THE DEVELOPMENT OF PUBLIC INTETREST LITIGATION IN
Since the early 1980s, the Supreme Court of India and its state High
Courts have wielded an enormous amount of power in the area of human rights.
Public interest litigation (PIL) claims have been used to defend the rights of the
poor, illiterate, disadvantaged, and impoverished people of India. This section
explores the development of this transformative type of litigation and its impact on
India’s legal system. It begins by defining public interest litigation, generally and
specifically in the Indian context. This section also examines some of the concerns
that commentators have about the rise of PIL.A. Defining Public Interest Litigation
Defining PIL in the Indian context is not an easy task. Generally, public
interest litigation is described as “something in which the public, the community at
large, has some pecuniary interest or some interest by which their legal rights or
liabilities are affected.”154 In many ways, public interest litigation, or public law
litigation as it is sometimes called in the United States, represents a revolt against
the traditional model for adjudication.155
Professor Abram Chayes identifies four characteristics of public law
litigation in the United States. These characteristics are common to PIL actions in
154. BLACK’S LAW DICTIONARY 1229 (7th ed. 1990). See also Russell v. Wheeler, 439
P.2d 43, 46 (Colo. 1968).
155. See Abram Chayes, The Role of the Judge in Public Law Litigation, 89 HARV
L.REV. 1281 (1976).
India. First, the joinder of parties has been liberalized.156 Today, all parties with an
“interest” in the controversy can join the litigation.157 Though “interest” has been
defined narrowly sometimes to preserve efficiency concerns, the courts have
responded by allowing class-action claims that are more flexible with regards to
Second, the courts have given increasing importance to equitable relief.159
Professor Chayes focuses on injunctive relief as an example of this procedural
development.160 He argues that injunctions are a much greater constraint on a
party’s future actions than the risk of future liability.161 Further, the injunction is
continuing and a party may seek a further order from the court to change or modify
the injunction if the circumstances so require.162 Finally, through an injunction,
“the court takes public responsibility for any consequences of its decree that may
adversely affect strangers to the action.”163 This type of equitable relief is more
concerned with balancing the interests of the parties than the traditional form of
Third, public law litigation, unlike traditional forms of litigation, is
concerned not only about past instances or occurrences but also about protecting
against acts that are ongoing or that may occur in the future.164 Professor Chayes
describes this model of fact-finding as “fact evaluation.”165 Public law litigation
concerns not only the parties, representing two sides of a disagreement, but also
the public interest. As such, the court must play a role in finding and evaluating
those facts that might have an impact on the outcome of the suit.
Finally, the decree must be different in public law litigation. The court is
seeking to modify future instances or conduct; therefore, its decision cannot be
logically deduced from the “nature of the legal harm suffered.”166 Professor
Chayes suggests a model for developing this type of decree.167 He argues that the
court should act as a mediator between the parties, in part to guarantee their
ongoing compliance.168 Further, the court should develop its own expertise and
156. Id. at 1289.
157. See e.g., HANDBOOK OF THE LAW OF CODE PLEADING §57 (1947); and CODE
REMEDIES §113 (1929).
158. Chayes. supra note 155, at 1289-90.
159. Id. at 1292.
160. See Abram Chayes, Developments in the Law—Injunctions (1965).
161. Chayes, supra note 155, at 1292.
164. See e.g., Sierra Club v. Morton, 405 U.S. 727 (1972); and Coppar v. Rizzo, 357 F.
Supp. 1289 (E.D. Pa. 1973), aff'd sub nom. Goode v. Rizzo, 560 F.2d 542 (3d Cir. 1975),
rev'd, 96 S.Ct. 598 (1976).
