A

Project on

“Public Interest Litigation and Judicial Activism. An Analysis”

Submitted in the partial fulfillment of

B. Com LL.B. 10th semester)

Session: 2021-2022

PUBLIC INTEREST LITIGATION

SUBMITTED TO: SUBMITTED BY:

Mrs. Afrose Quraishi mam Neelam Rathore

B.Com.LL.B. 10th sem

 DECLARATION
Neelam Rathore, ROLL. NO.16002126 B.Com.LL.B. X Semester, OF GURU GHASI DAS
UNIVERSITY does hereby declare that, this project is my original work and I have not copied this
project or any part there from any sources without any acknowledgement. I am highly indebted to the
author of the book that I have preferred in my book as well as all the writers of the articles and the owner
of the information taken from website to it. It is only because of their contribution and proper guidance of
my faculty adviser Mrs. Afrose Quraishi mam, that I was able to gather light on the subject.

Neelam Rathore

ROLL.NO. -16002126

B.Com.LL.B. X SEM.
 ACKNOWLEDGEMENT
I would like to express my earnest and deepest gratitude to Mrs. Afrose Quraishi mam
a faculty for “public interest litigation”, to give me opportunity to do a project on such a valuable topic
of ‘PUBLIC INTEREST LITIGATION AND JUDICIAL ACTIVISM: AN ANALYSIS’. I am
grateful for the assistance, guidance and support that were extended during the course of excellent
research. I am also thankful to the college administration for providing him resources necessary for the
research work. I thank my parents and my friends for their moral support and love throughout my
research work and projects operation. Above all I thank the God almighty for the blessing me with the
health vitality to complete this project.

Neelam Rathore

ROLL.NO. -16002126

B.Com.LL.B. X SEM
 CERTIFICATE

I am to glad to submit this project report on “PUBLIC INTEREST LITIGATION AND JUDICIAL
ACTIVISM: AN ANALYSIS” as a part of my academic assignment. This project is based on research
methodology. It further studies making sources and method of research methodology. I hope this would
be significant for academic purpose as well as prove information to all readers.

Here through I declare that this paper is an original piece of research and all the borrowed text and ideas
have been duly acknowledged.

SUBMITTED BY

Neelam Rathore
Abstract:

Over the years the Indian judiciary has always been hailed as an activist judiciary. The phenomenon that
bears testimony to this label is the spate of judicial decisions dealing with Public Interest Litigations.
Ever since the conclusion of the first ever PIL concerning the Ratlam Municipal Council in 1976, PIL has
become an effective remedy for all those who are advocates of social justice and believe in working for
the general benefit of the masses including those deprived of their basic needs falling into the category of
the underprivileged. The major breakthrough came in 1982 when the Supreme Court delivered the S.P.
Gupta vs Union of India judgment and said that any individual approaching the court should have a
proper locus standi, i.e., a legal basis to seek a judicial remedy from the court. In a way, the aim of
introducing the locus standi theory was to regulate the number of PILs being filed in the courts and made
the common man aware that a judicial remedy could not be sought for just about anything and
everything.

This paper traces the origin and development of PIL in India and seeks to analyze how PIL came to India
as a result of judicial activism of some judges and their initiative to deliver social justice in an effective
manner. However, the difficulties of this form of litigation is also discussed, thereby emphasizing on the
difficulties in striking the right balance between judicial overreach and judicial restraint. Suggestions are
given at the end as to how the Indian judiciary can guard against over-activism in the urge to provide
effective justice.

Keywords: Judicial Activism, Public Interest Litigation, Judges Transfer Case, Locus Standi
TABLE OF CONTENTS
TABLE OF CASES

INTRODUCTION

CHAPTER I: RELATION BETWEEN PUBLIC INTEREST LITIGATION AND JUDICIAL

ACTIVISM AND THE EMERGENCE OF PIL IN INDIA

 Judicial Activism
 Judicial Activism in India

CHAPTER II: JUDICIAL MOULDING OF STANDING, PROCEDURE, SUBSTANCE, RELIEF

CHAPTER III: PROBLEMS FACED BY PUBLIC INTEREST LITIGATION IN INDIA

CHAPTER IV: THE ONTARIO LAW REFORM COMMISSION REPORT

 Role of PIL in environment protection

CHAPTER V: PHASES OF PUBLIC INTEREST LITIGATION

CHAPTER VI: SUGGESTIONS TO CORRECT AN “OVER-ACTIVIST” JUDICIARY

 Relaxation must be procedural

 Judicial Activism not PIL
 Judicial Activism not Judicial Adventurism
 Displacing Government Administration

CONCLUSION AND SUGGESTIONS

BIBLIOGRAPHY
TABLE OF CASES

Mumbai Kamgar Sabha vs. Abdul Thai

Akhil Bharatiya Shoshit Karmachari Sangh (Railway) v. Union of India

Fertilizer Corporation Kamgar Union v. Union of India

Hussainara Khatoon v. State of Bihar

S.P. Gupta and others vs. Union of India

Oleum Gas Leak case

Kamalnath Case

Ratlam Municipality Case, Taj Trapezium Case, Ganga Pollution Case

Minerva Mills Ltd v Union of India

Rural Litigation and Entitlement Kendra vs. State of U.P

Enviro-Legal Action vs. Union of India

M.C. Mehta vs. Union of India

In Church of God (Full Gospel) in India vs. KKR Majestic Colony Welfare Association

Vellore Citizens' Welfare Forum vs. Union of India

Subhash Kumar vs. State of Bihar

Kesavananda Bharati v State of Kerala

D.K. Basu case

Vishaka case
 INTRODUCTION
Public Interest Litigation: The term "Public Interest" means the larger interests of the public, general
welfare and interest of the masses1 and the word “Litigation” means "a legal action including all
proceedings therein, initiated in a court of law with the purpose of enforcing a right or seeking a remedy."
Thus, the expression `Public Interest Litigation' means "any litigation conducted for the benefit of public
or for removal of some public grievance." In simple words, public interest litigation means. Any public-
spirited citizen can move/approach the court for the public cause (or public interest or public welfare) by
filing a petition in the Supreme Court under Art.32 of the Constitution or in the High Court under Art.226
of the Constitution or before the Court of Magistrate under Sec. 133 of the Code of Criminal Procedure,
1973.

