Public Interest Litigation

The filters came in the same breath: the individual "must be acting bona fide with a view to vindicating the cause of justice", and if he acts "for personal gain or private profit or out of political motivation or other oblique consideration" the application must be rejected at the threshold.

Why it matters. Here public interest litigation stops being a practice and becomes a doctrine. It supplies two distinct relaxations and weak answers give only one: representative standing, for those who cannot come themselves, and citizen standing, for a public injury nobody personally owns.

The letter as a petition

Facts. Bandhua Mukti Morcha v. Union of India, 1984 AIR 802, 1984 SCR (2) 67, (1984) 3 SCC 161, decided 16 December 1983. An organisation working for the release of bonded labourers wrote a letter to Bhagwati J. alleging that labourers were working in stone quarries in Faridabad, Haryana, in "inhuman and intolerable conditions", that many were bonded, and that the welfare legislation made for them was not implemented. The Court treated the letter as a writ petition and appointed a commission, which reported dust that made breathing difficult, workers not allowed to leave, drinking water from a nullah, shelters too low to stand in, and no compensation, medical care or schooling. The State objected that article 32 was not attracted, that a letter is not a writ petition, that the Court cannot appoint a commission, and that a report resting on untested statements has no evidentiary value.

Held. Every objection was rejected, the State's objection to maintainability being called "reprehensible". Clause (1) of article 32 "does not say as to who shall have this right to move the Supreme Court nor does it say by what proceedings the Supreme Court may be so moved". There is no limitation on the kind of proceeding "except that the proceeding must be 'appropriate'", judged by its purpose; a rigid formula "would place enforcement of fundamental rights beyond the reach of the common man". So where a member of the public acting bona fide moves for a person who cannot come, "such member of the public may move the court even by just writing a letter".

Two further holdings matter. Public interest litigation "is not in the nature of adversary litigation but it is a challenge and an opportunity to the government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community". And clause (2) of article 32 "is in the widest terms", not confined to the high prerogative writs "which are hedged in by strict conditions", which permits a commission of inquiry. On the merits, where the State has legislated to secure the minimum requirements of a life with human dignity under article 21, it can be compelled to enforce its own law.

Why it matters. This is the constitutional foundation of the epistolary jurisdiction, the practice of treating a letter as a petition, built on two words of article 32(1). It is also where the Court solved what makes such cases hard: a petitioner who cannot afford a lawyer cannot prove facts in a quarry two hundred kilometres away, so the Court sends someone to look.

What it achieved

Facts. Hussainara Khatoon v. Home Secretary, State of Bihar, 1979 AIR 1369, 1979 SCR (3) 532, (1980) 1 SCC 98, decided 9 March 1979. On a petition about undertrial prisoners in Bihar, the State filed lists of those held in its jails. They showed men and women in custody awaiting trial for longer than the maximum sentence they could have received if convicted.

Held. Their continued detention was "clearly illegal and in violation of their fundamental right under Article 21", and they were released forthwith; the state of affairs "betrays complete lack of concern for human values". Free legal service is "an essential ingredient of 'reasonable, fair and just' procedure for a person accused of an offence and it must be held implicit in the guarantee of Art. 21", reinforced by article 39A, so the State was directed to provide a lawyer at its own cost on the next remand dates. Speedy trial is likewise essential to that procedure, and "the State cannot be permitted to deny the constitutional right of speedy trial to the accused on the ground that the State has no adequate financial resources".

Why it matters. It answers what public interest litigation is for: people walked out of jail. Free legal aid and speedy trial entered article 21 through this case, and calling for figures before ordering anything became the standard method, developed in [Continuing Mandamus and Judicial Guidelines].

The standard criticisms, and the case that makes them

Facts. Subhash Kumar v. State of Bihar, 1991 AIR 420, 1991 SCR (1) 5, (1991) 1 SCC 598. The petition was dismissed with costs on 13 December 1990, the reasons following on 9 January 1991. The petitioner alleged, by way of public interest litigation, that West Bokaro Collieries and the Tata Iron and Steel Company were polluting the river Bokaro by discharging sludge and slurry from their washeries, making the water unfit for drinking and irrigation. He also asked, as interim relief, to be permitted to collect the sludge and slurry himself.

Held on the right. "Right to life is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life", and a citizen may move under article 32 to remove pollution impairing that quality of life. Such a petition is maintainable "at the instance of affected persons or even by a group of social workers or journalists".

