Вы находитесь на странице: 1из 16

1

DR. RAM MANOHAR LOHIYA NATIONAL LAW


UNIVERSITY, LUCKNOW.




FOUNDATION OF LAW


FINAL DRAFT
ON


PIL AS A TOOL FOR JUDICIAL ACTIVISM

Under The Guidance of: Submitted by:-
Mr. Manwendra Kumar Tiwari Sumit gehlot
Asst. Professor (Law) Rollno.145
Dr. RMLNLU 1
s
Semester


Signature of Professor Signature of student

2

TABLE OF CONTENTS

1. Introduction...................................................................................................................1
2. Judicial Activism...........................................................................................................2
3. Reasons of Emergence of Judicial Activism.................................................................2
4. Public Interest Litigation (PIL).....................................................................................5
5. Origin & Development of PIL.......................................................................................5
6. PIL & Judicial Activism................................................................................................5
7. ROLE OF JUDICIAL ACTIVISM AND PIL IN CHANGING SOCIETAL NEEDS:
I .Labour Jurisprudence & PIL...............................................................................5
II. Women & Children............................................................................................6
III. Prisoners & PIL................................................................................................7
IV. Environment & PIL..........................................................................................2
V. Corruption & Judicial Activism........................................................................5
8. Conclusion.......................................................................................................................5
9. Bibliography....................................................................................................................2






3

1. INTRODUCTION
Most social movements in India since the 1970s have actively used the Courts-especially the
Supreme Court-as a part of their struggles.
1
This has been possible because of the higher
Courts activism, especially under the guidance and action of Public Interest Litigation.
Through the instrument of Public Interest Litigation, the Court liberated itself from traditional
constraints in the legal system so as to reach out to the weaker sections of Indian humanity.
2

The Supreme Court of India has adopted a forward-looking approach since last few years,
particularly having regard to the socio-economic conditions prevailing in the country. In fact
there are two kinds of approaches which characterise the functioning of the highest Court in
every democracy. Either the Court adopts an activist approach or resigns itself to passive
role.
3
In a country like India, judges adopt an activist approach to bring about social and
economic change and to improve the life conditions of the people and make basic human
rights available to them. The Supreme Court has revolved a new doctrine of judicial activism
with a view of making basic human rights meaningful and effective for the deprived and
exploited sections of humanity.
Judiciary is the third wing of the Government empowered to administer justice to the people
of India. The Courts are protectors of an individuals Fundamental and Legal Rights when
they are violated. But in these days, access to Court is also a difficult task and especially
litigation has become costly and unaffordable for socially and economically backward
people. The traditional method of providing justice has operated to close the doors of Courts
to the poor and has caused denial of justice to millions of people. Only a person having ample
of time and money is able to afford the services of the judiciary.
Justice P.N. Bhagwati rightly observed that our system of administration of justice suffers
two serious defects, namely, delay and expense.
4

Judicial Activism has opened up new dimensions for the judicial process and in the
administration of justice and has given a hope of the justice to the million starving people.

1
Balkrishan Rajgopal, Judicial Governance and Ideology of Human Rights, in C Raj Kumar, k
Chockalingam(eds), Human Rights, Justice & Constitutional Empowerment, Oxford University Press,2007 as
cited in Upadhyay, Videh PIL in India, Lexis Nexis,2007,pno.331.
2
id.
3
Sharma, DR. S.S., Legal Services, PIL & Para-Legal Services, Central Law Agency, 2003, pno.204.
4
In the forwarding note of the book by Justice G.M. Lodha,Fumes, Flames and Fire, unique traders, 1983,
pno. VII as cited in Sharma, DR. S.S., Legal Services, PIL & Para-Legal Services, Central Law Agency,
2003, pno.203.
4

The Fundamentals Rights enshrined in the Constitution have no meaning for the large masses
of people who are leading a life a poverty and destitution, unless a socio-economic structure
in which these rights become meaningful for them is created. The concept of Public Interest
Litigation intended to bring justice within the reach of poor masses and to people who are not
in a position to have access to Courts. It was initiated for the benefit of a class of people, who
had been denied their constitutional and legal rights as they could not have access to the
Courts on account of their socio-economic disabilities. Public Interest Litigation or PIL is
understood and treated as the citizens invocation and the use of the delivery of legal services
in aid of and as a tool of administration of justice.
5

