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons.21 In this new era of public interest litigation, the Court has not only done away with

19. Secy. of State v. Munson, (1984) 467 U.S. 947 (956-57); Schaumberg v. Citizens, (1980) 444 U.S. 620 (634). 20. Gupta v. Union of India, AIR 1982 SC 149 (para: 17); Nakara v. Union of India, AIR 1983 SC 130 (para. 64). 21. S.P. Gupta v. Union of India, AIR 1982 SC 149 (para: 17); Nakara v. Union of India, AIR 1983 SC 130 (para. 64).

the orthodox bar of locus standi (i.e., the status of the litigant),22 but also the law of procedure, holding that in this jurisdiction the Court can be moved even by a letter23 the ordinary process of a petition supported by affidavit. As to rules of evidence, again, enter into disputed questions of fact or take evidence beyond affidavit. But in a public interest case, the Court may appoint a commission to gather evidence, where the poor and the disadvantaged people who are directly affected are not in a position to place before the Court the relevant materials.24 The Supreme Court has taken the provision in article 32 to impose on itself a constitutional obligation
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to protect the fundamental rights of the people;

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and it is in

realization of this constitutional obligation that this Court has innovated new methods and rights, particularly in the case of the poor and the disadvantaged who are denied their basic

22. Cf. Ferlilizer Corpn. v Union of India, A. 1981 SC 344 (para. 48-50); Bar Council v. Dabholkar, A. 1975 SC 2098 (para. 52); see also A.R. Antulay v. R.S. Nayak, AIR 1988 SC 1531; DAV College v. State of Punjab, (1971) 2 SCC 261 : AIR 1971 SC 1731; Subhash Kumar V. State of Bihar, AIR 1991 SC 420 (para 7-8) : (1991) 1 SCC 598; Kshetriya Pradushan Mukti Sangharsh Samiti v. State of U.P., AIR 1990 SC 2060 : (1990) 4 SCC 449; Gaurav Jain v. Union of India. (1997) 8 SCC 114 (para 114) : AIR 1997 SC 3021. 23. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802. 24. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802. 25. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802. 26. M.C.Mehta v. Union of India, (1987) 1 SCC 395 (405). [Such duty of Courts has been evoled in Lesotho, from a statutory guarantee of human rights: Law Soc. V. Prime Minister, (1986) LRC (Const.) 481 (495) see also Min. v. Bickle, (1985) LRC 755 (766) (Zimbabwe)].

human rights and to whom freedom and liberty have no meaning.27 One of these new strategies for safeguarding the human rights in respect of the weaker section of the community is the doctrine of public interest litigation, which we have just seen. The Court before which such a trial pending has authority to grant permissions to press, after weighing the competing interest between right of the press and right of authorities prohibiting such an interview.28 The doctrine of public interest litigation has been applied in New Zealand.29 In Canada, the Supreme Court is progressing gradually towards the public interest doctrine,
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the latest view

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being that may person may challenge the validity of a law for

contravention of a Charter right, if he has a genuine interest as a citizen in the validity of the legislation, and there is no other reasonable and effective manner in which the issue may be brought before the Court, 32 even though he may not be directly affected by the legislation. Not only have the Courts expanded the jurisdiction to enforce human rights by innovating the doctrine of public interest as regards the Petitioner, the category of the Respondent has similarly been enlarged by applying the doctrine of State action. 27. State, through Supdt., Central Jail, New Delhi v. Charulata Joshi and another , AIR 1999 SC 1379. 28. Finnigan V. N.Z.R.F.U., (1986) LRC (Const.) 877 (844); On the other hand, in Nigeria, the Supreme Court has refused to introduce any modern innovation of the doctrine of locus standi on power to the determination of any question as to the civil rights and obligations of the litigant [Thomas v. Olufosoye, (1987) LRC (Const.) 659 (670,672,679) Nigeria]. 29. Thorson v. A.G., (1975) :SCR 18; Nova Scotia V. McNail, (1976) 2 SCR 265. 30. Min. of Justice v. Borowski, (1981) 2 SCR 575 (Can.). 31. Min. of Justice v. Borowski, (1981) 2 SCR 575 (Can.) 32. Lugar v. Edmondson, (1982) 457 U.S.922.

Suffice it to say for the present that the doctrine of State action had its origin in the U.S.A, nearly a century after the adoption of its Constitution while the First Amendment (1791) was couched in the form of a prohibition against the Legislature alone (by using the word Congress), the 14th Amendment adopted in 1869, extended the prohibition in the due process33 and equal protection,
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clauses to the State. In interpreting the word

State in these clauses, the Supreme Court first held that it included all the organs and acts of the State- legislative, executive and judicial.35 Before long, however, it was realized that in order to be effective, the Fundamental Rights should be enforced not only against the acts of the officers of the State but also its agents.36 An agent was a person who acted in the name of and for the State or is clothed with the powers of the State,37 or endowed with governmental functions.38 Gradually, the doctrine has come to be applied even to acts of a private person or body,39 where its action is supported by the Government even without legislative sanction or in abuse of its legislative

33. Strauder v. W. Virginia, (1879) 100 U.S. 303. 34. Strauder v. W. Virginia, (1879) 100 U.S. 303. 35. Ex parts Virginia, (1880) 100 U.S. 339 (347); Pennsylvania v. Board of Trusta, (1957) 353 U.S. 230. 36. Ex parts Virginia, (1880) 100 U.S. 339 (347); Pennsylvania v. Board of Trusta, (1957) 353 U.S. 230; Home Telephone Co. v. Los Angeles, (1913) 227 U.S. 278 (286); Steele v. L.N.R., (1944) 323 U.S. 192. 37. Evans v. Newton, (1966) 382 U.S. 296; Blum v. Yaretsky, (1982) 457 U.S. 991 (1011). 38. Cf. Pruneyyard Shopping Centre v. robins, (1980) 447 U.S, 74 (85-87) 39. U.S. v. Classic, (1941) 313 U.S. 299; Screws v. U.S., (1945) 325 U.S. 91.

authority; 40 or when the state has become involved in such private action; 41 such as joint participation of state officials with a private person in violating the petitioners rights;42 or when the State has coerced or encouraged, overtly or covertly, the private act complained of.43 Even a State constitutional provision has been regarded as the support of a law.44 The test to be applied is whether the infringement of the Petitioners right is fairly attributable to the State.45 The foregoing principles have been applied to the guarantee against discrimination in the matter of election, in the 15th Amendment (1870) as well.46 In India, the doctrine of State action has a wider application than in the U.S.A. because of the difference in the text of the Constitution. The essence of the doctrine is that the State cannot get rid of constitutional limitations or restraints by simply delegating its powers or functions to some private 40. Reitman v. Mulkey, (1967) 387 U.S. 369; Burton v. E.P.A., (1961) 391 U.S. 715; Sniadach v. N.G.F., (1975) 419 U.S. 601. 41. Adickes v. Kress, (1970) 398 U.S. 144 (152, 202); Lugar v. Edmondson, (1982) 457 U.S. 922 (937, 941); Blum v. Yaretsky, (1982) 457 U.S. 991 (1004). 42. Adickes v. Kress, (1970) 398 U.S. 144 (152, 202); Lugar v. Edmondson, (1982) 457 U.S. 922 (937, 941); Blum v. Yaretsky, (1982) 457 U.S. 991 (1004). 43. Cf. Pruneyard Shopping Centre v. Robins, (1980) 447 U.S. 74 (85-87). 44. Adickes v. Kress, (1970) 398 U.S. 144 (152, 202); Lugar v. Cf Rendell-Baker v. Kohn, Edmondson, (1982) 457 U.S. 922 (937, 941); Blum v. Yetsky, ar (1982) 457 U.S. 991 (1004); (1982) 457 U.S. 830 (838). 45. Smith v. Allwright, (1944) 321 U.S. 649; Terry v. Adams, (1953) 345 U.S. 461. 46. Evans v. Newton, (1966) 382 U.S. 296.

individual or group; hence, since such a person acts as the agent or the instrumentality of the State, he must be subject to the same limitations, such as the Fundamental Rights, that the Constitution impose upon the State itself.47 The doctrine would reach not only an agent of the State, but even lessee from the agent, if the involvement or participation of the State (even by inaction) in the lessees acts is established.48 But in the U.S.A., the doctrine of State action was originally confined to the application of the 14th and 15th Amendments. The first Amendment rights, e.g., freedom of speech, assembly or religion, were held to be available only against infringement by the Government,
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and not by agents of the Government, until the First amendment (which is

addressed to the Congress) came to be enforced against the States through the 14th Amendment.50 In short, action against a creature of the State for infringement of a First Amendment right came to be maintainable only where such infringement also violated the

