Concept And Definition of Public Interest Litigation

By virtue of Universal Declaration of Human Rights,1948, International covenants on civil & political rights, 1966 and on economic, social & cultural rights, 1966, all human beings are conferred some basic rights, fundamental rights and statutory rights.

Similarly, the codification of rights also implied several duties on human beings to fellow citizens including global citizens and the global environment at large. Post second world war, international organizations such as the United Nations and its organs including the Security council, economic and social council and its subsidiary organs, international court of justice etc have observed gross violation of human rights on several occasions, need for recognition of new types of rights and a growing necessity for ensuring duties for the global environment protection.

Such concern is also reflected in the Indian constitution in Parts III (dealing with fundamental rights), IV (directive Principles of state policy) and IVA (Fundamental duties).

Since 1960s the world has witnessed a rights- explosion for groups. For example, in the US, Black people's movement started getting prominence. Simultaneously, several social activists, law professors, law practitioners, judges etc had also started identifying the age old violations of womens rights, violation of the rights of socially and economically backward classes and children.

These stake holders felt it necessary to approach courts for the cause of these classes of people who may due to their socio- economic situations, could not approach the courts individually for ensuring their rights, or for seeking remedy for violation of their rights or for seeking compensation from the State for failure to ensure their rights or protect them from State atrocities, corrupted State practices etc.

This in turn the concept of locus-standi of filing cases in the court got enlarged. Locus standi actually signifies the right to file case for some sorts of legal injury, violation of rights, victimization etc.

The stake holders, i.e. the social activists, lawyers, law professors, judges etc who helped to broaden this ideology of locus standi and stood for rights of people at large are also known as social cause lawyers. Such types of litigation which is taken over by social cause lawyers for public interest in general in the courts of law | is known as public interest litigation. This is entirely different from litigation preferred for private interest in the courts of law.

A formal definition Public interest litigation therefore could be as follows:

Public interest litigation is a litigation undertaken for the purpose of redressing public injury, enforcing public duty, protecting social, collective and diffused rights, interests or vindicating public interest. It is Legal action initiated in a court of law for the enforcement of public or general interest in which the public or the class of the community has pecuniary interest, or has some interest because it will affect their legal rights.

• While this is an abstract term for the concept of public interest litigation, according to some, public interest lawyering is the act of Public interest lawyering which is a process of legal empowerment aimed at capacity building of everyday people towards using the law and institutions to bring about social change. In public interest lawyering, the community takes the lead in an active process while working hand in hand with lawyers. As this definition suggests, public interest lawyering is different from private interest lawyering where the lawyer is paid by the litigator and the interest for defending is concentrated on one particular client for specific reasons like for example, some wrongs caused to him.

 

The concept of public interest lawyering may be made clear with the example of few landmark cases:

For example, consider the case of Independent Thought Vs. Union of India, 2013, which was filed by an NGO for criminalizing sexual intercourse with child brides. The Supreme court in this landmark case, which is in the nature of public interest litigation, decided that even though S.376 IPC exempts sexual intercourse with brides above 16 years of age from the concept of rape, the same must be considered as criminal offence because POCSO Act extends the scope of the law to any sort of sexual intercourse done with children who are under 18 years of age.

Here the petitioner is not a particular child-bride under the age of 18 but above the age of 15 who has been victimized of marital rape . But the petitioner is an NGO who are cause lawyers or social cause lawyers who filed the case for the cause of children's right against sexual violence. Thus social cause lawyers need not be actual lawyers always. They can be any individual who wish to fight for the causes of socially oppressed, minority groups or for some specific environmental cause which may affect the human society as a whole.

• In Public interest litigation, Judicial activism plays an important role. Judicial activism is a form of legal pragmatism and in such cases of public interest litigation, Court performs interventionist role for systematic enforcement of court orders. Juristic activism is used to provide distributive justice which is one of the many goals of Public interest litigation.

Origin and development of Public interest litigation globally:

According to The council for Public Interest Law set up by the Ford Foundation in USA, Public Interest Law is the name that has recently given to efforts to provide legal representation to previously unrepresented groups and interest. such efforts have been undertaken in recognition that the ordinary market place for legal services fails to provide such services to Significant sections of the population and to significant interests. Such groups and interest include the poor, environmentalists, consumers, racial and ethnic minorities and others. The origin and development of Public interest litigation in the post 2nd world war can be traced back to 1960-70 when practitioners and professors in the US started exploring mechanisms to bring relief to the aggrieved class through social cause lawyering, class suits and engaging judicial interventions.