The seeds of the concept of public interest litigation were initially sown in India by Krishna Iyer J., in
1976 in Mumbai Kamgar Sabha vs. Abdul Thai,2 and was initiated in Akhil Bharatiya Shoshit
Karmachari Sangh (Railway) v. Union of India,3wherein an unregistered association of workers was
permitted to institute a writ petition under Art.32 of the Constitution for the redressal of common
grievances. Krishna lyer J., enunciated the reasons for liberalization of the rule of Locus Standi in
Fertilizer Corporation Kamgar Union v. Union of India,4 and the idea of 'Public Interest Litigation'
blossomed in S.P. Gupta and others vs. Union of India,5

The first reported case of PIL in 1979 focused on the inhuman conditions of prisons and under trial
prisoners. In Hussainara Khatoon v. State of Bihar, the PIL was filed by an advocate on the basis of the
news item published in the Indian Express, highlighting the plight of thousands of under trial prisoners
languishing in various jails in Bihar. These proceeding led to the release of more than 40,000 under trial
prisoners. Right to speedy justice emerged as a basic fundamental right which had been denied to these
prisoners. The same set pattern was adopted in subsequent cases.

Judicial Activism: The expression `Judicial Activism' signifies the anxiety of courts to find out
appropriate remedy to the aggrieved by formulating a new rule to settle the conflicting questions in the
event of lawlessness or uncertain laws. The Judicial Activism in India can he witnessed with reference to
the review power of the Supreme Court under Article 32 and I (belt Courts under Article 226 of the
Constitution particularly in Public Interest Litigation.

Earlier, in England there were two kinds of courts namely. Equity Courts (Court of Chancery) and
Common Law Courts. Equity Courts used to decide cases applying the principles of equity i.e., Justice,
Equity and good conscience. Whereas the common law courts used to decide cases basing on common
law i.e., the principles' rules evolved by the Judge; during judicial pronouncements. Hence the common
law is also known as the 'Judge-made-law:’ The courts of Equity and Chancery played significant role in
formulating the new rules of tort. The common law originated in England and was spread in British
Colonies including India. In India, almost all laws have originated from the English Common law. In the
absence of existing rules for relief in certain cases and predictive procedure, the courts of equity or

1
Oxford English Dictionary 2nd Edn. Vol. XII
2 AIR 1976 SC 1455
3 AIR 1981 SC 298
4 AIR 1981 SC 344
5 AIR 1982 SC 149
chancery took the initiative to draw up new rules. 'The formulation of those new rules by the then courts
to settle the conflicting positions that had arisen in certain cases was denoted as 'Judicial Activism'. The
equity court and common law courts were merged with the passing of the Judicature. Act, I875.

Judicial Activism in India: The doctrine of separation of powers was propounded by the French Jurist
Montesquieu. It has been adopted in India as well since the executive powers are vested in the President,
Legislative powers in the Parliament and State Legislative Assemblies and the judicial powers in the
Supreme Court and subordinate courts. However, the adoption of this principle in India is partial and not
total. This is because even though Legislature and the Judiciary are independent yet Judiciary is entrusted
with implementation of the laws made by the legislature. On the other hand, in case of absence of laws on
a particular issue, judiciary issues guidelines and directions for the Legislature to follow. The executive
also encroaches upon judicial power, while appointing the judges of Supreme Court and High Courts.
Similarly, the Judiciary, by its review power examines the law passed by legislature and the legislature on
the other hand intervenes in respect of impeachment of the President of India, who is a part of the Union
Executive.

As stated earlier, the Judicial Activism in India can he witnessed with reference to the review power of
the Supreme Court under Art. 226 of the Constitution particularly in public interest litigation cases. The
Supreme Court played crucial role in formulating several principles in public interest litigation cases. For
instance, the principle of "ABSOLUTE LIABILITY" was propounded in Oleum Gas Leak case6,
“PUBLIC TRUST DOCTRINE” in Kamalnath Case7 etc.

Further, the Supreme Court gave variety of guidelines in various cases of public interest litigation. E.g.,
Ratlam Municipality Case, Taj Trapezium Case, Ganga Pollution Case etc.

RELATION BETWEEN PUBLIC INTEREST LITIGATION AND

JUDICIAL ACTIVISM AND THE EMERGENCE OF PIL IN INDIA
Public interest litigation or social 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 the so-called “PUBLIC-SPIRITED CITIZENS”8 for
the enforcement of Constitutional and Legal rights. 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 the Supreme Court under Article 32 of the Constitution of India;

2. In the High Court under Article 226 of the Indian Constitution
3. In the Court of Magistrate under Section 133 of the Code of Criminal procedure

6 M.C. Mehta v Union of India AIR 1987 SC 965

7 M.C. Mehta v Kamal Nath (1998) 1 SCC 388
8 They are people of this country who do not have direct interest at stake in the PIL filed before a Court but work Pro Bono

Publico, i.e., in the larger interests of the public and for their general welfare in good faith. Noted public-spirited citizens in India
who have represented mass interests before the Supreme Court and other High Courts are M, C. Mehta and Subhas Dutta
Justice Krishna Iyer in the Fertilizer Corporation Kamgar Union case enumerated the following reasons
for liberalization of the rule of Locus Standi: -

1. Exercise of State power to eradicate corruption may result in unrelated interference with
2. individuals’ rights.
3. Social justice wan ants liberal judicial review administrative action.
4. Restrictive rules of standing are antithesis to a healthy system of administrative action.
5. Activism is essential for participative public justice.