PIL is sometimes termed as active judicialism applied by the Higher Courts (Supreme Courts
and High Courts) for the public welfare.
6
It is the function of activist court to convert the
claims of the poor, disabled masses into constitutional and legal rights.
By judicial activism the court has been trying to bring the enforcement of Fundamental
Rights within the reach of weaker sections.
7


2. JUDICIAL ACTIVISM
Judicial activism is the view that the Supreme Court and other judges can and should
creatively (re)interprets the texts of the Constitution and the laws in order to serve the judges'
own visions regarding the needs of contemporary society. Judicial activism believes that
judges assume a role as independent policy makers or independent "trustees" on behalf of
society that goes beyond their traditional role as interpreters of the Constitution and laws. The
concept of judicial activism is the polar opposite of judicial restraint.
8

Acc. to former Chief Justice of India A.M. Ahmadi, Judicial Activism is a necessary
adjunct function since the protection of public interest as opposed to private interest happens
to be its main concern.
9


5
ROIL Public Interest Litigation, Universal Law Publishing, New Delhi, 2011, pno. 9.
6
Sirohi, J. P. S., Public Interest Lawyering, Legal Aid and Para Legal Services, Allahabad Law Agency,
2003, pno. 21.
7
Sharma, DR. S.S., Legal Services, PIL & Para-Legal Services, Central Law Agency, 2003, pno.205
8
definitions.uselegal.com
9
A.M. Ahmadi, Judicial Process: Social Legitimacy and Institutional Viability (1996) as cited in Sathe, S.P.,
Judicial Activism in India, Oxford University Press, 2007 pno. 25.
5

Any system that is not keeping pace with the changing society cannot survive for a long time.
Indeed, our judiciary has realised the changing situation and has shed the grab of traditional
method of administering justice. This is what we call Judicial Activism. The Supreme
Court of India has undertaken many ventures such as Bihar under trials; Bhagalpur blinding
etc.
10
. It has adopted a proactive approach regarding the peculiar socio-economic conditions
prevailing in the country. The judges have adopted an activist approach. In the climate of
exploitation, conflict and violence, Judges are not justified in invoking the doctrines of self-
restraint and passive attitude.
Judicial Activism deals with the political role played by the judiciary, like the other two
branches of the state viz., the Legislature and the Executive. The judiciary is required to act
impartially and impartiality means not only observe of personal bias or prejudice in judging
but also exclusion of irrelevant considerations, even his own political or religious views. Acc.
to Prof. Upendra Baxi-Judicial Activism is that way of exercising judicial power which
seeks fundamental re-codification of power relations among the dominant institution of State,
manned by members of the ruling classes.
11

The expectation from the Higher Courts is increasing rapidly as the groups of citizens bring
their grievances daily. The role of judiciary is important because it is the final interpreter of
Fundamental Rights and it has a supreme social duty to eliminate injustice and exploitation in
the society. The judiciary has to make new procedures to meet the challenges and grievances
of the people. The policy of judicial self restraint created a situation in which minority
interests are not properly protected.
12

In order to get rid of such problems, the Indian judiciary while adopting pro-
active approach pronounced glorious judgements for which the poor masses of the country
were waiting for long for ex. in the case Sheela Barse
13
, a letter addressed by Sheela Barse, a
journalist, complaining of custodial violence to women prisoners whilst confined in the
police lock-up in the city of Bombay was treated as a writ petition under Article 32 of the
constitution. The Supreme Court expressed hope that these directions will be carried out both
in letter and in spirit.

