GURU GHASIDAS UNIVERSITY, BILASPUR, C.G.

SCHOOL OF LAW

PROJECT ON:

EVOLUTION OF PIL

SESSION – 2020-21

SUBMITTED TO:
Miss. AFROSE QURAISHI
Assistant Professor
PUBLIC INTEREST LAWYERING

SUBMITTED BY:
SIMRAN MONISHA TOPPO
B.A. LL.B.
10th Semester
ROLL N0. 16001148
ABSTRACT

Public Interest Litigation (PIL) has a vital role in the civil justice system in that it could
achieve those objects which could hardly be achieved through convictional private litigation.
PIL, for instance, offers a ladder to justice to disadvantaged section of society, provides an
avenue to enforce diffused or collect rights, and enables civil society to not only spread
awareness about human rights but also allows them to participate in government decision
making. PIL could also contribute to good governance by keeping the government
accountable.

Public interest litigation has historically been an innovative judicial procedure for
enhancing the social and economic rights of disadvantaged and marginalized groups in
India. In recent years, however, a number of criticisms of public interest litigation have
emerged, including concerns related to separation of powers, judicial capacity, and
inequality. These criticisms have tended to abstraction, and the sheer number of cases has
complicated empirical assessments. This paper finds that public interest litigation cases
constitute less than 1 percent of the overall case load. The paper argues that complaints
related to concerns having to do with separation of powers are better understood as
criticisms of the impact of judicial interventions on sector governance. On the issue of
inequality, the analysis finds that win rates for fundamental rights claims are significantly
higher when the claimant is from an advantaged social group than when he or she is from a
marginalized group, which constitutes a social reversal, both from the original objective of
public interest litigation and from the relative win rates in the 1980s.
DECLARATION

I, SIMRAN MONISHA TOPPO, BA-LLB 10th Semester of GURU

I am highly indebted to the authors of the books that I have referred in my

It is only because of their contribution and proper guidance of my faculty

SIMRAN MONISHA TOPPO

B.A.LL.B

10th Semester
LIST OF CASES

1. Hussainara Khatoon v State of Bihar AIR 1979 1369 : 1979 SCR

2. Fertilizer Corp. Kamgar Union v Union of India AIR 1981 SC 344 : 1981

3. Mumbai Kamgar Sabha v Abdul Thai AIR 1976 1455 : 1976

4. People’s Union for Democratic Rights v Union of India AIR 1982 SC 1473

5. Bandhua Mukti Morcha v Union of India AIR 1984 SC 802

6. S P Gupta v Union of India AIR 1982 SC 149

1. INTRODUCTION

2. HISTORICAL BACKGROUND OF THE ORIGIN OF PUBLIC

INTEREST LITIGATION

3. EVOLUTION OF PUBLIC INTEREST LITIGATION IN INDIA

4. PUBLIC INTEREST LITIGATION AND JUDICIARY

5. PUBLIC INTEREST LITIGATION: IS THE JUDICIARY

OVERREACHING?

6. THE DARK SIDE

7. CONCLUSION

8. BIBLIOGRAPHY
INTRODUCTION

The phrase ‘Public interest Litigation’ relates to the very term ‘Public Interest’. Generally the
litigation by someone for the interest of the public is the Public Interest Litigation. It does not
mean that mere a stranger can move to court for a Public Interest litigation and that’s why it
is a carving need to define ‘Public Interest’.

One of the overarching aims of law and legal systems has been to achieve justice in the
society and public interest litigation (PIL) has proved to be a useful tool in achieving this
objective. For example, PIL—in which the focus is not on vindicating private rights but on
matters of general public interest—extends the reach of judicial system to disadvantaged
sections of society. It also facilitates an effective realization of collective, diffused rights for
which individual litigation is neither practicable nor an efficient method.

Nevertheless, PIL has generally received peripheral attention in debates on civil justice
reforms around the world. This is not to suggest that the evolution of PIL in various
jurisdictions has missed the attention of scholars.