Therefore, a public minded citizen must be given an opportunity to move the court in the interests of the
public

Further, Bhagwati J., known as one of the pro-poor and activist judges of the Supreme Court in S.P.
Gupta vs. Union of India. (AIR 1982 SC 149) popularly known as “JUDGES TRANSFER CASE”,
firmly established the validity of the public interest litigation. Since then, a good number of public
interest litigation petitions were filed.

It should be noted at outset that PIL, at least as it had developed in India, is different from class action or
group litigation. Whereas the latter is driven primarily by efficiency considerations, the PIL is concerned
at providing access to justice to all societal constituents. PIL in India has been a part of the constitutional
litigation and not civil litigation9. Therefore, in order to appreciate the evolution of PIL in India, it is
desirable to have a basic understanding of the constitutional framework and the Indian judiciary10. After
gaining independence from the British rule on August 15, 1947, the People of India adopted a
Constitution in November 1949 with the hope to establish a ‘‘sovereign socialist secular democratic
republic’11.Among others, the Constitution aims to secure to all its citizens justice (social, economic and
political), liberty (of thought, expression, belief, faith and worship) and equality (of status and of
opportunity)12. These aims were not merely aspirational because the founding fathers wanted to achieve a
social revolution through the Constitution. The main tools employed to achieve such social change were
the provisions on fundamental rights (FRs) and the directive principles of state policy (DPs), which
Austin described as the ‘‘conscience of the Constitution’’.

The expression ‘‘other authorities’’ has been expansively interpreted, and any agency or instrumentality
of the state will fall within its ambit. The DPs find a place in Part IV of the Constitution. Although the
DPs are not justiciable13, they 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’’14

9 The Indian Code of Civil Procedure though allows for class action: ord.1 r.8 of the Code of Civil Procedure 1908. Furthermore,
s.91 of the Code provides.
10 See Sheetal B. Shah, ‘‘Illuminating the Possible in the Developing World: Guaranteeing the Human Right to Health In India’’

(1999) 32 Vanderbilt Journal of Transnational Law 435, 463.

11 Although the terms ‘‘socialist’’ and ‘‘secular’’ were inserted by the 42nd amendment in 1976, there were no doubts that the

Constitution was both socialist and secular from the very beginning
12 These values are expressly declared in the Preamble and form the essence of the Indian Constitution, the Indian Legal System

and the Indian Polity

13 The Fundamental Rights are judicially enforceable whereas the Directive Principles are unenforceable in the courts. For the

relevance of this difference, see Mahendra P. Singh, ‘‘The Statics and the Dynamics of the Fundamental Rights and the Directive
Principles—A Human Rights Perspective’’ (2003) 5 SCJ 1.
14 Constitution of India art.37
After initial deviation15, the Supreme Court accepted that FRs are not superior to DPs on account of the
latter being non-justiciable: rather FRs and DPs are complementary and the former are a means to achieve
the goals indicated in the latter16. The issue was put beyond any controversy in Minerva Mills Ltd v
Union of India where the Court held that the, ‘‘harmony and balance between fundamental rights and
directive principles is an essential feature of the basic structure of the Constitution’’17. Since then, the
judiciary has employed DPs to derive the contents of various FRs18. The founding fathers envisaged ‘‘the
judiciary as a bastion of rights and justice’’19. An independent judiciary armed with the power of judicial
review was the constitutional device chosen to achieve this objective. The power to enforce the FRs was
conferred on both the Supreme Court and the High Courts20

JUDICIAL MOULDING OF STANDING, PROCEDURE, SUBSTANCE,

RELIEF
Two judges of the Indian Supreme Court (Bhagwati and Iyer JJ)21 prepared the groundwork from mid-
1970s to early 1980s, for the birth of PIL in India. This included modifying the traditional requirements of
locus standi, liberalizing the procedure to file writ petitions, creating or expanding FRs, overcoming
evidentiary problems, and evolving innovative remedies. Modification of the traditional requirement of
standing was sine qua non for the evolution of PIL and any public participation in justice administration.
The need was more pressing in a country like India where a great majority of people were either ignorant
of their rights or were too poor to approach the court. Realizing this need, the Court held that any member
of public acting bona fide and having sufficient interest has a right to approach the court for redressal of a
legal wrong, especially when the actual plaintiff suffers from some disability or the violation of collective
diffused rights is at stake. Later on, merging representative standing and citizen standing, the Supreme
Court in Judges Transfer case held

The court justified such extension of standing in order to enforce rule of law and provide justice to
disadvantaged sections of society22. Furthermore, the Supreme Court observed that the term ‘‘appropriate
proceedings’’ in Art.32 of the Constitution23 does not refer to the form but to the purpose of proceeding:

15 State of Madras v Champakam Dorairajan AIR 1951 SC 226

16 CB Boarding & Lodging v State of Mysore AIR 1970 SC 2042; Kesavananda Bharti v State of Kerala AIR 1973 SC 1461;
Minerva Mills Ltd v Union of India AIR 1980 SC 1789; Unni Krishnan v State of AP (1993) 1 S.C.C. 645. See also Rajiv
Dhavan, ‘‘Republic of India: The Constitution as the Situs of Struggle: India’s Constitution Forty Years On’’ in Lawrence W.
Beer (ed.), Constitutional Systems in Late Twentieth Century Asia (Seattle: University of Washington Press, 1992), pp.373, 382–
383, 405 and 413–416.
17 Minerva Mills Ltd v Union of India AIR 1980 SC 1789, 1806
18 Jain M.P., ‘‘The Supreme Court and Fundamental Rights’’ in Verma and Kusum (eds), Fifty Years of the Supreme Court of

India, pp.65–76.
19 Austin, Cornerstone of a Nation, p.175.
20 Constitution of India 1950 arts 32 and 226
21 These two judges headed various committees on legal aid and access of justice during 1970s, which provided a backdrop to

their involvement in the PIL project. See Jeremy Cooper, ‘‘Poverty and Constitutional Justice: The Indian Experience’’ (1993) 44
Mercer Law Review 611, 614–615
22 It is suggested that the way a judge applies the rule of standing corresponds to how she sees her judicial role in the society.