10
Justice Bhagwati, P.N., How the Supreme Court enforces, Citizens Rights, Extract from Indian Express,
Delhi. Dated 31.1.1982 as cited in Sharma, DR. S.S., Legal Services, PIL & Para-Legal Services, Central
Law Agency, 2003, pno.204.
11
Wadehra, Dr. B.L. , Public Interest Litigation, Universal Law Publishing2009, pno. 160.
12
Sharma, DR. S.S., Legal Services, PIL & Para-Legal Services, Central Law Agency, 2003, pno.205
13
Sheela Barse v State of Maharashtra [1983] AIR 378 (SC).
6

The issues, which are now coming before the Court, are not so much issues of individual
rights, but issues of the rights of the underprivileged sections of society. It illustrates how
society is changing against the interest of poor. Now it is the duty of activist court to convert
the claims of poor, disabled masses into constitutional or legal rights. By judicial activism the
Court has been trying to bring the enforcement of Fundamental Rights within the reach of the
weaker sections of society.

3. REASONS OF EMERGENCE OF JUDICIAL ACTIVISM
1 .Collapse of responsible Government:
When the legislature fails to make necessary laws in accordance with the changed scenario or
where executive fails to implement those laws, it results in erosion of the confidence in the
constitution and democracy amongst the citizens. In these kind of extra-ordinary
circumstances judiciary tries to take the legitimate step and the result is judicial legislation
and government by judiciary.
14


2. Pressure on Judiciary:
In the changed circumstances the judiciary cannot remain inactive as Fundamental rights are
infringed of the citizens by the government or third parties. The citizens look up to the Courts
for the safeguard of their rights and freedom and this all leads to tremendous pressure on
judiciary to deal and aid with the suffering masses.

3. Judicial Enthusiasm:
The judiciary cannot be a mere spectator. The judges like to participate in the social reforms
and changes that take place in the changing times
15
. It encourages the Public Interest
Litigation and liberalises the principles of Locus Standi.


14
Wadehra, Dr. B.L., Public Interest Litigation, Universal Law Publishing2009, pno. 161.
15
id.
7

4. Legislative Vacuum:
Inspite of the existence of large quantum of pre and post constitutional laws, there still may
be certain areas, which have not been legislated upon. It is therefore, upon judiciary to
indulge in judicial legislation and to make necessary laws and to meet the changing social
needs.

5. Constitution of India:
The Constitution of India itself contains provisions by which judiciary is given enough scope
to legislate:
Under Article 32 of the Indian Constitution, any citizen can approach directly the
Supreme Court for the enforcement of Fundamental Rights. Thus, the Supreme Court
has been designated as guardian of fundamental rights of the citizen.
Article 131 of the Constitution makes the Supreme Court the highest appellate Court
and it exercises this appellate jurisdiction in civil, criminal and constitutional matters.
Article 141 of the Constitution gives the authority to the Supreme Court to make
final declaration as to the validity of law and is binding on all.

4. PUBLIC INTEREST LITIGATION
In Indian law, Public interest litigation means litigation for the protection of the public
interest. It is litigation introduced in a court of law, not by the aggrieved party but by the
court itself or by any other private party. It is not necessary, for the exercise of the courts
jurisdiction, that the person who is the victim of the violation of his or her right should
personally approach the court. Public interest litigation is the power given to the public by
courts through judicial activism. However, the person filing the petition must prove to the
satisfaction of the court that the petition is being filed for a public interest and not just as a
frivolous litigation by a busy body. It is a non-adversarial procedure evolved by the Supreme
Court.
16


16
S.P. Gupta v Union of India [1982] AIR 149(SC).
8

Such cases may occur when the victim does not have the necessary resources to commence
litigation or his freedom to move court has been suppressed or encroached upon. The court
can itself take cognizance of the matter and precede suo motu or cases can commence on the
petition of any public-spirited individual.
17
An analytical perusal of PIL cases before the
Indian Supreme Court and High Courts shows that the courts have been really very liberal in
granting standing to persons coming from different fields. It is apparent that the courts are
more concerned with the kinds of issues raised than with the persons bringing those cases to
the courts.
18

