GRASS-ROOT ACCESS TO JUSTICE IN INDIA BY RAWISEN GURIA

EVOLUTION OF THE PUBLIC INTEREST LITIGATION AS THE GRASS ROOT

ACCESSS TO JUSTICE MECHANISM IN INDIA

Abstract

No access to justice or denial of justice have forced the courts to evolve a

novel branch of jurisprudence to deliver inclusive justice to these classes
which came to be known as Public Interest Litigation (PIL). Public Interest
Litigation as a legal action initiated in a court of law for the enforcement of
public interest or general interest in which the public or class of the
community have pecuniary interest or some interest by which their legal
rights or liabilities are affected. PIL is a policy for the protection of social
and economic rights of the deprived groups. The critical objective of PIL is
societal change by changing structural inequalities and power relations. PIL
in India is primarily judge led and even judge induced. India has developed a
judicial system that is responsive to the concerns of the poor and judges who
are capable of giving legal effect to the claims that are voiced and find
appropriate remedies. The expansion of PIL in the country discovered its own
pitfalls and drawbacks. Indian PIL might rather be a Phoenix: a whole new
creative arising out of the ashes of the old order

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INTRODUCTION

Justice is open to everybody in the same way as the Ritz Hotel –

Judge Sturgess, 22 July 1928

The strategy of public interest litigation has been evolved by this Court with a view to
bringing justice within the easy reach of the poor and disadvantaged sections of the
community - Observation made by the honorable bench of the Supreme Court in the case of
Bihar Legal Support Society v. The Chief Justice of India (AIR 1987 SC 38)

No access to justice or denial of justice due to ignorance, illiteracy and impecuniousness of

the down trodden like poor, illiterate, women, children, wanton, labourers etc. have forced
the courts to evolve a novel branch of jurisprudence to deliver inclusive justice to these
classes which came to be known as Public Interest Litigation (PIL).

The term originated in the United States in the mid-1960s. The expression was initially used
by American academic Abram Chaves to explain the tradition of people who wanted to bring
social change through judgments that expanded rules and implemented accessible laws.1 The
words ‘Public Interest’ means “the common well being, public welfare.”2 The Black Law’s
Dictionary defines “Public Interest Litigation as a legal action initiated in a court of law for
the enforcement of public interest or general interest in which the public or class of the
community have pecuniary interest or some interest by which their legal rights or liabilities
are affected.”

PIL is a policy for the protection of social and economic rights of the deprived groups.
Constitutional privileges have been used to create social rights and litigation based on the
right to equality has extended social benefits to new groups.3 The critical objective of PIL is
societal change by changing structural inequalities and power relations. 4

1
Abram Chaves, The Role Of The Judge In Public Law Litigation, 89 HARVARD LAW REVIEW 1281 (1976)
2
As defined in Oxford English Dictionary 2nd Edition Volume XII
3
Right to life and human dignity has been recognized by the Supreme Court to grant social rights to various
deprived groups of people.
4
Societal change is the desired common end which the courts or individuals want to achieve. The impression
that courts ought to device societal changes initiates the controversies regarding the appropriate role of courts as
these changes blur the differences between law and politics. An argument is put forward when the courts give
judgement which change structural inequalities and power relations the question pertaining to legitimate role of
courts in processes of societal change and whether an active role for the courts on social rights issues turn them
into purely political bodies undermining their legitimacy.

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I. PIL IN THE INDIAN JUDICIAL SYSTEM

“Even while retaining the adversary system, some changes may be effected whereby the
judge is given a greater participatory role in the trial so as to place the poor, as far as
possible, on a footing of equality with the rich in administration of justice.” - Justice P.N.
Bhagwati5
Though the earliest case of PIL was Hussainara Khatoon v. State of Bihar6, the term PIL was
used for the first time in the case of Fertilizer Corporation Kamgar Union v. Union of India
(AIR 1981 SC 344) by Justice V.R. Krishna Iyer and Justice P.N. Bhagwati. It is by the
mechanism of PIL that the courts have been awarding monetary compensation for
constitutional wrongs such as extra-judicial killings, unlawful detention and custodial torture
by state authorities.7

