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(2018) 8 GJLDP (April) 118

Role of Public Interest Litigation in Advancing Fundamental Rights of Have-

Nots in India

ROLE OF PUBLIC INTEREST LITIGATION IN ADVANCING FUNDAMENTAL RIGHTS OF HAVE-

NOTS IN INDIA
by
Filzah Belal
Abstract Public Interest Litigation, or commonly called as ‘PIL’, is a very handy
tool in the hands of the common people who feel that their fundamental rights have
been violated.
President John F. Kennedy have expressed that a PIL makes a citizen feel like a
part of the country and make him feel belonged to the country by way of the
Constitution where it mentions “we the people”. This was so because through PIL a
citizen is made to feel like he has the power to enforce the constitution, be it
against the state. PIL has been called as ‘social action litigation’ by Prof. Upendra
Baxi who felt that PIL is a very important social tool to bring about constitutional
enforcement to the fundamental rights granted by the constitution of India. Even
the Judiciary has been very flexible with entertaining pills that concern of social
matters in Public Interest.
A PIL has evolved over time and has undergone various phases. Over time, by
way of PILs, various other rights have also been included into the ambit of other
Fundamental Rights, for e.g.: including the Right to Clean Water with the
interpretation of Right to Life under Art. 21. Many such developments have occurred
through judicial interpretations of various Fundamental Rights by the Judiciary in
PIL cases.
A PIL for have-nots had been a distant dream for a long time as they didn't have
enough knowledge or proper access to it. This category of ‘have-nots’ is diverse and
can include all of those persons who have been deprived of their fundamental rights
even while they have all other resources. These have-nots are the ones that PIL
aims to strengthen

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by ensuring their fundamental rights. It will be a successful tool only when it will be
fruitful for the have-nots as PIL is motived to enforce fundamental rights of those
whose fundamental rights have been violated.

Keywords: PIL, Have-nots, Constitution, Fundamental Rights, Social Action

Litigation, Abuse, Judiciary.
INTRODUCTION
Articles 32 and 226 of the Constitution of India bestows upon the citizens of the
county, a tool that symbolizes the power in the hands of the people - PIL. A Public
Interest Litigation (hereinafter, PIL) gives the citizens of the country a special right,
that is to approach the court in case any of their fundamental rights are violated.
This provision in law is a tool for all those are disadvantaged, deprived or aggrieved
who can otherwise approach the Court for enforcements of those Fundamental Rights.
In the context of this paper, these persons shall be understood as ‘have-nots’. All
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‘have-nots’ can approach the Judiciary as a matter of Fundamental Right under Art. 32
(to approach the Supreme Court) for violation of other Fundamental Rights enshrined
under Part III of the Constitution. This implies how the ‘have-nots’ in the context of
filing a PIL may not only be restricted to those who are oppressed (like women,
children, physically handicapped, etc).1 It extended to all those who do not have the
means or resources (not only in financial terms) to approach the Court for justice.
These ‘have-nots’ are all those persons who are disadvantaged for some purpose and
therefore find legitimate ground to approach the Court through a PIL.
India saw the advent of PIL in the late 1970s during the post emergency phase
when the Courts had aimed to combat the violation of basic rights of person granted to
them in the face of Fundamental Rights. Various

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issues, especially regarding locus standi, maintainability, etc. were quick to arise
before the Court. However, many traditional rules regarding filing a PIL have been
relaxed today. Hence, any person having sufficient interest for public injury arising
from violation of rights could file a PIL so as to get judicial redress2 under Art. 32 or
Art. 226, and if it is a matter of violation of Fundamental Rights, one can approach the
Supreme Court directly by invoking Art. 32 without exhausting local remedies.