Aaron Barak, ‘‘Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy’’ (2002) 116 Harvard Law Review
16, 107–108.
23 ‘‘The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights contained in this Part is

guaranteed.’’
so long as the purpose of the proceeding is to enforce a FR, any form will do 24. This interpretation
allowed the Court to develop epistolary jurisdiction by which even letters or telegrams were accepted as
writ petitions25. Once the hurdles posed by locus standi and the procedure to file writ petitions were
removed, the judiciary focused its attention to providing a robust basis to pursue a range of issues under
PIL. This was achieved by both interpreting existing FRs widely and by creating new FRs. Article-21‘‘no
person shall be deprived of his life or personal liberty except according to the procedure established by
law’’—proved to be the most fertile provision to mean more than mere physical existence; it ‘‘includes
right to live with human dignity and all that goes along with it’’26

Ever-widening horizon of Art.21 is illustrated by the fact that the Court has read into it, inter-alia, the
right to health, livelihood, free and compulsory education up to the age of 14 years, unpolluted
environment, shelter, clean drinking water, privacy, legal aid, speedy trial, and various rights of under-
trials, convicts and prisoners. It is important to note that in a majority of cases the judiciary relied upon
DPs for such extension. The judiciary has also invoked Art.21 to give directions to government on
matters affecting lives of general public, or to invalidate state actions, or to grant compensation for
violation of FRs. The final challenge before the Indian judiciary was to overcome evidentiary problems
and find suitable remedies for the PIL plaintiffs. The Supreme Court responded by appointing fact-finding
commissioners and amicus curiae27.

PROBLEMS FACED BY PUBLIC INTEREST LITIGATION IN INDIA

At the time of independence, court procedure was drawn from the Anglo-Saxon system of jurisprudence.
The bulk of citizens were unaware of their legal rights and much less in a position to assert them. And as
a result, there was hardly any link between the rights guaranteed by the Constitution of Indian Union and
the laws made by the legislature on the one hand and the vast majority of illiterate citizens on the other.
However, this scenario gradually changed when the post emergency Supreme Court tackled the problem
of access to justice by people through radical changes and alterations made in the requirements of locus
standi and of party aggrieved. Prior to 1980s, only the aggrieved party could personally knock the doors
of justice and seek remedy for his grievance and any other person who was not personally affected could
not knock the doors of justice as a proxy for the victim or the aggrieved party. Public Interest Litigation as
it has developed in in recent years marks a significant departure from traditional judicial proceedings. The
court is now seen as an institution not only reaching out to provide relief to citizens but even venturing
into formulation policy which the state must follow.

The splendid efforts of Justice P N Bhagwati and Justice V R Krishna Iyer were instrumental of this
juristic revolution of eighties to convert the apex court of India into a Supreme Court for all Indians.

Public Interest Litigation (PIL) has been an invaluable innovative judicial remedy. It has translated the
rhetoric of fundamental rights into living reality for at least some segments of our exploited and

24 Shukla V.N., Singh M.P. (ed), Constitution of India, pp.278–279

25 See, for example, Sunil Batra v Delhi Administration AIR 1980 SC 1579; Dr Upendra Baxi v State of UP (1982) 2 S.C.C. 308.
26 Francis Coralie v Union Territory of Delhi AIR 1981 SC 746, 753
27 See Ashok H. Desai and S. Muralidhar, ‘‘Public Interest Litigation: Potential and Problems’’ in Kirpal et al., Supreme but not

Infallible, pp.159, 165–167. The Court also held that the power to appoint Commissioners is not constrained by the Code of Civil
Procedure or the Supreme Court Rules
downtrodden humanity. Under trial prisoners languishing in jails for inordinately long periods, inmates of
asylums and care-homes living in sub-human conditions, children working in hazardous occupations and
similar disadvantaged sections. But the development of Public Interest Litigation (PIL) in the country has
very recently uncovered its own pitfalls and drawbacks.

1. The genuine causes and cases of public interest have in fact receded to the background and
irresponsible PIL activists all over the country have started to play a major but not a
constructive role in the arena of litigation. In a recent case the court while dismissing an
ostensible PIL against the sale of a plot of land through public auction, held that the matter
had not been raised in public interest at all, but to ventilate a private grievance. Of late,
many of the PIL activists in the country have found the PIL as a handy tool of harassment
since frivolous cases could be filed without investment of heavy court fees as required in
private civil litigation and deals could then be negotiated with the victims of stay orders
obtained in the so-called PILs. Just as a weapon meant for defense can be used equally
effectively for offence, the lowering of the locus standi requirement has permitted privately
motivated interests to pose as public interests.
2. The framers of Indian constitution did not incorporate a strict doctrine of separation of
powers but envisaged a system of checks and balances. Policy making and implementation
of policy are conventionally regarding as the exclusive domain of the executive and the
legislature. The power of judicial review cannot be used by the court to usurp or abdicate the
powers of other organs. PIL in practice, however, tends to narrow the divide between the
roles of the various organs of government and has invited controversy principally for this
reason. The court has sometime even obliterated the distinction between law and policy. The
approach of the court in policy matters is to ask whether the implementation or non-
implementation of the policy result in a violation of fundamental rights. In a leading case,
the court explained how despite the enactment of Environment (protection) Act, 1986, there
had been a considerable decline in the quality of environment.
3. The flexibility of procedure that is a character of PIL has given rise to another set of
problems. It gives an opportunity to opposite parties to ascertain the precise allegation and
respond specific issues. The PIL relating to depletion of forest cover is a case in point. The
petition, as originally drafted and presented, pertained to the arbitrary felling of Khair trees
in Jammu and Kashmir. The PIL has now been enlarged by the court to encompass all
forests throughout India. Individual States, therefore, will not be able to respond to the
original pleading as such, since it may not concern them at all. The reports given by court
appointed commissioners raise problems regarding their evidentiary value.
4. In the political arena too, the debate over the limits of judicial activism, particularly in the
field of PIL, has been vigorous. The attempt by the judiciary through PILs to enter the area
of policy making and policy implementation has caused concern in political circles. A
private members bill, entitled Public Interest Litigation (Regulation) Bill, 1996 was tabled in
Rajya Sabha. According to it the PIL was being grossly misused. Moreover, PIL cases were
being given priority over other cases, which had remained pending in the court for years. It
was urged that if a PIL petition failed or was shown to be mala fide the petitioner should be
put behind bars and pay the damages. Although the bill lapsed, the debate in parliament
revealed some of the criticism and suspicion that PIL had begun to attract.
 5. The credibility of PIL process is now adversely affected by the criticism that the judiciary is
overstepping the boundaries pf its jurisdiction and that it is unable to supervise the effective
implementation of its orders. It has also been increasingly felt that PIL is being misused by
the people agitating for private grievance in the grab of public interest and seeking publicity
rather than espousing public cause. The judiciary has itself recognized and articulated these
concerns periodically. A further concern is that as the judiciary enters into the policy making
arena it will have to fashion new remedies and mechanisms for ensuring effective
compliance with its orders. A judicial system can suffer no greater lack of credibility than a
perception that its order can be flouted with impunity.

