Project PIL, importance

CONTENTS ACKNOWLEDGEMENT ............................................ .................................................................. ............................................ ............................................. ............................ ..... 4

ESEARCH METHODOLOGY .......................................... R ESEARCH ................................................................ ............................................ ........................................... ..................... 5

INTRODUCTION ............................................ .................................................................. ............................................ ............................................ ....................................... ................. 6 PUBLIC INTEREST LITIGATION: DEFINITION AND MEANING ........................................... ....................................................... ............ 8

Definition : ........................................... ................................................................. ............................................ ............................................ ........................................... ..................... 8 Aspects of PIL ...................................... ............................................................ ............................................ ............................................ ........................................... ..................... 9 Features of PIL ............................................ ................................................................... ............................................. ............................................ ................................. ........... 11 ORIGIN AND EVOLUTION OF PUBLIC INTEREST LITIGATION ..................................................... .................................................... 13

Origin of PIL ....................................................... ............................................................................. ............................................ ............................................ .......................... .... 13 Evolution of Public Interest Litigation .......................................... ................................................................. ............................................ ..................... 16 PHASE-I: Orders Passed for Protection of Fundamental Rights of Poor and Illiterate ........ ........ 17 PHASE-II - Directions Dir ections to Preserve and Protect Ecology and Environment.......................... .......................... 24 PHASE-III - The Transparency and Probity in Governance .............................. ................................................. ................... 28 CONTRIBUTION/IMPORTANCE OF PUBLIC INTEREST LITIGATION ............................................. ............................................ 31

Positive Contributions ................................................ ...................................................................... ............................................ ......................................... ................... 33 Abuse of the Public Interest Litigation ................................................ ....................................................................... ..................................... .............. 36 ECENT PILS........................................... R ECENT ................................................................. ............................................ ............................................ ......................................... ................... 42

Manohar Lal Sharma v. The Principal Secretary & Others (Coalgate Case) ............................ ............................ 42 Suresh Kumar Kaushal v. Naz Foundation .......................................... ................................................................. ..................................... .............. 43  National Legal Services Authority v. Union of India .......................... ................................................ ..................................... ............... 45

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CONTENTS ACKNOWLEDGEMENT ............................................ .................................................................. ............................................ ............................................. ............................ ..... 4

ESEARCH METHODOLOGY .......................................... R ESEARCH ................................................................ ............................................ ........................................... ..................... 5

INTRODUCTION ............................................ .................................................................. ............................................ ............................................ ....................................... ................. 6 PUBLIC INTEREST LITIGATION: DEFINITION AND MEANING ........................................... ....................................................... ............ 8

Definition : ........................................... ................................................................. ............................................ ............................................ ........................................... ..................... 8 Aspects of PIL ...................................... ............................................................ ............................................ ............................................ ........................................... ..................... 9 Features of PIL ............................................ ................................................................... ............................................. ............................................ ................................. ........... 11 ORIGIN AND EVOLUTION OF PUBLIC INTEREST LITIGATION ..................................................... .................................................... 13

Origin of PIL ....................................................... ............................................................................. ............................................ ............................................ .......................... .... 13 Evolution of Public Interest Litigation .......................................... ................................................................. ............................................ ..................... 16 PHASE-I: Orders Passed for Protection of Fundamental Rights of Poor and Illiterate ........ ........ 17 PHASE-II - Directions Dir ections to Preserve and Protect Ecology and Environment.......................... .......................... 24 PHASE-III - The Transparency and Probity in Governance .............................. ................................................. ................... 28 CONTRIBUTION/IMPORTANCE OF PUBLIC INTEREST LITIGATION ............................................. ............................................ 31

Positive Contributions ................................................ ...................................................................... ............................................ ......................................... ................... 33 Abuse of the Public Interest Litigation ................................................ ....................................................................... ..................................... .............. 36 ECENT PILS........................................... R ECENT ................................................................. ............................................ ............................................ ......................................... ................... 42

Manohar Lal Sharma v. The Principal Secretary & Others (Coalgate Case) ............................ ............................ 42 Suresh Kumar Kaushal v. Naz Foundation .......................................... ................................................................. ..................................... .............. 43  National Legal Services Authority v. Union of India .......................... ................................................ ..................................... ............... 45

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Soma Isolux NH One Tollway Tollwa y (P) Ltd. v. Harish Kumar Puri ................................... ................................................. .............. 47 Shabnam Hashmi v. Union of India .......................................... ................................................................ ............................................ .......................... .... 49 CONCLUSION

........................................... ................................................................. ............................................ ............................................ ......................................... ................... 51

BIBLIOGRAPHY ............................................ .................................................................. ............................................ ............................................ ..................................... ............... 53

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ACKNOWLEDGEMENT

It is my privilege to record my deep sense to perform gratitude to those who helped me in completion of this project. In making of this project many people helped me immensely directly or indirectly. First of all I would like to thank Dr. Asad Malik  who  who had given me this project. I would like also to thank my friends and the Librarian for helping me out in t he research.