165. Chayes, supra note 155, at 1297.
166. Id. at 1298.
167. Id. at 1298-99.
information to ensure that the decree will resolve the dispute.169 As he says, “the
trial judge has passed beyond even the role of legislator and has become a policy
planner and manager.”170 As this section demonstrates, many of these
characteristics have been employed by Indian courts when adjudicating PIL
There are some important difference between the United States’
experience with public law litigation and PIL in India. Former Chief Justice of
India, P.N. Bhagwati, contrasts the two models of PIL in three ways.171 First,
public interest litigation in the United States “requires substantial resource
investment….”172 This investment includes both manpower and financial
resources. In India, because of a lack of such resources, large-scale poverty and
general ignorance about the law or human rights, PIL cannot be based on the same
Second, the issues espoused by PIL in India are different from the issues
taken up by PIL in the United States. According to Bhagwati, the primary focus of
PIL in India is “state repression, governmental lawlessness, administrative
deviance, and exploitation of disadvantaged groups and denial to them of their
rights and entitlements.”173 He labels these issues as “turn-around situations” for
India’s disadvantaged and vulnerable groups. In the United States, public interest
litigation generally deals with civic participation in governmental decisionmaking.
174 It is more concerned with defending “interests without groups” such as
consumerism and environmentalism.
Bhagwati’s view is not entirely accurate today. Supreme Court Advocate
Rajeev Dhavan argues that PIL in India has “transcended its earlier self-imposed
limitation of considering and enlarging the cause of the disadvantaged. It was
appropriated in the service of a range of public causes….”175 For example, the
High Court of Bombay at Goa has developed an expertise in “eco-PIL” or PIL
cases dealing with environmental issues. Professor Upendra Baxi argues that such
cases should be labelled “social action litigation” actions.176 He believes that PIL
should be reserved for issues directly concerned with the predicament of the
disadvantaged. Despite Professor Baxi’s criticism, it is unclear whether the
blurring of the line between PIL actions and so-called social action litigation has
negatively affected human rights jurisprudence in India. In fact, “as the definition
of success in a PIL petition in India has had to extend beyond Court orders,
170. Chayes, supra note 155, at 1302.
171. P.N. Bhagwati, Judicial Activism and Public Interest Litigation, 23 COLUM. J.
TRANSNAT’L L. 561, 569-70 (1985).
172. Id. at 570.
174. LAW AND POVERTY 389 (Upendra Baxi, ed., 1988).
175. Rajeev Dhavan, Law as Struggle: Public Interest Law in India, 36 J.I.L.I. 302,
176. Bhagwati, supra note 171.
increasingly, it is in the cases which have mobilized PIL for general public interest
issues that real successes have been achieved.”177 At its core, PIL is a tool for
protecting the rights of India’s disadvantaged and impoverished. At the same time,
it has been appropriated by civil and political society in hugely diverse ways,
making it increasingly similar to public law actions in the U.S.
Finally, the Anglo-Saxon approach to jurisprudence is not adaptable in
India. Bhagwati argues that Anglo-Saxon law is “transactional, highly
individualistic, concerned with atomic justice incapable of responding to the
claims and demands of collectivity, and resistant to change.”178 On the other hand,
PIL in India is concerned with combating exploitation and enforcing collective
rights, an objective that is inconsistent with a private rights model of public law
This comparison suggests that public law litigation or public interest
litigation is similar around the world. In both India and the United States, public
law litigation arose as a challenge to the traditional model of adjudication. Though
they do share similar characteristics, the Indian variation is unique in that it must
serve the needs of a poorer and more impoverished society. To that end, PIL in
India is less resource-based and more focused on collective rights.B. Legal Basis for PIL in India
The Constitution of India provides the legal basis for the development of
public interest litigation. Under Article 32, the Supreme Court of India has original
jurisdiction over all cases concerning fundamental freedoms enumerated in
Articles 14 thru 25.179 These fundamental freedoms include: equality of all persons
177. PEOPLE, LAW AND JUSTICE: CASEBOOK ON PUBLIC INTEREST LITIGATION , supra
note 6, at 7.
178. Bhagwati, supra note 171, at 570.
179. INDIA CONST., art. 32 states:
(1) The right to move the Supreme Court by appropriate
proceeding for the enforcement of the rights guaranteed by this Part
(2) The Supreme Court shall have power to issue
directions or orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the
rights conferred by this Part.
(3) Without prejudice to the powers conferred on the
Supreme Court by clauses (1) and (2), Parliament may by law
empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme
Court under clause (2).
