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 THE DEVELOPMENT OF PUBLIC INTETREST LITIGATION IN

INDIA

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

the parties.158

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

monetary relief.

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.

162. Id.

163. Id.

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.

168. Id.

 

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

disputes.

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

model.

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,


169. Id.

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.

173. Id.

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,

310 (1994).

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

litigation.

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

is guaranteed.

(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

jurisdiction.187

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

purpose.

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,

186.

 

 

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

these innovations.215

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

India. Id.

214. Id.

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

parliamentary authority.

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.

225. Id.

226. Id.

227. Id.

 

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

resolved.

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

http://www.expressindia.com/ie/daily/19990123/02350465.html.

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.

URL : http://www.law.arizona.edu/Journals/AJICL/AJICL2004/Vol213/The%20Barefoot%20Lawyer%20by%20Ranjan%20Agarwal%20_authors%20version_.pdf

Source : Arizona Journal of International & Comparative Law Vol 21, No. 2 2004

 


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