Fahimuddin Ahmed Khan

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R ESEARCH ESEARCH METHODOLOGY

Research Methodology is a systematized investigation to gain new knowledge about the  phenomena or problems. Legal phenomena require their own research methodology. The research methodology applied here is doctrine method of research. The systematic investigation of problems and of matters concerned with the topic ― Public Interest Litigation‖ has been done. The books in the library, articles, case laws and materials

available on the internet have been used to study the social and behavioural phenomena of the topic and its verification. The main object of this legal research is to gain familiarity with legal phenomena and to test and verify old facts to disguise the weakness or merits of old legal aspects to analyze the facts into new theoretical frameworks. The questions dealt here is that whether the PIL is fulfilling is purpose? Which way does the jurisprudence of PIL is going in India? What is the role PIL is playing in our life? Etc etc. A uniform mode of citation has been used throughout the assignment

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INTRODUCTION

Apart from laying down the law of the land, the Constitution of our country also guarantees many rights to the citizens of India. But what possible use can this guarantee be if the common man does not get the benefits that were envisaged by the framers of the Constitution. The fact of the matter remains that even today in India, after it has developed so much and is counted amongst the fastest growing economies in the world, the poor man in India has no guarantee of two square meals in a day, no guarantee of a job that pays him enough for him to feed his family, in short, the poor and the illiterate are still denied the very  basic human rights in India. Even more importantly, even the basic fundamental rights that are ‗guaranteed‘ to him by the Constitution are denied to him again and again. And one of the chief reasons why this happens is that often the person is not even aware that his fundamental right is being violated. In the past, even if he did realize that something of the sort was happening, he often did not have the knowledge about what actions he must take to counter it, or he just did not have enough money and could not afford to go to court of law. In order to counter this situation and to make sure that the ignorant and the poor are not exploited by those who are in a position to do so, the concept of Public Interest Litigation (PIL) came in.

PIL can be defined simply as the litigation in the interest of the general public. Before the 1980s only the directly affected party had the locus standi  to approach the court of law in order to seek justice1 and a person who was not being affected directly had no standing at all to go to the court on behalf of someone else even if someone who was not able or aware enough to approach the court of law was being denied his or her rights.

1

Charanjit Lal  v. Union of India, AIR 1951 SC 41.

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As a result the rights of the uneducated part of the population were often abused or violated as the illiterate did not actually know about the remedies that can be sought in the court of law if and when there fundamental rights were denied or violated by anyone in any way.

In this assignment, the research is done in the light of understanding the concept of PIL by studying the growth and development of PIL in Indian context. Light has been thrown on the evolution of PIL and the importance of PIL and it is compared with the abuse and the misuse of the PIL through the various case laws. The weight of both the positivism and the dark side of the PIL has been touched with the intention to reach a possible outcome of, whether PIL has served its purpose or not?

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PUBLIC INTEREST LITIGATION: DEFINITION AND MEANING

DEFINITION :

Definition and meaning of PIL was discussed in a great deal by the Supreme Court in the case of State of U ttaranchal v. Balwant Singh Chauf al & Others.2  The Hon‘ble justices  Dalveer Bhandari and Mukundakam Sharma, JJ. accepted the following definition:

Public Interest Litigation has been defined in the  Black's Law Dictionary  (6th Edition) as under:-

" Public Interest - Something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, state or national government...."

 Advanced Law Lexicon has defined `Public Interest Litigation' as under:-

"The expression `PIL' means a legal action initiated in a Court of law for the enforcement of  public interest or general interest in which the public or a class of the community has  pecuniary interest or some interest by which their legal rights or liabilities are affected."

The Council for Public Interest Law set up by the Ford Foundation in USA defined "public interest litigation" in its report of Public Interest Law, USA, 1976 as follows:

" Public Interest Law is the name that has recently been given to efforts provide legal representation to previously unrepresented groups and interests. Such efforts have been

2

 2010 (1) SCALE 492

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undertaken in the recognition that ordinary market place for legal services fails to provide  such services to significant segments of the population and to significant interests. Such  groups and interests include the proper environmentalists, consumers, racial and ethnic minorities and others." 3

4  This court in People' s Un ion f or D emocrati c Rights & Other s v. Un ion of I ndia & Others 

defined `Public Interest Litigation' and observed that the " Public interest litigation is a cooperative or collaborative effort by the petitioner, the State of public authority and the  judiciary to secure observance of constitutional or basic human rights, benefits and  privileges upon poor, downtrodden and vulnerable sections of the society".

In Janata Dal v. H.S. Chaudhary,5 the Supreme Court observed that, PIL means a legal action initiated in the court of law for the enforcement of public interest or general interest in which the public or class of community have pecuniary interest or some interest by which their legal rights and liabilities are affected.

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ASPECTS OF PIL

(a) Remedial in Nature:

Remedial nature of PIL departs from traditional locus standi rules. It indirectly incorporated the principles enshrined in the part IV of the Constitution of India into part III of the Constitution. By riding the aspirations of part IV into part III of the Constitution had changeth the procedural nature of the Indian law into dynamic welfare one. Bandhu M ukti 3

M /s H oli cow Pictur es Pvt. L td. v. Prem Chandra M ishra & Ors.,  AIR 2008 SC 913, para 19, Cited from, Praveen Dalal, The culture of public interest litigation In India, available at http://india.indymedia.org/content/2005/07/210805.shtml. 4 (1982) 3 SCC 235 5  AIR 1993 SC 892. 6  Available at , last visited on 2 October,2014.

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7 

8

M orcha v. Uni on of I ndia , Un ni kr ishnan v. State of A .P. , etc were the obvious examples

of this change in nature of judiciary.

(b) Representative Standing:

Representative standing can be seen as a creative expansion of the well-accepted standing exception which allows a third party to file a habeas corpus petition on the ground that the injured party cannot approach the court himself. And in this regard the Indian concept of PIL is much broader in relation to the American. PIL is a modified form of class action.

(c) Citizen standing :

The doctrine of citizen standing thus marks a significant expansion of the court‘s rule, from  protector of individual rights to guardian of the rule of law wherever threatened by official lawlessness.

(d) Non-adversarial Litigation:

9 In People’s Union for Democratic Rights v. Uni o n of I ndia  , ―We wish to point out with all

the emphasis at our command that public interest litigation… is a totally different kind of litigation from the ordinary traditional litigation which is essentially of an adversary character where there is a dispute between two litigating parties, one making claim or seeking relief against the other and that other opposing such claim.