There is only a small difference between the two provisions for PIL, i.e., Art. 32 and
Art 226. While Art. 32 is itself a Fundamental Right granted to all citizens to directly
approach the Supreme Court in case their other Fundamental Rights are violated, Art.
226 is a provision that also includes within its ambit the legal and other constitutional
rights. However, PILs filed under both these provisions have been successful in bona
fide matters and hence have been equally effective in enforcing rights of the ‘have-
nots’ in genuine cases.
EVOLUTION OF PIL
The seed of the concept of PIL was initially sown in India by Krishna Iyer, J. in 1976
(without assigning the terminology) in Mumbai Kamgar Sabha v. Abdulbhai
Faizullabhai.3 While disposing an industrial dispute in regard to payment of bonus, he
observed:
“Our adjectival branch of jurisprudence, by and large, deals not with
sophisticated litigant but the rural poor, the urban lay and the weaker societal
segment for which law would be an added terror if technical misdescription and
deficiencies in drafting, pleading and setting out the cause title create a secret
weapon to non-suit a part…. Public interest is promoted by a spacious construction
of locus standi in our socio-economic circumstances and conceptual latitudianism
permits taking liberties with individualisation of the right to invoke the higher
courts where the remedy is shared by a considerable number, particularly when
they are weaker.”
Thus, because the poor and weaker section had some technical errors in filing the
case, it must not be an obstacle for them to seek justice. If their

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rights wouldn't have been protected due to mere technicalities, it would've rather been
a failure of the law. Indeed, there must be a procedure laid down that must be
followed; however, the objective of law is to help the people it governs. And in need of
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protection from this law, if these ‘have-nots’ wouldn't get the relief from the Court for
enforcement of their fundamental rights, it would have been of no use of the law in
place. The law is not only for the advantaged, but also for the disadvantaged. In the
view of Art. 14, equal protection of law is provided to all. When it comes to ‘have-
nots’, who are deprived, they are entitled to this protection. Ever since this philosophy
has bloomed in the Indian Judiciary, PIL has started acting as a tool to advance the
rights of the ‘have-nots’ in a more effective manner.

PIL FOR THE HAVE-NOTS: CHALLENGES

Locus Standi
Before PILs, “justice” was only a far-fetched dream until this mechanism of enforcing
rights developed in the practical sense, especially for the poor. The Judiciary took
cognizance of the fact and decided to strengthen the tool of PIL to empower such
aggrieved person or persons. In the year 1981, a 7 Judges bench in the Supreme
Court held of S.P. Gupta v. Union of India4 whereby it largely relaxed the phenomenon
of ‘locus standi’. The Supreme Court in this decision held that:
“Where a legal wrong or a legal injury is caused to a person or to a determinate
class of persons by reason of violation of any constitutional or legal right or any
burden is imposed in contravention of any constitutional or legal provision or
without authority of law or any such legal wrong is threatened by reason of poverty,
helplessness or disability or socially or economically disadvantaged position, unable
to approach the court for relief, any member of the public can maintain an
application for an appropriate direction, order or writ in the High Court under Art.
226 or to the Supreme Court under Art. 32.”
While the judiciary relaxed the scope of locus standi, it has been cautious as to
which petitions are to be allowed. The Supreme Court has stated that the judiciary
cannot entertain any and all petitions. The Court must look into the ‘locus’ (position of
the person filing the petition) before it

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entertains the petition.5 The position of a PIL filed under these provisions must
necessarily be in ‘public interest’ that must be aimed to serve a larger population than
the ones filing it. It has thus been adjudged as a very critical and relevant factor while
judging the maintainability of a PIL.