To continue this tradition, this article aims to critically examine the evolution and
development of PIL in Indian Judicial System. The main objective of this examination is to
highlight the dark side of PIL so that other jurisdictions could learn useful lessons from the
Indian experience. The choice of India—a democracy of over 1 billion people governed by a
common law system, rule of law and independent judiciary—for learning lessons in the area
of PIL is an obvious one given the contribution of India to the PIL jurisprudence.

Although this article aims to highlight the dark side of PIL, it will not be fair if the positive
contributions of PIL are not acknowledged. After all, the dark side could only be discussed in
the backdrop of a bright side. The section on Positive contributions, therefore, briefly
highlights the positive contributions that the PIL project has made within and outside India.
The dark side then offers critical insights into various aspects of PIL, which together
constitute its dark side. Here again, before mapping these facets of the dark side, I will take
readers to a quick tour of some recent PIL cases in India. The conclusion will sum up the
discussion and also throw some light on how other jurisdictions could benefit from the Indian
PIL experience.
 CHAPTER 1.

HISTORICAL BACKGROUND OF THE ORIGIN OF PUBLIC

The initial inspiration for PIL came from the American concept of Public Interest Litigation
and the class actions of the 1960’s. In U.S.A. it is called the ‘Public Interest Law’ whereas in
the Indian Subcontinent it is known as ‘Public Interest Litigation’. In fact, it is the U.S.A., the
real pioneer in the path of PIL which influenced some PIL activist of some countries of the
world to work for PIL in 1960s and 70s.1 Commentators frequently date the emergence of
Public Law Litigation (in USA Public Interest Litigation is named as Public Law Litigation)
in the U.S.A. to the celebrated campaign that resulted in the decision in Brown Vs. Board of
Education,2 in which U.S. Supreme Court declared unconstitutional a stste’s segregation of
public school students by race. Brown includes many procedural features since associated
with Public Law Litigation: the defendant was a public institution; the claimants comprised a
self-constituted group with membership that changed over time; relief was prospective,
seeking to reform future action by government agents; and the judge played a leadership role
complemented by the party’s effort at negotiation. The literature distinguishes this form of
litigation from the classical model of adjudication, which is conceptualized as a private,
bipolar dispute marked by individual participation and the imposition of retrospective relief
involving a tight fit between right and remedy.3

Brown provided inspiration to a generation of lawyers who saw law as a source of liberation
as well as transformation for marginalized groups. Courts, mostly federal but state as well,
became involved in a broad range of social issues, including voting and apportionment,
contraception and abortion, employment and housing discrimination, environmental
regulation, and prison conditions. Prison reform litigation illustrates the extent of the
judiciary’s involvement in Public Law cases: after years of taking a “hands off” approach to
prison conditions, courts imposed remedial decrees in 48 of the nation’s 53 jurisdictions (the
50 states, the District of Columbia, Puerto Rico and the Virgin Island).4
1
Sarat & Scheingold, ‘Cause Lawyering and the Reproduction of Professional Authority; An Introduction, in
CAUSE LAWYERING’: Political Comments and Professional Responsibilities (Sarat & Scheingold eds., 1998).
2
Brown Vs. Board of Education,347 U.S. 483 (1954)
3
Fuller, The Forms and Limits of Adjudication, 92 HARV. L. REV. 353 (1978)
4
Feely & Rubin, Judicial Policy Making and the Modern State: How the Courts Reformed America’s Prisons
(1998).
 CHAPTER 2.

EVOLUTION OF PUBLIC INTEREST LITIGATION IN INDIA

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
consideration, 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 litigation. 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 Judiciary.5

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”. 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).6 These aims were not merely
aspirational because the founding fathers wanted to achieve a social revolution through the
Constitution. The main tool 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”.7 In order to ensure that FRs did not remain
empty declarations, the founding fathers made various provisions in the Constitution to
establish an independent judiciary. As we will see below, provisions related to FRs, DPs and
independent judiciary together provided a firm constitutional foundation to the evolution of
PIL in India.

Part III of the Constitution lays down various FRs and also specifies grounds for limiting
these rights. As a right without a remedy does not have much substance, the remedy to
approach the Supreme Court directly for the enforcement of any of the Pt III rights has also
been made a FR.8 The holder of the FRs cannot waive them. Nor can the FRs be curtailed by
an amendment of the Constitution if such curtailment is against the basic structure of the
Constitution.