7

 1984 (2) SCR 67.  (1993) 1 SCC 645 9  (1982) 3 SCC 235: AIR 1982 SC 1473. 8

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FEATURES OF PIL

Through the mechanism of PIL, the courts seek to protect human rights in the following ways:

1) By creating a new regime of human rights by expanding the meaning of fundamental right to equality, life and personal liberty. In this process, the right to speedy trial, free legal aid, dignity, means and livelihood, education, housing, medical care, clean environment, right against torture, sexual harassment, solitary confinement, bondage and servitude, exploitation and so on emerge as human rights. These new reconceptualised rights provide legal resources to activate the courts for their enforcement through PIL.

2) By democratization of access to justice. This is done by relaxing the traditional rule of locus standi. Any public spirited citizen or social action group can approach the court on  behalf of the oppressed classes. Courts attention can be drawn even by writing a letter or sending a telegram. This has been called epistolar y jurisdiction.

3) By fashioning new kinds of relief‘s under the court‘s writ jurisdiction. For example, the court can award interim compensation to the victims of governmental lawlessness. This stands in sharp contrast to the Anglo-Saxon model of adjudication where interim relief is limited to preserving the status quo pending final decision. The grant of compensation in PIL matters does not preclude the aggrieved person from bringing a civil suit for damages. In PIL cases the court can fashion any relief to the victims.

4) By judicial monitoring of State institutions such as jails, women‘s protective homes,  juvenile homes, mental asylums, and the like. Through judicial invigilation, the court seeks gradual improvement in their management and administration. This has been characterized as

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creeping jurisdiction in which the court takes over the administration of these institutions for  protecting human rights.

5) By devising new techniques of fact-finding. In most of the cases the court has appointed its own socio-legal commissions of inquiry or has deputed its own official for investigation. Sometimes it has taken the help of National Human Rights Commission or Central Bureau of  Investigation (CBI) or experts to inquire into human rights violations. This may be called investigative litigation.

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ORIGIN AND EVOLUTION OF PUBLIC INTEREST LITIGATION

ORIGIN OF PIL

The legal movement, which has resulted in the shaping of Public Interest Litigation (hereinafter referred  as PIL) in India, has been influenced stalwartly by the benign movement in U.S.A. The ―Council for Public Interest Law‖ set up by the ―Ford Foundation‖ in the U.S.A defined public interest law as follows: ― Public interest law is the name that has recently been given to efforts to provide legal representation to previously non-represented  groups and interests. Such efforts have been undertaken in the recognition that the ordinary market place for legal services fails to provide such services to significant segments of the  population and to significant interests. Such groups and interests include the poor, environmentalists, consumers, racial and ethnic minorities and others. It was born out of the need of a large number of people who individually lacked the economic resources or operational capacity to vindicate important social values and their own specific interest through court ‖.

In India, the courts exercising their power of judicial review found to its dismay that the  poorest of the poor, depraved, the illiterate, women, children and other downtrodden have either no to justice or had been denied justice. A new branch of litigation known as PIL was evolved with a view to render complete justice to the aforesaid classes of persons. It expanded its wings in course of time. The courts granted relief to the inmates of the prisons,  provided legal aid, directed speedy trial, maintenance of human dignity and covered several other areas. The court has intervened when there had been callous neglect as a policy of the State, a lack of probity in public life, abuse of power in control and destruction of environment. The court interferes and gives appropriate directions when there has been an element of violation of Art1cle 21 or of Human Rights or where the litigation has been Page | 13

initiated for the benefit of the poor and the underprivileged that are unable to come to the court due to some disadvantage. 10

PIL in India has an interesting background. In the famous case of Kesavananda Bh arati v 11

State of Keral a,  the Supreme Court ultimately put a brake on the arbitrar y and unreasonable

 power of legislature to destroy the ― Basic features‖ of the Constitution. Thus, the seeds of PIL could never have been planted had the Supreme Court not brought justness and fairness in the ―Indian Legal System‖ in the year   1973, by formulating the “Doctrine of Basic Structure”. Justice Krishna Iyer sowed the seeds of the new dispensation in M umbai K amgar 12

Sabha v Abdulbhai F aizul labhai   and used the expression PIL and ―epistolary jurisdiction‖

in Fertilizer Corporation Kamgar Union v U.O.I 13. In between, the Supreme Court interpreted the expression ― procedure established by law‖ as a procedure which must be just, fair and reasonable in the year 1978 14. This led to the testing of any ― law‖ on the touchstone of Articles 14, 19 and 21 collectively and thus brought justness and fairness in the State‘s dealing with the general public. The Supreme Court in the year 1993 declared ―independence of judiciary‖ a ―basic feature‖ and acquired autonomy in the selection and appointment of  judges15. This made the interference of Executive in the appointment of judges a forgotten  practice and made the judges more free and impartial to render justice. In the year 1993 the Supreme Court held that judicial review under Articles 32 and 226 is a basic feature of the Constitution, which is beyond the pale of amendability 16. Thus, the discretion to entertain a dispute or petition was reserved exclusively with the judiciary. This was a landmark  judgment since all the PILs are either filed under Articles 226 or under Articles 32. This

10

Balco E mployees Uni on v U .O.I , AIR 2002 SC 350.

11

 (1973) 4 SCC 225.  (1976) 3 SCC 832. 13  AIR 1982 SC 344. 12

14

M aneka Gandhi v U.O.I , AIR 1978 SC 597. Supreme Cour t A dvocate on record v U.O.I , (1993) 4 SCC 441. 16 , AIR 1993 SC 412. Kih oto v Zachil hu  15

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means that the discretion to entertain a PIL itself can be considered to be a part of basic feature and the only limitation could be the self-imposed restriction by the court itself. To supplement all this, the collective powers of Articles 32, 136, 141 and 142 made the Indian Supreme Court one of the most powerful court of the world.