Even though the scope of PILs is relaxed in order to be able to enforce Fundamental
Rights, it is also necessary to test the maintainability of such petitions to check the
genuineness in them. It is very important to identify which PILs have mala fide
intentions behind them, and to filter them out so as to not cloud away the ones that
actually should be addressed by the Courts.
Whether a third person can file a PIL?
The Supreme Court in the same case of S.P. Gupta v. Union of India6 also emphasized
on how the Court must keep innovating new ways to accommodate the grievances of
those who can't approach the Court. Hence, in 1982, the Supreme Court in People's
Union for Democratic Rights v. Union of India7 recognized that a “third party” may
approach the court in the interest of the aggrieved; the only conditions are that there
must be a substantial question of law or there must be violation of fundamental rights
and the petition must be in the public spirit.
The growth of PIL has witnessed the concept of “next friend” that has been
recognized in recent times. In Kishore Samrite v. State of U.P.,8 the Supreme Court
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recognized “next friends” as those who can file a PIL in the interest of those aggrieved
persons who are disabled, or do not have the means to file the same. For instance, in
case of violation of Fundamental Rights of labourers who do not have sufficient
financial resources to approach the Court, an NGO working towards uplifting the
working conditions of labourers can approach the Court on their behalf as was the case
in People's Union for Democratic Rights v. Union of India.9

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The scope of filing a PIL has been increased and is very flexible today. It isn't
necessary for the affected person to personally approach the Court. Any member of the
public having “sufficient interest” can approach the Court for enforcing the legal or
constitutional rights of other persons and seek redressal of a common grievance.
With the expansion of scope of PILs, the Supreme Court has also taken into account
the possible abuse of such power. It immediately recognized that a third party may
only file a PIL with a bona fide intention (they must have to submit exhibits for the
same) and only if it is for the interest of the public interest at large. Hence, any
personal agendas and motives behind a PIL shall not be admitted into the Court of
law.
Matters to be heard
A PIL can only be filed for the violation of Fundamental Right or when there is a
substantial question of law & it can only be enforced against the State under Art. 12 of
the Constitution. It has been well established through various landmark judgements
that all those bodies which fall under the definition of ‘State’10 can be brought before
the Court under these provision for enforcement of such rights of the ‘have-nots’.
These are two significant elements of a PIL, without which it cannot be entertained by
the Courts. No PIL filed can be entertained which has any ulterior motives and has any
hidden intention of personal gains.
Epistolary Jurisdiction
Prof. Dr. Upendra Baxi has christened PIL as “Social Action Litigation”. In addition to
this, PIL adds to the sense of belongingness of a citizen of a country as their rights
and interests are taken into consideration. This sense was furthered by the Judiciary
when it started recognizing even letters as PILs. It is within the scope of the Courts
today to entertain letters and admit them as PILs if it had a substantial question of law
or violation of Fundamental Rights, and was in public spirit.11 This was termed

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as ‘epistolary jurisdiction’, which by its very nature makes it easier for the aggrieved
to approach the Courts.

Dynamic Nature of Law

Law in itself is a very dynamic subject as it needs to keep pace with the changing
times. For instance, in 2017, the Supreme Court granted all citizens the Right to
Privacy. This happened in K.S. Puttaswamy v. Union of India,12 where a 9 judge bench
recognized this right within the ambit of the Right to Life under Art. 21. However in no
time, a lot of questions crept in to this aspect of ‘Privacy’ and one of the most notable
ones was that of criminalization of homosexuality.
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This brought back the debate of decriminalizing Sec 377 of the IPC and has
compelled the Supreme Court to consider its judgement once again.13 Under the
scanner was the issue of the Fundamental Rights of the LGBTQ Communities and
whether they do not have the right to choose their life partners like others. It was
argued that they too are entitled to have a choice with whom they wish to live and
have a family with, not just in the context of the Fundamental Rights, but such
freedom to form a family has also been given in the Universal Declaration on Human
Rights. Depriving them of such freedom would deprive them of the basic needs in life.
The Judiciary will have to examine such arguments at length to determine the status
to the rights that must be given to this class of alleged ‘have-nots’.
ADVANCING FUNDAMENTAL RIGHTS OF THE HAVE-NOTS THROUGH PILS: RECENT
DEVELOPMENTS
There have been various instances where the tool of PIL has been used judiciously with
bona fide intention to benefit the ‘have-nots’, and which has in fact rendered them
benefits. The judiciary has time and again appraised the fundamental rights and
safeguarding them for different disadvantaged sections. With time new issues have
emerged, and the flexibility of law has

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incorporated these questions coupled with interpretations of the Courts in recent times
to address issues of violation of Fundamental Rights. Some of them have been
discussed below.

