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

Article 226 is wider in subject and narrower in reach. Wider, because it extends to "any other purpose" and not only to fundamental rights. Narrower, because it is territorial. So a public interest matter that is not about a fundamental right can go to a High Court and cannot go to the Supreme Court under Article 32.

S.P. Gupta: the case that opened the door

S.P. Gupta v. Union of India, decided 30 December 1981, P.N. Bhagwati J with A.C. Gupta, S.M. Fazal Ali, V.D. Tulzapurkar and D.A. Desai JJ.

Facts. Practising advocates challenged a circular of the Law Minister seeking the consent of Additional Judges to appointment elsewhere, and challenged short-term appointments and a transfer of Chief Justices. A preliminary objection was taken that the petitioners had suffered no legal injury of their own and therefore had no locus standi, the argument being that only a person who has suffered legal injury may maintain a writ petition, and that no third party may seek redress for the person injured.

Held. The Court rejected the objection and restated locus standi for public law. Where a legal wrong or legal injury is caused to a person or to a determinate class of persons, and that person or class is by reason of poverty, helplessness or disability or a socially or economically disadvantaged position unable to approach the court for relief, any member of the public may maintain an application for an appropriate direction, order or writ in the High Court under Article 226, and, where a fundamental right is breached, in the Supreme Court under Article 32.

Then the passage that created the epistolary jurisdiction. Where the weaker sections of the community are concerned, the Court said, it would not insist on a regular writ petition and would "readily respond even to a letter addressed by such individual acting pro bono publico", because "procedure is but a handmaiden of justice"; it would cast aside the technical rules of procedure and treat the letter of the public-minded individual as a writ petition and act upon it.

And, in the same passage, the limit. The individual who moves the court must be acting bona fide with a view to vindicating the cause of justice, and if he is acting for personal gain or private profit or out of political motivation or other oblique consideration, the court should reject his application at the threshold, whether it comes as a letter or as a regular writ petition. As a matter of prudence and not as a rule of law, the Court added, the jurisdiction should so far as possible be confined to a determinate class or group rather than to individual wrongs raised by a third party.

Why it matters. It is the foundation. It relaxed locus standi, it created the epistolary jurisdiction, and, in the same breath, it stated the bona fide limit that Balwant Singh Chaufal would turn into directions almost thirty years later. Students who present S.P. Gupta as pure expansion have read half of it.

Bandhua Mukti Morcha: why a letter is an "appropriate proceeding"

Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802, decided 16 December 1983, P.N. Bhagwati J with R.S. Pathak and Amarendra Nath Sen JJ.

Facts. An organisation working for the release of bonded labourers addressed a letter to Bhagwati J alleging that labourers from different parts of the country were working in stone quarries in Faridabad, Haryana, in inhuman and intolerable conditions, that many were bonded labourers, and that the social welfare laws were not being implemented for them. The letter named the quarries and gave particulars of the labourers. The Court treated the letter as a writ petition and appointed commissioners to inquire. The State Government objected that the petition was not maintainable under Article 32, that commissioners could not be appointed, and that reports resting on ex parte statements untested by cross-examination had no evidentiary value.

Held. Rejecting all the contentions and allowing the petition, the Court held that Article 32 lays down no procedure. Article 32(1) guarantees the right to move the Court by appropriate proceedings, and the Constitution leaves it to the Court to determine what is an appropriate proceeding. The Supreme Court Rules prescribe the procedure normally to be followed, and a party should ordinarily conform to them, but the Rules cannot limit the Court's jurisdiction to entertain a proceeding made otherwise. In an appropriate case the Court is competent to treat a proceeding not in conformity with the Rules as an appropriate proceeding under Article 32, because fundamental rights are "too sacred to be ignored or trifled with merely on the ground of technicality or any rule of procedure."

The Court also called the State Government's objection to maintainability reprehensible, saying that a Government charged under the constitutional scheme with bringing about social and economic justice should welcome rather than baulk an inquiry by the court into a complaint that workers are held in bondage.