In this course Professor Abram Chayes of the Harvard Law School defined the term public law litigation to refer to the practice of lawyers in the United States seeking to precipitate social change through court-ordered decrees that reform legal rules, enforce existing laws, and articulate public norms. however, the development of Public interest litigation in the US may further be traced back in late 19th century to early 20th century when due to influx of immigrants in the US, huge racial and class disparity was created between the immigrants, colonizers, racial minorities and women.

This period saw a gradual growth of free legal aid especially for laborers and women who may have been deserted by their husbands in a new country or whose husbands became incapable of earning due accidents in the workplace or who themselves started working for a decent living. During this period the concept of class suits, i.e., representing the socially /economically oppressed groups started growing.

However, it was much later that the concept of locus standi was broadened to accept representation by social cause lawyers, activists etc for the benefit of the socially and economically backward people. Several academicians have shown that one of the first landmarks in the Public interest litigation in the US was the case of Brown v. Board of Education, in which the U.S. Supreme Court declared unconstitutional a state's segregation of public school students by race.

This case was associated with public law litigation and the defendant was a public institution. In Europe on the other hand, Public interest litigation developed post formation of European Convention on Human Rights, and the European Court of Human Rights in the late 1970s , which not only broadened the scope of Human rights and helped in rights explosion, but also insisted on seeking remedial measures from the domestic courts for issues such as racial violence, gender justice, problems related to labourers rights, child rights, rights of immigrants and asylum seekers etc.

Similarly in Africa, even though activists like Nelsan Mandela had already initiated social change through free legal aid, pro bono advocacy etc for the victims of racial violence, discriminatory and arbitrary colonial rule etc, public interest litigation through formal court process gained more popularity with the formation of African commission of Human rights in the 1980's which not only helped codifying human rights for people of African continent, but also encouraged lawyers, social activists and cause lawyers to approach domestic courts for seeking remedy for violation of rights of under trodden, socio-economically backward people.

However, it has been noted by many researchers, eminent judges, and academicians that public interest lawyering and litigation have been used widely as a legal-political tool in many countries to defy arbitrary laws, policies etc, unearth corruption and using judiciary to overpower the legislature for scrapping irrational laws or bringing in new laws.

In several cases, the courts have themselves observed that such private litigations are misused to waste the time or gain fame. It is for this reason that since late 1970's several prominent law schools in the US had started emphasising on pro bono advocacy, free legal aid etc through free legal aid cells which may not may not be funded by the government. This initiative helped students of law to detect class-grievances,.

Violation of rights, problems of socio-economically backward people etc. Such initiative is also taken up by Indian law schools inspired by prominent law schools of West. Academicians, social cause lawyers, judges etc hope that such initiatives may not only bring down the number of frivolous Public interest litigations, but may also make the young lawyers prepared to use the mechanism of public interest lawyering with a social cause for public benefit.

Origin and development of Public interest litigation in India

# The origin and development of public interest litigation in India can be traced back to mid 1970's. It was mainly because Justice P.N. Bhagawati that the concepts of free legal aid to the poor and socially backward people and public interest litigations started developing in India. According to him ...legal aid means providing an arrangement in the society so that the missionary of administration of justice becomes easily accessible and is not out of reach of those who have to resort to it for enforcement of its given to them by law, the poor and illiterate should be able to approach the courts and their ignorance and poverty should not be an impediment in the way of their obtaining justice from the courts.

Legal aid should be available to the poor and illiterate, who don't have access to courts. One need not be a litigant to seek aid by means of legal aid. But the concept of free legal aid and public interest litigation did not fully materialize until the 42nd amendment of the constitution which amended the preamble of the constitution to make the country a socialist and secular democratic republic along with sovereign, democratic republic. This amendment made the State duty bound to provide accessible justice.

This which was further extended through Art 39A, which was included as a directive principle to the State for ensuring equal justice and free legal aid. Article 39A states: The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

# Such broadening of the preamble and inclusion of provisions for ensuring social justice motivated judges like Bhagawati and Krishna lyer to broaden the concept of locus standi to entertain cases represented by social cause lawyers/activists for the benefit of socio-economically backward people who could not afford to approach the courts for seeking remedy for right violation.

# Also because of the emergency during 1975-77, several fundamental rights were grossly violated. Eminent judges like Krishna lyer.J, Bhagawati.J etc, could rightly recognise this phase of right- explosion vis-a-vis grievance explosion and used judicial activism to provide proper remedies for such right violations. This period also saw a gradual growth of Juristic activism, which is used to provide distributive justice

# India's public interest litigation jurisprudence started growing along with cases like Mumbai Kamgar Sabha v. M/s Abdulbhai Faizullabhai and others [1976],which was one of the first cases to expand the concept of locus standi for the labourers who come from socio-economically backward class. Since then the higher Courts exercised wide powers given to them under Articles 32 and 226 of the Constitution; more emphasis was given on Implementation of fundamental rights, formulation of Guidelines /policies and proper implementation/formulation of Compensation schemes.

