Public Interest Litigation

In one line

Public interest litigation is not a separate jurisdiction; it is Articles 32 and 226 with the rule about who may sue removed.

That sentence should open any answer on the subject, because it disposes of the commonest error, which is to treat public interest litigation as a special power the courts gave themselves. The power was always there. What changed is the door.

The problem it solves

The traditional rule of standing is that only a person whose own legal right has been injured may sue. It works where the injured person can go to court.

It fails in three situations that describe most of Indian environmental harm.

Where the injury is to the public and to nobody in particular. A river polluted, a forest cleared, an airshed degraded. Everybody is worse off and no individual can point to a right of their own.

Where the injured are unable to come. People who are poor, illiterate, remote or dependent on the very industry that is harming them. The residents of Bichhri did not have lawyers.

Where the injury is to those who cannot come at all. Future generations, and, in the wildlife cases, animals.

Without a relaxation of standing, all three go unlitigated. That is the whole argument for public interest litigation, and it should be stated before any criticism of it.

The rule, and where it comes from

S.P. Gupta v. President of India, AIR 1982 SC 149, is the decision to cite. A preliminary objection was taken that the petitioners, practising lawyers rather than the affected judges, had no standing.

Held, rejecting the objection, that where public injury is caused, "any member of the public acting bona fide and having sufficient interest can maintain an action for redressal of such public wrong or public injury". The strict rule that only a person who has suffered a specific legal injury may sue is relaxed in favour of "any member of the public who is not a mere busy-body or a meddlesome interloper but who has sufficient interest in the proceeding".

And the second limb, which is the one that matters most for the environment. Where a legal wrong is done to a person or a determinate class who cannot approach the court "by reason of poverty, helplessness or disability or socially or economically disadvantaged position", any member of the public may move the High Court under Article 226 or, for a fundamental right, the Supreme Court under Article 32.

The epistolary jurisdiction

S.P. Gupta also settled the procedure, and it did so in a sentence students should be able to quote: "procedure is but a handmaiden of justice and the cause of justice can never be allowed to be thwarted by any procedural technicalities."