Why it matters. S.P. Gupta said the Court would treat a letter as a petition. Bandhua Mukti Morcha explains why it may, and does it out of the words of Article 32(1) itself. It is also the authority for the Court's own fact-finding machinery, the appointment of commissioners, which is what makes research for a public interest petition a different exercise from research for a suit, and chapter 740 builds on that.

Ashok Kumar Pandey: what public interest litigation is not

Ashok Kumar Pandey v. State of West Bengal, AIR 2004 SC 280, (2004) 3 SCC 349, decided 18 November 2003, Doraiswamy Raju J with Arijit Pasayat J.

Facts. A petitioner appearing in person filed a petition under Article 32 asking that a death sentence, already affirmed by the High Court and the Supreme Court, be converted to life imprisonment because it had not been executed for a long time. He had learnt of the matter from a television news item. Mercy petitions had already been rejected by the Governor of West Bengal and by the President in 1994. Asked what his locus standi was, he answered that as a public spirited citizen he could present the petition.

Held. The petition was dismissed, without costs. Neither the Code of Criminal Procedure nor any other statute permits a third party stranger to question the correctness of a conviction and sentence. Where there is material to show that a petition styled as a public interest litigation is a camouflage to foster personal disputes, it is to be thrown out. Public interest litigation, the Court said, should not become "publicity interest litigation" or "private interest litigation" or "politics interest litigation". Only a person acting bona fide and having sufficient interest has locus standi, and not one acting for personal gain, private profit, political motive or any oblique consideration. Such a petitioner must come not only with clean hands but with a clean heart, a clean mind and a clean objective.

The Court described busybodies, meddlesome interlopers and officious interveners as breaking the queue of genuine litigants by wearing the mask of public interest litigation, and said their petitions deserve to be thrown out at the threshold, in appropriate cases with exemplary costs.

Why it matters. It is the case most often quoted for what public interest litigation is not, and it supplies the practical test. The question is not whether the subject sounds important. It is whether this petitioner is acting bona fide, and whether a stranger is permitted to raise this grievance at all.

Balwant Singh Chaufal: the history, and the eight directions

State of Uttaranchal v. Balwant Singh Chaufal, AIR 2010 SC 2550, (2010) 3 SCC 402, decided 18 January 2010, Dalveer Bhandari J with Dr Mukundakam Sharma J.

Facts. The appointment of L.P. Nathani as Advocate General of Uttarakhand was challenged by public interest litigation in the High Court on the ground that, having attained the age of 62 before appointment, he was ineligible under Article 165 read with Article 217. The High Court entertained the petition and directed the State Government to decide the issue within fifteen days. The State appealed. Despite service of notice, the petitioners who had filed the writ petition did not appear before the Supreme Court, which the Court said demonstrated their non-seriousness and non-commitment in filing the petition.

Held, on the history. The Court traced public interest litigation through three phases:

• Phase I, in which the rule of locus standi was relaxed so that the fundamental rights of the poor and marginalised could be protected. The Court said the Supreme Court and the High Courts earned great respect and credibility for it.
• Phase II, from the 1980s, in which directions were given to protect ecology and environment. The Court noted that it has a regular Forest Bench, and gave the conversion of Delhi's public transport to CNG as a recent example.
• Phase III, in which the courts intervened for probity in governance and against corruption.

Held, on the abuse. Saying it had become imperative to streamline public interest litigation and to preserve its purity and sanctity, the Court issued eight directions:

1. The courts must encourage genuine and bona fide PIL and effectively discourage and curb PIL filed for extraneous considerations.
2. Rather than every judge devising his own procedure, each High Court should frame rules for encouraging genuine PIL and discouraging PIL filed with oblique motives, within three months, and send a copy to the Secretary General of the Supreme Court.
3. The courts should prima facie verify the credentials of the petitioner before entertaining a PIL.
4. The court should be prima facie satisfied regarding the correctness of the contents of the petition.
5. The court should be fully satisfied that substantial public interest is involved.
6. Petitions involving larger public interest, gravity and urgency must be given priority.
7. The court should ensure the PIL is aimed at redressal of genuine public harm or public injury and that there is no personal gain, private motive or oblique motive behind it.
8. Petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods.