The courts in India found that the oppression of the weaker and disadvantaged groups was considerably greater in India as compared to U.S.A. The political and legislative sensitivity was also missing. The Supreme Court was left with no choice but to assume a much more concerned guardian and protector of Fundamental Rights. The resources in India were always claimed to be limited, hence the financing of legal aid programme for giving a boost to PIL was ignored by the government as much as possible. This led to the relaxing of the requirement of ― procedures‖ and ―locus standi‖ by the Supreme Court. The court treated even a simple letter as a PIL. Since the coffers of the State were not burdened by this  practice, the Executive did not object to the growth of PIL as a measure for emancipation of the poor and the weaker sections. Even the public at large supported the PIL drive. It is interesting to note that the tool of PIL proved to be a grand success in India as compared to its counterpart in U.S.A. This may be because the strategy for giving the poor and oppressed meaningful access to justice is not, as in the U.S.A, to provide funds so that they may  participate in the traditional system on an equal economic footing. Instead the strategy is to change the system. Thus, volunteer social activists are allowed standing; a simple letter can  be accepted as a writ petition, the court itself will shoulder much of the burden of establishing the facts through the commissions, and whenever possible the case will move swiftly to the issue of remedy, by-passing the time-consuming and costly process. The substantial accomplishments of Indian PIL surely prove that it is a development worthy of the most

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serious consideration by jurists, lawyers and judges from all societies, and particularly from the United States where the parallel and contrasts are so striking.17

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EVOLUTION OF PUBLIC INTEREST LITIGATION

The origin and evolution of Public Interest Litigation in India emanated from realization of constitutional obligation by the Judiciary towards the vast sections of the society - the poor and the marginalized sections of the society. This jurisdiction has been created and carved out  by the judicial creativity and craftsmanship. In M . C. Mehta & Another v. Uni on of I ndia & 19

,  this Court observed that Article 32 does not merely confer power on this Court to Others  issue direction, order or writ for the enforcement of fundamental rights. Instead, it also lays a constitutional obligation on this Court to protect the fundamental rights of the people. The court asserted that, in realization of this constitutional obligation, "it has all incidental and ancillary powers including the power to forge new remedies and fashion new strategies designed to enforce the fundamental rights". The Court realized that because of extreme  poverty, a large number of sections of society cannot approach the court. The fundamental rights have no meaning for them and in order to preserve and protect the fundamental rights of the marginalized section of society by judicial innovation, the courts by judicial innovation and creativity started giving necessary directions and passing orders in the public interest.

The development of public interest litigation has been extremely significant development in the history of the Indian jurisprudence. The decisions of the Supreme Court in the 1970's loosened the strict locus standi requirements to permit filing of petitions on behalf of marginalized and deprived sections of the society by public spirited individuals, institutions

17

Clark D. Cunningham; ― Public Interest Litigation in Indian Supreme Court: A study in the light of American Experience‖, J.I.L.I, V-29: 4. P-494 (1987). 18 .,  2010 (1) SCALE 492. This topic of the State of Uttar anchal v. Bal want Sin gh Chaufal & Others  assignment is mainly taken from the above judgement as the Supreme Court discussed PIL in great detail. 19  AIR 1987 SC 1086

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and/or bodies. The higher Courts exercised wide powers given to them under Articles 32 and 226 of the Constitution. The sort of remedies sought from the courts in the public interest litigation goes beyond award of remedies to the affected individuals and groups. In suitable cases, the courts have also given guidelines and directions. The courts have monitored implementation of legislation and even formulated guidelines in absence of legislation. If the cases of the decades of 70s and 80s are analyzed, most of the public interest litigation cases which were entertained by the courts are pertaining to enforcement of fundamental rights of marginalized and deprived sections of the society. This can be termed as the first phase of the  public interest litigation in India.

The Supreme Court broadened the traditional rule of standing and the definition of "person aggrieved". This in turn helped in the evolution of PIL. The evolution of PIL in India can be divided in three phases. Phase-I,  deals with cases of this Court where directions and orders were passed primarily to protect fundamental rights under Article 21 of the marginalized groups and sections of the society who because of extreme poverty, illiteracy and ignorance cannot approach this court or the High Courts. Phase-II , deals with the cases relating

to protection,

preservation

of

ecology, environment,

forests,

marine

life,

wildlife, mountains, rivers, historical monuments etc. etc. Phase-III , deals with the directions issued by the Courts in maintaining the probity, transparency and integrity in governance..

 PHASE-I: Orders Passed for Protection of Fundamental Rights of Poor and Illiterate

The court while interpreting the words "person aggrieved" in Jasbhai M otibh ai Desai v. 20 

Roshan Kum ar, H aji B ashi r Ah med & Others,   observed that "the traditional rule is

 flexible enough to take in those cases where the applicant has been prejudicially affected by an act or omission of an authority, even though he has no proprietary or even a fiduciary 20

 (1976) 1 SCC 671

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interest in the subject-matter. That apart, in exceptional cases even a stranger or a person who was not a party to the proceedings before the authority, but has a substantial and  genuine interest in the subject-matter of the proceedings will be covered by this rule".

In The M umbai K amgar Sabha, Bombay v. Abdulbhai F aizul labhai & Others  ,21 this Court made conscious efforts to improve the judicial access for the masses by relaxing the traditional rule of locus standi. In Sun il Batra v. Delhi A dmini strati on  ,22 the Court departed from the traditional rule of standing by authorizing community litigation. The Court entertained a writ petition from a prisoner, a disinterested party, objecting to the torture of a fellow prisoner. The Court entertained the writ after reasoning that "t hese 'martyr' litigations  possess a beneficent potency beyond the individual litigant and their consideration on the wider representative basis strengthens the rule of law." Significantly, citing " people's vicarious involvement in our justice system with a broad-based concept of locus standi so necessary in a democracy where the masses are in many senses weak," the Court permitted a human rights organization to intervene in the case on behalf of the vi ctim.