Labour Welfare
The exploitation of labour has been a long reality but that practice needs to be
changed and to bring about this change, the Judiciary has aptly enforced Fundamental
Rights. Thereby, violators have been reminded about their responsibilities towards
labour. Such responsibility primarily lies with the employer who must make sure that
his workmen must be treated with dignity and that the working conditions must be
humane enough to gain profitability to him whilst respecting the hard work being put
in by the labour. Only because such workmen might be economically weak does not
mean that they can be subjected to inhumane treatment. Being in a weaker position,
their Fundamental Rights can be enforced through the tool of PIL.
In Kalyaneshwari v. Union of India,14 the Court addressed the question of asbestos
industry which is infamous for the health hazards related to nature of its work. While
the PIL was filed to put a ban on the asbestos industry as a whole, it was not possible
to infringe the Right to Carry out Business granted under Art. 19(1)(g). Even without
violating the said right, the Right to Life could be safeguarded. The Court while
recalling the CERC case15 observed that the asbestos industry has not been following
the guidelines issued by the Court in the latter judgement and that had led to a failure
in protecting the Right to Life of the labourers. The Court strictly affirmed that the
Right to a Clean Environment, even while at work, must be protected of these
workmen. The Court struck a balance between Art. 19(1)(g) and Art. 21 by calling for
better supervision and regulatory control to protect the fundamental rights of the
labour rather than banning the industry.
The Supreme Court has also engulfed the unorganized sector within the scope of
labour welfare and has directed for their protection of fundamental rights in many
cases in case of similar hazards. One of such cases is

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National Campaign Committee v. Union of India16 took notice of how workers hired on
a temporary basis in construction sites were not being given the basic standards under
which they could work. This derogation of human dignity is unjustified and unfair
treatment to them. Only because they fell within the category of ‘unorganized workers’
did not mean that they would be subject to discrimination. Therefore, the Supreme
Court had ordered for protection of the unorganized workers working in construction
site by way of implementation of labour welfare legislations on them equally, which is
otherwise only applicable on organized labour.

The Court observed once again how weaker financial background was holding back
these workers into derogatory working conditions and that this section of people must
be empowered by means of Fundamental Rights and be protected from further
exploitation. Thus, the Court in this case very magnificently advanced the
Fundamental Rights of these workers.
It has also worked towards protection of vulnerable groups like that of manual
scavengers.17 This category of workers are one of the most important in maintaining
public hygiene, however it was noticed how the Government was failing in maintaining
hygiene for the workers (scavengers) itself. Various necessary precautions, like
protective gears, safety apparatus, etc. were to be provided to such workers as
specified in the Prohibition of Employment as Manual Scavengers and their
Rehabilitation Act, 2013 but the Government was failing in this prerequisite and hence
the workers were being made to work in conditions which would not be considered
dignified to a normal citizen. In addition to this, the weaker financial background of
these workers compelled them to work even in such gross conditions. When the Court
addressed the matter, it clearly directed that everyone has an equal right to live and
work with dignity, and hence such workers must be given protection through
protective and appropriate gears while they are at work, as has been prescribed by the
law and conditions of work being in strict adherence to the Prohibition of Employment
as Manual Scavengers and their Rehabilitation Act, 2013. Any derogation would mean
disrespecting the workers’ dignity, which is not permissible

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as they too are entitled to equal Fundamental Rights. Therefore, the Court recognized
the problem at hand and enforced upon the State to make sure that manual
scavengers were not subject to such humiliating work conditions any further.