5
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.
6
Constitution of India 1950 Preamble.
7
Austin, Cornerstone of a Nation, p. 50
8
Constitution of India 1950 art.32.
Some of the some of the FRs are available only to citizens while others are available to
citizens as well as non-citizens, including juristic persons. Notably, some of the FRs are
expressly conferred on groups of people or community. 9 Not all FRs are guaranteed
specifically against the state and some of them are expressly guaranteed against non-state
bodies.23 Even the state is liberally defined in art.12 of the Constitution to include, the
Government and Parliament of India and the Government and the legislature of each of the
states and all local or other authorities within the territory of India or under the control of the
Government of India.

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 Pt IV of the
Constitution. Although the DPs are not justiciable, 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.

After initial deviation, 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 latter. 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. Since then the judiciary has employed DPs to derive the
contents of various FRs.

The founding fathers envisaged the judiciary as a bastion of rights and justice. 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 Courts10 —the courts that have entertained all the PIL cases.
The judiciary can test not only the validity of laws and executive actions but also of
constitutional amendments. It has the final say on the interpretation of the Constitution and its
orders, supported with the power to punish for contempt, can reach everyone throughout the
territory of the country. Since its inception, the Supreme Court has delivered judgments of
far-reaching importance involving not only adjudication of disputes but also determination of
public policies and establishment of rule of law and constitutionalism.
9
See, e.g. Constitution arts 26, 29 and 30.
10
Constitution of India 1950 arts 32 and 226.
 CHAPTER 3.

PUBLIC INTEREST LITIGATION AND JUDICIARY

A very interesting PIL relating to first ever strike by the judges of Punjab and Haryana high
court on 19.4.2004 led the Supreme Court to strikingly contradictory stand. The PIL was filed
on the same day praying that the judges should return to their duties immediately in public
interest. In Vikas Vashisht v. Punjab and Haryana High Court3 a division bench of the
Supreme Court consisting of R.C. Lahoti CJ and G.P. Mathur J dismissed a PIL on July 2004
on the ground that what purported to have been filed by way of PIL was nothing more than a
publicity interest litigation as it was filed on the basis of a newspaper report. It was argued in
this case that proceeding on en masse casual leave by 25 judges amounted to “strike” by the
judges. In September 2004 in S.S. Dahiya v. Punjab and Haryana High Court 11 a bench of
S.N. Vairava and H.K. Sema JJ held that the facts alleged by the petitioner were not based on
newspaper report but on the personal knowledge of the petitioner and it was genuine PIL and
there was a need to lay down guidelines pertaining to judicial propriety and hence this was a
matter of public interest. On 3.12.2004 the same bench dismissed the PIL as “infructous”.
The reason: the court realized only then that the judges had already resumed their duties on
20.4.2004, just a day after they went on en masse casual leave to protest against the direction
of their Chief Justice to desist from accepting any freebies such as membership of a club. In
its one para order, the Vairava bench said that the court had issued notice on 26.4.2004
without noticing that the judges had already resumed their judicial work.

Before the judiciary a set of questions arises, such as; whether courts should be involved in
environmental, social, and economic matters at all: Are not the legislative and executive
branches better equipped to address these matters, and does not “judicial activism,” precisely
because the courts do not and cannot enforce many of their broad directives in these areas,
erode the legitimacy of the courts? Are not PIL cases draining substantial resources from an
already overburdened legal system in which ordinary civil cases can languish in courts for
many years? Since many PIL cases are patently frivolous and many others never enforced, is
not PIL a device for the judiciary to expand its own powers and autonomy under the mantle
of a popular social justice agenda? A separate set of questions involves the beneficiaries of
PIL: Do PIL cases continue to benefit the poor and disadvantaged, or have not lifestyle issues
and middle class concerns become predominant in PIL cases? Are not judges manifestly less

11
S.S. Dahiya v. Punjab and Haryana High Court, 2004(8) SCALE 235
disposed to the interests of the poor and marginalized than they were two decades ago, during
the “heroic” years when PIL originated?