In H ussain ara K hatoon & Others v. H ome Secretary, State of B ih ar, Patna  ,23  P. N.  Bhagwati, J . has observed that "today, unfortunately, in our country the poor are priced out of the judicial system with the result that they are losing faith in the capacity of our legal system to (sic) about changes in their life conditions and to deliver justice to them. The poor in their contact with the legal system have always been on the wrong side of the line. They have always come across 'law for the poor" rather than law of the poor'. The law is regarded by them as something mysterious and forbidding--always taking something away from them and not as a positive and constructive social device for changing the social economic order and

21

 AIR 1976 SC 1455  AIR 1978 SC 1675 23  AIR 1979 SC 1369 22

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improving their life conditions by conferring rights and benefits on them. The result is that the legal system has lost its credibility for the weaker section of the community.

In Prem Shankar Shu kla v. Delhi Admin istration  ,24  a prisoner sent a telegram to a judge complaining of forced handcuff on him and demanded implicit protection against humiliation and torture. The court gave necessary directions by relaxing the strict rule of locus standi.

In People' s Un ion f or D emocrati c Rights v. Uni on of I ndia  ,25 Supreme Court observed that Public interest litigation is brought before the court not for the purpose of enforcing the right of one individual against another as happens in the case of ordinary litigation, but it is intended to promote and vindicate public interest which demands that violations of constitutional or legal rights of large numbers of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and un-redressed. It further stated that, the Rule of Law does not mean that the protection of the law must be available only to a fortunate few or that the law should be allowed to be prostituted by the vested interests for protecting and upholding the status quo under the guise of enforcement of their civil and political rights. The poor too have civil and political rights and the Rule of Law is meant for them also, though today it exists only on paper and not in reality.

26 

 Justice Bhagwati in his judgment in S.P. Gupta v. Pr esident of I ndi a & Others,  altogether dismissed the traditional rule of standing, and replaced it with a liberalized modern rule. In this case, the Court awarded standing to advocates challenging the transfer of judges during Emergency. Describing the traditional rule as an "ancient vintage" of "an era when private law dominated the legal scene and public law had not been born," the Court concluded that

24

 AIR 1980 SC 1535  AIR 1982 SC 1485. 26  AIR 1982 SC 149 25

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the traditional rule of standing was obsolete. In its place, the Court prescribed the modern rule on standing:

"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 or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief, any member of the public can maintain an application for an appropriate direction, order or writ, in the High Court under Article 226, and in case of breach of any fundamental right, in this Court under  Article 32."

Finding that the practicing advocates "are vitally interested in the maintenance of a fearless and an independent Judiciary," the Court granted standing to the advocates under the modern rule to bring cases challenging the transfer of judges during Emergency.

In An il Yadav & Others v. State of B ih ar and Bachcho L al D as, Superi ntendent, Centr al 27

,  a petition was filed regarding blinding of under- trial prisoners at Jail, Bhagalpur , Bihar  Bhagalpur in the State of Bihar. According to the allegation, their eyes were pierced with needles and acid poured into them. The Court had sent a team of the Registrar and Assistant

27

 (1982) 2 SCC 195. See also, M unna & Others v. State of Uttar Pradesh & Others   , (1982) 1 SCC 545, the allegation was that the juvenile under- trial prisoners have been sent in the Kanpur Central Jail instead of Children's Home in Kanpur and those children were sexually exploited by the adult prisoners. Supreme Court ruled that in no case except the exceptional ones mentioned in the Act, a child can be sent to jail. The Court further observed that the children below the age of 16 years must be detained only in the Children's Homes or other place of safety. The Court also observed that a Nation which is not concerned with the welfare of the children cannot look forward to a bright future; D. K . Basu v. State of West B engal  (1997) 1 SCC 416, Supreme Court observed that the custodial death is perhaps one of the worst crimes in a civilized society governed by the rule of law. The precious right guaranteed by Article 21 cannot be denied to convicts, undertrials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law. The Court gave very significant directions which are mandatory for all concerned to follow.

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Registrar to visit the Central Jail, Bhagalpur and submit a report to the Court. The Court  passed comprehensive orders to ensure that such barbarous and inhuman acts are not repeated.

Thereafter, in a series of cases, the Court treated Post Cards and letters as writ petitions and gave directions and orders. In Sheel a Bar se v. State of M ahar ashtr a  ,28  Sheela Barse, a  journalist, complained of custodial violence to women prisoners in Bombay. Her letter was treated as a writ petition and the directions were given by the court. In Paramji t Kaur (M rs.) 29

,  a telegram was sent to a Judge of this Court which was treated v. State of Pun j ab & Others  as a habeas corpus petition. The allegation was that the husband of the appellant was kidnapped by some persons in police uniform from a busy residential area of Amritsar. The Court took serious note of it and directed the investigation of the case by the Central Bureau of Investigation.