To regulate the abuse of PIL the apex court has framed certain guidelines (to govern the management and
disposal of PILs.) The court must be careful to see that the petitioner who approaches it is acting bona
fide and not for personal gain, private profit or political or other oblique considerations. The court should
not allow its process to be abused by politicians and others to delay legitimate administrative action or to
gain political objectives. At present, the court can treat a letter as a writ petition and take action upon it.
But it is not every letter which may be treated as a writ petition by the court. The court would be justified
in treating the letter as a writ petition only in the following cases-

 It is only where the letter is addressed by an aggrieved person or

 A public-spirited individual or
 A social action group for enforcement of the constitutional or the legal rights of a person in
custody or of a class or group of persons who by reason of poverty, disability or socially or
economically disadvantaged position find it difficult to approach the court for redress. Even
though it is very much essential to curb the misuse and abuse of PIL, any move by the
government to regulate the PIL results in widespread protests from those who are not aware
of its abuse and equate any form of regulation with erosion of their fundamental rights.

In his recent write up, Mr. Soli Sorabji, the former Attorney General while applauding the liberalization
of the rule of locus standi by the Supreme Court of India benefiting under-trial prisoners languishing in
jail for inordinately long periods, inmates of asylums and care homes living in sub-human conditions,
children working in hazardous occupation and similar disadvantaged persons, has lamented that PIL is
being abused with increasing frequency and that over the years. He made the following suggestions:

 Reject dubious PIL at the threshold, and in appropriate case with exemplary costs,
 In cases where important projects or socio-economic regulations are challenged after gross
delay, such petitions should be thrown out at the very threshold on the ground of latches.
Just because a petition is termed as PIL does not mean that ordinary principles applicable to
litigation will not apply. Latches is one of them.
THE ONTARIO LAW REFORM COMMISSION REPORT
On the law of Standing, 1989, recommended that any person should be able to commence a proceeding
unless a party satisfies the Court that there exist factors against proceeding that outweigh the factors in
favors of the proceedings. The factors to be considered by the court would include:

 whether the issue is trivial;

 In case where the applicant does not have a personal, proprietary or pecuniary interest the number
of people affected;
 Whether another reasonable and effective method exists to raise the issues that are sought to be
litigated;
 Whether another proceeding has been instituted against the same opponent in which the same
issues arise and the interests of the applicant could be met by intervening in those proceedings
and it is reasonable to expect the applicant to do so;
 whether to proceed would be unfair to persons affected.

ROLE OF PIL IN ENVIRONMENT PROTECTION

The Indian judiciary adopted the technique of public interest litigation for the cause of environmental
protection in many cases. The Supreme Court & High Courts shaded the inhibitions against refusing
strangers to present the petitions on behalf of poor and ignorant individuals. The basic ideology behind
adopting PIL is that access to justice ought not to be denied to the needy for the lack of knowledge or
finances. In PIL a public spirited individual or organization can maintain petition on behalf of poor &
ignorant individuals.

In the area of environmental protection, PIL has proved to be an effective tool. In Rural Litigation and
Entitlement Kendra vs. State of U.P.28 the Supreme Court prohibited continuance of mining operations
terming it to be adversely affecting the environment.

In Indian Council for Enviro-Legal Action vs. Union of India29, the Supreme Court cautioned the
industries discharging inherently dangerous Oleum and H acid. The court held that such type of pollution
infringes right to wholesome environment and ultimately right to life.

In another case M.C. Mehta vs. Union of India,30 the Supreme Court held that air pollution in Delhi
caused by vehicular emissions violates right to life under Art. 21 and directed all commercial vehicles
operating in Delhi to switch to CNG fuel mode for safeguarding health of the people.

In Church of God (Full Gospel) in India vs. KKR Majestic Colony Welfare Association,31the Supreme
Court observed that noise pollution amounts to violation of Art.21 of the Constitution.

In landmark case Vellore Citizens' Welfare Forum vs. Union of India32 the Supreme Court allowed
standing to a public-spirited social organization for protecting the health of residents of Vellore. In this

28 AIR 1985 SC 652

29 AIR 1996 SC 1446
30 AIR 2001 SC 1948
31 AIR 2000 SC 2773
32 AIR 1996 SC 2715
case the tanneries situated around river Palar in Vellore (T.N.) were found discharging toxic chemicals in
the river, thereby jeopardizing the health of the residents. The Court asked the tanneries to close their
business.