Environment Protection
While deciding on this issue, the judiciary in many cases has taken the interest of
general population while deciding. The ban on firecrackers was not the first one where
detriment to the environment was taken into account, many other cases have also
witnessed the same whereby to cater to a larger public threat, restrictions have been
put. Closing down of mining sites has been one of the most common consequences, if
it was found that it is contravening any right that originates from the Right to Life,18 it
has been dealt with strictly. No hesitation has been shown in circumventing such
activities which might be an irreversible and irreparable threat to the environment
thereby looming as a continuous and prolonged threat to the lives all.
There has been a plethora of cases on Environment Protection but this does not
translate into reduction of the hazard to the environment. Recently, the Supreme
Court addressed the question of bursting crackers19 during Diwali considering the ever
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rising pollution level in the country, especially the capital city. The Court for a while
considered that it would infringe upon the right to carry on business and would
hamper trade however it served to a larger public interest of providing clear air to
breathe. When resolving the conflict between both these rights, it couldn't help but
give more weightage to the environmental emergency in the NCR. It therefore put a
limited ban on the firecrackers trade in NCR. It took this step while reflecting the
importance of environment that was shown in the second phase of the growth of PIL
which had given much importance on protecting the environment and its resources to
ensure public health and that it was a responsibility of the State, which the Court had
to apply while examining relevant issues.

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While the Ganga and Yamuna rivers have been infamous for the pollution level, the
problem extends to almost all rivers in India but that does not see the light of the day.
The State and the citizens have time and again been reminded about their
responsibility in protecting the environment as a duty under Art. 51A (g) as well as a
Directive Principle of State Policy under Art 48A. In Tirupur Dyeing Factory Owners’
Assn. v. Noyyal River Ayacutdars Protection Assn.20 , the pollution of the Noyyal River
was brought into question. Water is an essential element of life and thus falls within
Article the right to life as enshrined in Article 21. Depending on polluted water means
danger to health and ultimately the lives of people. The Court cannot shy away from
its responsibility to protect the Fundamental Rights of all those aggrieved persons who
depend on the water of this river for their day to day purposes. The Court emphasized
on the abovementioned provisions of the Constitution while it also upheld principles of
“sustainable development”, “polluter pays” and “precautionary principle” when it dealt
with this PIL. It therefore directed the State to take appropriate steps to protect the
water of this river in interest of all those persons who were being adversely affected as
they inevitably depended on this water body.
The relation between safeguarding environment and PIL is that of protection of
Fundamental Rights. It is rather the vested interests of the people in the environment
which forms ground for aggrieved persons to file a PIL in larger public interest - be it
in terms of water, air or biodiversity. Right to Life under Art. 21 has a wide ambit while
it includes the right to clean water, right to shelter, right to livelihood (in context of
environmental protection, it could be in relation to those persons who depend on forest
produce for their livelihood)., etc. as the Right to Life in its essence is not merely
about animal existence, but is rather a right to live with dignity.
Prisoners' Rights
The Right to Life includes the Right to Live with Dignity and it cannot be taken away at
any cost, even when a person is serving punishment for a crime. To take away the
dignity of a person would imply diminishing his human value in the society. This would
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punishment as per the law that prescribed it, he wouldn't be able to move on in life
and necessarily tread a path that he wishes thereafter.
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It was stated in Inhuman Conditions in 1382 Prisons, In re21 that it was not enough
that the next kin of those prisoners fall victim to custodial death. It was that said the
State and Central government must ensure the implementation of victim
compensation scheme but this does not mean that such compensation can be
proportionate to the humiliation and ill-treatment caused to the prisoners.
While the judiciary has acknowledged the rights of prisoners in many aspects, it has
also acknowledged the dignity of their lineal descendants who face the stigmatization
on account of misdeeds of their forefather, to forget, which is a right granted to such
descendants in the form of ‘right to be forgotten’.
Moreover, in Gangadhar Behera v. State of Orissa22 an inherently discrimination lay
against the witnesses solely on the basis of their relations. These witnesses were
contended not to be credible enough merely because they were related to the accused
in the case. It was not fair to question their character and credibility in such a manner
that results in further stigmatization and inflicting pain in addition to what has already
been caused by the wrongful acts of their forefathers. It directly hit upon the Right to
Dignity of these witnesses and the Court sought to protect it. This also shows how it is
not only the prisoners behind bars, or the accused that must be entitled to protection
of the Fundamental Rights, but also those who are directly or indirectly related to
them.
Gender Justice
In the backdrop of a historically established patriarchal society in India, women have
more often than not been subjected to gender prejudice which is a blatant violation of
the Right to Equality. One of the most recent cases has been the Sabarimala Temple
issue23 whereby the women were restricted from entering the temple based in gender
biases and additionally