(4) The right guaranteed by this Article shall not be
suspended except as otherwise provided for by this Constitution.
before the law;180 no discrimination for religion, race, caste, sex or place of
birth181; freedom of speech, association, assembly, movement and residence
location, and of career or occupation182; no deprivation of life or liberty “without
procedures established by law”183; no bonded labour or slavery184; no child
labour185; and freedom of religion186. The state High Courts have similar
If a fundamental freedom has been allegedly violated, the complainant
may seek redress directly from the Supreme Court of India. Article 32 specifically
allows this method of redress. The Supreme Court has suggested that Article 226
is broader and, as such, if the complaint is of a “legal wrong” the correct forum is
the state High Court.188 In Gupta v. India, the Supreme Court of India upheld this
interpretation of these articles as gateways to PIL actions.189
In addition to the fundamental freedoms outlined above, the Constitution
of India also includes “Directive Principles of State Policy.”190 These principles are
not enforceable in any court but they are fundamental to the governance of India
and the legislature must apply these principles in making the law.191 They include
directions to the state to reduce inequalities in status and opportunity192 and
distribute society’s resources to serve the common good.193 Bhagwati suggests that
180. INDIA CONST., art. 14.
181. INDIA CONST., art. 15.
182. INDIA CONST., art. 19.
183. INDIA CONST, art. 21.
184. INDIA CONST, art. 23.
185. INDIA CONST, art. 24.
186. INDIA CONST, art. 25.
187. INDIA CONST, art. 226 states:
Every High Court shall have the power…to issue to any person or
authority, including in appropriate cases any Government…directions,
orders or writs in the nature of habeas corpus, mandamus, prohibition, quo
warrato and certiorari, or any of them, for the enforcement of any of the
rights conferred by Part III [fundamental freedoms] and for any other
188. The inclusion of the words “. . . and for any other purpose” in Article 226 makes
its application broader than Article 32. In Jill Cottrell, Courts and Accountability: Public
Interest Litigation in the Indian High Courts, THIRD WORLD LEGAL STUD. 199, 200 (1992),
the author says: “in recent years the Supreme Court has on a number of occasions refused to
entertain writ petitions, saying that they ought to be taken to the High Court first.”
189. A.I.R. 1982 S.C. 149.
190. INDIA CONST, arts. 36-51.
191. INDIA CONST, art. 37 states: “The provisions contained in this Part shall not be
enforceable by any court, but the principles therein laid down are nevertheless fundamental
in the governance of the country and it shall be the duty of the State to apply these
principles in making laws.”
192. INDIA CONST, art. 38(2).
193. INDIA CONST, art. 39(b).
it is these principles that are at the heart of PIL, and that they inspired judges to
become social activists.194C. Characteristics of PIL
Public interest litigation is a characterized by a unique bundle of
procedures: procedural flexibility, relaxed rules of standing, an activist
interpretation of fundamental freedoms, remedial flexibility, and ongoing judicial
participation and supervision.195
1. Procedural Flexibility
The Supreme Court of India can be flexible regarding the rules of
procedures in PIL actions. To broaden access to justice, actions may be
commenced by a formal petition or by just writing a letter to the court. The
motivation behind allowing this epistolary jurisdiction is fairness: a person acting
pro bono publico should not have to incur personal expenses for the preparation of
a regular petition that seeks to guarantee the rights of the poor.196 Judges have been
known to encourage and even invite public interest actions. For example, in
Advani v. Madhya Pradesh, the court accepted a clipping of a newspaper story
about bonded labourers as the basis for a PIL action. 197
Building on this principle of access to justice, the courts have established
legal aid as a fundamental right in criminal cases and courts will often waive fees,
award costs, and provide other assistance to public interest lawyers.198 Further, the
courts have established socio-legal committees or commissions of inquiry when
facts are difficult or expensive to uncover. For example, in Wangla v. India, the
Court appointed a special committee to investigate the quality of imported butter
shortly after the Chernobyl nuclear disaster. 199 Though defendants have
challenged these innovations as violations of the canons of procedure, the Court
has upheld them as necessary for the protection of fundamental freedoms: “The
constitution-makers deliberately did not lay down any particular forms of
proceedings for enforcement of fundamental rights nor did they stipulate that such
proceedings should conform to any rigid pattern or straight-jacket formula.”200
194. Bhagwati, supra note 171, at 568.
195. See Jamie Cassels, Judicial Activism and Public Interest Litigation in India:
Attempting the Impossible? AM. J. COMP. L. 495, 498 (1989).