Held on this petitioner. The petition failed. There was intrinsic evidence in it that its primary purpose was self-interest: he had bought slurry from the respondents for years, wanted more, had removed it unauthorisedly with criminal cases pending, and brought several proceedings out of grudge; the interim prayer showed he wanted the slurry for his business. "Personal interest cannot be enforced through the process of this Court under Article 32 of the Constitution in the garb of a public interest litigation." Entertaining such petitions "would amount to abuse of process of the Court, preventing speedy remedy to other genuine petitioners". He paid Rs. 5,000 costs to three respondents.

Why it matters. The case is cited constantly for its first half and almost never for its second, which gets it exactly half wrong: the judgment that put a clean environment inside article 21 threw the petitioner out as a man pursuing a private grudge and made him pay. The environmental holding is developed in [Health and the Environment].

The criticisms, in the order they are usually put:

1. The busybody problem. Relaxed standing lets a competitor, a blackmailer or a person with a grudge use the Court, as in Subhash Kumar.
2. Docket pressure. The Court said so itself: such petitions prevent "speedy remedy to other genuine petitioners".
3. Procedural informality. The commission procedure dispenses with cross-examination, and the objection that untested statements were relied on was a real one.
4. Overreach. Continuing supervision of administration moves the Court into work the executive answers for, taken up in [Judicial Activism, Restraint and Overreach].
5. Drift. The jurisdiction was justified by the inability of the poor to reach a court, and much of what it now carries is not brought for them.

Ordinary litigation and public interest litigation

A worked example

A social action group writes to the Chief Justice saying that children under fourteen work in a village firecracker unit and that nobody there can afford a lawyer. The same week a rival manufacturer writes a similar letter about a competitor's unit.

Step one, is a letter enough? On Bandhua Mukti Morcha it may be treated as an "appropriate proceeding" under article 32(1), those whose rights are said to be violated being unable to come themselves.

Step two, a fundamental right? Yes. Article 24 forbids employing a child below fourteen in any factory or mine or other hazardous employment, taken up in [The Right Against Exploitation].

Step three, standing? On S.P. Gupta, yes: the children are a determinate class unable to approach the court through poverty and disability.

Step four, facts and relief. A commission appointed to visit and report, which Bandhua Mukti Morcha holds is within the width of article 32(2); then directions to the State to enforce the legislation it has already made, with continuing supervision if necessary.

Step five, the rival's letter. It fails on Subhash Kumar: the allegations may be true, but the proceeding is brought for private advantage, and costs may follow.

What it does NOT mean

It does not mean anybody may petition about anything. The petitioner must act bona fide, and S.P. Gupta rejects at the threshold one acting for personal gain, private profit, political motivation or other oblique consideration.

It does not mean the rules of procedure have been abolished, or that a letter must be entertained. The relaxation is of standing and of form; article 32 still requires a fundamental right, and a letter may be an appropriate proceeding where the person injured cannot come. It is no general right to litigate by post.

It does not mean Subhash Kumar is an environmental case the petitioner won. He lost, with costs, and giving both halves is the difference between an answer written from the report and one written from a list of case names.

Quick revision

• Locus standi means standing to sue; the traditional rule required a legal injury to the petitioner.
• S.P. Gupta: two relaxations. Any member of the public may sue for a person or class who cannot come by reason of poverty, helplessness, disability or disadvantage; and any member with sufficient interest may sue for a public injury from breach of public duty. The filters are in the same case: bona fide, no personal gain, no political motivation, no busybody.
• Bandhua Mukti Morcha: article 32(1) does not say who may move or by what proceeding; "appropriate" is judged by purpose; a letter qualifies; article 32(2) "is in the widest terms", allowing commissions of inquiry; PIL is not adversary litigation.
• Hussainara Khatoon: undertrials held longer than the maximum sentence released; free legal services and speedy trial implicit in article 21; financial inability is no answer.
• Subhash Kumar: article 21 includes pollution free water and air, and the petition was dismissed with Rs. 5,000 costs as a personal grudge in the garb of public interest.
• The criticisms: busybodies, docket pressure, informal fact finding, overreach, drift.

Test yourself

1. State the two distinct relaxations of locus standi in S.P. Gupta, and the conditions attached to each.

2. Which words of article 32(1) support the epistolary jurisdiction, and how did Bandhua Mukti Morcha reason from them?

3. What did Hussainara Khatoon actually order, and which two elements of article 21 came from it?

4. Give both halves of Subhash Kumar and explain why citing only the first is a serious error.

5. Set out four criticisms of public interest litigation, and say which the Supreme Court has itself made.