47. Burton v. W.P.A., (1961) 365 U.S. 715. 48. Cf Rendell-Baker v. Kohn,. (1982) 457 U.S. 830 (838). 49. West Virginia State Bd. Of Education v. Barnette, (1943) 319 U.S. 624 (637, 639); Everon v. Bd. Of Education, (1947) 330 U.S. 1 (13-14); McCollum. Bd. Of Education v, (1948) 333 U.S. 203. 50. West Virginia State Bd. Of Education v. Barnette , (1943) 319 U.S. 624 (637, 639); Everon v. Bd. Of Education, (1947) 330 U.S. 1 (13-14); McCollum v. Bd. Of Education, (1948) 333 U.S. 203.

due process51 or the equal protection guarantee of the 14th Amendment.52 It is through this indirect process that the First Amendment rights have been enforced against a Board of Education; the like. In the federal area also, the First Amendment rights have been applied against agents of the government through the due process clause of the fifth Amendment.56 In India, however, the Supreme Court had an easier task in introducing the doctrine of State action because (i) most of the Fundamental Rights included in Part III of the Constitution are addressed to the State, and (ii) Part III starts with the definition of the word State in article 12, which includes other authorities. By a liberal interpretation of this word authority, the Court has made the Fundamental Rights enforceable against numerous private persons or bodies, when they might be regarded as agency or instrumentality of the State, by applying certain tests laid down by the Court. These tests, which will be more fully discussed hereafter, include the following: 51. Adickes v. Kress, (1970) 398 U.S. 144 (152, 202); Lugar v. Edmondson, (1982) 457 U.S. 922 (937, 941); Blum v. Yaretsky, (1982) 457 U.S. 991 (1004). 52. West Virginia State Bd. Of Education v. Barnette , (1943) 319 U.S. 624 (637, 639); Everon v. Bd. Of Education, (1947) 330 U.S. 1 (13-14); McCollum v. Bd. Of Education, (1948) 333 U.S. 203. 53. Evans v. Newton, (1966) 382 U.S. 296. 54. Heffron v. Iskcon, (1981) 452 U.S. 640 (642). 55. Liberman v. Schesventer, (1978) 447 F. Supp. 1355; Iskcon v. Schmidt, (1981) 523 F. Supp. 1303. 56. Rajasthan S.E. Bd. V. Mohan, A. 1967 SC 1856. (a) Where it is clothed with statutory power.57
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or the trustee of a private testator;

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a society organizing a public fair,

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and

(b)

Where the Government exercises control over the management and

policies of the private body.58 (c) (d) State.60 (e) Where the authority has been set up for administering a statute,61 or where Where it has been granted monopoly of a business by the State.59 Where it exercises functions which would normally be performed by the

statutory duties are imposed on it.62 (f) When the company is owned or substantially given financial assistance

by the Government.63 57.Sukhdev v. Bhagatram, A. 1975 SC 1331; Jaitla v. Commr., (1985) 1 S.L.R. 505 (para.8) SC. 58. C.I.W.C. v. Brojo, A. 1986 SC 1371; (paras. 23, 24, 69); Ramana v. I.A.A.I., A. 1979 SC 1628 (paras. 15-16); Ajoy v. Khalid, A. 1981 SC 487 (paras. 7, 11, 15); see also Housing Board of Haryana v. Haryana Housing Board Employees Union, (1996) 1 SCC 95 : AIR 1996 SC 434; Calcutta State Transport Corporataion v. Commissioner of Income-tax, West Bengal, (1996) 8 SCC 758; Food Corporation of India Workers Union v. Food Corporation of India, (1996) 9 SCC 439; U.P. State Cooperative Land Development Bank Ltd. V. Chandra Bhan Dubey, (1999) 1 SCC 741 : AIR 1999 SC 753. 59. Ramana v. I.A.A.I., A. 1979 Sc 1628 (paras. 15-16); Ajoy v. Khalid, A. 1981 SC 487 (paras,. 7, 11,15). 60. S.R.T.C. v. Devraj, A. 1976 SC 1027 (paras. 14); Ujjam Bai v. State of U.P., (1963) 1 SCR 778 (969). 61. L.I.C. v. Escorts, A. 1986 SC 1370 (para. 100). 62. Workmen v. F.C.I., A. 1986 SC 670 (paras. 16, 17). 63. Mehta v. Union of India, A. 1987 SC 1086 (para.29) C.B.

On the other hand, a recent Constitution Bench decision64 has made an obiter that all American decisions under the State action doctrine may not be applied to India, owing to different social conditions, and even where a private corporation becomes an agency of the State under article 12, its private activities which have no social impact may not be subject to the constitutional limitation of Fundamental Rights. Since such reservation has been introduced for the first time, we should await its further development by the Court to see whether this ride might operate as a retrograde step in the development of human rights. It should be noted, in the present context, that the agency of State action doctrine has been applied in several cases, 65 in Sri Lanka. In Canada, the question has not yet been authoritatively settled. In the provincial Courts, the prevailing view is that of S.32 (1)(b) of the Legislature and the Government, and not against private persons or authorities even when they are exercising statutory powers.66 There are, however cases where it has been held that authorities set up by statute, e.g., a municipality, 67 a hospital,68 or authorities which are controlled by the government,69

64. Wijetunga v. Ins. Corpn., (1985) LRC (Const.) 333 (338) ff.; Wijeratne v. Peoples Bank, (1985) LRC (Const.) 349 (355) ff.; Gunarantne v. Peoples Bank, (1987) LRC (Const.) 383. 65. Kohn v. Globerman, (1986) 27 DLR (4th) 583 (598-99) (Man.); Re Blainey, (1986) 26 DLR (4th) 728 (Ont.); Re Bhindi, (1985) 20 DLR (4th) 386 (B.C.). 66. Re Hardie, (1985) 24 DLR (4th) 257 (267) (B.C.); Re McCutcneon, (1983) 147 DLR (3d) 193 (O.R.). 67. Vancouver Hospital v. Stoffman, (1985) 23 DLR (4th) 146 (151) (B.C.). 68. Cf. Bancroft v University of Toronto, (1986) 24 DLR (4th) 620 (626) (Ont.). 69. Black v. Law Soc., (1983) 144 DLR (3d) 439 (445).

or those which have the power to issue regulations having the force of law,70 would come within the purview of section 32 (1)(b). Milestone of Public Interest Litigation in India One of the earliest cases of Public Interest Litigation was that reported as Hussainara Khatoon v. State of Bihar71. The case was concerned with a series of articles published in prominent newspaper- the Indian Express which exposed the plight of industrial prisoners in state of Bihar. A writ petition was filed by an advocate drawing the courts attention to the deplorable plight of these prisoners. Many of them had been in jail for longer periods than the maximum permissible sentences for offences they had been charged with. The Supreme Court accepted the locus standi of advocate to maintain the writ petition. Thereafter, a series of cases followed in which the court gave directions through which the right to speedy trial was deemed to be an integral and essential part of protection of life and personal liberty. (i) Blinding of Prisoners in Bhagalpur Jail72 The blinding of prisoners in Bhagalpur jail brought out a revolutionary change in attitude and thinking. The country was shocked to learn that barbarous practice of blinding of under trial prisoners was still going on at Bhagalpur Central Jail in Bihar. The method adopted for blinding the under trial prisoners was that a long needle used for stitching gunny bags (Takwa) or barbers nail cutter or cycle spoke was poked into their eyes and acid was poured into eyes sometimes with the help of dropper, sometimes with syringe and sometimes directly from bottle. The truth has a strange method of revealing itself inspire of veil of secrecy behind which blinding of these prisoners were subjected to this most 70. (1980) 1 SCC 81; See Upendra Baxi, The Supreme Court Trial: Undertrial & the Supreme Court Cases (Journal), at P.35. 71. Ali Yadav v. State of Bihar, AIR 1982 SC 1008. 72. Bandhua Mukti Morcha v. UOI, AIR 1984 SC 802.

inhuman torture. This was the first success of new strategy and immediately provided it with public acceptability. This is the beginning of modern strategy in which compensation be paid for damage done to their eyes besides punishing the police officers found guilty of committing atrocities upon them. (ii) Bonded Labours73 Bandhua Mukti Morcha, an organization dedicated to the cause of release of bonded labourers in country, sent a letter, subsequently treated as writ petition in Supreme Court complaining that inspire of article 23 and Bonded labours system (Abolition) Act, 1976, the practice was prevalent in stone quarries in Faridabad District where a large number of labourers from Maharashtra, M.P., U.P. and Rajasthan were working as bonded labours under the inhuman & intolerable conditions. Bandhua Mukti Morcha case is a typical instance providing apathy of executives towards implementation of social welfare legislations as also the potentiality of judicial process to secure social justice who lived the life of slavery of free India. What could not be achieved by entire machinery of central and state government said to be working for the benefit of labourers was achieved by the process of the court. These cases also justify the conclusion recorded by H. M. Seervai that if the broad view of locus standi which Bhagwati, J. has rightly adopted in judges case was not accepted, grave injury to the public would go unredressed.74 (iii) Protection to Child Labourers75

