Public Interest Litigation: What It Is, and How It Came About

In one line

Public interest litigation is a case brought by someone who has suffered no injury himself, on behalf of people who have and who cannot come to court.

In exam wording: public interest litigation is the exercise by the Supreme Court under Article 32 and by the High Courts under Article 226 of their writ jurisdiction at the instance of a public spirited person acting pro bono publico, the traditional requirement of locus standi having been relaxed for persons unable by reason of poverty, helplessness, disability or a socially or economically disadvantaged position to approach the court themselves.

The problem it was invented to solve

The old rule was simple: only a person whose own legal right has been infringed may sue. It has an obvious virtue, which is that it keeps strangers out of other people's disputes.

It also has an obvious consequence. The people whose rights are violated most severely are the least able to come to court. An undertrial who has been in jail longer than his maximum sentence cannot file a writ petition. A bonded labourer in a stone quarry cannot instruct counsel. If only the injured may sue, and the injured cannot sue, the right is real and the remedy is not.

Public interest litigation is the answer the Supreme Court gave to that. Everything else about it follows from this one problem, and an answer that starts anywhere else has started in the wrong place.

The constitutional text it is built on

Read the words, because two of the leading cases turn on them.

Article 32(1): the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

Article 32(2): the Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by Part III.

Article 226(1): notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, directions, orders or writs, including the five writs, for the enforcement of any of the rights conferred by Part III and for any other purpose.

Three things to notice, and each is worth a mark:

Article 32(1) says "appropriate proceedings" and stops. It prescribes no form. That is the hook on which the whole jurisdiction hangs, and Bandhua Mukti Morcha says so expressly.

Article 32 is itself a fundamental right. It sits in Part III, and Article 32(4) says the right shall not be suspended except as the Constitution provides.