The Courts in pro bono publico granted relief to the inmates of the prisons, provided legal
aid, directed speedy trial, emphasized on maintenance of human dignity etc. Representative
actions/ pro bono publico were entertained in trust of justice to the common man and a
crucial deterrent to those who wished to evade the genuine issues on the virtues of suspect
dependence on tangential technical shortcomings. Pro bono publico constitutes a noteworthy
position in the present day judicial system as they give the courts greater responsibility to
render justice to the underprivileged sections of the society. The courts evolved jurisprudence
of empathy and in place of being objective and unflustered umpire and became vigorous
contributor in the dispensation of justice.8

5
Ashok Desai & S. Muralidhar, ‘Public Interest Litigation: Potential and Problems’ in B.N. Kirpal et. al. (eds.),
Supreme But Not Infallible (Oxford University Press, 2000) 159-192, at p. 161
6
AIR 1979 SC 1360; Upendra Baxi, The Supreme Court under trial: Undertrials and the Supreme Court,
SUPREME COURT CASES (Journal Section) (1980) , at p. 35;
A prominent newspaper the Indian Express published series of articles which exposed the plight of under-trials
prisoners in the state of Bihar. Many of them had been in jail for longer periods than the maximum permissible
sentences for the offences they had been charged with. A writ petition was filed by an advocate drawing the
Court’s attention to the deplorable plight of these prisoners. The Supreme Court accepted the locus standi of the
advocate to maintain the writ petition. These proceeding led to the release of more than 40, 000 undertrial
prisoners. Right to speedy justice emerged as a basic fundamental right which had been denied to these
prisoners. 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 an essential part of the protection of life and personal liberty.
7
Lutz Oette, India’s International Obligations Towards Victims Of Human Rights Violations: Implementation
In Domestic Law And Practice, in HUMAN RIGHTS, JUSTICE AND CONSTITUTIONAL
EMPOWERMENT (C. Raj Kumar & K. Chockalingam ed. Oxford University Press 2007) at p. 462-485
See observations justifying the payment of compensation for human rights violations by state agencies in the
following decisions: Bhim Singh v. State of Jammu and Kashmir, (1985) 4 SCC 677; Nilabati Behera v. State of
Orissa, (1993) 2 SCC 746; D.K. Basu v. Union of India, (1997) 1 SCC 416
8
Guruvayur Devaswom Managing Commit. v. C.K. Rajan, Judgement Today 2003 (7) Supreme Court 312

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Article 32 of the Constitution of India says, “The right to move the Supreme Court by
appropriate proceedings for the enforcement of the rights conferred by this part is
guaranteed”. Ordinarily only the aggrieved party has the right to seek redress under Article
32. But the objective of PIL was to guarantee redressal to those who were underprivileged or
were ignorant of their legal entitlements. The dilution of the requirement of ‘locus standi’ for
initiating proceedings and becoming ‘people-friendly’ procedure is an important hallmark of
PIL in India.9 The rule of locus standi have been tranquilled and a person acting with
bonafide intention and having sufficient interest in the proceeding of PIL can advance to dab
out violation of fundamental rights and genuine infringement of constitutional provisions but
not for individual gain or personal profit or political reason or any oblique contemplation to
the courts.10

When the Supreme Court made direct access in such cases which were simple, cheap and un-
bureaucratic and introduced a non-adversarial process and lenient criteria of legal standing,
this resulted in a surge of public litigation.11 It has been argued that the dilution of the
requirement of locus standi has opened up the floodgates for frivolous cases and PIL either
involves the litigants’ private interests or are vehicles for gaining publicity rather than
seeking justice for disadvantaged groups.12

Epistolary jurisdiction or letter petition which allows any person or group to get cognizance
from the Supreme Court gave massive momentum to litigation on behalf of underprivileged
groups.13 They were introduced to provide easy access to the court.14 But these matters were
filed directly at the level of the Supreme Court or the High Court and the parties did not had a