Peoples Union for Democratic Rights, an organization devoted to protect human rights, appointed three social scientists to personally study, investigate and report on 73. Constitutional Law of India (3rd Edn.) Vol 2 Para 16, 486. 74. Peoples Union for Democratic Rts v. UOI, AIR 1982 SC 1473. 75. AIR 1991 SC 417.

conditions of such workers employed in various construction works in connection with Asian Games at New Delhi. The report indicated employment of child labour and women labour on less than minimum wages and employment of workers under conditions violating various other labour laws. The organization addressed a letter to justice Bhagwati, enclosing the report & requesting appropriate judicial action. The court held that there is violation of article 24, 23 and 14. In M. C. Mehta v. State of T.N.76, the complaint of exploitation of child labour by the owners of match factories of Shivakasi in Tamil Nadu was made to the court. Court relied on article 39(f) and 45 to ensure not only the minimum wage but also other facilities for children. It also provided for insurance of such children and appointed a committee consisting of District Judge, District Magistrate and public activist operating in area to oversee proper implementation of directions contained in the judgment. (iv) Plight of Women Prisoners77 Plight of women prisoners brought to the notice of court by Sheela Barse, a journalist, by letter complaining of their horrible conditions whilst is police lock-up in the city of Bombay. She wrote that she had interviewed 15 women prisoners in Bombay Central Jail and 5 out of them told her that they had been assaulted by police, while in custody. This case indicates the anxiety of court to provide protection to women prisoners in police lock-up and for this purpose, court gave certain directions.78 These directions not only start the new human rights jurisprudence but show how the judicial power can attempt reorganizing socio-economic relations by going beyond conventional limits of law. It is also

76. Sheela Barse v. State of Maharashtra, AIR 1983 SC 377. 77. Ibid at P. 382. 78. AIR 1983 SC 339

an example of judicial creativity aiming at security social justice to those who would not otherwise get it. (V) Moksha for Mentally ill Prisoners In Veena Sethi v. State of Bihar, the court addressed itself to the illegal detention of certain prisoners in Hazaribagh Central jail for almost two or three decades. The Petitioner addressed a letter to justice Bhagwati which set the judicial process in motion. Considering their long period of detention, court also directed the state govt. to drop cases pending against these prisoners as it would be purely academic to pursue them. (VI) Improvement in Railway facilities and Safety79

Railways are the most important means of transport. One Dr. P.Nalla Thampi, a commuter in Kerala, field a writ petition in Supreme Court alleging violation of fundamental Rights guaranteed under article 19 and 21 of constitution and claimed a writ of mandamus against union of India for implementing reports of Kunzru, Wanchoo and Sikri Committees appointed as fact finding commission to enquire and report about numerous train accidents from 1970 onwards and for several other connected directions. This case can be cited as an example illustrating the courts, concern of common man desire to facilitate realization of his dream, for bright, peaceful & prosperous future. In Ramnath Shankar v. Pando Pandhaya & others80 seems to have gone a step ahead in the matter by directing the Railways to provide tilts & urinals at each Railway stations situated between Victoria Terminus and Diwa Station by employing the Pay and Use system and also requiring the Railway Authorities to ensure that these facilities would be maintained in good shape and kept clean. The court held that it would be public good if

79. Dr. P. Nalla Thapi v. UOI, 1983 (4) SCC 598. 80. AIR 1987 Bom 98.

Railways maintain toilets and urinals on suburban railway stations and adopt the principle of Pay and Use. (VII) Law Relating to Inquiry Suffered by leakage of Gas The concern of Supreme Court for victims of such tragedies is fully illustrated in its judgment in M.C.Mehta v.UOI.81 On 4th Dec, 1985, a major leakage of oleum Gas took place from one of the units of Shri Ram Foods & Fertilizers Industries owned by Delhi cloth mills, a public limited co. and affected large number of persons, both, workmen and public. It was claimed that an advocate practicing in this Hazari Courts at Delhi also died on account of inhalation of escaped oleum Gas. The Petitioner approached the Supreme Court by way of Public Interest Litigation raising seminal questions concerning the true scope and ambit of article 21 and 32. The judgment passed in this case proves how Public Interest Litigation helps in solving the problems of weaker sections that would otherwise not be able to get justice promptly. (VIII) Other Milestones If a person is wrongfully incarcerated without any authority, courts have been issuing writs to set him at liberty. Even before constitution, orders in nature of habeas corpus were being issued under section 491 of CrPC. The jurisdiction of civil courts in such matters had been doubtful as state had always claimed immunity from payment of any compensation under the pretext of exercise of sovereign function. In Makhan Singh v. State of Punjab82, Supreme Court, for the first time, recognized the right of person to claim compensation for illegal detention. The majority view was that such a claim has to wait till emergency in the country was lifted. The majority view in Makhan Singhs case was summoned in A.D.M.

81. (1987) 1 SCC 395 82. AIR 1964 SC 381

Jabalpur v. Shivkant Shukla83 to hold that if any detained person finds that the official detaining him had no such authority, such person can have his remedy for false imprisonment after the emergency was lifted and constitutional right to personal liberty was restored. The subsequently activist approach and concern over Supreme Court to the suffering of poor and down-trodden brought about revolutionary change in this judicial thinking. Rudal Shah v. State of Bihar,84 is the landmark decision in this respect. The Petitioners were languishing in jail for more than 14 years even after their acquittal and approached the Supreme Court claiming liberty and compensation for illegal incarceration. Though the Supreme Court expressed that proceeding under article 32 cannot be substituted for the infringement of rights and obligations which can be enforced efficaciously through ordinary process of court, it helped that it was not powerless in granting compensation to person deprived of his fundamental right. The state was accordingly directed to pay a sum of Rs. 35000/- as compensation for illegal arrest. This case, therefore, paved the way for development of new compensatory jurisprudence. Though the damages are ordinarily to be computed and awarded by civil court and depend on variety of factors, the court seems to have given a go bye to most of these considerations. In Sebastian Hongray v. UOI.85 In this case, a writ of habeas corpus issued by court was not obeyed. Counter affidavits were filed to show that the said person was not traceable. The court took exception to this plea and awarded an amount of Rs. 1 Lac as exemplary cost on respondents thereby further strengthening the law laid in Rudal Shahs case. The aforesaid amount for torture, agony and mental stress that they had to suffer and was awarded as a measure of exemplary cost. Since two persons whom the court had directed to be released 83. AIR 1976 SC 1206. 84. AIR 1983 SC 1083. 85. AIR 1984 SC 1025.

by issuing a writ of Habeas corpus were said to be missing, court observed that it is reasonable to infer that both of them have met with unnatural death. The message of Rudal Shah and Hongrey seems to have been carried forward in Bhim Singh v. State of J&K86 Relying on these cases, court held that it has the right to award monetary compensations by way of exemplary cost, as according to it, mischievous or malicious invasion may not be washed away by his being set free. The court according awarded a sum of Rs. 50000/- as compensation to Bhim Singh. Peoples Union for Democratic Rights v. State of Bihar87 only shows that court is not prepared to give up this new remedy developed by it. The petitions, an organization committed to upholding of fundamental rights of citizens, had moved the court under article 32. It noted that the arrest and release of few of dead people had been compensated by state to the tune of Rs 10000/-. It found no justification as to why the said compensation has not been given in every case of death or injury. The court, therefore, directed that without prejudice to the just claim or compensation, that may be advanced by the relatives of victims or by the injured persons themselves, for every injured person compensation of Rs.20000 and for every injured person compensation of Rs. 5000/- shall be paid, within 2 months from the date of order. Though the court gave no detailed reasons why it was issuing such a directions in exercise of powers under article 32, it is clear that it enforced articles 14 and 21 to award compensation to each victim or relative of dead person. Problems like Environment pollution88 allotment of house site to homeless89,

86. AIR 1986 SC 494 87. AIR 1987 SC 355. 88. AIR 1988 SC 2187. 89. AIR 1988 SC 408.

cleaning of Ganga90, Prevention of starvation death due to poverty91 Sexual exploitation of blinds92 and welfare of children in jails93 and Preventing glorification of Sati94 have moved courts conscience and it has shown its willingness to came out to provide guidelines to solve them. In Parmanand Katra v. UOI95, the court regretfully noted the plight of injured persons in criminal case and gave directions of far reaching importance. The court was faced with report published in Hindustan Times under the caption-Law helps the injured to die-and re-acted to it rather sharply by observing that a doctor at government hospital positioned to meet the states obligation to preserve and protect life, is duty bound to extend medical assistance to preserve life. They must attend to patient immediately and provide him necessary help. The patient whether he be an innocent person or be a criminal liable to punishment under laws of the society, it is the obligation of those who are in-charge of health of community to preserve life so that the innocent may be protected and guilty may be punished. In Kapila Hingorani v. State of Bihar96 Supreme Court noted the plight of employees of public sector unstatutory authorities in the state of Bihar. In a letter to Supreme Court, an advocate of Supreme Court, Kapila Hingorani in many incidents of death owing to starvation or malnutrition due to non-payment of salaries of workers working in these corporate sectors and also held the state of Bihar liable. 90. AIR 1988 SC 1115. 91. AIR 1989 SC 677. 92. AIR 1989 SC 1783. 93. AIR 1989 SC 1276. 94. AIR 1989 SC 1280. 95. AIR 1989 SC 2039. 96. (2003) 6 SCC 1.