196. Bhagwati, supra note 171, at 571.
197. A.I.R. 1985 S.C. 1368.
198. Cassels, supra note 195, at 500.
199.1988 S.C.A.L.E. 118.
200. Bhandua Mukti Morcha v. India, A.I.R. 1984 S.C. 802, 814, (1984) 3 S.C.C. 161,
2. Relaxed Rules of Standing
The traditional rules of standing require that the participants have some
real interest in the action in order that the “truth” will be properly revealed through
the legal proceedings.201 Often, this “real interest” is property and other financial
interests. As early as 1976, the Supreme Court of India relaxed the rule of locus
standi.202 Academics, journalists, social activists and NGOs have initiated public
interest actions. As former Chief Justice Bhagwati noted in Gupta v. India:
Where a legal wrong or a legal injury is caused to a person or to
determinate class of persons…and such a person or determinate
class of persons is by reason of poverty, helplessness or disability
or socially or economically disadvantaged position, unable to
approach the court for relief, any member of the public can
maintain an application for appropriate direction….203
The Supreme Court of India and each of India’s state High Courts have upheld this
proposition without exception. Examples of these relaxed rules of standing are
numerous. In Sharma v. Himachal Pradesh, members of an impoverished caste
living in the snow-bound state of Himachal Pradesh were given standing to pursue
an action in respect of public expenditure on projects such as highway
construction. 204 Even broader, the Supreme Court of India recognized a lawyer’s
challenge to the inadequate censorship of a film on the grounds that the film was
detrimental to communal and ethnic harmony in India.205 Environmental groups,
social workers, and journalists have all enjoyed standing before India’s courts on a
variety of issues. Further, the Supreme Court of India has awarded costs to these
varied petitioners as an expression of the community’s appreciation.206
3. Activist Interpretation
Through PIL, the Indian courts have expanded their interpretation of the
fundamental freedoms protected in India’s Constitution. The right not to be
deprived of life and personal liberty is an excellent example of this activist
interpretation of the Constitution through PIL.207 In Gopalan v. Tamil Nadu,208 the
201. Cassels, supra note 195, at 498.
202. Singh v. Uttar Pradesh, A.I.R. 1976 S.C. 2602, 2609.
203. Gupta v. India, supra note 189, at 189.
204. (1986) 2 S.C.C. 68.
205. Dalal v. India, (1988) 1 S.C.C. 668.
206. In Rural Litigation and Entitlement v. Uttar Pradesh, (1986) Supp. S.C.C. 517,
and Barse v. India, (1986) 3 S.C.C. 596, the petitioners were awarded ten thousand rupees
as costs of the proceedings.
207. INDIA CONST., art. 21 states: “No person shall be deprived of his life or personal
liberty except according to procedure established by law.”
Supreme Court understood this provision as only procedural: the state only has to
demonstrate that its interference with the individual is in accordance with the
procedure laid down by a properly constituted law.209
Conversely, in its landmark 1978 judgment, Gandhi v. India, the Supreme
Court of India held that any state action interfering with life or liberty must be
“right, just and fair” in addition to procedurally authorized. 210 Further, in Tellis v.
Bombay (Municipal Corporation), the Court held that the right to life “is wide and
far reaching” and includes the right to a livelihood. 211 In Bhandua Mukti Morcha,
the Court found that the right to life includes the right to be “free from
exploitation” and that “protection of the health and strength of workers, men and
women, and of the tender age of children against abuse, opportunities and facilities
for children to develop in a healthy manner and in conditions of freedom and
dignity, educational facilities, just and humane conditions of work and maternity
relief.”212 These decisions demonstrate the Court’s willingness to convert a formal
guarantee in India’s Constitution into a positive human right.213
4. Remedial Flexibility
The Indian courts have flexibly interpreted their inherent power to do
justice. Whereas the traditional understanding of judicial remedies requires
finality, short lawsuits, and no supervision of the ongoing matter, courts in India
have pushed the boundary of this power. For example, petitions may be made
directly to the Supreme Court of India, rather than through the usual civil process.
