Public Interest Litigation and the Relaxation of Standing

Why it matters here. It is the foundation of every environmental petition brought by an organisation or a lawyer who lives nowhere near the pollution complained of. Without it there is no M.C. Mehta line, no Vellore Citizens Welfare Forum, no Indian Council for Enviro-Legal Action.

The epistolary jurisdiction

The relaxation went further than standing. A court will treat a letter, and has treated a postcard and a newspaper report, as a petition. Two of the leading environmental decisions began that way.

Facts. In Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh, AIR 1985 SC 652, a voluntary organisation wrote to the Supreme Court alleging that unauthorised and illegal limestone mining in the Mussoorie hills was destroying the fragile ecology of the region.

Held. The letter was treated as a writ petition under Article 32. The Court appointed expert committees, and on their reports ordered the closure of a number of quarries, saying that the hardship to the lessees was a price that had to be paid for protecting the right of the people to live in a healthy environment.

Why it matters here. It is the first Indian environmental public interest case, it shows both halves of the technique, relaxed standing and the letter as petition, and it produced a closure order at a time when no statute empowered anybody to close a quarry for environmental reasons.

What a petitioner must still show

The relaxation is of standing. It is not a relaxation of anything else, and this is where students overstate the doctrine.

A bona fide petitioner. The Court refused relief in Subhash Kumar v. State of Bihar, AIR 1991 SC 420, because the petitioner had himself been buying slurry from the companies whose discharge he complained of, and it warned that the jurisdiction must not be used for a personal grudge or for an oblique motive.

Facts. The petitioner alleged that sludge and slurry from steel and coal companies had polluted the Bokaro river and sought to restrain the discharge; it emerged that he had been buying slurry from the company himself and had petitioned after it refused to sell him more. Held. The petition was dismissed as an abuse of process, though the Court stated in the same judgment that the right to life under Article 21 includes the right of enjoyment of pollution-free water and air. Why it matters here. It is the standard authority both for the environmental right and for the limits of the jurisdiction that enforces it.

Material, not assertion. In Goa Foundation v. Diksha Holdings Pvt. Ltd., AIR 2001 SC 184, the petitioner organisation failed because it could not establish by authentic material any breach of the coastal notification or of the approved management plan.

Facts. An organisation challenged the environmental clearance of a beach resort at Nagorcem, Palolem, in the Canacona taluka of Goa, relying on a scientific report obtained after the clearance had been given. Held. The appeal was dismissed; two of the report's authors had themselves approved the management plan without objection, and a report obtained afterwards in order to nullify a clearance cannot by itself justify reopening it. Why it matters here. Public interest standing gets a petitioner into court. It does not lower the standard of proof once he is there.

Worked example

Sharmila is a law student in Pune. She reads that a chemical unit in Kurkumbh has been discharging into a nullah for years and that the villagers, who are landless labourers, have complained without result.

Can she petition? Yes. She has suffered nothing, but the persons injured are a determinate class who are unable to approach the court by reason of poverty, and she is acting bona fide.

What must she put before the court? Not assertions. Complaints made and their dates, any inspection reports she can obtain under the Right to Information Act 2005, photographs, and if possible an analysis. A petition resting on a newspaper report and indignation will be dismissed.

What will she ask for? Mandamus to the Pollution Control Board to inspect and act, and if the unit is operating without consent or without a clearance, an order restraining it. She may also ask for the appointment of a local commissioner or a committee.

What she should consider first. An application to the National Green Tribunal, which has its own jurisdiction over a substantial question relating to the environment, is often faster and is designed for exactly this.

What it does NOT mean

It does not mean anybody may sue about anything. The petitioner must act in good faith and must either sue for a determinate class that cannot come to court itself or have a sufficient interest in a public injury. A busybody with no interest has no standing even now.

It does not mean the ordinary rules of pleading and proof are relaxed. They are not, as Diksha Holdings shows.

It does not mean the petitioner controls the case. Once a public interest petition is admitted the court frequently takes over its direction, appoints an amicus curiae and calls for reports. The petitioner may find the case going somewhere he did not ask for.

Limits and criticism

Three criticisms are made and all three have force.

Abuse. Petitions are filed for extraneous reasons, and Subhash Kumar is the Supreme Court's own example. Costs and a preliminary scrutiny are the usual answers.

Uncertainty for the respondent. A project may be challenged years after it is cleared, by a person with no connection to it, and there is no limitation. Courts answer with laches, but the answer is discretionary.

Judicial overreach. A relaxed standing rule plus a wide power to make directions produces a court that manages rather than adjudicates. That is dealt with in the chapters on judicial activism and continuing mandamus.

Quick revision

• Locus standi is the standing to sue; the traditional rule requires a personal legal injury.
• S.P. Gupta (1982) relaxed it for a determinate class that cannot come to court and, for a public injury, for any member of the public with a sufficient interest, and allowed a letter to be treated as a petition.
• Rural Litigation and Entitlement Kendra (1985) is the first Indian environmental public interest case and began with a letter.
• Subhash Kumar (1991) shows the limit: the petitioner must be bona fide.
• Diksha Holdings (2001) shows the other limit: standing does not lower the standard of proof.
• The relaxation is of standing alone.

Test yourself

1. State the rule in S.P. Gupta in your own words. Where a legal wrong or injury is caused to a person or to a determinate class of persons by a breach of a constitutional or legal provision, and that person or class cannot approach the court because of poverty, helplessness, disability or a socially or economically disadvantaged position, any member of the public acting in good faith may move the Supreme Court under Article 32 or a High Court under Article 226 for redress on their behalf. And where the wrong is a public injury rather than an injury to any determinate class, any member of the public with a sufficient interest, as the advocates in that case had, may sue.

2. A trader files a public interest petition against a rival's factory, alleging pollution. What is the difficulty? Bona fides. The jurisdiction is not available for a personal grudge or an oblique motive, and a court that finds the petition is really a commercial dispute will dismiss it, as it did in Subhash Kumar, sometimes with costs. That does not mean the pollution is lawful; it means this petitioner is the wrong person to complain of it.

3. Does public interest litigation lower the standard of proof? No. It lowers the requirement of personal injury and nothing else. In Goa Foundation v. Diksha Holdings the petitioner had unquestioned standing and still lost, because it could not establish by authentic material that the coastal notification or the approved management plan had been breached. Standing gets a petitioner through the door; the case still has to be proved.