In Veena Sethi (M r s.) v. State of B ih ar & Others,30  some prisoners were detained in jail for a  period ranging from 37 years to 19 years. They were arrested in connection with certain offences and were declared insane at the time of their trial and were put in Central Jail with directions to submit half-yearly medical reports. Some were convicted, some acquitted and trials were pending against some of them. After they were declared sane no action for their release was taken by the authorities. Supreme Court ruled that the prisoners remained in jail for no fault of theirs and because of the callous and lethargic attitude of the authorities. Even 28

 AIR 1983 SC 378; See also, Dr . Upendra Baxi (I ) v. State of U ttar Pradesh & An other   , 1983 (2) SCC 308, two distinguished law Professors of the Delhi University addressed a letter to this court regarding inhuman conditions which were prevalent in Agra Protective Home for Women. The court heard the petition on a number of days and gave important directions by which the living conditions of the inmates were significantly improved in the Agra Protective Home for Women; Navkir an Sin gh & Others v. State of Punj ab through Chief Secretary & An other   (1995) 4 SCC 591, in a letter petition the advocates from the Punjab & Haryana High Court expressed concerned about the kidnapping/elimination of advocates in the State of P unjab. Supreme Court issued guidelines for the security of the advocates whose lives were in danger. 29  (1996) 7 SCC 20 30  AIR 1983 SC 339. See also, Cit izens for Democracy v. State of A ssam & Others  (1995) 3 SCC 743, Supreme Court held that handcuffing and tying with ropes is inhuman and in utter violation of human rights guaranteed under the international law and the law of the land.

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if they are proved guilty the period they had undergone would exceed the maximum imprisonment that they might be awarded.

In Delhi Domestic Workin g Women' s F orum v. Union of I ndia & Others  ,31  the Court expressed serious concern about the violence against women. The Court gave significant directions and observed that compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result of the rape. In Vi shaka & Others v. State of Raj asthan & Others  ,32  Supreme Court gave directions regarding enforcement of the fundamental rights of the working women under Articles 14, 19 and 21 of the Constitution. The Court gave comprehensive guidelines and norms and directed for protection and enforcement of these rights of the women at their workplaces.

In M . C. Mehta v. State of Tami l Nadu & Others  ,33 the Court was dealing with the cases of child labour and the Court found that the child la bour emanates from extreme poverty, lack of opportunity for gainful employment and intermittency of income and low standards of living. The Court observed that it is possible to identify child labour in the organized sector, which 31

 (1995) 1 SCC 14. See also, Smt. Ni labati B ehera ali as L ali ta Behera v. State of Ori ssa & Others  AIR 1993 SC 1960, Supreme Court gave directions that for contravention of human rights and fundamental freedoms by the State and its agencies, a claim for monetary compensation in petition under Article 32 of 226 is justified. See observations justifying the payment of compensation for human rights violations by state agencies in the following decisions: Bhi m Singh v. State of Jammu and Kashmi r , (1985) 4 SCC 677; D.K. Basu v. Uni on of , (1997) 1 SCC 416;  Also see: Lutz Oette, ‗ India’s Internationalobligations towards victims of human India  rights violations: Implementation in domestic law and practice ‘ in C. Raj Kumar & K. Chockalingam   (eds.), Human rights, Justice and Constitutional empowerment (OUP, 2007) at p. 462 -485. 32   (1997) 6 SCC 241. See D.K. Srivastava, ‗Sexual harassment and violence against women in India: Constitutional and legal perspectives‘ in C. Raj Kumar & K. Chockaling am (eds.), Human rights, Justice and Constitutional empowerment (OUP, 2007)at p. 486-512 33  (1996) 6 SCC 756. See also, L abourers Worki ng on Salal H ydro Project v. State of Jammu & Kashmi r &   AIR 1984 SC 177, on the basis of a news item in the Indian Express regarding condition of the Others  construction workers, Supreme Court took notice and observed that the construction work is a hazardous employment and no child below the age of 14 years can therefore be allowed to be employed in construction work by reason of the prohibition enacted in Article 24 and this constitutional prohibition must be enforced by the Central Government.

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forms a minuscule of the total child labour, the problem relates mainly to the unorganized sector where utmost attention needs to be paid.

In a recently decided case Prajwala v. Union of I ndia & Others  ,34  a petition was filed in Supreme Court in which it was realized that despite commencement of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, disabled people are not given preferential treatment. The Court directed the State Governments/local authorities to allot land for various purposes indicted in section 43 of the Act and various items indicated in section 43, preferential treatment be given to the disabled  people and the land shall be given at concessional rates. The percentage of reservation may  be left to the discretion of the State Governments. However, total percentage of disabled  persons shall be taken into account while deciding the percentage.

In Avinash M ehr otra v. Union of I ndia & amp; Others  ,35  a public interest litigation was filed, when 93 children were burnt alive in a fire at a private school in Tamil Nadu. This happened because the school did not have the minimum safety standard measures. The court, in order to protect future tragedies in all such schools, gave directions that it is the fundamental right of each and every child to receive education free from fear of security and safety, hence the Government should implement National Building Code and comply with the said orders in constructions of schools for children.

All these abovementioned cases demonstrate that the courts, in order to protect and preserve the fundamental rights of citizens, while relaxing the rule of locus standi, passed a number of directions to the concerned authorities.

34

 (2009) 4 SCC 798  (2009) 6 SCC 398

35

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 PHASE-II - Directions to Preserve and Protect Ecology and Environment

The second phase of public interest litigation started sometime in the 1980's and it related to the courts' innovation and creativity, where directions were given to protect ecology and environment. There are a number of cases where the court tried to protect forest cover, ecology and environment and orders have been passed in that respect. As a matter of fact, the Supreme Court has a regular Forest Bench (Green Bench) and regularly passes orders and directions regarding various forest cover, illegal mining, destruction of marine life and wild life etc. Reference of some cases is given just for illustration.

In the second phase, the Supreme Court under Article 32 and the High Court under Article 226 of the Constitution passed a number of orders and directions in this respect. One of the example is the conversion of all public transport in the Metropolitan City of Delhi from dies el engine to CNG engine on the basis of the order of the High Court of Delhi to ensure that the  pollution level is curtailed and this is being completely observed for the last several years.