Why it matters. It is the modern authority. It states the history in a form a student can use, and directions 3, 4 and 5 are the reason the research in chapter 740 has to be done properly: the court will now test the petitioner's credentials and the correctness of the contents before it entertains the petition at all.

Public interest litigation and the representative suit compared

Students confuse these, and the Code of Civil Procedure supplies a clean contrast.

Order I rule 8 allows one or more of numerous persons having the same interest in one suit to sue or be sued on behalf of all so interested, with the permission of the court or on its direction. The court must then give notice to all persons so interested, at the plaintiff's expense, personally or by public advertisement. Any person on whose behalf the suit is brought may apply to be made a party, and the decree binds all of them.

Order I rule 8A is different again: it lets the court permit a person or body of persons interested in a question of law directly and substantially in issue to present an opinion, where it is necessary in the public interest.

The distinction to hold on to: a representative plaintiff is one of the injured; a public interest petitioner is not injured at all. Order I rule 8A, which lets an outsider offer an opinion in the public interest without becoming a party, sits between the two and is worth a sentence in an answer.

A worked example

A journalist learns that a district hospital's neonatal unit has had no functioning oxygen supply for four months, and that the State has not filled sanctioned posts of paediatricians. No patient has come forward.

Can she petition? On S.P. Gupta, yes. There is a legal injury to a determinate class, the patients of that hospital, and that class is by reason of poverty and helplessness unable to approach the court itself. She is a member of the public acting pro bono publico.

Which court? If the claim is framed as a breach of the right to life under Article 21, either the Supreme Court under Article 32 or the High Court under Article 226. If it is framed only as a failure to comply with State health rules, Article 226 alone, because Article 32 reaches only fundamental rights while Article 226 extends to "any other purpose".

Must it be a formal petition? No. On Bandhua Mukti Morcha the court may treat a letter as an appropriate proceeding under Article 32. But see chapter 740: in practice a properly drawn petition with annexures is far more likely to be entertained, and Chaufal direction 4 is the reason.

What will the court ask first? On Chaufal directions 3 and 4, who she is and whether the contents are correct. Her answer to the first should be her work and her lack of any interest in the outcome; her answer to the second is the research.

Suppose she is a member of a political party contesting the seat. On Ashok Kumar Pandey the petition is in danger. Political motivation is an oblique consideration, and a petition that is a camouflage for something else is to be thrown out. The remedy is not to conceal the fact, which would be worse, but to have the facts so well established that the petition does not depend on who brought it.

Suppose instead she asks for compensation for one named patient. Then it is an individual wrong raised by a third party, which S.P. Gupta itself said should as a matter of prudence not be entertained where the class is not determinate, and Ashok Kumar Pandey shows what happens to a stranger who takes up one person's cause.

What beginners get wrong

Treating PIL as a separate jurisdiction. It is not. It is Article 32 and Article 226, exercised with locus standi relaxed. There is no PIL Act.

Thinking any citizen may raise anything. Ashok Kumar Pandey: a third party stranger cannot question a conviction, however public spirited.

Presenting S.P. Gupta as unqualified expansion. The bona fide limit is in the same passage.

Forgetting that Article 226 is wider. It is not confined to fundamental rights.

Reciting Chaufal's three phases and stopping. The eight directions are the operative part.

Confusing PIL with a representative suit. A representative plaintiff is one of the injured; a public interest petitioner is not.