9
Susan D. Susman, Distant voices in the Courts of India: Transformation of standing in Public Interest
Litigation, 13 WISCONSIN INTERNATIONAL LAW JOURNAL 57 (1994)
10
Ashok Kumar Pandey v. State of West Bengal (2004) 3 SCC 349
11
Bhagwati, P. N. ,Judicial Activism And Public Interest Litigation, COLUMBIA JOURNAL OF
TRANSNATIONAL LAW Volume 23(1985)
A landmark case is People's Union for Democratic Right vs. Union of India (1982 (2) S.C.C. 253) where the
Indian Supreme Court held that a third party could directly petition the court, through a letter or other means,
and seek its intervention in a matter where another party's fundamental rights were being violated
12
T.R. Andhyarujina, Judicial Activism and Constitutional Democracy in India (Bombay: N.M. Tripathi, 1992)
13
Galanter, M. and J. K. Krishnan, Bread for the poor: access to justice and the rights of the needy in India, 4
HASTINGS LAW JOURNAL 55 (2004) at p. 789-834. But it also illustrates problems associated with lowering
access barriers, in terms of handling the increased case load, misuse of the procedure, and prevent public interest
litigation from becoming a means for the advancement of middle-class concerns, for example in the
environmental field, on behalf of the concerns of the poorest.
14
Bhagwati, P. N., Judicial Activism And Public Interest Litigation, COLUMBIA JOURNAL OF
TRANSNATIONAL LAW Volume 23(1985) at p.57. Through the Agra Protective Home case and the Bandhua
Mukti Marcha case, the Court institutionalized the “practice of appointing socio -legal commissions of inquiry
for the purpose of gathering relevant material in public interest litigation”

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evocative prospect to present evidence on record before the start of the court proceeding. To
overcome which the Courts evolved the practice of appointing ‘fact-finding commissions’ on
a case-by-case basis which were deputed to inquire into the subject-matter of the case and
report back to the Court.15

II. ROLE OF JUDGES IN PIL MOVEMENT

While labels can be borrowed, history cannot be16

15
Ashok Desai & S. Muralidhar, ‘Public Interest Litigation: Potential and Problems’ in B.N. Kirpal et. al.
(eds.), Supreme But Not Infallible (Oxford University Press, 2000) 159-192, at p. 164-167
16
Upendra Baxi, Taking Suffering Seriously: Social Action Litigation In The Supreme Court Of India, THIRD
WORLD LEGAL STUDIES(1985), p.108

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PIL in India is primarily judge led and even judge induced. Justice V.R. Krishna Iyer was one
of the fore-runners in this and his elevation to the Supreme Court in 1974 opened the
floodgates of populist decisions. The major reasoning behind his decisions was that he
insisted that the law was meant for the people and not vice-versa. His neo-Marxists leanings
meant that people meant the ‘proletariat’ and not the ‘properteriate’17
PIL gained further inducement during the Emergency period of 1975-76 when legal aid to
people was one of the key points of the twenty two point programme launched by Indira
Gandhi.18
India has developed a judicial system that is responsive to the concerns of the poor and
judges who are capable of giving legal effect to the claims that are voiced and find
appropriate remedies.
Judges have developed a series of new methods to surmount impediments to tackle what they
believed to be socially pertinent cases. In proceedings seeking guidelines to guarantee
legislative responsibility or ecological security the courts are more like collective problem-
solvers rather than rancorous dispute among the advocates. It also seems clear that
proceedings that are branch of a broader scheme are more prone in affirmative verdict that
are realized and cause changes in policy. Though even a single case may have an important
consequence on jurisprudence but a universal consequence on social policy is more probable
where there is an overall strategy building up jurisprudence in the field and organisational
machinery that is capable to exploit on the impetus provided by the legal process and sustain
political stress during mobilisation and deliberation.19
The escalating reputation of PIL with activists on social rights is somewhat surprising in light
of the academic cynicism concerning its effectiveness as well as its suitability on normative
justification20. Justice S.P. Barucha has expressed the need for caution in the following