PIL is sought to be encouraged in the larger interest of public. Under PIL, the Supreme Court
allows any member of the public to seek judicial redress for a legal wrong done to a person or
to a determine class of persons, who by reasons of poverty, helplessness or disability or a
socially or economically disadvantaged position is unable to approach the court directly.
Former Chief Justice P.N. Bhagwati termed it as Social Action Legislation because herein
the SC has settled the dismal problem of lack of access to justice to the poor and oppressed
sections of Indian society by empowering volunteers representatives or organisations to
approach the court on behalf of the poor and oppressed.
19


5. ORIGIN & DEVELOPMENT OF PIL

The concept of public interest litigation were initially sown in India by Krishna Iyer
J., in 1976 in Mumbai Kamgar Sabha vs. Abdul Bhai
20
and was initiated in
Raihvaiy vs. Union of India(wherein an unregistered association of workers was
permitted to institute a writ petition under Art.32 of the Constitution for the redressal
of common grievances).




17
www.manupatrafast.com
18
Rao, Mamta, PIL Legal Aid and Lok Adalats, Eastern Book Company, 2004, pno.29.
19
id.
20
Mumbai Kamgar Sabha v Abdul Bhai [1976] AIR 1455(SC).
9

Krishna lyer J. enunciated the reasons for liberalization of the rule of Locus Standi
in Fertilizer Corporation Kamgar vs. Union of India
21
(the Court established the
principle that decision taken by the management affecting their rights directly their
rights directly, the workers of a factory have the locus standi to challenge that major
decision of management) and the ideal of Public Interest Litigation was blossomed
in S.P. Gupta and others vs. Union of India
22
.

6. PIL AND JUDICIAL ACTIVISM
Activism, like beauty, is often in the eye of the beholder. Activism is essential for
participative public justice. In India, the opening up of access to courts to the poor, indigent
and disadvantaged sections of the nation through Public Interest Litigation, popularly known
by its acronym PIL, is unexceptionable judicial activism.
23

Public interest litigation today has great significance and drew the attention of all concerned.
The traditional rule of Locus Standi that a person, whose right is infringed alone can file a
petition, has been considerably relaxed by the Supreme Court in its recent decisions. Now,
the court permits public interest litigation at the instance of public spirited citizens for the
enforcement of constitutional or legal rights.
24
Now, any public spirited citizen can
move/approach the court for the public cause (in the interests of the public or public welfare)
by filing a petition:
1. in Supreme Court under Art.32 of the Constitution;
2. in High Court under Art.226 of the Constitution; and
3. in the Court of Magistrate under Sec.133, Cr. P.C.
Therefore, a public minded citizen must be given an opportunity to move the court in the
interests of the public.


21
Fertilizer Corporation Kamgar v Union of India [1981] AIR 1981 149(SC).
22
S.P. Gupta and others v Union of India [1982] AIR 149(SC).
23
www.thehindu.com
24
www.manupatrafast.com
10

Judicial Activism which started from the mid-seventies injected the judicial stream which
brought about revolutionary change in the outlook of Indian judiciary. Till then the
conservative tradition bound institution became sensitive to the need of the weaker sections,
downtrodden and traditionally oppressed classes of India.
25

Public Interest Litigation or Pro Bono Public Litigation is litigation at the instance of
public-spirited citizen espousing cause of others.
26
From 1979, the judiciary led by the
Supreme Court in India became relevant to the nation in manner not contemplated by the
makers of the Constitution and became an active participant in the dispenser of social justice.
In 1979, Supreme Court advocate Kapila Hingorani drew the Courts attention to a
series of articles in a newspaper exposing the plight of Bihar under trial prisoners,
most of whom had served pre-trial detention more than the period they could have
been imprisoned if convicted. Sunil Batra, a prisoner, wrote a letter to Justice
Krishna Iyer of the Supreme Court drawing his attention to torture by prison
authorities and the miserable conditions of prisoners in jails. This was taken up as a
petition and the Court passed orders for humane conditions in jails.