In Dattary Nattuji Thaware v. State of Maharastra97, Supreme Court reiterated the recent trend from effect. Public Interest Litigation has now come to occupy an important field in administration of law should not become Public Interest Litigation or Politics Interest Litigation or latest trend, i.e, Paisa Income Litigation. In order of practice, the court stressed the necessity of imposing exemplary costs on people for bringing frivolous petitions. Scope of Public Interest Litigation in India The scope of Public Interest Litigation is very wide which is clear from the following principles1. The court in exercise of powers under article 32 or 226 of constitution can

entertain a petition filed by any interested person in the welfare of people who are in disadvantaged position and thus, not in a position to knock the doors of court. The court is constitutionally bound to protect the fundamental Rights of such disadvantaged people so as to direct the state to fulfil its constitutional promises. 2. Issues of public enforcement, enforcement of fundamental rights of large

number of public vis--vis the constitutional duties and functions of state, if raised, the court treat a letter or telegram as Public Interest Litigation upon relaxing the procedural laws as also the law relating pleadings. 3. Whenever injustice is meted out to a large number of people, the court

will not hesitate to step in. articles 14 and 21 as well as International Convention on Human Rights provide for reasonable and fair trial. 4. The common rule of locus standi is relaxed so as to enable the court to

look into the grievances complained on behalf of poor, deprived, illiterate and disabled who can

97. (2005) 1 SCC 590.

not vindicate the legal wrong or legal injury caused to them for any violation of any constitutional or legal right. 5. When the court is prima-facie satisfied about variation of any

constitutional right of a group of people belonging to disadvantaged category, it may not allow the state or central government from raising the question as to the maintainability of petition. 6. The dispute between two warring groups purely in the realm of private

law could not be allowed to be agitated as Public Interest Litigation. 7. However, in appropriate case, although the petitioner might have moved

a court in his private interest and for redressal of the personal grievances, the courting furtherance of public interest may treat it necessary to enquire into the state of affairs of subject of litigation in the interest of justice. 8. The court in special situations may appoint commission, or other bodies

for the purpose of investigating into the allegations and finding out facts. The court will not ordinarily transgress into policy. 9. The courts would ordinarily not step out of the known area of judicial

review. The High Courts although may pass an order for doing complete justice to the parties, it does not have a power akin to article 142 of constitution. 10. Ordinarily the High Court should not entertain a writ petition by way of

Public Interest Litigation questioning constitutionality or validity of a statute or statutory rule. Public Interest Litigation in Practice

The wide reach of Public Interest Litigation is best demonstrated by reference to some areas in which courts have made particularly significant pronouncements. Although the court has issued orders relating to a very wide range of Public Interest Litigations covering matters such as prisons and prisoners, the police, the armed forces, children, child labour, bonded labour, urban space, environment and resources, consumer issues, education, politics and elections, public policy and accountability, human rights and judiciary. Concisely, the four broad areas as illustrative are: (a) Human Rights Judicial activism in the area of Human rights has been facilitated in considerable measure by Public Interest Litigation. This is explified by the courts active concern with rights of detunues and undertrials, police excesses including arbitrary arrests, custodial violence and extra judicial killings, conditions in prison and other custodial institutions like childrens home, womens home, mental asylums, counter killings in Punjab and rights of victims of crime. In the early years of Public Interest Litigation, the court focused on the rights of prisoners and conditions of prisons. The court acted upon postcards, letters, articles in newspapers, press reports and petitions from a wide cross-section of citizens including lawyers and journalists to open the doors of court to the millions of under trials living in inhuman conditions in countrys prisons. First, the court would convert the facts brought before it into petitions under article 32. It would then issue directions to state agency concerned to provide information, and if this was not forthcoming, it would appoint a commissioner to elicit the facts. This would include release of persons unlawfully detained, ensuring the closure of their cases if found to be pending for unduly longtime, and even directing that the detenues be compensated and rehabilitated. The court also took the

opportunity to give directions to state agencies to minimize further violations of human rights. In the first Public Interest Litigation on prisoners rights, Hussainara Khatoon v. State of Bihar (I to VI),98 the attention of the court was drawn to the incredible situation of Bihar undertrials who had been detained pending trial for periods far in excess of maximum sentence for the offences they were charged with. The court not only proceeded to make the right to speedy trial the central issue of case but passed an order of general release of undertrials who had undergone detention beyond such maximum period. Kadra pahadiya v. State of Bihar99 was another case that dealt with issue of speedy trial. The conditions of life convicts in Tihar Jail attracted the courts concern in a petition sent to it by a prisoner. The court introduced humaneness into penitentiary system by requiring exceptional circumstances and adequate precautions for solitary confinement. In Supreme Court Legal Aid Committee Representing Undertrial Prisoners v.UOI,100 the Supreme Court gave directions regarding release on bail of undertrial facing charges under Narcotic Drugs and Psychiatric Substances Act, 1985. The issue of handcuffing and fettering of undertrials was brought before the Supreme Court by journalist Kuldip Nayyar. In a landmark judgement in D. K. Basu v. State of W. B. 101 the court acted upon a letter petition in August 1986 by the Chairman of Legal Aid Services, West Bengal, which drew attention to repeated instances of custodial deaths in West Bengal. In this case the court laid down the procedure to be followed by the police on the arrest of a person. It said: Police is, no doubt, under a legal duty and has a legitimate right to arrest a criminal and to interrogate him during the investigation of an offence but the law does not permit the use of third degree methods or torture of accused in custody during interrogation and investigation with a view to solve the crime. End cannot justify the means.. No society

98. (1980) 1 SCC 81. 99. (1981) 3 SCC 671. 100. (1994) 6 SCC 731. 101. (1997) 1 SCC 416. can permit it102. The early Public Interest Litigations had witnessed the award of compensation by the court to victims of human rights violations.103 Later, in a custodial death case, 104 the court explained the jurisprudential basis for the award of compensation in writ jurisdiction as a remedy for constitutional tort. These principles were authoratively reiterated in D. K. Basus case where the court declared that: Award of compensation for established infringement of the indefeasible rights guaranteed under article 21 is a remedy available in public law since the purpose of public law is not only to civilize public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved.105 During the troubled years of militancy in Punjab, there were several instances of encounter killings, some of which came to be examined in Supreme Court. In September, 1991, it directed the investigation of the encounter killings in Pilibhit by CBI.106 The killing of lawyers practicing in the Punjab & Haryana High Court during this period formed the subject matter of two Public Interest Litigations and resulted in the Supreme Court directing CBI investigation and payment of compensation to the families of the victims.107 In another Public Interest Litigation, the basis of CBI which established that seventeen Punjab police personnel had been responsible for a custodial death, the court 102. (1997) 1 SCC 439. 103. Sebastian M. Hongray v. UOI, (1984) 1 SCC 339, Bhim Singh v. State of J&K, (1985) 4 SCC 677

104. Nilabati Behra v. State of Orissa. 105. (1997) 1 SCC 416. 106. R.S. Sodhi v. State. 107. P & H High Court Bar Ass. v. State of Punjab, (1994) 1 SCC 616. awarded compensation of Rs. 2 lakh to the parents of victims.108 The concern of the court has also extended to the victims of crime. In Delhi domestic working womens forum v. UOI 109, the court was concerned with rape of innocent tribal girls by army jawans in a moving train between Ranchi and Delhi and ordered an ex-gratia payment of Rs. 10000 to each of the victims. The court recognized the trauma of the rape victims and set out the parameters for providing legal assistance to them at various stages. (b) The Judiciary Under the scheme of the constitution, issues concerning appointment and transfer of judges, their terms and conditions of service and their removal were initially thought to be predominantly within the domain of parliament and the executive. In the series of Public Interest Litigations, the Supreme Court has, however, articulated a dominant role for the judiciary in this area. S. P. Gupta v. UOI
110

was a Public Interest Litigation by a senior

advocate practicing in Allahabad. It challenged the transfer of judges from one High court to another. The Supreme Court declared that the executive had the final say in the matter of appointment of judges to the High Courts and the Supreme Court. More than a decade later, pursuant to a Public Interest Litigation filed by another lawyer, the correctness of this declaration was referred to a larger Bench
111

. The resultant decision in Supreme Court

Advocates-On-Record Association (SCAORA) v. UOI,112 saw a larger Bench of supreme 108. Ranjeet kumar v. Secretary, Home, State of Punjab, 1996 (2) SCALE SP-51. 109. 1994 (4) SCALE 608. 110. 1981 Supp. SCC 87.