In this manner, our judiciary has used the tool of PIL quite effectively for the cause of environmental
protection. But the judiciary has shown wisdom in denying false petitions seeking to advance private
interests through PIL as evident from the decision of the Supreme Court in Subhash Kumar vs. State of
Bihar33. Hence, PIL has proved to be a great weapon in the hands of higher courts for protection of
environment & our judiciary has certainly utilized this weapon of PIL in best possible manner.

PHASES OF PUBLIC INTEREST LITIGATION

At the risk of over-simplification and overlap, the PIL discourse in India could be divided, in my view,
into three broad phases.34 One will notice that these three phases differ from each other in terms of at least
the following four variables: who initiated PIL cases; what was the subject matter/focus of PIL; against
whom the relief was sought; and how judiciary responded to PIL cases.

The First Phase: In the first phase which began in the late 1970s and continued through the 1980s—the
PIL cases were generally filed by public-spirited persons (lawyers, journalists, social activists or
academics). Most of the cases related to the rights of disadvantaged sections of society such as child
laborer’s, bonded laborer’s, prisoners, mentally challenged, pavement dwellers, and women. The relief
was sought against the action or non-action on the part of executive agencies resulting in violations of
FRs under the Constitution. During this phase, the judiciary responded by recognizing the rights of these
people and giving directions to the government to redress the alleged violations. In short, it is arguable
that in the first phase, the PIL truly became an instrument of the type of social transformation/revolution
that the founding fathers had expected to achieve through the Constitution.

The Second Phase: The second phase of the PIL was in the 1990s during which several significant
changes in the chemistry of PIL took place. In comparison to the first phase, the filing of PIL cases
became more institutionalized in that several specialized NGOs and lawyers started bringing matters of
public interest to the courts on a much regular basis. The breadth of issues which were raised in PIL also
expanded tremendously—from the protection of environment to corruption-free administration, right to
education, sexual harassment at the workplace, relocation of industries, rule of law, good governance, and
the general accountability of the Government. It is to be noted that in this phase, the petitioners sought
relief not only against the action/non-action of the executive but also against private individuals, in
relation to policy matters and regarding something that would clearly fall within the domain of the
legislature. The response of the judiciary during the second phase was by and large much bolder and
unconventional than the first phase. For instance, the courts did not hesitate to come up with detailed
guidelines where there were legislative gaps. The courts enforced FRs against private individuals and

33AIR 1991 SC 420

34Dam divides SAL in three functional phases: creative, lawmaking and super-executive. Shubhankar Dam, ‘‘Lawmaking
Beyond Lawmakers: Understanding the Little Right and the Great Wrong (Analyzing the Legitimacy of the Nature of Judicial
Lawmaking in India’s Constitutional Dynamic)’’ (200) 13 Tulane Journal of International and Comparative Law 109, 115–116.
This division, however, does not fully explain the complexity of PIL, because it focuses only on one aspect of it
granted relief to the petitioner without going into the question of whether the violator of the FR was the
state. The courts also took non-compliance with its orders more seriously and in some cases, went to the
extent of monitoring government investigative agencies and/or punishing civil servants for contempt for
failing to abide by their directions. The second phase was also the period when the misuse of PIL not only
began but also reached to a disturbing level, which occasionally compelled the courts to impose fine on
plaintiffs for misusing PIL for private purposes.

The Third Phase: On the other hand, the third phase—the current phase, which began with the 21st
century—is a period in which anyone could file a PIL for almost anything. It seems that there is a further
expansion of issues that could be raised as PIL, e.g., calling back the Indian cricket team from the
Australia tour and preventing an alleged marriage of an actress with trees for astrological reasons. From
the judiciary’s point of view, one could argue that it is time for judicial introspection and for reviewing
what courts tried to achieve through PIL. As compared to the second phase, the judiciary has seemingly
shown more restraint in issuing directions to the government. Although the judiciary is unlikely to roll
back the expansive scope of PIL, it is possible that it might make more measured interventions in the
future. One aspect that stands out in the third phase deserves a special mention. In continuation of its
approval of the government’s policies of liberalization in Delhi Science Forum, the judiciary has shown a
general support to disinvestment and development policies of the Government. 35 What is more
troublesome for students of the PIL project in India is, however, the fact that this judicial attitude might
be at the cost of the sympathetic response that the rights and interests of impoverished and vulnerable
sections of society (such as slum dwellers and people displaced by the construction of dams) received in
the first phase. The Supreme Court’s observations such as the following also fuel these
concerns:36‘Socialism might have been a catchword from our history. It may be present in the Preamble of
our Constitution. However, due to the liberalization policy adopted by the Central Government from the
early nineties, this view that the Indian society is essentially wedded to socialism is definitely withering
away.’ It seems that the judicial attitude towards PIL in these three phases is a response, at least in part, to
how it perceived to be the ‘‘issues in vogue’’.

PHASES OF PUBLIC INTEREST LITIGATION It seems that the misuse of PIL in India, which
started in the 1990s, has reached to such a stage where it has started undermining the very purpose for
which PIL was introduced. In other words, the dark side is slowly moving to overshadow the bright side
of the PIL project.

a) Ulterior purpose: Public in PIL stands substituted by private or publicity. One major rationale
why the courts supported PIL was its usefulness in serving the public interest. It is doubtful,
however, if PIL is still wedded to that goal. As we have seen above, almost any issue is presented
to the courts in the guise of public interest because of the allurements that the PIL jurisprudence
offers (e.g., inexpensive, quick response, and high impact). Of course, it is not always easy to
differentiate ‘‘public’’ interest from ‘‘private’’ interest, but it is arguable that courts have not
rigorously enforced the requirement of PILs being aimed at espousing some public interest. Desai
and Muralidhar confirm the perception that: ‘‘PIL is being misused by people agitating for private
grievances in the grab of public interest and seeking publicity rather than espousing public