In 1980, two professors of law wrote a letter to the editor of a newspaper describing
the barbaric conditions of detention in the Agra Protective House for Women which
was made the basis of a writ petition in the Supreme Court. The exploitation of
workmen at construction sites in violation of labour laws was brought to the attention
of the Supreme Court by a letter. The slave-like condition of bonded labourers in
quarries was brought to the attention of the Court by a social activist organisation. A
journalist moved the court against the evictions of pavement dwellers of Bombay.
Several cases of this type followed.
In dealing with such cases, the Court evolved a new regime of rights of citizens and
obligations of the State and devised new methods for its accountability.


25
Santosh Negde: PIL and Control of Government Indian Bar review, Vol. XV Nos. 1& 2 Jan-June,1998 p. 1 as
cited in Wadehra, Dr. B.L., Public Interest Litigation, Universal Law Publishing2009, pno. 162.
26
Shukla, V.N., Constitution of India, pno. 226 as cited in Wadehra, Dr. B.L., Public Interest Litigation,
Universal Law Publishing2009, pno. 163.
11

In 1982, Justice P.N. Bhagwati correctly stated the purpose of PIL as it originated. He
emphasised that PIL a strategic arm of the legal aid movement which is intended to bring
justice within the reach of the poor masses, who constitute the low visibility area of
humanity, is a totally different kind of litigation from the ordinary.
27

In Public Interest Litigation (PIL) vigilant citizens of the country can find an inexpensive
legal remedy because there is only a nominal fixed court fee involved in this. Further,
through the so-called PIL, the litigants can focus attention on and achieve results pertaining
to larger public issues, especially in the fields of human rights, consumer welfare and
environment.
28


7. ROLE OF JUDICIAL ACTIVISM AND PIL IN CHANGING SOCIETAL NEEDS
Public interest litigation is an extremely important jurisdiction exercised by the Supreme
Court and the High Courts. The Courts in a number of cases have given important directions
and passed orders which have brought positive changes in the country. The Courts directions
have immensely benefited marginalised sections of the society in a number of cases. It has
also helped in protection and preservation of ecology, forests, marine life, wildlife etc. The
Courts directions to some extent have helped in maintaining probity and transparency in the
public life.
29


1. LABOUR JURISPRUDENCE AND PIL:
In Bandhu Mukti Morcha v Union of filed India
30
, the 3-judge bench of the Court
entertained a petition filed by an organisation dedicated to the cause of release of
bonded labourers. The bench considered the allegation that large number of labourers
from Maharashtra, Madhya Pradesh, Uttar Pradesh and Rajasthan were working in
inhuman and intolerable conditions in stone quarries situated in Faridabad and some
of them were bonded labourers. The Court issued number of directions to Central and
State Government to free the bonded labourers.

27
www.thehindu.com
28
www.manupatrafast.com
29
www.legalblog.in
30
Bandhu Mukti Morcha v Union of India [1984] AIR 802 (SC).
12

2. Women & Children:
In Gaurav Jain v Union of India
31
, the Supreme Court issued number of directions
for the rescue and rehabilitation of child prostitutes and establishment of Juvenile
Homes for them.
In Vishakha v State of Rajasthan
32
, the Court issued number of guidelines and
norms to protect and to enforce the fundamental and human rights of working women,
against the sexual harassment.
In Lakshmikant Pandey v Union of India
33
, the Supreme Court laid down various
principles and norms which should be followed in determining whether child should
be allowed to be adopted by the foreign parents.

3. Prisoners & PIL:
In Hussainara khatoon v Home Secretary, Bihar
34
, the Supreme Court held that
keeping under trials in prison without any trial for long durations, violates their right
to speedy trial implicit in Article 21 if the Indian Constitution.
In Rudal Shah v State of Bihar
35
, wherein the petitioner was acquitted by the Court
of Sessions in 1968 but he was released from jail in 1982, (after 14 years) for
inexplicable reasons, the Supreme Court as an intensive measure awarded the
compensation of Rs. 35,000 for deprivation of his liberty.