These queries regarding PIL are fundamentally normative claims, and are based on principled
understandings of the role of judges and courts in India’s democracy. At the same time, the
validity of some of them rests on facts, albeit complex ones. For instance, the challenge
related to separation of powers raises questions about judicial capacity – critics charge that
courts cannot monitor and supervise complex “polycentric disputes” 12, whereas others
respond that they can, or at least as well as parliaments can.38 The relative effectiveness of
judicial supervision, if observed accurately and at scale, could help resolve this disagreement,
at least for a subset of cases and in certain contexts. Similarly, whether or not PIL cases still
address the concerns of the poor, and whether decisions are as supportive of their interests as
in the past, are empirical questions. To date, the debate over PIL has largely been abstract
(with some exceptions, to be described below). It has helped generate a set of normatively
significant questions, but at this stage of the research cycle, empirical work may be more
pressing. This paper contributes to that task by assessing PIL with empirical data.

The next section of this paper analyzes the argument that PIL constitutes a case of judicial
overreach. The contention that PIL weakens policy formulation and implementation in the
legislative and executive branches is typically “dressed up” as a separation of powers
concern, but a more apt framework involves an assessment of the impact of PIL on sectoral
governance, which is fundamentally an empirical matter, not a doctrinal one. The following
section describes the charge that PIL favours middle class interests rather than the concerns
of the poor and marginalized. That section than presents estimates, based on original data
taken from Supreme Court records an online legal database, to assess that claim.

CHAPTER 4.

12
Fuller & Winston, 1978, The forms and limits of adjudication, Harvard Law Review, p. 304
 PUBLIC INTEREST LITIGATION: IS THE JUDICIARY
OVERREACHING?

An old-fashioned view of legal rights holds that most social and economic matters do not
involve genuine right because they require positive action, not merely restraint, and have no
single, identifiable duty holder. Positive obligations, moreover, entail significant expenditures
that are the purview of the other branches of government. Courts, therefore, should steer clear
of the social, economic, and environmental concern at the heart of PIL. More contemporary
views39 hold that “for their fulfilment all rights require restraint, protection, and aid from the
entity from whom rights are claimed, and that a reasonably effective and well-funded state is
a sine qua non for all rights.”

Most of the criticisms of PIL in the Indian Courts have not taken this somewhat old-
fashioned form perhaps became in a country where the scale of needs is so large it is hard to
say that social and economic priorities are less commanding that civil and political ones.
They have rather argued that the social and economic domain should be largely the
prerogative of the other branches of government, which are better equipped to analyze,
formulate, and implement complex policies, and that much of PIL is inappropriate judicial
“activism” or “adventurism.” For instance, in an assessment of the activities of the Supreme
Court in the Delhi Vehicular Pollution and Municipal Solid Waste case, Rajamani
admonishes that “policy, environmental and social, must emerge from a socio political
process and must be considered in a legitimate forum not a judicial one.” 13 Citing cases in
which courts formulated explicit guidelines, such as cases related to vehicular pollution, the
management of the Central Bureau of Investigation, adoption by foreign nationals, custodial
torture, and sexual harassment, Desai and Muralidhar note that “while in some cases, the
Court has expressed its reluctance to step into the legislative field, in others it has laid down
detailed guidelines and explicitly formulated policy” In their 2003 article, Rosencranz and
Jackson welcome the environmental and health impact of the Supreme Court’s 2001 decision
requiring the Delhi government to convert its commercial vehicles to a fleet running on
compressed natural gas (CNG), but then plead for leadership on the part of the regulatory and
legislative authorities: “Some of the roadblocks to CNG implementation could have been
avoided, or at least minimized, had the conversion been originally mandated through the

13
Rajamani, L. (2007) "Public Interest Environmental Litigation in India: Exploring Issues of Access,
Participation, Equity, Effectiveness and Sustainability," Journal of Environmental Law, 19: 293-321.
normal legislative process.”14 Thiruvengadam documents a spate of similarly motivated
criticism of PIL as an incursion into lawmaking from sitting and former judges on India’s
Supreme and High Courts, including comments from Justice Hidyatullah in 1984, Justice
Srikrishna in 2005, and, perhaps most intemperately, Justice Kaju in 2008, who said PIL “has
developed into an uncontrollable Frankenstein.”

