What Public Interest Litigation Is
Chapter Fifty-Four
Syllabus topic 3, "Judicial Process in India"
Pages 219 to 222 of 356
In one line
Public interest litigation is a proceeding brought by somebody who has suffered no personal wrong, on behalf of people who cannot come to court themselves, and almost everything about ordinary procedure had to be changed to make it possible.
In the wording a student can write in an exam: public interest litigation is a proceeding under Article 32 or Article 226 in which a person acting bona fide, and not himself aggrieved, invokes the jurisdiction of the court to redress a public wrong or to enforce the rights of a person or class who by reason of poverty, disability or a socially or economically disadvantaged position cannot approach the court themselves. It departs from the ordinary adversarial model in who may sue, in the form of the proceeding, in how facts are found, in the remedies granted, and in the court's continuing role after judgment.
Why it had to be invented
The ordinary model assumes a plaintiff who can litigate. He must know his rights, afford a lawyer, and be able to travel and wait.
The people whose rights were most often violated could do none of that. Undertrials, bonded labourers, pavement dwellers, prisoners.
The result was a right that existed on paper. Article 32 was available and nobody came.
So the model was changed. The change was procedural, and it is the largest single piece of judicial creativity in Indian law after Kesavananda.
The five departures from the ordinary model
1. Who may sue. S.P. Gupta v. President of India, AIR 1982 SC 149, is the source.
Facts. Writ petitions filed in different High Courts and transferred under Article 139A challenged the Law Minister's circular on the consent of additional judges, the non-extension of the terms of certain additional judges, and the transfer of two High Court judges. Advocates who were not themselves affected brought the petitions, so their standing was in question.
Held. Where a legal wrong is caused to a person or a determinate class who by reason of poverty, disability or a socially or economically disadvantaged position cannot approach the court, any member of the public acting bona fide may move the court under Article 226 or Article 32. On appointments the majority held that consultation with the Chief Justice does not mean concurrence and that the ultimate power rests with the Central Government.
Why it matters here. It is the constitutional foundation. Every later public interest case rests on this holding, and the appointments holding it was decided alongside has been overruled while this one has not.
2. The form of the proceeding. A letter may be treated as a petition; this is epistolary jurisdiction, worked in the next chapter.
What Public Interest Litigation Is
3. How facts are found. The court appoints commissioners rather than leaving proof to a party who cannot afford it.
4. The remedies. Continuing mandamus, guidelines, structural directions, compensation.
5. The court's role after judgment. The matter is often retained rather than disposed of.
The Indian starting cases
Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1360, is the first great one.
It is worked in full in [What Judicial Activism Is]: speedy trial read into Article 21, free legal services held an essential ingredient of fair procedure, and the undertrials before the Court released.
Why it matters here. It shows the whole model in one case: a class who could not come, a right read in, a remedy that operated at once, and a standard that governed every prison.
Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802, supplies the procedure.
It is worked in full in [Locus Standi and Epistolary Jurisdiction], where every objection to the jurisdiction was made and rejected: that a letter cannot be a writ petition, that no fundamental right of the petitioner was infringed, that no commission may be appointed under Article 32, and that ex parte reports have no evidentiary value.
Why it matters here. Because every objection an opponent can make to public interest litigation was answered in that single case, it is the procedural charter of the whole jurisdiction.
The three phases
State of Uttaranchal v. Balwant Singh Chaufal, (2010) 3 SCC 402, traces them and the tracing is worth reproducing.
Facts. A public interest petition challenged the appointment of an Advocate General, and the Court used the appeal to review the whole history and working of public interest litigation and to consider its misuse.
Held. In the first phase the courts entertained cases enforcing the fundamental rights of marginalised and deprived sections, broadened the traditional rule of standing and the definition of a person aggrieved, gave guidelines and directions, monitored the implementation of legislation and even formulated guidelines in the absence of legislation. The Court directed the High Courts to frame rules to encourage genuine public interest litigation and to discourage the frivolous kind, requiring verification of the petitioner's credentials, prima facie verification of the correctness of the contents, and the imposition of exemplary costs on frivolous petitions.
Why it matters here. It is the authoritative Indian account of what public interest litigation has been, given by the Court that made it.
The three phases in short. First, the rights of the deprived, from the late 1970s. Second, the widening into environment, governance and probity, through the 1990s. Third, the period of correction and discipline, from the 2000s.
What Public Interest Litigation Is
What public interest litigation is NOT
It is not a class action. A class action is brought for a defined class with representative procedure; public interest litigation may be brought by a complete stranger.
It is not an inquisitorial procedure in the civil law sense. The court supplements the adversarial model; it does not replace it.
It is not a substitute for a remedy the petitioner has. A person with his own remedy must use it.
It is not available to a busybody. Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305, and Ashok Kumar Pandey v. State of West Bengal, AIR 2004 SC 280, are the limits, worked in [The Misuse of PIL, and the Remedies].
A worked example
A newspaper reports that a State-run home for children has no water supply and that children are ill.
Who may complain? Any bona fide person: a journalist, an organisation, a lawyer. The children cannot.
How? A letter to the Court will do, on Bandhua Mukti Morcha.
How will the facts be established? The Court may appoint a commissioner to visit and report, since the petitioner cannot prove conditions inside a State institution.
What rights are engaged? Article 21, on Francis Coralie's dignity and bare necessaries.
What can be ordered? Immediate provision of water, a report on compliance, and retention of the matter.
What could not be ordered. A direction fixing the home's budget, which is executive on Aravali Golf Club.
Quick revision
- Public interest litigation: a bona fide stranger invoking Article 32 or 226 for a public wrong or for a class who cannot come themselves.
- Five departures: who may sue, the form of the proceeding, fact-finding, remedies, and the continuing role after judgment.
- S.P. Gupta, AIR 1982 SC 149, is the constitutional foundation on standing.
- Hussainara Khatoon shows the whole model in one case; Bandhua Mukti Morcha is the procedural charter, rejecting every objection.
- Three phases, traced in Chaufal: rights of the deprived; environment and governance; correction and discipline.
- It is not a class action, not inquisitorial, not a substitute for an available personal remedy, and not open to a busybody.
Test yourself
1. Define public interest litigation and name its five departures from the ordinary model. A proceeding under Article 32 or 226 in which a person acting bona fide, and not himself aggrieved, seeks redress of a public wrong or enforcement of the rights of a person or class who cannot approach the court by reason of poverty, disability or disadvantage. The departures are in who may sue, the form of the proceeding, how facts are found, the remedies granted, and the court's continuing role after judgment.
2. Why is Bandhua Mukti Morcha called the procedural charter? Because every objection an opponent can make was made in it and rejected: that a letter cannot be a writ petition, that no fundamental right of the petitioner was infringed, that a commission cannot be appointed in an Article 32 proceeding, and that ex parte reports have no evidentiary value. The Court answered each, so the procedure of public interest litigation rests on this single judgment.
What Public Interest Litigation Is
3. Trace the three phases as Chaufal describes them. First, from the late 1970s, the enforcement of the fundamental rights of marginalised and deprived sections, with the traditional rule of standing broadened and guidelines given. Second, through the 1990s, the widening into environment, governance and probity. Third, from the 2000s, correction and discipline, culminating in directions to the High Courts to frame rules verifying credentials and contents and imposing exemplary costs on frivolous petitions.
4. Distinguish public interest litigation from a class action. A class action is brought on behalf of a defined class by a member of it, under a representative procedure with rules about who is bound. Public interest litigation may be brought by a complete stranger who is not a member of the affected class and has suffered no wrong at all, and its justification is that the class cannot come to court itself.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.