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depriving her of the right to practice one's religion. The Court held that none can
restrict a woman from worshipping a deity of her choice and has therefore held for
allowing the entry of women in the Sabarimala Temple in Kerala. It was not only
denial of right to equality by means of discriminating on the basis of gender, but also
Right to Religion. These women were disadvantaged and were thus empowered by the
Court to enter the temple and practice their religion as they wish.

In a revolutionary case regarding sex workers, the Court with a view to protect the
dignity of sex worker/prostitutes stated that even sex workers are still entitled to their
fundamental rights, regardless of their profession. The social stigma attached to
controversial professions such as prostitution, cannot be undermined in the Indian
Society, which in contravention to the cultural norms and belief. Being deeply rooted
to such conservative, narrow and rigid belief system, these sex workers are not socially
accepted and are always placed at an inferior level. This stigmatization is not only
restricted to them, but also to the ones related. It has been observed by the Courts
how children of such sex workers are not given equal opportunity, but as innocent
children who have no say as to the conditions and place in which they have taken
birth, they must not be subject to such disadvantages. The Court took a humane view
and protected various rights that children are entitled to, including education.24 They
must be treated equally as ordinary children, and must not be discriminated against
on mere basis of their origin.
Moreover, in relation to their work, they are often questioned on their morals
however the conditions that have compelled them into such a profession to earn
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means of livelihood are conveniently ignored. It is often perceived that only because
they are ‘sex workers’, powerful persons can force themselves upon such workers.
Consent should still remain an integral part of such activities and in its absence such
work of prostitution does not find validation even more. In a view to protect Art. 21
which gives everyone the right to life and personal liberty, the Court has held that
‘consent’ shall still be necessary, without which it shall be considered as rape even if it
has happened with a sex worker.25 Therefore, barging through the wall of

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consent to get sex, even from a sex worker, is unethical and cannot be justified on
mere basis of their profession. If it so happens, it will be outright violation of their
Fundamental Rights and offenders will be punished in accordance with the provisions
of law.

Differing from the opinion of women being at a weaker position, the judiciary has
refrained from being biased. However, in cases where it has been proved that women
have been subject to discrimination, they are to be understood as ‘have-nots’ and
thus, can yield the power vested by means of a PIL.
LGBTQ Community
One of the most heated debates in India in the past few years has been the issue of
the LGBTQ Community and their status. On one hand, the community has faced years
of trauma, while on the other hand, many institutions have begun to recognize a ‘third
gender’, or an option to not disclose one's gender.
Even the judiciary has been contradictory in its stance regarding the status of this
community. In 2013, it declared that homosexuality is unlawful and a punishable
offence under Sec 377 of the IPC being against the “order of nature”. But at the same
time, in National Legal Services Authority v. Union of India26 the transgender
community was recognized as a third gender whilst giving them a gender identity
protecting their Right to Equality.
Fortunately the Supreme Court has found that in its previous judgement critical
constitutional issues could have been dealt with in a better manner. Hence, it has
decided to re-examine the matter of criminalizing or de-criminalizing homosexuality in
the context of the statute of IPC which was brought into force way back in 1860. Major
countries like the USA have also de-criminalized homosexuality and have granted
rights to the LGBTQ community. In fact, even the United Kingdom has de-criminalized
the same whereas it was the British who had drafted the legislation that criminalized
homesexuality for India.