111. Subhash Sharma v. UOI, (1991) Supp 1 SCC 574. 112. (1993) 4. SCC 441. The other issue in SCAORA was that by keeping unfilled a larger no. of vacancies in judges posts the right to judicial review was being violated even while independence of judiciary was being challenged. court reverse the view in S. P. Gupta and declare that the word consultation occurring in article 124(3) of constitution should be read to mean concurrence, thereby vesting the chief justice of India with the final say in the matter of appointments. The court added that the power so vested in the judiciary would be exercised through a collegiums consisting of Chief Justice of India and his two most senior colleagues 113. There is considerable controversy about whether the court has not amended the language of article by purporting to interpret it. The process of removal of judges consisted of two stages, i.e., the stage of investigation and proof of misbehavior was amenable to judicial review. It was the second stage, which began after the misbehavior was proved, viz, the process of discussion and voting in parliament, which was not amendable to judicial review. A Public interest litigation filed by the All India Judges Assocation 114 provided an opportunity for Supreme Court to give extensive directions to the state governments on various issues concerning the appointment and functioning of subordinate judiciary. The courts directions have included prescribing the minimum qualifications for appointment at various levels of subordinate judiciary115, provision of residential accommodation to every judicial officer, libraries, vehicles for travel and suggesting the setting up of an All India Judicial Services116. (c) Environment The area in which Public Interest Litigations contribution has been significant is environmental law. M.C Mehta, as a petitioner in person, was a pioneer in bringing a large number of issues to the court concerning environmental and ecological degradations. These

113. Re Special Reference No. 1 of 1998 (1998) 7 SCC 739 114. All India Judge Association v. UOI, 1994 (4) SCALE 5. 115. All India Judge Association v. UOI 1995 (5) SCALE 634. 116. M.C. Mehta v. UOI, (1987) 1 SCC 395. included the issues arising out of leak of oleum gas from factory in Delhi117, pollution in Delhi118, the danger of Taj Mahal from Mathura refinery119, regulation of traffic in Delhi120, and the degradation of Ridge area in Delhi121. The courts engagement with these matters has resulted in activating the statutory machinery established under various environmental laws. The courts activism in this area has, however, also attracted criticism. For instance, when the court ordered the closure of industries, it neither heard all the industries affected nor their workman before passing the order. This has resulted in these parties approaching of court with a series of interlocutory applications, taking up an inordinate amount of courts time, even while leaving aggrieved parties dissatisfied122. The dangers of unchecked industrialization has compelled the court to come down heavily on industry and develop the Polluter pays principle. This principle has been applied in the cases concerning shrimp farms,123 tanaries124, chemical industries in Rajasthan125 and Andhra Pradesh126 and distillary units in Tamil Nadu127, each of which were found discharging untreated effluents 117. M.C.Mehta v. UOI, (1996) 4 SCC 750. 118.Ibid, (1996) 4 SCC 351 & 750. 119. Ibid, (1997) 8 SCC 770. 120. 1996 (1) SCALE SP-22. 121. M.C. Mehta v. UOI, (1997) 11 SCC 227, 312 & 327. 122. Indian Council for Enviro-Legal Action v. UOI, (1997) 11 SCC 277, 312&327. 123. Vellore Citizen Welfare forum v. UOI, (1996) 5 SCFC 647. 124. Indian Councial for Enviro-Legal Action v. UOI, (1996) 5 SCC 281.

125. Ibid, (1995) 6 SCALE 578. 126. Re Bhavani River-Shakti Sugars Ltd. (1998) 6 SCC 335. 127. E.G. the PIL concerning vehicular pollution in Delhi has been listed for harming on more than 5 occasions so far. into water bodies or the soil. The court has adopted the practice of keeping these cases on its board to effectively monitor compliance with its directions128. By such monitoring, the court has ensured that a polluting unit is reopened only after it has satisfactorily installed pollution control devices. The court has also insisted on reparation at the cost of pollutant and restoration of damaged environment. The other principle the court has evolved is the precautionary principle which enjoins the state to anticipate the dangers of use of hazardous technology. In Vellore citizens welfare forum v. UOI129, the court was dealing with the problem of pollution caused by over 900 tanneries operating in 5 districts of Tamil Nadu. The court noticed that the leather industry was a major foreign exchange earner and Tamil Nadus export of finished leather accounted for 80% of countrys export of that commodity. Nevertheless, the court pointed out that the leather industry had no right to destroy the ecology, degrade the environment and pose a health hazard. It cannot be permitted to expand or even continue with the present production unless it tackles by itself the problem of pollution created by the said industry.130 The precautionary principle meant that the environmental measures taken by the state authorities must anticipate, prevent and attack the causes of environmental degradation.131 Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a person for postponing measures to prevent environmental degradation. Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a person for postponing measures to prevent environmental degradation. The court pointed out that these principles had been accepted as a part of

128. Supra note 66. 129. Ibid, at 657. 130. Ibid at 658. 131. Ibid at 660. environmental law of country132. The court undertook a similar exercise in relation to the pollution caused to the soil and ground water in a village in Jodhpur by five chemical industries which had been discharging untreated effluents into the soil.133 The court in this case resurrected the rule of strict liability earlier laid down in oleum Gas leak case134 and declared that once an activity was found to be hazardous, the person engaged in it was liable to make good the loss caused irrespective of whether or not he had taken reasonable care when engaged in it.135 The court through a series of orders has also sought to ensure the supply of lead free petrol through retail outlets in four major cities136 or deregistering old cars and compelling car manufacturers to switch over to higher internationally approved standards of manufacture137. While the courts have enforced pollution standards and sometimes even improved on them in Public Interest Litigations, their orders have give rise to issues involving workers rights. Whenever a polluting industry, like the workmen and their families, are directly

132. Similar directions were issued by court in relation to pollution caused to the Nakkavagu river in Andhra Pradesh by 56 industries operating in Patancheru Bolaram district. The court directed compensation amount of Rs. 1.39 corers to be paid initially by state govt. which was then free to recover it from the industries. 133. M.C.Mehta v. UOI, (1987) 1 SCC 395 in which court invoked the Polluter Pays Principle. 134. Re Bhavani River-Sakthi Surgar Ltd, (1998) 6 SCC 335.

135. M.C.Mehta v. UOI, (1996) 2 SCALE SP-92. 136. Ibid, 1999 (3) SCALE 6, 166, 501, The Court set dead-lines for car manufactures to switch over to Euro I&II standard. 137. Buffalo Traders Welfare Association v. Maneka Gandhi, (1994) Supp. 3 SCC 448. affected and are very often not heard before the closure is ordered. In Delhi alone, this has happened in the closure of idgah slaughterhouse,
138

the relocation of polluting industrial

units in Delhi, 139 and removal of encroachments on the Ridge area of Delhi140. Similarly, in seeking to strictly implement the forest act and wild life protection act,
141

the interest of

tribal population effected by such orders may not have been taken into account. (d) Public Accountability Another area of abiding public concern which the Supreme Court has dealt with in Public Interest Litigations is good governance and the accountability of public officials. The trust reposed in persons holding public positions and exercising public power is belied when discretion is exercised irregularly and sometimes even for collateral considerations. These acts of mis-demeanour get exposed through what have now been termed as scams. The Supreme Court has played a major role in not only unearthing scams but also carrying the discovery of such facts to their logical conclusion. The problem of the discretionary quota vested in the minister concerned for allotment of petrol pumps and oil and gas dealership first surfaced in Public Interest Litigation filed by the center for public interest litigation142. The Supreme Court requested the Attorney General to submit draft guidelines and then set them those down in its judgment as norms that would govern all future allotments of dealership under the discretionary quota on compassionate grounds. The issue again surfaced in Supreme Court in a Public Interest Litigation filed by Common Cause. The court, on examining the records 138. M.C. Mehta v. UOI, (1997) 11 SCC 227, 312 & 327.