17
K.M.Sharma, The Judicial Universe of Mr. Justice Krishna Iyer, 4 SUPREME COURT CASES (Journal
Section) (1981) at p. 38
18
Upendra Baxi, Legal Assistance to the Poor,27 ECONOMIC AND POLITICAL WEEKLY 1005 (1975)
19
The Indian Supreme Court definitely is amongst the most vigorous courts in the world and it also is among
the most compassionate of democratic and procedural rights. But it has been incapable to develop a persistent
and profound schema on individual rights. The best justification for that paradox is that the Indian sustains
edifice for legal mobilization remains weak and fragmented like the multifarious financial, legal, and
organizational resources necessary for appellate litigation. Some lawyers frequently volunteer their services for
arguing rights-based claims, but the fragmented, individualized structure of the legal profession limits the
overall impact of their efforts. Rights organizations exist but their funding is inadequate to finance continuing
litigation campaigns.
20
Scholars have also questioned the efficacy of what are widely regarded as great triumphs of public interest
litigation, such as Brown v Board of Education (The 1954 case in the US on desegregation in schools) There is
also an extensive theoretical debate on whether social rights belong in the courtroom, questioning the
justiciability of social rights on normative as well as methodological grounds

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words: “This court must refrain from passing orders that cannot be enforced, whatever the
fundamental right may be and however good the cause. It serves no purpose to issue some
high profile mandamus or declaration that can remain only on paper. It is counterproductive
to have people say ‘The Supreme Court has not been able to do anything’ or worse. It is of
cardinal importance to the confidence that people have in the Court that its orders are
implicitly and promptly obeyed and is, therefore, of cardinal importance that orders that are
incapable of obedience and enforcement are not made.”21
An example of such is the case of Vishaka v. State of Rajasthan22

III. PIL AND SOCIAL RIGHTS

21
Ashok Desai & S. Muralidhar, ‘Public Interest Litigation: Potential and Problems’ in B.N. Kirpal et. al.
(eds.), Supreme But Not Infallible (Oxford University Press, 2000) 159-192, at p. 182
22
D.K. Srivastava, Sexual Harassment And Violence Against Women In India: Constitutional And Legal
Perspectives, in HUMAN RIGHTS, JUSTICE AND CONSTITUTIONAL EMPOWERMENT (C. Raj Kumar
& K. Chockalingam ed. Oxford University Press 2007) at p. 486-512; The petition in that case originated from
the gang-rape of a grassroots social worker. In that opinion the Court invoked the text of the Convention for the
Elimination of all forms of Discrimination Against Women (CEDAW) and framed guidelines for establishing
redressal mechanisms to tackle sexual harassment of women at workplaces. Though the decision has come
under considerable criticism for encroaching into the domain of the legislature, the fact remains that till date the
legislature has not enacted any law on the point. It must be remembered that meaningful social change, like any
sustained transformation, demands a long-term engagement. Even though a particular petition may fail to secure
relief in a wholesome manner or be slow in its implementation, litigation is nevertheless an important step
towards systemic reforms (1997) 6 SCC 241.

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When traditional legal remedies were inadequate, new were created, including monitoring
agencies in charge of enforcing their orders.23
PIL is used and projected as a stratagem to influence social policy in fields such as health,
environment, housing, land, education and gender. Campaigners see it as a means through
which the voice of the marginalized can be expressed into the legal-political arrangement and
as an instrument to make the state more receptive and responsible to their rights.
The worth PIL ought to not only be judged in terms of how a case fares in court or whether
the provisions of the decision are complied with. It is as important to look at the broader
impact of the litigation process on social policy directly and during influencing public
discussions on social rights and the maturity of jurisprudence. The universal impact of PIL is
not inevitably straight to its success in court. The PIL may also indirectly impact on public
discussion and policy.
Assemblage whose civil liberties are sullied should be proficient to recognize and articulate
their civil liberties claims and voice them in the legal scheme or have their rights affirmed on
their behalf. Courts must be receptive to social rights claims that are expressed. Law is
frequently portrayed as stationary authority which in shimmering power relations in society
has an anti-poor bias.24 Marginalised public in numerous cases lack essential legal literacy
and are not conscious of their civil liberties or don’t see the trouble and objections they
experience in terms of rights contraventions.25The judges should be competent of
pronouncing sufficient lawful way to tackle the social rights claims and find efficient
solutions. In many cases the process of voicing social rights claims are not driven by
marginalized groups themselves but initiated from the outside, by public interest litigators,
local or international. But while judges and litigators alike acknowledge the importance of the