One of the earliest cases brought before the Supreme Court related to oleum gas leakage in Delhi. In order to prevent the damage being done to environment and the life and the health of the people, the court passed number of orders. This is well-known as M .C. Mehta & 36

.  The court in this case has clearly laid down that an Another v. Union of I ndia & Others  enterprise which is engaged in a hazardous or inherently dangerous industry which poses a  potential threat to the health and safety of the persons working in the factory and residing in the surrounding area owes an absolute and non- delegable duty to the community to ensure that no such harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The court directed that the enterprise must adopt highest standards of safety and if any harm results on account of such activity, the enterprise 36

 AIR 1987 SC 1086

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must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part.

In Rur al L iti gation and En titl ement Kendra, Dehr adun & Others v. State of U.P. & 37 

Others,   the Supreme Court ordered closure of all lime-stone quarries in the Doon Valley

taking notice of the fact that lime-stone quarries and excavation in the area had adversely affected water springs and environmental ecology. While commenting on the closure of the lime-stone quarries, the court stated that this would undoubtedly cause hardship to owners of the lime-stone quarries, but it is the price that has to be paid for protecting and safeguarding the right of the people to live in healthy environment with minimal disturbance of ecological  balance and without avoidable hazard to them and to their cattle, homes and agricultural land and undue affectation of air, water and environment.

In an important decision of M .C. M ehta v. Kamal Nath & Others  ,38 the Supreme Court was of the opinion that Articles 48A and 51-A(g) have to be considered in the light of Article 21 of the Constitution. Any disturbance of the basic environment elements, namely air, water and soil, which are necessary for "life", would be hazardous to "life" within the meaning of Article 21. In the matter of enforcement of rights under Article 21, this Court, besides enforcing the provisions of the Acts referred to above, has also given effect to Fundamental Rights under Articles 14 and 21 and has held that if those rights are violated by disturbing the environment, it can award damages not only for the restoration of the ecological balance, but 37

 AIR 1985 SC 652  (2000) 6 SCC 213. See also, Subhash K umar v. State of B ih ar & Others,  AIR 1991 SC 420 observed that under Article 21 of the Constitution people have the right of enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Article 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life;  Chhetri ya Pardushan M ukti Sangharsh Samiti v. State of U .P. & Others   AIR 1990 SC 2060, Supreme Court observed that every citizen has fundamental right to have the enjoyment of quality of life and living as contemplated by Article 21 of the Constitution of India. Anything which endangers or impairs by conduct of anybody either in violation or in derogation of laws, that quality of life and living by the people is entitled to take recourse to Article 32 of the Constitution. 38

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also for the victims who have suffered due to that disturbance. In order to protect the "life", in order to protect "environment" and in order to protect "air, water and soil" from pollution, this Court, through its various judgments has given effect to the rights available, to the citizens and persons alike, under Article 21.

In Vell ore Citi zens Welf are F oru m v. Un ion of I ndia & Others  ,39  this court ruled that  precautionary principle and the polluter pays principle are part of the environmental law of the country. This court declared Articles 47, 48A and 51A(g) to be part of the constitutional mandate to protect and improve the environment.

In M .C. Mehta v. Uni on of I ndia & Others  ,40 this court observed that the effluent discharged in river Ganga from a tannery is ten times noxious when compared with the domestic sewage water which flows into the river from any urban area on its banks. The court further observed that the financial capacity of the tanneries should be considered as irrelevant without requiring them to establish primary treatment plants. Just like an industry which cannot pay minimum wages to its workers cannot be allowed to exist, a tannery which cannot set up a  primary treatment plant cannot be permitted to continue to be in existence for the adverse effect on the public at large.

In M .C. Mehta v. Uni on of I ndia & Others  ,41 this court observed that in order to preserve and protect the ancient monument Taj Mahal from sulphur dioxide emission by industries near Taj Mahal, the court ordered 299 industries to ban the use of coke/coal. The court further directed them to shift-over to Compressed Natural Gas (CNG) or re-locate them.

39

 AIR 1996 SC 2715  AIR 1988 SC 1037. See also, M .C. M ehta v. Union of I ndia & Others   (1988) 1 SCC 471, relates to pollution caused by the trade effluents discharged by tanneries into Ganga river in Kanpur. The court called for the report of the Committee of experts and gave directions to save the environment and ecology. 41  AIR 1997 SC 734 40

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In A. P. Poll uti on Control Board v. Prof. M . V. Nayadu (Retd.) & Other s  ,42 the court in this case gave emphasis that the directions of the court should meet the requirements of public interest, environmental protection, elimination of pollution and sustainable development. While ensuring sustainable development, it must be kept in view that there is no danger to the environment or to the ecology.

On sustainable development, Bhandari, J. in Kar nataka I ndu str ial A r eas Development 43

,   observed that there has to be balance between Board v. Sri C. Kenchappa & Others  sustainable development and environment. Supreme Court observed that before a cquisition of lands for development, the consequence and adverse impact of development on environment must be properly comprehended and the lands be acquired for development that they do not gravely impair the ecology and environment; State Industrial Areas Development Board to incorporate the condition of allotment to obtain clearance from the Karnataka State Pollution Control Board before the land is allotted for development. The court also laid emphasis on the principle of Polluter-pays. According to the court, pollution is a civil wrong. It is a tort committed against the community as a whole. A person, therefore, who is guilty of causing  pollution has to pay damages or compensation for restoration of the environment and ecology.

In Re. Noise Poll uti on  ,44 this Court was dealing with the issue of noise pollution. This Court was of the opinion that there is need for creating general awareness towards the hazardous effects of noise pollution. Particularly, in our country the people generally lack consciousness of the ill effects which noise pollution creates and how the society including they themselves stand to benefit by preventing generation and emission of noise pollution.