Quick revision

• PIL is Article 32 and Article 226 with locus standi relaxed; there is no separate statute.
• Article 32(1): the right to move the Court by appropriate proceedings is guaranteed. 32(2): the five writs. 226: every High Court, within its territories, for Part III rights and for any other purpose.
• S.P. Gupta (30 December 1981): any member of the public may move the court where a determinate class is unable by poverty, helplessness, disability or disadvantage to come itself; the court will respond even to a letter, because procedure is the handmaiden of justice; but the petitioner must be bona fide, and one acting for personal gain, private profit or political motivation is to be rejected at the threshold.
• Bandhua Mukti Morcha (16 December 1983): Article 32 prescribes no procedure, the Court decides what is an appropriate proceeding, and the Rules cannot limit its jurisdiction; fundamental rights are too sacred to be trifled with on a technicality. Commissioners may be appointed to find facts.
• Ashok Kumar Pandey (18 November 2003): a third party stranger cannot question a conviction; PIL must not be publicity, private or politics interest litigation; the petitioner needs clean hands, clean heart, clean mind and clean objective; busybodies break the queue and may be met with exemplary costs.
• Balwant Singh Chaufal (18 January 2010): three phases, locus standi, then ecology and environment, then probity in governance; and eight directions, of which High Court rules within three months, verifying the petitioner's credentials, checking the correctness of the contents, requiring substantial public interest, prioritising urgent matters, and exemplary costs against busybodies are the ones to name.
• Order I rule 8 is a representative suit by one of the injured, with mandatory notice and a decree binding all; Order I rule 8A lets an outsider present an opinion in the public interest.

Test yourself

1. On what constitutional provisions does public interest litigation rest, and how do they differ? Article 32, which guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of Part III rights and empowers it to issue the five writs, and Article 226, under which every High Court may issue the same writs within its territories both for Part III rights and for any other purpose. Article 226 is therefore wider in subject matter and narrower in territorial reach. There is no separate PIL statute.

2. What did S.P. Gupta decide about locus standi, and what limit did it state in the same passage? That where a legal wrong or injury is caused to a person or determinate class who cannot approach the court by reason of poverty, helplessness, disability or a socially or economically disadvantaged position, any member of the public may move the High Court under Article 226 or the Supreme Court under Article 32, and that the court will treat even a letter from such a person as a writ petition because procedure is the handmaiden of justice. The limit is that the person must act bona fide to vindicate the cause of justice, and if he acts for personal gain, private profit, political motivation or other oblique consideration the court should reject the application at the threshold.

3. Why is a letter an "appropriate proceeding" under Article 32? Because Article 32(1) prescribes no procedure. It guarantees the right to move the Court by appropriate proceedings, leaving it to the Court to determine what is appropriate. As Bandhua Mukti Morcha held, the Supreme Court Rules lay down the procedure normally followed but cannot limit the Court's jurisdiction to entertain a proceeding made otherwise, fundamental rights being too sacred to be trifled with merely on a technicality or rule of procedure.

4. State the eight directions in Balwant Singh Chaufal. Encourage genuine PIL and curb PIL filed for extraneous considerations; each High Court to frame rules within three months and send a copy to the Secretary General of the Supreme Court; prima facie verify the petitioner's credentials; be prima facie satisfied of the correctness of the contents; be fully satisfied that substantial public interest is involved; give priority to petitions involving larger public interest, gravity and urgency; ensure the petition is aimed at genuine public harm or injury with no personal gain, private motive or oblique motive; and discourage busybodies by exemplary costs or similar methods.

5. Distinguish a public interest petition from a representative suit under Order I rule 8. A representative suit is brought in a civil court by one or more of numerous persons who themselves have the same interest, with the permission or direction of the court, and mandatory notice must be given at the plaintiff's expense to all those represented, the decree binding them all. A public interest petition is brought in the writ jurisdiction by a person who has suffered no injury at all, on behalf of a class that cannot come to court, with no equivalent notice requirement. The first exists to avoid a multiplicity of identical suits; the second exists to give access to justice to people who would otherwise have none.