The Court has awarded damages to compensate the victim and punish the
wrongdoer.214 Most importantly, the Courts have fashioned remedial strategies that
require administrative supervision. Bhagwati argues that existing remedies
intended to deal with private rights situations were inadequate, thus demanding
Professor Cassels identifies two examples of this remedial strategy.216 In
Mehta v. India, a chemical plant was closed after a gas leak. 217 The Court allowed
it to reopen only after the plant satisfied a number of conditions. The Court
208. A.I.R. 1950 S.C. 27.
209. See also Jabalpur v. Shukla, (1976) 2 S.C.C. 521.
210. (1978) 2 S.C.R. 621, A.I.R. 1978 S.C. 597.
211. A.I.R. 1986 S.C. 180, (1985) 3 S.C.C. 545
212. Bhandua Mukti Morcha v. India, supra note 200, at 811-12.
213. See generally, Cassels, supra note 195, at 501-505. The author identifies other
formal rights that have been converted into positive human rights by the Supreme Court of
215. Bhagwati, supra note 171, at 575.
216. Cassels, supra note 195, at 506.
217. A.I.R. 1986 S.C. 965, (1986) 2 S.C.C. 176.
ordered specific technical, safety and training improvements on the
recommendation of four separate technical teams appointed by the court. An
independent committee was established to visit the plant biweekly and a
government inspector was ordered to make surprise visits once a week. The Court
went so far as to suggest that the Indian government establish an Ecological
Sciences Resource Group to assist the Court in future environmental actions.
Similarly, in Bhandua Mukti Morcha, the Court ordered local officials to
locate and identify bonded labourers, have them released, and provide economic
and psychological rehabilitation.218 The government was ordered to seek the
assistance of social action groups, carry out surprise inspections on local quarries,
and set up legal education programs for labourers.
The Court itself has limited its interpretive power in some cases. For
example, it has refused to force the state to enact legislation to protect fundamental
freedoms or the Directive Principles.219 As Professor Cassels notes, “The true
measure of judicial activism in India, therefore, is found less in the rhetoric of
rights definition than in the remedial strategies deployed and actual outcomes in
PIL cases.”220 These boundaries established by the Court suggest that it is sensitive
to its role in India’s political framework but, at the same time, is willing to push
the limits of its constitutional powers to secure basic human rights for India’s
people.D. Criticisms of PIL in India
Despite its success at protecting the rights of India’s impoverished and
disadvantaged groups, PIL has been criticized as being overly activist and prone to
judicial despotism. Further, some commentators fear that groups working counter
to the public interest are abusing PIL.
1. Judicial Activism
PIL has been criticized for encouraging judicial activism. Sri Krishna
Agrawala argues: “India being a welfare state, legislation already exists on most
218. Bhandua Mukti Morcha v. India, supra note 200, at 834-37.
219. See e.g. Id, Tellis v. Bombay (Municipal Corporation), supra note 211, and
Himachal Pradesh v. A Parent of a Student of Medical College, Simla, A.I.R. 1985 S.C. 910
[Medical College, Simla]. In Medical College, Simla, a court-appointed committee
recommended that the state enact legislation to prevent the hazing of freshman students by
senior students in the state’s post-secondary institutions. The High Court of Himachal
Pradesh ordered the state government to report to it regarding this recommendation. The
Supreme Court of India, on appeal by the state, vigorously criticized the High Court for its
attempt to compel the state to enact legislation.
220. Cassels, supra note 195, at 505.
matters…. If the Court starts enforcing all such legislation under the specious plea
that non-enforcement is violative of Article 21, perhaps no state activity can be
spared from the purview of the Supreme Court as a PIL matter. Its logical
extension could mean the taking over of the total administration of the country
from the executive by the Court.”221 PIL has clearly resulted in Indian judges
encroaching upon parliament’s policy and administrative functions. The Supreme
Court of India’s strong recommendations to the government in Bhandua Mukti
Morcha and Shiriam Fertilizer are excellent examples of this activism.