35 It is suggested that in recent years the Supreme Court has been influenced by liberalization and corporate business interests at
the cost of human rights.
36 State of Punjab v Devans Modern Breweries Ltd (2004) 11 SCC 26
 causes.’’37 It is critical that courts do not allow ‘‘public’’ in PIL to be substituted by ‘‘private’’ or
‘‘publicity’’ by doing more vigilant gate-keeping.
b) Inefficient use of limited judicial resources: If properly managed, the PIL has the potential to
contribute to an efficient disposal of people’s grievances. But considering that the number of per
capita judges in India is much lower than many other countries and given that the Indian Supreme
Court as well as High Courts is facing a huge backlog of cases, it is puzzling why the courts have
not done enough to stop non-genuine PIL cases. This might render ‘‘many leading judgments
merely of an academic value’’38. The fact that courts need years to settle cases might also suggest
that probably courts were not the most appropriate forum to deal with the issues in hand as PIL.
c) Judicial populism: Judges are human beings, but it would be unfortunate if they admit PIL cases
on account of raising an issue that is (or might become) popular in the society. Conversely, the
desire to become people’s judges in a democracy should not hinder admitting PIL cases which
involve an important public interest but are potentially unpopular. The fear of judicial populism is
not merely academic and this is clear from the observation of Dwivedi J. in Kesavananda
Bharati v State of Kerala: 39‘‘The court is not chosen by the people and is not responsible to
them in the sense in which the House of People is. However, it will win for itself a permanent
place in the hearts of the people and augment its moral authority if it can shift the focus of
judicial review from the numerical concept of minority protection to the humanitarian concept of
the protection of the weaker section of the people. ’It is submitted that courts should refrain from
perceiving themselves as crusaders constitutionally obliged to redress all failures of democracy.
Neither they have this authority nor could they achieve this goal.
d) Symbolic justice: Another major problem with the PIL project in India has been of PIL cases
often doing only symbolic justice. Two facets of this problem could be noted here. First, judiciary
is often unable to ensure that its guidelines or directions in PIL cases are complied with, for
instance, regarding sexual harassment at workplace (Vishaka case40) or the procedure of arrest by
police (D.K. Basu case41). No doubt, more empirical research is needed to investigate the extent
of compliance and the difference made by the Supreme Court’s guidelines. But it seems that the
Disturbing the constitutional balance of power: Although the Indian Constitution does not follow
any strict separation of powers, it still embodies the doctrine of checks and balances, which even
the judiciary should respect. However, the judiciary on several occasions did not exercise self-
restraint and moved on to legislate, settle policy questions, take over governance, or monitor
executive agencies. Prof. M. P. Jain cautions against such tendency:42 ‘‘PIL is a weapon which
must be used with great care and circumspection; the courts need to keep in view that under the
guise of redressing a public grievance PIL does not encroach upon the sphere reserved by the
Constitution to the executive and the legislature.’’
e) Overuse-induced non-seriousness: PIL should not be the first step in redressing all kinds of
grievances even if they involve public interest. In order to remain effective, PIL should not be
allowed to become a routine affair which is not taken seriously by the Bench, the Bar, and most

37 Upadhyay Videh, Public Interest Litigation in India: Concepts, Cases, Concerns, LexisNexis Butterworths, New Delhi, 2007
38 Ibid
39 AIR 1973 SC 1461
40 Vishaka v State of Rajasthan AIR 1997 SC 3011
41 D.K..Basu v State of West Bengal AIR 1997 SC 610
42 Prof. Jain M.P., Indian Constitutional Law, Volume 2, 6th edn., LexisNexis Butterworths Wadhwa, Nagpur, 2010
 importantly by the masses:43 ‘‘The overuse of PIL for every conceivable public interest might
dilute the original commitment to use this remedy only for enforcing human rights of the
victimized and the disadvantaged groups.’’ If civil society and disadvantaged groups lose faith in
the efficacy of PIL, that would sound a death knell for it.

Based on the above problems, certain solutions need to be devised and implemented by the Judiciary to
ensure that the sanctity of Judicial Activism in the country is kept intact and at the same time interests of
all classes of stakeholders are addressed in a proper and judicious manner.

SUGGESTIONS TO CORRECT AN “OVER-ACTIVIST” JUDICIARY

Major steps need to be taken in order to prevent an “over-activist” judiciary from transgressing its limits.
Some of these can be explained as follows: Public interest litigation, or PIL as it is conveniently called,
has become a major and prominent segment of the jurisdiction of the Supreme Court and 21 High Courts
in India. Whilst its necessity and utility in upholding the rule of law is undoubted, its extravagant and
unprincipled use at times by courts has brought PIL into controversy.

Relaxation must be procedural

Much of the misapplication of the PIL jurisdiction can be avoided, if it is remembered that PIL is
basically the application of the well settled principles of judicial review by courts of actions of
government and public authorities, with the modification of courts allowing the petitioner(s) applicant to
approach the court on behalf of other persons, who themselves are unable to come to the court because of
ignorance of their rights or the difficulty and cost of litigation. In such cases,

Judicial Activism not PIL:

Another misconception is equating PIL with judicial activism in India. Judicial activism is not PIL. A
court can be judicially active or inactive irrespective of PIL. Judicial activism is a word of many shades.
No person today subscribes to Bacon's44 view that judges must only declare the law and do not make law.
Such a view was rightly described as a fairy tale by a distinguished English judge Lord Reid. Judges do
and must make law but not in the manner of legislatures. There is much scope for creative judicial
activism in the interpretative functions of judges, on the choices inherent in their function and in the gaps
in legal rules, as has been done by superior courts in several countries for many years. The Indian
Supreme Court's own creative jurisprudence of the inviolability of the basic structure of the Constitution
in 1973 and the importation of non-arbitrariness in the fundamental Right of Equality, and of due process
of law in the right to personal liberty in Maneka Gandhi’s case in 197845, are stellar examples of how
judicial function can be creative. Regrettably, this kind of creative judicial activism in Indian courts
seems to have become dormant and displaced by a poor substitute of routine judicial correction and
monitoring of governmental functions by courts in PIL. Judicial activism is equated with PIL mainly
because it is a most convenient vehicle for bringing public grievances before courts and because the
courts' orders in PIL are far-reaching and sometimes sensational. Once these fundamentals of judicial
review are borne in mind by courts in exercising PIL jurisdiction, it can be a useful judicial process for