A motivation for some of this criticism is a suspicion that the courts have used their post-
Emergency popularity, to which PIL has significantly contributed, to expand their own
powers and shield themselves from scrutiny and accountability. To some, it appears as
though the courts may be spending time on frivolous and ineffectual PIL cases at the expense
of the real administration of justice, and choose to do so because PIL burnishes their
popularity. Reported instances of frivolous PIL include prayers to rename India “Hindustan,”
rename the Arabian Sea “Sindhu Sagar,” and replace the national anthem for one offered by
the petitioner (and partly sung before the Chief Justice).45 At the same time, the systems of
civil and criminal justice suffer enormous delays and arbitrary pre-trial detentions.

These concerns are echoed widely enough that there is now visible a clear backlash against
this perceived usurpation of powers by the courts, including a bill tabled in the Rajya Sabha
in 1996 to regulate PIL, a 2007 statement by Prime Minister warning against judicial
overreaching, recent calls from the bench to set parameters for PIL (Times of India,
December 12, 2007), and efforts to establish the National Judicial Council, a body to
investigate complaints against judges. Some of these complaints involve corruption: there
have been allegations that some 20% of Judges are corrupt. 15 Related complaints include the
use of the law of privileges and contempt on the part of courts to shield themselves from
criticism, resistance to efforts to require sitting judges to disclose their financial assets, and
the uncomfortably close relationship between some members of the judiciary and the Bar.48
Roy goes so far as to assert that judicial accountability is so low that “we live in a sort of
judicial dictatorship.”

A few comments about separation of powers are in order. First, policy formulation by the
courts or its agents is, to some extent, inevitable. Judicial review of any sort requires ongoing
commentary on laws and policies, including guidelines regarding their proper content.
Because dispute resolution entails an elaboration and application of the normative structures

14
Rosencranz, A., & Jackson, M. (2003) "The Delhi Pollution Case: The Supreme Court of India and the Limits of
Judicial Power," Columbia Journal of Environmental Law, 28: 21.
15
Dhavan, Rajeev. (2002) "Judicial Corruption," In The Hindu (online).
of society as the necessary ground for the dispute resolver’s decision, judges inevitably
involve themselves in rule making, which is a form of lawmaking whether in common law or
civil law jurisdictions. Courts have not traditionally been significant actors in the area of
social and economic policy; and resistance to public interest litigation and the court directives
it prompts in these areas may stem more from the novelty of the phenomenon than from
anything like a real “judicial dictatorship.” Reluctance on the part of the Indian judiciary to
be held accountable for performance and probity is certainly problematic – from the point of
view of democratic theory it limits the power of the people to review public action. The
expansion of judicial power in the area of social and economic concerns, on the other hand,
catalyzes legislative and executive activity more often than it paralyzes it. That is because, as
an empirical matter the world over, public interest litigation typically spurs judicial dialogue
with the other branches: rarely do courts issue all or nothing demands, backed with common
law contempt power or its civil law counterparts, in a way that requires the state to restructure
its policy framework. “Courts’ decisions do not so much stop or hijack the policy debate as
inject the language of rights into it and add another forum for debate.” As Fredman puts it,
PIL allows the judicial forum to become, potentially, a space for democratic deliberation
among equal citizens, rather than a place of interest group bargaining, which prevails in the
legislature.16