The Court has not been indifferent to this criticism. In fact, in Bhandua
Mukti Morcha, Judge Pathak noted that the judiciary runs the risk of being
mistaken for a political authority if it continues to take on a policy role: “In the
area of judicial functioning where judicial activism finds room for play, where
constitutional adjudication can become an instrument of social policy forged by
the personal political philosophy of the Judge, this is an important consideration to
keep in mind.”222 Suffice it to say, Indian judges have nonetheless defended
against charges of activism on a number of grounds. As Jamie Cassels notes, “the
doctrine of separation of powers, while suggesting good reasons why such lines
must be drawn (judicial non-accountability, institutional competence, etc.), does
not of itself indicate precisely where they should be placed.”223 Judges in all legal
systems, when asked to scrutinize a government decision or operation, are engaged
in policy analysis and politics.224 In India, by relaxing the rules of standing,
justiciability, and judicial deference, judges have drawn the lines differently than
their counterparts in North America and Europe but are not in danger of usurping
Bhagwati argues that if India’s judges are guilty of activism, it is justified
as a means for achieving distributive justice.225 Comparing India to the United
States again, Bhagwati sees the role of Indian judges as similar to American judges
who struck down social legislation pertaining to the working hours of men,
women, and children.226 This type of social activism by the judiciary is especially
important in developing countries not just because “judges owe a duty to do justice
with a view to creating and moulding a just society, but because a modern
judiciary can no longer obtain social and political legitimacy without making a
substantial contribution to issues of social justice.”227 Of course, this justification
does not answer the concern of commentators like Sri Agrawala, who argues that,
in addition to being activist, the Court has assumed a strong policy-making role.
221. Sri Krishna Agrawala, PUBLIC INTEREST LITIGATION IN INDIA 37 (1986).
222. Bhandua Mukti Morcha v. India, supra note 200, at 843.
223. Cassels, supra note 195, at 513.
224. Bhagwati, supra note 171, at 562.
2. “Publicity” Interest Litigation
Another recent concern is that PIL is being used by corporations and
elites to further their interests in the name of the “public.” Some commentators
describe this phenomenon as “publicity interest litigation.” For example, in 2001, a
petitioner filed a PIL at the Delhi High Court to stop a visit by Pakistan’s
President, Gen. Pervez Musharraf. The court dismissed the petition, saying that the
judiciary “should not be allowed to be polluted by unscrupulous litigants by
resorting to the extraordinary jurisdiction.”228 Similarly, the High Court of Madras
dismissed a petition seeking a stay of the 2002 presidential election. The petitioner
argued that the Constitution of India should be interpreted to allow all citizens to
directly elect the President, not just the state legislators and the federal Members
of Parliament. In that case, the court not only dismissed the petition, but it also
charged the petitioner twenty-five thousand rupees in costs.229 In both cases, the
courts labelled the petitions “publicity interest litigation.”
A more complex issue is the action in which each litigants claims that his
or her proposal best serves the public interest. In Goa, the government routinely
allows private corporations to renovate historical landmarks, usually forts. These
forts are converted into resorts and the government does not have to pay the
expense of upkeep or restoration. Three hotel companies and a private corporation,
Lady Hamlyn Trust, were bidding to restore the Reis Magos fort and convert it
into a resort. Lady Hamlyn’s proposal was accepted by the government, but it
included plans for a private residence, leased to Lady Hamlyn, for fifteen years.230
The hotel companies filed a PIL action, claiming that their proposals better serve
the public interest and, as such, should be accepted over the proposal of Lady
Hamlyn Trust. In response, Dr. Joe D’Souza, a conservationist at Goa University,
filed a PIL in response, arguing that the Goan government should be restoring the
fort, not private corporations.231 At the time of writing, this issue had not been
Another growing criticism is that lawyers are more concerned with the
publicity generated by a large-scale PIL case than by the actual outcome of that
case. Advocate Ramesh Aggarwal believes that the high costs and time involved in
litigating before India’s Supreme Court are transforming PIL.232 Lawyers working
228. Nirnimesh Kumar, India: Pacific International Lines on Musharraf, HINDU, July
14, 2001, at http://www.hinduonnet.com/thehindu/2001/07/14/stories/02140009.htm.
229. HC Dismisses Petition Challenging Presidential Poll, PRESS TRUST OF INDIA,
June 17, 2002, at http://www.rediff.com/news/2002/jun/17prez8.htm.
230. Frederick Noronha , Goa’s Forts, Decaying by 19th Century, Worse in the 20th ,
June 30, 2000, at http://www.goacom.com/news; and Mario Cabral e Sa, No Problems,
NAVHIND TIMES, June 13, 2000, available at http://www.navhindtimes.com.