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While the status of the LGBTQ Community lies in limbo, another challenge that the
judiciary has posed before itself is the judgement given in K.S. Puttaswamy v. Union
of India27 where along with the recognition of the Right to Privacy individuals’ right to
choose their sexual partner was also recognized as within the ambit of the Right to
Life. The Supreme Court has now decided to look into the matter in the current context
of the society.
The LGBTQ community has long faced discrimination based on their sexual
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orientation. This discrimination emanates from a form of sexual orientation that the
nature bestowed upon them. Even if it has been a matter of choice, they must be
entitled to it just like every ordinary citizen is allowed in all general and personal
matters. This conflict of opinions and amongst laws and judicial precedents is itself a
grave constitutional challenge in front of the courts and only the decision will prove
whether their rights can be successfully advanced through the tool of PIL and how far
has this tool been advantageous to them.
Medical Advancements
In recent times, the rampant population explosion has become a huge obstacle in the
way of development of nations. Human Resource is integral to the growth of the
economy; however, a huge population which is not resourceful economically becomes
a burden on that nation. To tackle with this problem, the process of sterilization has
crept in to many countries as a solution. This is prima facie a violation the Right to
Life. The primary target group on whom sterilization is performed are women. On one
hand, a person has the right to make decisions in regard to reproduction and giving
birth to children, but at the same time, family planning and population control is the
responsibility of the government. Hence, forced sterilization cannot be a solution as it
is merely inflicting physical and mental pain on the innocent when actually it is the
State that has failed in its duties to control the population. In case a person wants to
voluntarily opt for it, proper health care must be ensured and there must lay no threat
to those who sterilize. Only when all these aspects are ensured would the
“reproductive freedom” of an individual be ensured.28

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Forced Sterilization or Forced Abortion would serve the same goal and make the
aggrieved go through the same pain. Any ordinary woman would not opt for either
under normal circumstances. This makes the mentally retarded women very vulnerable
to such forced practices and predators often take advantage of ‘unsound mind’ as a
defence. The Supreme Court was faced with this question,29 whereby it held that such
an act is nothing but a violation of Art. 14 as women are being subjected to forced
abortion and exploited on the basis of their disability. The Court sought to protect the
interests of these women just like other ordinary women and thereby, held that
consent was necessary even from those women who are mentally retarded.
CONCLUDING REMARKS
The growing use of public interest litigation has brought a new hope to the victims of
administrative injustices and criminal negligence of the government through the
process of the participative justice. Justice Krishna Iyer has rightly said, “How a
bonded labourer working in a stone quarry could ever know of moving the Supreme
Court as they are ?non-persons, exiles of the system living a life of animals?” Over
time, PIL has become a tool for the disadvantaged to claim their fundamental rights
when violated. It is the constitutional obligation of the judiciary to make sure that all
sections of society can access this tool to enforce their rights.
It is vital that we move on from the typical demarcations of classifying women and
children as the only disadvantaged sections of the society. It is imperative that we
recognize that it is not only the rich, but also the poor and uneducated that could be in
disadvantaged positions in matters of exercising their rights. The locus must be seen
on a case to case basis, and not merely based on the trivial understanding of certain
groups as disadvantaged only as that would inherently be another discriminatory
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classification.
It is of no doubt that the judiciary has throughout its history of PILs addressed the
issues relating to many disadvantaged groups whose rights should be enforced, yet
there is a long way to go. One of the major issues

Page: 134

that the Supreme Court was recently faced with is the issue of making laws relating to
sexual offences gender neutral and creating provisions for punishing women for crimes
like rape, voyeurism, etc. under the IPC. The Supreme Court dismissed this petition.
This has met with some criticism as it is seen as a violation of Art. 15 on account of
constituting discrimination on the basis of gender against women.