In addition, an important use of public interest litigation is to make public and scrutinize
hidden or obfuscatory information, including cost of potential social programs, which the
state and corporate entities on occasion have reasons to exaggerate or hide. In India, PIL
during droughts in Rajasthan and Orissa in 2001 disclosed the extent of unreleased
government grain stocks, and subsequent PIL disclosed that state governments could in fact
afford to widen several statutory food and nutrition programs, including the midday meals
scheme in schools, despite official protests to the contrary. In the Delhi vehicular pollution
debate, the Delhi Health Minister claimed that air pollution did not increase the risks of heart
or lung disease, the Delhi government said that the timely installation of CNG stations would
be impossible, the Ministry of Petroleum and Natural Gas argued that CNG bus conversion
would not be sustainable in the long run, producers of commercial vehicles stated that the
conversion to CNG was not economically costeffective, and other argued that CNG is
explosive. The court, largely by empowering certain technical committees, played a
significant role in helping to ascertain accurate information on these issues. It was, moreover,
16
Fredman, S. (2008) Human rights transformed: positive rights and positive duties: Oxford University Press,
p.149
not an instance of judicial fiat but rather a judicial-executive branch collaboration:
“Government experts essentially became advisors to the Court as it drove policy
implementation forward.”

The argument that PIL constitutes judicial overreach, resulting in poor or inefficient decision
making, is not really a separation of powers claim. The balance of power among government
organs, as Madison conceived it, was not primarily about a strict separation of powers but
“the partial interpenetration of relatively autonomous and balanced powers.” (O'Donnell,
2003) In other words, the separation of powers was not conceived as a design for the
promotion of efficient decision making by preventing undue encroachment from one
institution upon the prerogatives of another, but rather a check on the ability of any group or
faction to dominate government from its enclave in a specific organization. The doctrine of
separation of powers seeks to accomplish this precisely by opening certain governmental
tasks to competing competences and concurrent powers of review. Despite occasionally
hyperbolic claims on the part of critics, Indian judges and their professional social classes are
not using the courts as a staging ground to threaten the Indian state. There have been specific
rulings, such as Kesavananda Bharati or Advocates-on-Record, or the ruling on the Jharkhand
legislative procedures, in which courts assumed powers not delineated in the Constitution.
Even in those cases, it arguable that in so doing the Court restored a constitutional balance
because the executive and legislature had themselves been engaging in extra-constitutional
activities.

These criticisms regarding separation of powers are better cast as concerns related to the
impact of judicial intervention on sectoral governance. Does judicial involvement through
PIL improve state performance in a given sector. Is forest policy, for example, more
equitable, efficient, and effective as a result of court involvement? That is an empirical
question, but most treatments of the issue do not take the empirical challenge seriously. (A.
Rosencranz & Lélé, 2008) believe that the Supreme Court’s intervention following the TN
Godavaraman vs Union of India case (1996) “hurts the process of governance,” but adduce
little evidence about the capacity and authority of central and state executive agencies prior to
and after the court’s assumption of powers. Writing in 2003 on the Delhi vehicular pollution
case, Rosencranz and Jackson speculated that strengthening the pollution control boards
(PCBs), rather than Supreme Court action, “would seem to provide the most effective long-
term solutions [to air pollution in India]” and worried that “the Court’s action seems likely to
impede capacity building in the pollution control agencies, and thereby to compromise the
development of sustained environmental management in India.” This is a fundamentally an
empirical claim, and one can examine whether PCBs are weaker now than they were before
the Court got involved in the Delhi pollution case. A cursory review suggests that it is not
obvious that they are weaker – the budget of the Central Pollution Control Board has nearly
tripled since the year of the Court’s order in 2002, and a number of efforts are underway to
strengthen them and fill staffing vacancies in central and state PCBs.5 Another problem with
criticisms like these is that they compare an ideal or hypothetical legislative intervention to a
real judicial one when it is often the real-world failings of the other branches that prompted
litigation in the first place. Thiruvengadam describes the deliberative failings of India’s
Parliament, noting that of the total 36 Bills passed in 2008, “16 were passed in less than 20
minutes, most without any debate whatsoever.”

Why do analysts tend to describe issues of sectoral governance with the language of the
separation of powers? The motivation stems in part from a belief, sometimes inarticulate, that
governance should look similar the world over. In this case, courts, in order to be courts
properly understood, must limit their tasks to interpreting laws, rather than writing or
enforcing them. But it is a mistake to speak of “courts” as such. The task of judicial
institutions depends on the way they interact with the other institutions of their society. It is
less useful to assess judicial activity against a preconceived institutional design than to
evaluate, using “normative benchmarks,” the (positive or negative) contribution of courts to
the key tasks of governance in any specific sector. In the same way that careful studies of the
institutional foundations of economic growth in East Asia have challenged the rule of law
orthodoxy, showing that successful market-sustaining institutions need not take the specific
form that courts, corporate boards, and bureaucratic agencies have taken in, say, the United
States or the United Kingdom, studies of public interest litigation should recognize that courts
may play a variety of roles in different settings. There is less institutional convergence in the
world than believed, and it is important “not to confuse institutional function and institutional
form” (emphasis in original).