231. Personal communication with Dr Joe D’Souza, Professor, Goa University, Panjim
(July 26, 2000) (on file with author).
232. Personal communication with Ramesh Aggarwal, Director, Public Interest Law
Support and Research Centre, New Delhi (Aug.1, 2000) (on file with author).
pro bono publico must generate an income to sustain their practice. As such, many
lawyers with an expertise in PIL will only represent high-profile clients or get
involved in cases of a national or international interest.
The rise of “publicity” interest litigation thus has two effects. First, some
disadvantaged or impoverished groups or people might not be able to secure
counsel to forward their genuine PIL claims. Second, the courts’ dockets are being
crowded with so many PIL cases, plaintiffs might be dissuaded from seeking a
judicial remedy or the case might take too long for the remedy to be effective. As
an example, between January 1987 and April 1988, the Supreme Court of India
received 23,772 PIL petitions in the form of letters alone.233 The Court was so
concerned that, in 1999, the Chief Justice declared that year the Year of Action:
“There is a docket explosion where cases have gathered twenty times more than
they had in the last ten years.”234 Such crowding becomes a concern when a PIL
case might not genuinely be in the “public interest” and are actually corporate or
private interests dressed up as PIL cases.E. Conclusion
India faced a political crisis in 1975.235 Indira Gandhi, India’s Prime
Minister, declared an emergency in June 1975 and suspended all democratic rights
and judicial procedures. The emergency lasted until the 1977 general elections.
During the emergency, India’s courts were also embroiled in the controversy, as
they were expected to display “commitments” to the government’s policies and
agenda.236 Any legitimacy the judiciary enjoyed before the emergency was wiped
out during this period. The courts made many questionable decisions, infringing
upon the guaranteed rights in India’s Constitution.237
At the end of the emergency, as Rajeev Dhavan has noted, “an alliance of
protest and thinking was overdue, both amongst Indian’s [sic] extremely articulate
middle class intellectuals as well as the disadvantaged whose cause some of them
espoused.”238 The Supreme Court of India, and in particular former Chief Justice
Bhagwati, responded by developing the framework for PIL. Dhavan says, “The
233. Cassels, supra note 195, at 508.
234. Clean up Backlog: Chief Justice, INDIAN EXPRESS (Jan. 23, 1999), available at
235. See generally MAX ZINS, STRAINS ON INDIAN DEMOCRACY: REFLECTIONS ON
INDIA’S POLITICAL AND INSTITUTIONAL CRISIS (1988); and Sudipta Kaviraj, Indira Gandhi
and Indian Politics, ECONOMICS & POLITICS WEEKLY, Sept. 20, 1986, at 38-39.
236. For example, judges were punitively transferred to other jurisdictions for giving
relief against the central government. See India v. Sheth, A.I.R. 1977 S.C. 2328.
237. See e.g., Gandhi v. Narain, (1975) Supp. S.C.C. 1. See also J. DUNCAN & M.
DERRETT, RULE, PROTEST, IDENTITY: ASPECTS OF MODERN SOUTH ASIA (P. Robb and D.
Taylor, eds., 1978).
238. Dhavan, supra note 175, at 306.
adventures of Indian PIL started in the Supreme Court.”239 Bhagwati himself
argues that PIL is “a sustained effort on the part of the highest judiciary to provide
access to justice for the deprived sections of Indian humanity.”240 Through relaxed
rules of procedure and standing, remedial flexibility and an activist interpretation
of the Constitution, public interest litigation has become a powerful tool for social
activists, lawyers and individuals seeking to protect fundamental human rights.
PIL in India is different than its counterpart practiced in North America.
It is much less resource-based and it focuses on collective claims of India’s
underprivileged. At the same time, it has invited criticism. In addition to claims
that it is being appropriated by “interests without causes,” some commentators
argue that PIL has led to an activist court not afraid to encroach on parliament’s
policy-making powers. Others claim that PIL has become beholden to corporate
interests and profile-seeking lawyers. These claims are valid, but PIL, for the most
part, is an indispensable tool for the protection of human rights in India.
Source : Arizona Journal of International & Comparative Law Vol 21, No. 2 2004