139. M.C.Mehta v. UOI, 1996 (1) SCALE SP-22. 140. Pardeep Krishen v. UOI, (1996) 8 SCC 599. 141. Centre for Public Interest Litigation v. UOI, (1995) Supp. 3 SCC 382. 142. Common Cause v. UOI, (1996) 6 SCC 530 at 552, 553. with government, found many officials in the office of Captain Satish Sharma, the then minister of state for petroleum and gas, or their relatives had been allotted petrol pumps and gas agencies out of his discretionary quota. The court quashed the fifteen allotments. After issuing a show cause notice to Satish Sharma and hearing him, the court directed that he pay a sum of 50 Lakh rupees as exemplary damages to the exchequer. In the matter of out of turn allotment of government accommodation, the court, in a public interest litigation by an advocate, found that Sheila Kaul while serving as a Union Minister of Urban Development had allotted two shops to her grandsons, one to the maidservant of her son, one to the handloom manager of firm owned by her son in law, another to a close friend, and one to the nephew of the minister of state in the same ministry. Using her discretionary power, she had allotted stall to relatives and friend of her personal staff and officials of Directorate of Estates. The court quashed the allotments 143 and eventually directed her to pay a sum of 60 lakh as exemplary damages to the government exchanger144. Another public interest litigation was filed by a journalist, Vineet Narain and three others, including two advocates, seeking direction to CBI to investigate allegations of bribe given by Jain brothers to several high ranking politicians and bureaucrats in return for favours in the award of government contracts. The petition, filed in 1993, pointed out that although the CBI had gathered evidence in 1991, it was not proceeding with the case since the persons involved held high positions in public life. The seizure of divvies from jain brothers had led to the discovery of financial support to them by clandestine & illegal

means, by use of tainted funds obtained through hawala transactions. This in turn disclosed a nexus between politicians, bureaucrates and criminals who were all recipients of money 143. Shiv Sagar Tiwari v. UOI, (1996) 6 SCC 599. 144. Vineet Narain v. UOI, (1996) 2 SCC 199 at 200. from unlawful sources given for unlawful consideration. Human Rights The endorsement of one more legislation that has held the entire north-eastern part of country in its clutches for over 40 years was a disappointment for public interest litigation petitioners who had placed on courts record innumerable individual instances of abuse of power under legislation. Arrests, detentions, prisoners, riots, child labour and bonded labour were the other issues that engaged the courts attention. A letter written in 1984 to the Supreme Court by a prisoner Rama Murthy from the central jail, Bangalore about denial of rightful wages, non-eatable food and physical and mental torture was registered as a writ petition. Eight years later a report was called for from the district Judge, Bangalore. The report which was submitted in 1993 pointed out that visits by prisoners to their homes, their production before courts on the date of hearing and in hospitals for treatment were not satisfactory. Thereafter in an elaborate judgment in 1996145, the court summarized the entire case law concerning prisoners and their rights. It discussed the various aspects of problems faced by prisoners; overcrowding, delay in trial, neglect of health and hygiene, streamlining of jail visits, management of open air prisons. Watch Dogs International in its public interest litigation informed the court that Munshi Kedis , who were convicts in Tihar jail authorized by the prison administration to supervise the movements of prisoners had severely assaulted one Raj Kumar inside the jail and caused his death. The court asked the Inspector General of prisons to explain under what

authority these Munshi Kedis were working and what steps had been taken to prevent the misuse of authority given to them146. In a related petition the court ordered compensation of

145. Rama Murthy v. State of Karnatka, (1997) 2 SCC 642. 146. Watch Dogs International v. UOI, (1998) 8 SCC 338. 2, 50000/- to be paid by the state to the widow of deceased prisoners147. Instituting a commission of inquiry into a communal riot or any serious law and order problem is the standard response of government to tide over the crisis. The communal riots in Meerut in September and October 1981 left many killed and wounded. The U.P government appointed Justice C.D. Parekh to inquire into the incidents and submit a report. Meanwhile public interest litigation was also filed in 1984 in the Supreme Court. The commission submitted its report in 1988. In 1996 the court asked the government to file an affidavit to substantiate its claim that recommendations made in the report was yet to be considered by the cabinet and that the information earlier given to it was incorrect. Remarking on the casual attitude of state government in not even considering the report for 10 years, the court gave it 2 months time to place on record a summary of report as well as action taken thereon148. In December 1991 riots broke out in several areas of Karnataka and on its border with Tamil Nadu following a bandh call given by Karnataka government in connection with its dispute with Tamil Nadu over sharing of waters of river Cauvery. With their grievances not being redressed by the government, victims who lost their houses and other property in arson and looting filed petitions in representative capacity in the Supreme Court in 1993, interalia, claiming compensation. When the petitions were taken up for hearing in 1996, the Karnataka government informed the court that it was still considering the report of Justice Venkatesh Commission appointed by it to inquire into the incidents and make

recommendations. Ultimately, it informed the court in 1998 that it disagreed with the finding of the commission that there was a system failure. It gave no indication whether it agreed 147. Murti Devi v. State of Delhi, (1998) 9 SCC 604. 148. Fazalur Rehman v. State of U.P., (1998) 7 SCC 453. with the rest of the report. The court directed that in the circumstances the writ petitions had to be heard without delay149. Another issue is of child labour and bonded labour in which a writ petition by Bandhua Multi Morcha filed in 1984 regarding the extensive employment of child labour in carpet industry in U.P. was disposed of 14 years later by the Supreme Court 150. The court reiterated that directions given by it earlier in M.C. Mehta v. UOI151 were feasible and inevitable152. The government of India was directed to convene a meeting of the ministers concerned of state governments to evolve principles or policies for progressive elimination of employment of children below the age of 14 years in all employments,. 153 That such orders do not achieve much in terms of actual implementation was brought home clearly in the suo motu contempt proceeding initiated by the Supreme Court against the officials of the state of Haryana when it found that its orders regarding bonded labour made in writ petition brought in 1982 by Bandhua Mukti Morcha, were still not implemented.154 A tragic account of cruelty meted out to child workers was the subject matter of a public interest litigation brought to the Supreme Court by PUCL based on report by an NGO, Compaign against Child Labour. The report pointed out that one Rajput used to go to Madurai in Tamil Nadu & procure children for work by paying paltry sums of Rs. 500/-, 1000/- to poor parents. These children were them forced into bonded labour. Eight year old, Shiva Murugan, so procured, was beaten to death by Rajput. Through the courts orders, 149. V. Ranganathan v. UOI, (1998) 8 SCC 201. 150. Bandhua Mukti Morcha v. UOI, (1997) 10 SCC 549.

151. (1996) 6 SCC 756. 152. Supra Note 93 at 557. 153. Ibid. 154. Bandhua Mukti Morcha v. UOI, (1998) 4 SCALE 22. three other boys aged 13, 15 and 16 years were rescued by Maharashtra police which was still unable to trace Shiva Murugans brother Raja Murugan. Rajput had in the meantime been convicted for offence of murder. The court ordered a compensation of Rs. 2 Lac to be paid by the state of Maharashtra to Raja Murugan for himself and his deceased brother. The other three boys were to be paid Rs. 75000/- each.155 Judicial Activism in Public Interest Litigation Public Interest Litigation has become a major and prominent segment of the jurisdiction of Supreme Court and High Courts in India. Whilst its necessity and utility in upholding the rule of law is undoubted, its extravagant by courts has brought public interest litigation into controversy. The judicial activism gets its highest bonus when its orders wipe some tears from some eyes. This jurisdiction is somehow different from collective action. The number of public interest litigation cells was open all over India for providing the footing or at least platform to the needy class of the society. It comes under the epistolary jurisdiction. Much of the misapplication of public interest litigation jurisdiction can be avoided, if it is remembered that public interest litigation is basically the application of principles of judicial review by courts of actions of government and public authorities, with the modifications of courts allowing the applicant to approach the court on the behalf of other persons, who themselves are unable to come to the court because of ignorance of the difficulty and cost of litigation. In such cases, the court relaxes the strict rule of locus standi of the applicant and also relaxes the formalities. It may even entertain a letter addressed to

the court by the complainant. Public interest litigation was devised as a means for redressing the poor and marginalized sections of society, who were unable to get judicial help on their own. What is not within the bounds of judicial review by the courts cannot be within their 155. Peoples Union for Civil Liberties v. UOI, (1998) 8 SCC 485. reach because it comes to the description of public interest litigation before it. Public interest litigation jurisdiction is, therefore a unique jurisdiction by which courts can transcendent to act as a body to set right actions of government, which is believed to be wrong or could be improved. Another misconception is equating public interest litigation with judicial activism in India. Judicial activism is not public interest litigation. Judicial activism is a word of many shades. Once these fundamental of judicial review are borne in mind by courts in exercising public interest litigation jurisdiction, it can be a useful judicial benefit of the public, particularly of the poor, indigent and marginalized sections of society, whose fundamental rights are to be court orders. It is the historic and constitutional duty of courts to safeguard and enforce the basic liberties and rights of individuals strongest and least vulnerable, when it grounds its interventions in enforcing the basic rights of individuals against authority. It is true that there is misconception not only in the public but also in the courts about the functions of judiciary under the constitution public interest litigation is employed. It appears that the public has developed a syndrome of routine recourse to the courts for every perceived failure and the courts on their parts have come to believe that it is their judicial duty to intervene in such failures by making orders for improving the government. There is vast catalogue of such micro-managing orders made by the Supreme Court itself, which can be by any principle of judicial review. They include the orders for making roads in hilly areas, wearing of helmets and seat belts, disposal of garbage, control of traffic ,control of unmanned railway crossings, prevention of pollution action plans to control and prevent