23
Bhagwati, P. N., Judicial Activism And Public Interest Litigation, COLUMBIA JOURNAL OF
TRANSNATIONAL LAW Volume 23(1985) at p.576; Critics warned that the Court began to act as a ‘parallel
government’, to which Justice Bhagwati replied that the judges were ‘merely enforcing the constitutional and
legal rights of the underprivileged and obligating the Government to carry out its obligations under the law. The
poor cannot be allowed to be cheated out of their rights simply because those who should act do not act, act
partially, or fail to monitor what they are doing’
24
Structures of inequality involve both the formation of judiciary and the perspective within which they
function. They are entrenched in the rules, practice and norms that propagate these institutions. Legal and
regulatory institutions in turn influence the allocation of opportunities and the processes by which these
opportunities can be leveraged to augment well-being.
25
Often those whose social rights are most severely violated lack this knowledge. To what extent there are civil
society and community organisations mobilizing around social rights issues, legal literacy and rights awareness
programmes in place, human rights education in schools, and a focus on social rights issues in the media, are
important factors influencing the level of rights awareness and legal literacy and thus the likelihood of social
rights claims being voiced.

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legal arguments placed before them by the parties, and in some cases by amicus curiae26, the
ability of judges to independently assess the claims made, and thus to some extent offset
inequalities in legal representation, is central to a fair hearing.27
For progressive social rights verdicts to have a societal impact they must be convincing,
obeyed and executed through legislative/executive/administrative action and transformed into
universal transformation through societal plan and opinionated exercise.
Litigation is not an objective in itself but a possible means to be heard and there is little
rationale for marginalised groups to turn to this if substitute strategies offer faster or
improved projections for success are more cost effective, less uncertain or more suitable. This
does not mean that litigation is always feinting out where potentially more effectual substitute
exists. In several cases litigation forms part of a broader stratagem and is appreciated both for
its mobilisation prospective and for the executive acknowledgment that the court can give of
the grievance as a rights contravention.28
Cases regarding tangible activities that debase the active circumstances concerning a right as
is the case with forced evictions, and cuts in social benefits or cases concerning addition of
rights to formerly debarred groups like women, homosexuals, minorities are more likely to
succeed than more ‘political’ demands for new policies or substantial budget allocations. 29 A
number of factors coalesce to sway the impact of the litigation process, the concrete
acquiescence with the judgment as well as its broader social and political effects.30

26
“Friend of the court” with relevant expertise who are accepted (and in some cases invited by the court) to
present argument without being party to the case
27
Marc Galanter, Why The “Haves” Come Out Ahead: Speculations On The Limit Of Legal Change, 9 LAW
AND SOCIETY REVIEW 95 (1974)
Investigations into whether and why “the haves come out ahead” shows that this to a large extent comes down
to differentials in legal representation (the well off, such as rich corporations, can afford better lawyers) and to
the experience of ‘repeat players’ (big litigants, such as large state institutions, build expertise in engaging with
the courts ).
28
Developing countries are frequently characterized by a legal pluralism which often includes a strong informal
judicial system based on ‘traditional’ or ‘customary law’. In many cases the lower costs, easy access as well as,
in some cases, high local legitimacy of informal judicial systems may provide poor people with a disincentive to
seek redress through the formal judicial system. Customary systems may be integrated with the formal judicial
apparatus fulfilling functions within the lower courts or function an independent judicial system operating in
parallel to the formal one.
29
This allows court to enforced social rights in the same way in which civil and political rights are traditionally
enforced – by ordering the state to refrain from acting, thus allowing them to draw analogies from areas with
which they are more familiar.
30
Effects of court decisions can rarely be measured directly, since structural inequalities and power relations in
a particular area are the combined outcomes of a host of different factors, and the impact of a court decision is
difficult to isolate. Usually, a more realistic methodology for assessing the ’transformative effect’ of particular
judgments is to look qualitatively at their ‘ripple effects’. That is, investigate the steps taken to comply with and
implement the judgment, whether it has lead to changes in laws, regulations and policies, or has changed the
pattern of administrative/lower court decisions, and the norms applied by other institutions (for example in the
monitoring standards of human rights commissions).