The development of the Public Interest litigation in India can be discussed under three phases which is as follows:
# In the First phase, the courts dealt with cases of the nature of public interest litigation where directions and orders were passed primarily to protect fundamental rights under Article 21 of the marginalized groups and sections of the society who because of extreme poverty, illiteracy and ignorance cannot approach this court or the High Courts. Best examples Of such cases is Sunil batra vs. Delhi Administration, 1980, SP Gupta vs. Union of India , 1982, People's union for democratic rights vs. Union of India,1982 (nonpayment to laborers in Asiad village case), Bandhua Mukti Morcha vs. Union of India, 1984(bonded laborers in stone query in Faridabad), Such cases established the principle that any member of public acting bonafide & sufficient interest can maintain an action of redressal against public wrong/injury.

# The second phase deals with the cases relating to protection, preservation of ecology, environment, forests, marine life, wildlife, mountains, rivers, historical monuments etc. Best example for such cases are M.C. Mehta & Another v. Union of India & Others AIR 1987 SC 1086.

# The third phase of the growth of public interest litigation deals with the directions issued by the Courts in maintaining the probity, transparency and integrity in governance. Vineet Narain & Others v. Union of India & Another AIR 1998 SC 889 (fact finding for political nexus ).

Aims and objectives of Public interest litigation

• The main aim and objectives of the public interest litigation is to achieve the goals of a social document, i.e. the Constitution of India. These include to ensure equal access to justice, tto undo the wrong to the underprivileged/ provide healing effect of law, to awaken the responsibilities of the State by providing effective remedy for causing any harm to the rights including fundamental rights to the people
   
• The aim and objective of the PIL also extends to ensure justice to bonded labor matters
• Non-payment of minimum wages
• Protection of pavement dwellers & slum dwellers
• Petition from riot victims
• Ethics of medical profession
• Neglected children
• Flesh trade in protection homes ¢ Atrocities on women
• Ill treatment in prison
• Injustice to children in jails and juvenile homes
• Protection against police for harassment
• Atrocities against SC,ST, OBC

Difference between Private interest litigation and Public interest litigation-

Public interest litigation

1. Locus standi is expanded
2. Should be for public interest at large
3. Socio-economically backward people may be represented by cause lawyers/social activists/ pro bono advocates
4. May approach the High court or the Supreme court directly
5. Public interest litigation may also be filed by letter petitions
6. Judicial activism and distributive justice are the main aims for PIL

Private interest litigation

1. Locus standi remains limited to those whose rights have been violated/whose rights are to be established for:
   
   1. Private interest.
   2. Must be represented by proper lawyer
   3. Must follow proper legal procedures and approach the right forums/courts It can not be so.
   4. Private gain by legal ways is the aim of private interest litigation.

PIL - A Boon:

1. In PIL vigilant citizens of the country can find an inexpensive legal remedy because there is only a nominal court fee involved in this.
2. Further, through the so-called PIL, the litigants can focus attention on and achieve results pertaining to larger public issues, especially I the fields of human rights,consumer welfare and environment.

Abuse of PIL:
Many of the PIL activists in the country have found the PIL as a handy tool of harassment since frivolous cases could be filed without investment of heavy court fees as required in private civil litigation and deals could be negotiated with the victims of stay orders obtained in the so-called PILs.

The abuse of PIL has become more rampant than its use and genuine causes either receded to the background or began to be viewed with the suspicion generated by spurious causes mooted by privately motivated interests in the disguise of the so-called public interests.

At present, the Court can treat a letter as a writ petition and take action upon it. But, it is not every letter which may be treated as a writ petition by the court.

The court would be justified in treating the letter as a writ petition in following cases:

1. It is only where the letter is addressed by an aggrieved person or
2. A public spirited individual or
3. A social action group for enforcement of the constitutional or the legal rights of a perons who by the reason of poverty, disability or social or economically disadvantaged position find it difficult to approach the court for rederess.

Procedure of Filling PIL:

1. Make an informed decision to file a case.
2. Consult all affected interest groups who are possible allies.
3. Be careful in filling a case because:
   
   1. Litigation can be expensive.
   2. Litigation can be time consuming.
   3. An adverse decision can affect the strength of the movement.
   4. Litigation involvement can divert the attention of the community away from the real issues.
       

Articles on Public Interest Litigation

A Study on Public Interest Litigation In Full Concept
Public interest litigation:- Its origin and meaning
Public Interest Litigation