menace of monkies in cities, control of breeding of animals in zoos, control of noise and banning of fire crackers. At times, committees set up and have effectively displaced governments administration in those areas. Such public interest litigation petitions are filed in Supreme Court in its original jurisdiction under article 32 of the constitution. Article 32 is for the fundamental rights. It is hard to find any genuine enforcement of any fundamental right in such public interest litigation petitions. The petitions make of article 14 in its liberal interpretation of nonarbitrariness or of article 21 in its expanse of a right to life. Article 32 seems to meaning for all practical purposes.156 The right to judicial remedy is itself a guaranteed right. To make its strategy feasible, the Supreme Court of India worked out its plan by taking two historical steps. The first step taken in this direction was amending the implementation of word locus standi, which allows only aggrieved person or victim to approach the court for seeking relief. This was in fact the main obstacle in providing access to justice to the disadvantaged or economically weaker section of society. Accordingly the rule of standing was withdrawn in case of public interest litigation. The supreme court of India make it clear that any bonafide person or public spirited individual or association or NGO to move to the court on the behalf of those who were unable to approach the court directly. Subsequently, the Supreme Court of India felt that permitting any member of public to approach the court in public interest would not be enough to encourage a person acting probono publico to shoulder the responsibility, burden of litigation with its costs and hassles. So in order to remove this obstacle and to make public interest litigation convenient and without costs for public spirited persons, the Supreme Court of India took the second historical step by simplifying in the procedural law, i.e., merely writing a letter to the court would be enough to permit the court to take cognizance of the matter and start necessary proceedings.

156. www.halsburys.in According to the jurisprudence of article 32 of the constitution of India, The right to move the Supreme Court by appropriate proceedings for the enforcement of rights conferred by this part is guaranteed. Ordinarily, only aggrieved party has right to seek redress under article 32. The concept of public interest litigation as follows, where a legal wrong or legal injury is caused to a person or to a determinate class of persons by the reasons 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 unable to approach the court for relief, any member of public can maintain an application for an appropriate direction, order or writ in 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 legal wrong or legal injury caused to such person or determinate class of persons. The Supreme Court in Indian Banks Association, Bombay v. M/S Devkala Consultancy Services157 held that In an appropriate case, where the petitioner might have moved a court in her private interest and for redressal of personal grievance, the court in furtherance of public interest may treat it a necessity to enquire into 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. In a historical public interest litigation158, the Supreme Court declared that the handcuffs and other fetters shall not be forced upon a prisoner while lodged in jail or while in transport or transit from one jail to another or to the court or back.

157. 2004 (4) SC 587 158. Citizen for Democracy v. State of Assam, (1995) 3 SCC 743. Aspect of Public Interest Litigation (a) Remedial in Nature Remedial nature of public interest litigation departs from traditional locus standi rules. It indirectly incorporated the principles enshrined in part IV of constitution into part III of constitution. By riding the aspiration of part IV into part III of the constitution has changed the procedural nature of Indian law into dynamic welfare one. Bandhua Mukti Morcha v. UOI159, Unikrishan v.State of A.P.160 were the obvious examples of this change in nature of judiciary. (b) Representative standing It can be seen as a creative expansion of well accepted standing exception which allows a third party to file a habeas corpus petition on the ground that the injured party can not approach the court himself. And in this regard the Indian concept of public interest litigation is much broader in relation to the American. Public interest litigation is a modified form of class action. (c) Citizen Standing The doctrine of citizen standing thus marks a significant expansion of the courts rule, from protector of individual rights to guardian of rule of law where ever threatened by official lawlessness. (d) Non-adversial Litigation In the words of the Supreme Court in Peoples Union for Democratic Rights v. UOI, we wish to point out with all the emphasis at our command that public interest litigation is totally different kind of litigation from ordinary traditional litigation which is essentially of an adversary character where there is dispute between two litigating parties, one making

159. (1984) 4 SCC 161. 160. claim or seeking relief against the other and other opposing such claim or resisting such relief. Non-adversial litigation has two aspects: (i) Collaborative Litigation- In collaborative litigation the effort is from all the sides.

The claimant, the court and government or public official, all are in collaboration here to see that basic human rights become meaningful for the large masses of the people. Public interest litigation helps executive to discharge its constitutional obligations. Court assumes three different functions other than that from traditional determination and issuance of a decree. (a) Ombudsman- The court receives citizen complaints and brings the most important ones to the attention of responsible government officials. (b) Forum- The court provides a forum or place to discuss the public issues at length and providing emergency relief through interim orders. (c) Mediator- The court comes up with possible compromises. (ii) Investigative Litigation It is investigative litigation because it works on the reports of the Register, District. Magistrate, Comments of experts, newspaper etc. (e) Crucial Aspects The flexibility introduced in the adherence to procedural laws. In Rural Litigation & Entitlement Kendra v. State of U.P., Supreme Court rejected the defence of res judicata. The court refused to withdraw the public interest litigation and ordered compensation too. To curtail custodial violence, the Supreme Court in Sheela Barse v. State of Maharashtra, issued certain guidelines. Supreme Court has broadened the meaning of Right to live with

human dignity available under the article 21 of Constitution of India to greatest extent possible. (f) Relaxation of Strict rule of Locus Standi The strict rule of locus standi has been relaxed by way of (a) Representative standing (b) Citizen standing. In D.C. Wadhwa v. State of Bihar, the Supreme Court held that a

petitioner, a professor of Political Science who had done implementation of constitutional provisions, challenged the practice followed by the state of Bihar in repromulgating a number of ordinances without getting the approval of legislative. The court held that the petitioner as a member of public has sufficient interest to maintain petition under article 32. The rule of locus standi have been relaxed and a person acting bonafide and having sufficient interest in the proceeding of public interest litigation will alone have a locus standi and can approach the court to wipe out violation of fundamental rights and genuine infraction of private profit or political motive or any oblique consideration court has to strike balance between two conflicting interests: (i) Nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others. (ii) Avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive and legislative. It is depressing to note that on account of trumpery proceeding initiated before the courts, innumerable days are wasted, which time otherwise could have been spent for the disposal of cases of genuine litigants. Though the Supreme Court spares no efforts in fostering and developing the laudable concept of public interest litigation and extending its ling arm of sympathy to the poor, ignorant, oppressed and the needy whose

fundamental rights are infringed and violated and whose grievances go unnoticed, unrepresented and unheard.161

161. www.legalserviceindia.com. (g) Epistolary Jurisdiction The judicial activism gets its highest bonus when its orders wipe some tears from some eyes. This jurisdiction is somehow different from collective action. Number of public interest litigation cells were open all over India for providing the footing or at least platform to the needy class of the society. Factors that have contributed to growth of Public Interest Litigation Among, the numerous factors that have contributed to the growth of litigation in this country, the following deserve special mention: 1. Unlike Britain, India has a written constitution which through part III (Fundamental Rights) and part IV (Directive principles of State Policy) provides a framework for regulating relations between the state and its citizen and between citizens inter-se. 2. India has some of the most progressive social legislation to be found anywhere in the world whether it be relating to bonded labour, minimum wages, land ceiling, environmental protection etc. This has made it easier for performing its duties in ensuring the rights of the poor as per the law of the land. Although social and economic rights given in Indian Constitution under part IV are not legally enforceable, courts have creatively read these into fundamental rights thereby making them judicially enforceable. For instance, the right to life in article 21 has been expanded to include right to free legal aid, right to live with dignity, right to education, right to work, freedom from torture, bar fetters and hand cuffing in prisons etc. public interest