43 Prof. Sathe S.P., Judicial Activism in India: Transgressing Borders and Enforcing Limits, Oxford University Press, UK, 2003
44 Sir Francis Bacon is a renowned English Jurist and Philosopher who became famous for his views on the role of judiciary and
the judges in a country.
45 Maneka Gandhi v Union of India AIR 1978 SC 597
the benefit of the public, particularly of the poor, the indigent and marginalized sections of society, whose
fundamental rights are to be protected by court orders. It is the historic and constitutional duty of courts to
safeguard and enforce the basic liberties and rights of individuals. A court is strongest and least
vulnerable, when it grounds its interventions in enforcing the basic rights of individuals against authority.
No question of the court breaching the separation of powers can arise, as it carries out its constitutional
function of protecting the basic rights of individual in such cases.

Judicial Activism not Judicial Adventurism

The origins of PIL were in such unexceptional interventions in 1970, as when the court ordered the
release of bonded Laboure’s and stopped inhuman working conditions in stone quarries and in mental
asylums etc. Correctly, this jurisdiction should have been named SAL46 or SOCIAL ACTION
LITIGATION to gather its true import. It is also the court's legitimate function to enforce the law, not of
each and every infraction, but in those cases where its disregard has grave consequences to the public.

Displacing Government Administration

It is true that there is a misconception not only in the public but also in courts about the function of
judiciary under the Constitution, particularly when PIL is employed. It appears that the public has
developed a syndrome of routine recourse to the courts for every perceived failure of government and the
courts on their part have come to believe that it is their judicial duty to intervene in such failures by
making orders for correcting or improving the government. There is a vast catalogue of such micro-
managing orders made by the Supreme Court itself, which cannot be justified by any principle of judicial
review. They include orders for making roads in hilly areas, wearing of helmets and seat belts to avoid
accidents in cities, cleanliness in housing colonies, disposal of garbage, control of traffic, control of
unmanned railway crossings, prevention of pollution of rivers, action plans to control and prevent menace
of monkeys in cities, control of breeding of animals in zoos, measures to prevent ragging of students,
collection and storage of blood in blood banks, control of noise and banning of fire crackers47.

46The American equivalent of Public Interest Litigation

47In pursuance of most of these orders, the bodies controlling and regulating the respective activities have made laws for
example, after ragging was declared a criminal offence as a result of a PIL filed before the Supreme Court in 2001
 CONCLUSION

The judicial activism manifested in the strategy of PIL paves the way for the participation of public
spirited and enlightened people in India's development process and displays the potentiality of the legal
system to offer justice to the poor and the oppressed. The strategy has brought to light many a medieval
practice still prevalent in India such as relief to prisoners, plight of women in protective homes, victims of
the flesh trade and children of juvenile institutions and exploitation of the bonded and migrant laborer’s,
untouchables, tribal etc. The attempt has been made to show how in taking up such cases, the Supreme
Court is emerging as the guardian of the rights and liberties of the victims of repression, cruelty and
torture. Hence the Supreme Court of India in its activist role vis-a-vis PIL has taken a goal-oriented
approach in the interest of justice by simplifying highest technical and anachronistic procedures. By
enlarging the scope of Article 32 and by accelerating the process of socio-economic revolution, it has
brought justice to the doorstep of the week, the unprivileged and exploitative section of society and
therefore, has revolutionized constitutional jurisprudence in the 1980's.

PIL has an important role to play in the civil justice system in that it affords a ladder to justice to
disadvantaged sections of society, some of which might not even be well-informed about their rights.
Furthermore, it provides an avenue to enforce diffused rights for which either it is difficult to identify an
aggrieved person or where aggrieved persons have no incentives to knock at the doors of the courts. PIL
could also contribute to good governance by keeping the government accountable. Last but not least, PIL
enables civil society to play an active role in spreading social awareness about human rights, in providing
voice to the marginalized sections of society, and in allowing their participation in government decision
making. As I have tried to show, with reference to the Indian experience, that PIL could achieve all or
many of these important policy objectives. However, the Indian PIL experience also shows us that it is
critical to ensure that PIL does not become a back-door to enter the temple of justice to fulfil private
interests, settle political scores or simply to gain easy publicity. Courts should also not use PIL as a
device to run the country on a day-to-day basis or enter the legitimate domain of the executive and
legislature. The way forward, therefore, for India as well as for other jurisdictions is to strike a balance in
allowing legitimate PIL cases and discouraging frivolous ones. One way to achieve this objective could
be to confine PIL primarily to those cases where access to justice is undermined by some kind of
disability. The other useful device could be to offer economic disincentives to those who are found to
employ PIL for ulterior purposes. At the same time, it is worth considering if some kind of economic
incentives-e.g., protected cost order, legal aid, pro bono litigation, funding for PIL civil society, and
amicus curie briefs-should be offered for not discouraging legitimate PIL cases. This is important because
given the original underlying rationale for PIL, it is likely that potential plaintiffs would not always be res
BIBLIOGRAPHY

Books: -

1. Public interest litigation, legal aid and services, Lok Adalat and Para- legal services by Dr N.V.
parangapi,3rd edition 2014
2. Constitutional law of India by J.N. Pandey
3. Judicial activism in India by DR G.B Reddy

Websites: -

https://jcil.lsyndicate.com/wp-content/uploads/2017/02/Adil-Hamid.pdf

https://www.drishtiias.com/to-the-points/Paper2/public-interest-litigation
https://blog.ipleaders.in/judicial-activism-public-interest-litigation/