What, then, are the normative benchmarks that should be used to assess the contribution, or
lack thereof, courts toward sectoral governance? Those depend on the sector, of course – they
would look different in health than in forestry. But, generalizing, one can identify three key
elements of governance for the broad category of tasks in government service delivery: the
capacity and authority of the organizations charged with delivery or oversight, the availability
of information and transparency regarding service delivery, and state accountability for
performance. An empirically minded assessment of PIL in India, then, would take the form of
a series of case studies based on those normative benchmarks. The case studies would focus
on these questions:

Did the capacity and authority of institutions tasked with addressing the social problems
increase or decline as a result of PIL?

Was accurate information on sectoral concerns more widely available before or after judicial
intervention?

Were mechanisms of accountability, including legal and hierarchical oversight, markets and
the power of actors to pursue their own interests, and social assessments of the motives of
public officials, functioning more effectively before or after judicial intervention?
 CHAPTER 5.

THE DARK SIDE

PIL has, however, led to new problem such as an unanticipated increase in the workload of
the superior courts, lack of judicial infrastructure to determine factual matter, gap between
the promise and reality, abuse of power, friction and confrontation with fellow organs of the
government, and dangerous inherent in judicial populism. 17 before elaborating these
problems, let me take to a quick tour of some recent PIL cases that would offer an indication
of this dark side.

A quick tour of some recent PIL cases

In the last three decades, the Indian Supreme Court and High Courts have been approached
through PIL to redress a variety of issues, not all of which related to alleged violation of FRs.
The judiciary, for instance, has addressed issues such as 18: the constitutionality of the
Government’s privatization and disinvestment policies, defacing of rocks by painted
advertisements, the danger to the Taj Mahal from a refinery, 19 pollution of reviers, relocation
of industries out of Delhi, lack of access to food, 20 deaths due to starvation, use of
environment-friendly fuel in Delhi buses and regulation of traffic, out of- turn allotment of
government accommodation, prohibition of smoking in public places, arbitrary allotment of
petrol outlets, investigation of alleged bribe taking, employment of children in hazardous
industries, rights of children and bonded labours, extent of the right to strike, right to health,
right to education, sexual harassment in the workplace, and female foeticide and infanticide
through modern technology.

Although a review of the above sample of PIL cases may surprise those who are not familiar
with PIL in India, it should be noted that in all the above cases the judiciary did actually
entertain the PIL and took these cases to their logical conclusion. But there have been

17
See Desai and Muralidhar in Kirpal et al., Supreme but not Infallible, pp.176–183
18
Parmanand Kataria v Union of India AIR 1989 SC 2039
19
M.C. Mehta v Union of India (1996) 4 SCC 750
20
PUCL v Union of India (2001) (7) S.C.A.L.E. 484
instances of more blatant misuse of the process of PIL. For instance, the courts were
approached to call back the Indian cricket team from Australia after the controversial Sydney
test match. PILs were initiated to regulate the treatment of wild monkeys in Delhi and the
practice of private schools to conduct admission interviews for very young children.

A PIL was also filed in the Supreme Court to seek ban on the publication of allegedly
obscene and nude photographs in newspapers. Some so-called public-spirited lawyers
knocked at the door of the courts against: (i) Richard Gere’s public kissing of an Indian
actress, Ms Shilpa Shetty; (ii) an alleged indecent live stage show on New Year’s Eve; and
(iii) the marriage of former Miss World, Ms Aishwarya Rai, with a tree to overcome certain
astrological obstacles in her marriage.

More recently, the PIL discourse was employed to request the Indian government to send
technical experts to work with the Nepal government in strengthening the Bhimnagar barrage
to prevent recurrence of flood and to challenge the constitutional validity of the Indo–US
civil nuclear agreement.