Sensitive judge have constantly innovated on the side of the poor. For instance, in the Bandhua Multi Morcha case in 1983, the Supreme Court put the burden of proof on respondent stating it would treat every case of forced labour as a case of bonded labour proven otherwise by employer. Similarly in Asiad worker judgment case, Justice P.N. Bhagwati held that anyone getting less than minimum wage can approach the Supreme Court directly without going through the labour commissioner and lower courts. In public interest litigation cases where the petitioner is not in a position to provide all the necessary evidence, either because it is voluminous or because the parties are weak socially or economically, courts have appointed commissions to collect information on facts and present it before the bench. Mechanism for Protection of Human Rights through Public Interest Litigation Features of public interest litigation through its mechanism, the courts seek to protect human rights in the following ways1. By creating a new regime of human rights by expanding the meaning of fundamental

right to equality, life and personal liberty. In this process, the right to speedy trial, free legal aid, dignity, means and livelihood, education, housing, medical care, clean environment, right against torture, sexual harassment, solitary confinement, bondage and servitude, exploitation and so on emerge as human rights. These new re-conceptualized rights provide legal resources to activate the courts for their enforcement through public interest litigation. 2. By fashioning new kinds of reliefs under the courts writ jurisdiction. For example,

the court can award interim compensation to the victims of governmental lawlessness. This stands in sharp contrast to the Anglo-saxon model of adjudication where interim relief is limited to preserve the status quo pending final decision. The grant of compensation in public interest litigation matter does not preclude the aggrieved person from bringing a civil

suit for damages. In public interest litigation cases the court can fashion any relief to the victims. 3. By judicial monitoring of state institutions such as jails, womens protective homes,

juvenile homes, mental asylums and the like. Through judicial invigilation, the court seeks gradual improvement in their management and administration. This has been characterized as creeping jurisdiction in which the court takes over the administration of these institutions for protecting human rights. 4. By devising new techniques of fact finding. In most of the cases the court has

appointed its own socio-legal commissions for inquiry or has deputed its own official for investigation. Sometimes it has taken the help of National Human Rights Commissions or Central Bureau of Investigation or experts to inquire into human rights violations. This may be called investigative litigation. Social Justice through Public Interest Litigation The Supreme Court has played an active role in attaining social justice through the mode of public interest litigation. In Hussainara Khatoon v. State of Bihar162 the public interest litigation was filed by an advocate on the basis of a news report highlighting the plight of thousands of undertrials languishing in various jails in Bihar. This litigation exposed the failure of criminal justice system and led to a chain of proceedings resulting in the release of over 40000 undertrial prisoners. The right to speedy trial was recognized as fundamental rights under article 21 of constitution. Bandhua Mukti Morcha v.UOI163, the Supreme Court considered the plight of bonded labourers engaged in stone quarries of Haryana. An action in the form of PIL was initiated for identification, release and rehabilitation of bonded labourers. The court issued direction to the Haryana government in this regard, which were updated from time to time to meet the end of justice. In Sheela

Barse v. UOI164, a public interest litigation was filed to assist the release of juveniles and asked for the information regarding the number of such juveniles who are placed in jails. In 162. AIR 1979 SC 1360. 163. (1984) 4 SCC 161. 164. AIR 1986 SC 1773. PUDR v. Commissioner of Police165, the attention of Supreme Court was drawn to the police atrocities committed against poor people who were forcibly taken to the police station in Delhi to work there without wages. As a consequence of such atrocities, one person died. While granting compensation package of Rs. 75000/- to the legal representatives of the deceased, the court directed the recovery of same from erring policeman. In Chiranjit Kaur v. UOI166, the petitioners husband was major in Army died while in service in mysterious circumstances. No proper investigation was made regarding the cause of his death; his case was handled with culpable negligence and cynical indifference by the authorities concerned. It was held that the widow and her minor children were entitled compensation of Rs 6 lakh as well as to the special family pension and the children allowance according to the relevant rules. In SAHELI v. Commissioner of Police167, the court directed the government to pay Rs. 75000/- as compensation to the mother of victim who died because of beating by police officer. The writ petition was filed by the women and Civil Rights Organization known as SAHELI on the behalf of the mother of the victim. In Arvinder Singh Bagga v. State of U.P168, the Supreme Court awarded compensation of Rs 10000/- to the victim of police atrocities. In this case, the police had arrested married women on the pretext of her being a victim of abduction and rape. She was threatened and commanded to implicate her husband and his family in case of abduction and forcible marriage thereafter. The police officer subjected her to physical, mental and psychological torture to make her submit to the demand of police and to abandon her legal

165. (1989) 4 SCC 730. 166. (1994) 2 SCC 1. 167. AIR 1990 SC 513 168. (1994) 4 SCC 602. marriage. In Rudal Shah v. State of Bihar169, court awarded Rs. 30000/- as compensation to the petitioner who had to remain in jail for 14 years because of irresponsible conduct of state authorities. In Bhim Singh v. State of J&K 170, petitioner was awarded compensation of Rs. 50000/- for violation of constitutional rights. Nilabati Behra v. State of Orissa171, the deceased aged about 22 years was taken into police custody and beaten to death and then was thrown on railway track which after managed to escape. The mother of the deceased sent letter to Supreme Court alleging custodial death of her son and claimed compensation on ground of violation of article 21. The court treated the letter as a writ petition under article 32 and impleaded the state of Orissa, the police ASI and the concerned constable to pay Rs. 1,50000/- as compensation to the deceaseds mother and further a sum of Rs.10000/- as costs to the Supreme Court legal aid committee. The court however, clarified that this will not affect the petitioners right to claim compensation on other proceedings in which case the amount awarded by the court would be adjusted. Abuse of Public Interest Litigation Public interest litigation is a weapon, which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful will of public interest, an ugly private malice, vested interest and /or publicity seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social

justice to citizens. The petition of such persons should be thrown out at the threshold and in appropriate cases exemplary costs should be imposed. Public interest litigation cannot be 169. (1983) 4 SCC 141. 170. (1985) 4 SCC 677. 171. (1993) 2 SCC 746. invoked by a person or body of persons to satisfy his or its personal grudge and enmity. If such petitions under article 32 were entertained, it would amount to abuse of process of the court, preventing speedy remedy to other genuine petitioners from this court personal interest cannot be enforced through the process of this court under article 32 of the constitution in the garb of public interest litigation. A person invoking the jurisdiction of this court under article 32 must approach this court for the vindication of fundamental rights of affected persons and not for the vindication of his personal grudge or enmity. It is the duty of this court to discourage such petitions and to ensure that the course of justice is not obstructed or polluted by unscrupulous litigants by invoking the extra ordinary jurisdiction of this court for personal matters under the garb of public interest litigation. It is thus clear that only a person acting bonafide and having sufficient interest in proceeding of public interest litigation will alone have a locus standi and can approach the court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly, a vexatious petition under the colour of public interest litigation brought before the court for vindicating any personal grievance deserves rejection at the threshold. It must be noted that once the court has accepted the public interest litigation, its withdrawal is not permissible unless the court permits the same. Thus, the petitioner is not entitled to withdraw his petition at his sweet will unless the court sees reason to permit withdrawal. In granting the permission the court would be guided by considerations of public interest and

would also ensure that it does not result in abuse of process of law. Thus a writ petitioner who comes to the court for relief in public interest must come not only with clean hands like any other writ petitioner but also with clean heart, clean mind and clean objective.

Conclusion Public interest litigation is working as an important instrument of social change. It is working for the welfare of every section of society. Its the sword of every one used only for taking the justice. The innovation of this legitimate instrument proved beneficial for the developing country like India. Public interest litigation has been used as a strategy to combat the atrocities prevailing in society. It is an institutional initiative towards the welfare of needy class of the society. In Bandhua Mukti Morcha v. UOI, the Supreme Court ordered for release of bonded laborers. In Murli S. Dogra v. UOI, the Supreme Court banned smoking in public places. In a landmark judgment in Domestic Working Womens Forum v. UOI, the Supreme Court issued guidelines for rehabilitation and compensation for the rape on working women. In Vishaka v.State of Rajasthan, the Supreme Court has laid down exhaustive guidelines for preventing sexual harassment of working women in place of their work. Public interest litigation, all over the country, have not taken very kindly to such court decisions. They do fear sound the death-knell of the people friendly concept of public interest litigation. However, bonafide litigants of India have nothing those public interest litigation activists who prefer to file frivolous complaints will have to pay compensation to then opposite party a welcome move because no one in the country can deny that even public interest litigation activists should be responsible and also notable here that even the Consumers Protection Act, 1986 has been amended to provide compensation to parties in

cases of frivolous complaints made by consumers. In any way, public interest litigation now does require a complete restructuring. It is humbly submitted that public interest litigation is still is in experimental stage. Many deficiencies in handling the kind of litigation are likely to come on the front. But these deficiencies can be removed by innovating better techniques. In essence, the public interest litigation develops a new jurisprudence of the accountability of the state for constitutional and legal violations adversely affecting the interest of the weaker elements in the community. Overuse and abuse of public interest litigation can only make it stale and ineffective. Since it is an extraordinary available at a cheaper cost to all citizen of the country, it ought not to be used by all litigants as a substitute for ones or as a means to file frivolous complaints. We may end with the hope once expressed by Justice Krishna Iyer, the judicial activism gets its highest bonus when its orders wipe some tears from some eyes.172 172. www.legalserviceindia.com.