4. Environment & PIL:
This is the area where PIL played an important role from 1980 till now. The judiciary through
judicial activism increased the arena of Section 21 of the Constitution.
36



31
Gaurav Jain v Union of India [1997] AIR 3012 (SC).
32
Vishakha v State of Rajasthan [1997] AIR 241 (SC).
33
Lakshmikant Pandey v Union of India [1992] AIR 118 (SC).
34
Hussainara khatoon v Home Secretary, Bihar [1980] 1 AIR 81(SC).
35
Rudal Shah v State of Bihar [1983] AIR 1086(SC).
36
Wadehra, Dr. B.L., Public Interest Litigation, Universal Law Publishing, 2009, pno. 166.
13

In M.C. Mehta v Union of India
37
, PIL was filed by the Lawyer complaining about
the leak of petroleum gas from the units of M/s. Shriram Foods to the persons in the
vicinity. The Court issued the direction to the industry and also to the Union of India
to prevent any future leakage and also awarded a sum of Rs. 10,000 each.
In M.C. Mehta v Union of India
38
, PIL was filed alleging that Delhis air had
become one of the highest polluted in the world due to pollution being caused by the
addition of about one lakh new motor vehicles every year.
The Supreme Court in the above case directed the Delhi
Administration to furnish complete list of prosecutions launched against the heavy
vehicles, for causing pollution by infringement of various requirements of law.

5. Corruption & Judicial Activism:
The Apex Court has made number of decisions with regard to the corruption charges.
In Dinesh Trivedi v Union of India
39
, PIL was filed by Member of Parliament in
conjunction with NGO seeking direction to the Government of India to make public
the Vohra Committee Report along with supporting materials and also seeking
declaration that Official Secrets Act is unconstitutional. The Court held that under
Article 19(1) (a), the citizens have a right to know but like all rights, it is also subject
to certain reasonable restrictions. The Court directed that high level committee be
appointed by the President of India in consultation with the Prime Minister and Lok
Speaker which can monitor the investigation and take necessary action.





37
M.C. Mehta v Union of India [1987] AIR 965(SC).
38
M.C. Mehta v Union of India [1991] 2 SCC 353.
39
Dinesh Trivedi v Union of India [1997] 4 SCC 306.
14


8. CONCLUSION

Through the device of Public Interest Litigation, the Supreme Court has made a positive
contribution to enforce the rights of prisoners, workers, pensioners, consumers, victims of
environmental pollution and others. PIL has played an important role in ensuring that there is
accountability of administration to the people, there is a rule of law in all spheres of public
life and also in areas like maintaining the independence of judiciary. In fact, scope of PIL has
been widened considerably in recent years as the ambit of public interest has undergone a
metamorphosis. Now, the beneficiaries of PIL are not only the socially and economically
disadvantaged sections of society but also the entire society at large. Through PIL it has been
ensure that victims of violation of fundamental rights have been paid adequate monetary
compensation, by way of fundamental rights recognised and enforced by the higher judiciary
through judicial activism
40
.
It is actually a welcome move because no one in the country can deny
that even PIL activists should be responsible and accountable. In any way, PIL now does
require a complete rethink and restructuring. Anyway, overuse and abuse of PIL can only
make it stale and ineffective. Since it is an extraordinary remedy available at a cheaper cost to
all citizens of the country, it ought not to be used by all litigants as a substitute for ordinary
ones or as a means to file frivolous complaints.









40
Wadehra, Dr. B.L., Public Interest Litigation, Universal Law Publishing, 2009, pno. 168.
15


9. BIBLIOGRAPHY

BOOKS REFERRED:

Upadhyay, Videh PIL in India.
Sharma, DR. S.S., Legal Services, PIL & Para-Legal Services.
ROIL Public Interest Litigation, Universal Law Publishing, New Delhi.
Sirohi, J. P. S., Public Interest Lawyering, Legal Aid and Para Legal Services.
Sathe, S.P., Judicial Activism in India.
Wadehra, Dr. B.L., Public Interest Litigation.
Rao, Mamta, PIL Legal Aid and Lok Adalats.

SITES REFERRED:
www.thehindu.com
www.legalblog.com
www.mauopatrafast.com
definitions.uselegal.com









16