The Dark Side

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 various purpose for which PIL was introduced. In
other words, the dark side is slowly moving to overshadow the brighter side of PIL project.

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 causes.
It is critical that courts do not allow “public” in PIL to be substituted by “private” or
“publicity” by doing more vigilant gate-keeping.

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
mushLower than many other countries and given that the Indian Supreme Court as well as
High Court are facing a huge backlog of cases, it is puzzling why the courts have not done
enough to stop non-genuine PIL cases. In fact, by allowing frivolous PIL plaintiffs to waste
the time and energy of the courts, the judiciary might be violating the right to speedy trial of
those who are waiting for the vindication of their private interests through conventional
adversarial litigation.

A related problem is that the courts are taking unduly long time in finally disposing of even
PIL cases. This might render “many leading judgments merely of [an] academic value”. 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.

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 is clear from the following observation of Dwivedi J. in Kesavnanda
Bharathi v Union of India:

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.21

It is submitted that courts should refrain from perceiving themselves as crusaders

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 case) or the procedure of arrest by police
(D.K. Basu case). 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
judicial intervention in these cases have made little progress in combating sexual harassment
of women and in limiting police atrocities in matter of arrest and detention.

The second instance of symbolic justice is provided by the futility of over-conversion of DPs
into FRs and thus making them justiciable. Not much is gained by recognizing rights which
cannot be enforced devalues the very notion of rights as trump. Singh aptly notes that,

“a judge may talk of right to life as including right to food, education, health, shelter and a
horde of social rights without exactly determining who has the duty and how such duty to
provide positive social benefits could be enforced.”

So, the PIL project might dupe disadvantaged sections of society in believing that justice has
been done to them, but without making a real difference to their situation.

Disturbing the constitutional balance of power

Although the Indian Constitution does not follow any strict separation of power, it still
embodies the doctrine of checks and balances, which even the judiciary should respect.

21
Kesavnanda Bharathi v Union of India (1973) 4 S.C.C. 225
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. Jain
cautions against such tendency:

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.

Moreover, there has been a lack of consistency as well in that in some cases, the Supreme
Court did not hesitate to intrude on policy questions but in other cases it hid behind the shield
of policy questions. Just to illustrate, the judiciary intervened to tackle sexual harassment as
well as custodial torture and to regulate the adoption of children by foreigners, but it did not
intervene to introduce a uniform civil code, to combat ragging in educational institutions, to
adjust the height of the Narmada dam and to provide a humane face to liberalisation-
disinvestment polices. No clear or sound theoretical basis for such selective intervention is
discernable from judicial decisions.

It is also suspect if the judiciary has been (or would be) able to enhance the accountability of
the other two wings of the government through PIL. In fact, the reverse might be true: the
judicial usurpation of executive and legislative functions might make these institutions more
unaccountable, for they know that judiciary is always there to step in should they fail to act.

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 importantly by the
masses:

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 victimised 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.
CONCLUSION

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 fulfill 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.

Also, a number of criticisms of PIL have been voiced in recent years, including concerns
related to separation of powers, judicial capacity, and inequality. While critics have been
persuasive when pointing to particular cases, the sheer number of cases, as well as the
variation in tendencies over time and among court benches, have made reaching a general
conclusion difficult. This paper has argued that complaints related to separation of powers
concerns are better understood as criticisms of the impact of judicial interventions on sectoral
governance, and that structured case studies of sectoral governance are necessary to assess
those criticisms. On the issue of inequality, this paper contributes to an overall assessment by
systematically examining the relative magnitude, case composition, and geographical origins
of, as well as legal representation and the claimant’s social class in, PIL and Fundamental
Rights cases that reached the Indian Supreme Court.

BIBLIOGRAPHY

Website referred –

 http://www.legalservicesindia.com/article/1844/Public-Interest-Litigation---A-
Critical-Evaluation.html
 https://lawcirca.com/public-interest-litigation-genesis-and-evolution/

Books referred –
 Jain M P, Indian Constitutional Law, (LexisNexis, 7th Edition,
2014).