Under the garb of filing PIL, there have been many instances of abuse of this tool.
By extending its jurisdiction, the court is trying to bite more than it can chew. As a
result the arrears are increasing and the number of pending cases keeps on rising. To
introduce a filter to this process would again mean delay in justice. However, what can
be promoted instead is the practice of exhausting alternate remedies before
approaching the Supreme Court. There is also a need to improve the justice delivery
system in the lower courts to lessen the burden on the Supreme Court.30
In cases where important project or socio economic regulations are challenged after
gross delay, such petitions should not be entertained. Just because a petition is
termed as PIL should not mean that ordinary principles applicable to litigation will not
apply. Ensuring indemnity for frivolous petitions that are ultimately dismissed will also
discourage mala fide PIL petitions.
Lastly, it must also be borne in mind that no one has the right to waiver of the locus
standi rule and the Court should permit it only when it is satisfied that the carriage of
proceedings is in the competent hands of a person who is genuinely concerned in
public interest and is not moved by other extraneous considerations. At the same, the
judiciary must take in every PIL as possible that is bona fide in nature to strengthen
the enforcement of rights of the have-nots in the country. This is what will truly justify
the function of the courts as the ‘Guardian of the Constitution’ from which these rights
emanate.
FILZAH BELAL, is a third year, B.A. LLB (Hons.) student at National Law University
and Judicial Academy, Assam.
———
1 Nath, Himangshu Ranjan, “PIL Strategy in Advancing the Rights of Have-nots’ in India: Issues and Challenges”,
Journal of Juridical and Social Science, Vol 5, No. 2, 2015.
2 S.P. Gupta v. Union of India, 1981 Supp SCC 87 : AIR 1982 SC 149 (Judges Transfer case).
3
(1976) 3 SCC 832 : AIR 1976 SC 1455.
4 1981 Supp SCC 87 : AIR 1982 SC 149.
5 R&M Trust v. Koramangala Residents Vigilance Group, (2005) 3 SCC 91.
6
Supra n 4.
7 (1982) 3 SCC 235 : (1983) 1 SCR 456.
8 (2013) 2 SCC 398.
9
Supra n 7.
10 Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 : AIR 1981 SC 487.
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11 Upendra Baxi (1) v. State of U.P., (1983) 2 SCC 308.
12
(2017) 10 SCC 1.
13Jain, Mehal. 2018. “Challenge Against S. 377 IPC Hearing: Who Said What.” Livelaw, January 8, 2018. Accessed
on 23rd March, 2018. http://www.livelaw.in/challenge-s-377-ipc-hearing-said/.
14 (2011) 3 SCC 287.
15
Consumer Education & Research Centre v. Union of India, (1995) 3 SCC 42.
16
(2009) 3 SCC 269.
17 Safai Karamchari Andolan v. Union of India, (2014) 11 SCC 224.
18
Municipal Corpn. of Greater Mumbai v. Kohinoor CTNL Infrastructure Co. (P) Ltd., (2014) 4 SCC 574.
19
Arjun Gopal v. Union of India, (2017) 1 SCC 412.
20 (2009) 9 SCC 737.
21
(2017) 10 SCC 658.
22
(2002) 8 SCC 381.
23
Indian Young Lawyers Assn. v. State of Kerala, (2016) 16 SCC 810.
24
Gaurav Jain v. Union of India, 1990 Supp SCC 709 : AIR 1990 SC 292.
25
Budhadev Karmaskar (5) v. State of W.B., (2011) 10 SCC 354.
26
(2014) 5 SCC 438.
27
(2017) 10 SCC 1.
28
Devika Biswas v. Union of India, (2016) 10 SCC 726.
29
Suchita Srivastava v. Chandigarh Admn., (2009) 9 SCC 1.
30 “Criticism of PIL”, Shodhganga, last accessed on 1st November, 2017, Available at:
http://shodhganga.inflibnet.ac.in/bitstream/10603/39837/15/15_acapter%207.pdf.

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