PUBLIC INTEREST LITIGATION

-       A Need to Regulate

Vijay Hansaria, Advocate, Supreme Court of India

The concept of public interest litigation was evolved by our Courts in the 1980s primarily by relaxing the rule of locus, as under the normal rule only the “person aggrieved’’ could approach the court. The primary reason for such relaxation of the rule was that the weaker sections of the society, due to their poverty, ignorance and illiteracy, were not able to assert their rights. Justice Krishna Iyer in Fertiliser Kamgar Union2 made a forceful plea that the ‘law should not be a closed shop’, else ‘the system may crumble  under the burden of its own insensitivity’. Thereafter in S.P.Gupta3 (commonly called the first judges case) and in Bandhua Mukti Morcha4, Justice Bhagwati evolved the concept of ‘public injury’ and allowed the public spirited citizen to approach the court for redressal of public injury.

Thereafter, we all know that the public interest litigation has marched forward by leaps and bounds and has done great public service by protecting our environment, safeguarding human rights, promoting the administration, justice, checking arbitrary action of the executive in different fields affecting general public, monitoring investigation of cases involving persons occupying high public offices etc.

The pronouncements made and the orders passed in public interest petition have affected the day-to-day life of almost every citizen of the country and thus it is very important that we must preserve this branch of law with proper form and structure and nourish it with due care and caution. Of late, we have found that the number of public interest petitions which are motivated and lacking in bona fide are out numbering those which are filed to serve public interest or to protect the interest of the downtrodden section of the society for whom this mechanism was enunciated.

The question therefore is, how to check the filing of false and frivolous public interest litigation so that the court can pay more attention to the genuine PILs and render justice to the oppressed and deprived section of the society. The primary reason, according to me, is that this field is wholly unregulated; and it is a matter of common knowledge that any field, be it a play ground or an administrative machinery or even judicial proceeding, if left completely unregulated is bound to be misused and abused more than used.

The Constitutional courts have been entertaining public interest petition in exercise of their writ jurisdiction. Though for exercise of writ jurisdiction itself there is no codified law; yet, over last five decades/ courts have evolved basic principles on which, writ jurisdiction is exercised. The courts have prescribed self imposed restriction and laid down guidelines to discipline itself. The rules framed by the High Courts and by the Supreme Court contain provisions regarding filing of writ petition by individual litigants for their own cause; but nothing has been laid down as to the filing of PIL.

According to me, it is high time that suitable format be prescribed in which public interest petitions can be filed. The format should be so modulated as to prevent or at least discourage filing of frivolous and motivated petitions. I have proposed a draft, which has been prepared so as to avoid or minimize the filing of PIL for getting publicity or to serve private or political interest or as a tool of making income and Public Interest Petitions are filed to protect ‘public interest’ and ‘public interest’ alone.

In the beginning it should be clearly mentioned that the petition is  a  public  interest petition  and  for  this  purpose  after describing the petition  as writ petition, the word PIL must come in bracket. Thereafter the petition must be described as In Re: followed by the particular subject for which the petition is filed, such as In Re: Taj corridor, In Re: Public transport on CNG, In Re: Protection of forest, In Re: Rights of under trial etc. etc. In the judgment and order only the case number and subject matter of the PIL may be indicated instead of cause title which will avert and discourage filing of PIL for getting publicity.

In the first para of petition, it should be clearly stated that the petition is being filed by way of Public Interest Litigation and the petitioner has no personal interest in it; and if the petitioner has any personal interest, it must be so stated. The class of person for whose benefit the petition is filed must also be clearly stated.

Thereafter,   the  petitioner  must  give  his/her  short background. If the petitioner is an organisation, the names of the office bearers must be furnished. It must also be stated whether the petitioner has filed or has not filed any other public interest petition. If filed, details of such PIL including the case number and the court, status and brief description of the order passed must be given. It must also be stated whether in any of such cases cost has/has not been awarded or imposed for or against the petitioner. These particulars are necessary to know the back-ground of the petitioner and to come to a conclusion whether the petition is being filed pro bono publico. If any court, on any earlier occasion, has appreciated the issue raised by the petitioner and/or awarded any compensation or cost, it may be a positive factor in the favour of the petitioner; whereas if any stricture has been passed or cost has been imposed, court would be more cautious and watchful in entertaining any PIL at the instance of such petitioner. These particulars would, to some extent discourage, if not forbid filing of PIL espousing private or political interest.