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IV. RISE AND FALL OF PIL?

Justice R.S. Pathak has observed – “There is always the possibility in public interest
litigation, of succumbing to the temptation of crossing into territory which properly pertains
to the legislature or to the executive government.”31

The expansion of PIL in the country discovered its own pitfalls and drawbacks. The authentic
reasons and cases of public interest have retreated in the milieu. Reckless PIL activists try to
utilize this extraordinary remedy available at a cheaper cost as a substitute for ordinary ones.
As a result the apex court has been constrained to set certain guidelines for PIL. Frivolous
cases could be filed without investment of heavy court fees as required in private civil
litigation. The lowering of the locus standi requirement has permitted privately motivated
interests to pose as public interests.

The court should not allow its process to be abused by vested interest to delay legitimate
administrative action or to gain political objectives. Pressure groups who could not achieve
their aims through the administrative process or political process may try to use PIL to further
their vested aims and interests. The court must exercise greatest caution and adopt procedure
ensuring sufficient notice to all interests likely to be affected. In the landmark case of Raunaq
International Limited v IVR Construction Ltd32, Justice Sujata V Manohar fittingly articulated
that when a stay order is acquired at the request of a private party or a body litigating in
public interest, any interim order which impedes the venture from proceeding further must
provide for the reimbursement of costs to the public in case ultimately the litigation started by
such an individual or body fails. In other words the public must be compensated both for the
delay in the implementation of the project and the cost escalation resulting from such delay.
When a petition is filed as a public litigation the Court must satisfy itself that the party which
has brought the litigation is litigating bona fide for public good. The public interest litigation
should not be merely a cloak for attaining private ends of a third party or of the party bringing
the petition. Even when public interest litigation is entertained, the Court must be careful to
weigh conflicting public interest before intervening.

31
(1984) 3 SCC 161, at p. 232
32
(1999) 1 SCC 492

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Even though it is very much essential to curb the misuse and abuse of PIL any move by the
government to regulate the PIL results in widespread protests from those who are not aware
of its abuse and equate any form of regulation with erosion of their fundamental rights.

The principle denigration against PIL is that it detracts from the constitutional principle of
‘separation of powers’ by allowing the Courts to capriciously meddle with policy-choices
made by the legislature and pass orders that may be difficult for the executive agencies to
implement. It is argued that in light of the increasing case-load before the appellate judges,
the PIL cases impose an additional ‘gate-keeping’ role and impede efficiency. From the
standpoint of the judges, it is reasoned that quite often there are no checks against decisions
or orders that amount to ‘judicial overreach’ or ‘judicial populism’.

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V. CONCLUSION

It would be suitable to conclude by quoting Cunningham, “Indian PIL might rather be a

Phoenix: a whole new creative arising out of the ashes of the old order.”33
PIL symbolizes the initial endeavor by a budding common law state to sever away from legal
imperialism perpetuated for centuries. The transfer from legal centralism to legal pluralism
was provoked by the disenchantment with recognized legal scheme. The changes brought by
PIL are both substantial and structural. It has fundamentally changed the conventional legal
responsibility so as to facilitate the court to transport justice within the reach of the common
man. PIL is still is in experimental stage and many deficiencies in handling the kind of
litigation are likely to come on the front which can be removed by innovating better
techniques. PIL develops a new jurisprudence of the accountability of the state for
constitutional and legal violations adversely affecting the interests of the weaker elements in
the community. 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”.

33
Clark D. Cunningham, Public Interest Litigation In The Indian Supreme Court: A Study In The Light Of
American Experience, 29 JOURNAL OF INDIAN LAW INSTITUTE 494 (1987)

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(1987)

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