The petition must contain specific averment that the petitioner is filing on his own and not at the instance of someone else; and that the litigation cost, including the Advocate’s fee and the travelling expenses of the lawyer, if any, is borne by the petitioner himself. If some one else is contributing funds or assisting in any manner, the petitioner must disclose the same. This would control, to some extent, those category of PIL which comes in the ambit of ‘paisa income litigation’.

Thereafter, the facts of the case may be narrated in chronological order. If the petition is based on news report, it must be stated as to whether the petitioner has verified the facts by personally visiting the place or talking to the concerned people or has verified from the concerned reporter or editor of the newspaper. Any person, filing a PIL is expected to do some homework before approaching the Court. This will prevent mere busybody from approaching the court just by reading a news report. I do not say that news report cannot be the basis of a PIL; but what is expected is that after reading the news report, the petitioner must make some attempt to verify the correctness of the news report.

One more aspect needs consideration. Before filing a PIL, the petitioner must send a representation to the concerned authorities for taking remedial action, akin to what is postulated in section 80 CPC. It may be that the concerned authorities take appropriate action on receiving such notice and the matter may not be required to go to court. Details of such representation and reply, if any, from the concerned authority along with copies thereof must be filed. However, in urgent cases where making of representation and waiting for response would cause irreparable damage, petitions can be allowed to be filed straight away. In such cases, at least the petitioner must give prior notice of filing of petition to the concerned authorities and/or their standing counsel, if any. This will prevent the petitioner from getting an ex-parte order, may be on the basis of incomplete or incorrect facts.

The petitioner must also make a statement that to the best of his/her knowledge, whether any other Public Interest Petition, filed by the petitioner himself or by any one else, raising the same issue is pending before any court. If any such petition is pending to the knowledge of the petitioner, details thereof should be given.

The petitioner must also state the grounds with specific mention of violation of constitutional or statutory provision or administrative instruction. Similarly grounds for grant of interim relief and the nature of urgency involved must be mentioned. The prayer clause including prayer for interim relief should be specific and precise.

These guidelines, according to me would provide broad framework of a Public Interest Petition.

A question may arise, as to why such a detailed format is necessary for filing a PIL when Supreme Court has said that PIL is maintainable even on the basis of a letter written by any person.  However, there is a distinction between a PIL based on a letter and a formal PIL. Before entertaining a PIL based on a letter, they are scrutinized by the PIL Cell constituted in all the High Courts as well as in the Supreme Court. Invariably, an Hon’ble Judge of the Court heads such PIL Cell, and it is only after clearance by PIL Cell that a PIL is registered and is listed before the court on judicial side. I would appeal that members of the Bar should also be involved in such PIL Cell and in the decision making process as to whether any such letters be treated and registered as PIL or not. Of late there has been very few instances of letters being treated as PIL because of such scrutiny by the PIL Cell. However when a formal writ petition is filed there is no such scrutiny and as per judgment of Division Bench of Gauhati High Court5 by Hon’ble Justice Brijesh Kumar (as his Lordship then was), such writ petition has to be listed before the court and the PIL Cell cannot scrutinize the same nor it can say that the petition is not a PIL and hence not to be listed before the court.

I may not be misunderstood that I am against the public interest petition. According to me, PIL has done a great service to the nation specially in the field of protection of our environment and human rights. But what I feel is that the field needs to be properly regulated so that the system can serve the humanity in a better way and courts have no occasion to say in future that PIL is a ‘publicity interest litigation’, ‘private interest litigation’, ‘politics interest litigation’ or ‘paisa income litigation’.

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1.  Speech delivered at the lecture series organised by Supreme Court Bar Association at New Delhi on 14th December, 2004.

2.  Fertiliser Corporation Kamagar Union v. Union of India, 1981 (l) SCC 568: AIR 1981 SC 344:1981 (2) SCR 52.

3.  S.P.Gupta v. Union of India, 1981 (Supp) SCC 87: AIR 1982 SC 149: 1982 (2) SCR 365.

4.  Bandhua Mukti Morcha v. Union of India, 1984 (3) SCC 161: AIR 1984 SC 802: 1984 (2) SCR 67:1984 Lab IC 560.

5.  Pranatosh Roy v. State of Assam, AIR 2000 Gau 33 .