42

 (1999) 2 SCC 718  AIR 2006 SC 2038. See also, Essar Oil L td. v. H alar Utkarsh Samiti & Others   AIR 2004 SC 1834. 44  AIR 2005 SC 3136 43

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In I ndian Council f or Envir o-Legal Action v. Union of I ndia & Others  ,45  the main grievance in the petition is that a notification dated 19.2.1991 declaring coastal stretches as Coastal Regulation Zones which regulates the activities in the said zones has not been implemented or enforced. This has led to continued degradation of ecology in the said coastal areas. The court observed that while economic development should not be allowed to take  place at the cost of ecology or by causing widespread environment destruction and violation; at the same time, the necessity to preserve ecology and environment should not hamper economic and other developments. Both development and environment must go hand in hand, in other words, there should not be development at the cost of environment and vice versa, but there should be development while taking due care and ensuring the protection of environment.

The courts because of vast destruction of environment, ecology, forests, marine life, wildlife etc. etc. gave directions in a large number of cases in the larger public interest. The courts made a serious endeavour to protect and preserve ecology, environment, forests, hills, rivers, marine life, wildlife etc. etc. This can be called the second phase of the public interest litigation in India.

 PHASE-III - The Transparency and Probity in Governance

In the 1990's, the Supreme Court expanded the ambit and scope of public interest litigation further. The High Courts also under Article 226 followed the Supreme Court and passed a number of judgments, orders or directions to unearth corruption and maintain probity and morality in the governance of the State. The probity in governance is a sine qua non for an efficient system of administration and for the development of the country and an important requirement for ensuring probity in governance is the absence of corruption. This may 45

 (1996) 5 SCC 281

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 broadly be called as the third phase of the Public Interest Litigation. The Supreme Court and High Courts have passed significant orders.

In D. C. Wadhwa v. State of B ih ar  ,46  the Supreme Court held that a professor of political science who is deeply interested in ensuring proper implementation of the constitutional  provisions can approach the court through a PIL petition against the practice of issuing ordinance on a large scale to bypass legislature, as being fraud on constitution.

47  The case of Vin eet Narain & Others v. Union of I ndia & Another    is an example of its

kind. In that case, the petitioner, who was a journalist, filed a public interest litigation. According to him, the prime investigating agencies like the Central Bureau of Investigation and the Revenue authorities failed to perform their legal obligation and take appropriate action when they found, during investigation with a terrorist, detailed accounts of vast  payments, called `Jain diaries', made to influential politicians and bureaucrats and direction was also sought in case of a similar nature that may occur hereafter. A number of directions were issued by the Supreme Court. The Court in that case observed that "it is trite that the holders of public offices are entrusted with certain power to be exercised in public interest alone and, therefore, the office is held by them in trust for the people. "

Another significant case is Raji v Ranjan Singh `L alan' & Another v. Uni on of I ndia & 48

.  This public interest litigation relates to the large scale defalcation of public funds Others  and falsification of accounts involving hundreds of crores of rupees in the Department of Animal Husbandry in the State of Bihar. It was said that the respondents had interfered with the appointment of the public prosecutor. This court gave significant directions in this case.

46

 AIR 1987 SC 579.  AIR 1998 SC 889 48  (2006) 6 SCC 613 47

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In M . C. Mehta v. Uni on of I ndia & Others  ,49 in another public interest litigation, a question was raised before the court whether the Apex Court should consider the correctness of the order passed by the Governor of Uttar Pradesh refusing to grant sanction for prosecution of the Chief Minister and Environment Minister after they were found responsible in `Taj Heritage Corridor Project". It was held that the judiciary can step in where it finds the actions on the part of the legislature or the executive to be illegal or unconstitutional.

In Centre for Publi c I nterest L itigation v. Union of I ndia  ,50  popularly known as the 2G Spectrum case, the Supreme Court acted on a PIL filled by NGO and commended the role of the petitioner in exposing the 2G scam. The court applied Public Trust Doctrine in this case and held that spectrum is natural resource and it belongs to the people of India and no discrimination can be done by the government while distributing the same. The interest of the  public was held to be primary consideration and directions were given by the court in relati on to the scam.

These are some of the cases where the Supreme Court and the High Courts broadened the scope of public interest litigation and also entertained petitions to ensure that in governance of the State, there is transparency and no extraneous considerations are taken into consideration except the public interest. These cases regarding probity in governance or corruption in public life dealt with by the courts can be placed in the third phase of public interest litigation.

49

(2007) 12 SCALE 91. See also, M . C. M ehta v. Union of I ndia & Others   (2007) 1 SCC 110, a project known as "Taj Heritage Corridor Project" was initiated by the Government of Uttar Pradesh. One of the main purpose for which the same was undertaken was to divert the River Yamuna and to reclaim 75 acres of land between Agra Fort and the Taj Mahal. The Court directed for a detailed enquiry, the Court also directed registration of FIR and made further investigation in the matter. The court questioned the role played by the concerned Minister for Environment, Government of Uttar Pradesh and the Chief Minister, Government of Uttar Pradesh. By the intervention of this Court, the said project was stalled. 50   (2012) 3 SCC 1. See also, Centre for Public I nterest L iti gation v. Uni on of I ndia, (2011) 4 SCC 1, also  popularly known as ―P.G. Th omas Case  ‖.

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51

CONTRIBUTION/IMPORTANCE OF PUBLIC INTEREST LITIGATION

A number of factors contributed to the robust development of PIL in India. 52 The first factor has already been noted above, that is, the constitutional framework relating to FRs and DPs. It is clear that because of FRs and DPs, the Indian judiciary would have enjoyed a comparative advantage in anchoring PIL vis-`a-vis courts of those jurisdictions (such as the United Kingdom and Australia) where there was no Bill of Rights.

Secondly, several constitutional provisions concerning the powers of the Supreme Court helped the Court in coming up with innovative and unconventional remedies, which in turn raised social expectations. For instance, a provision which allowed the Supreme Court to pass any order for ‗‗doing complete justice‘‘ proved  more than handy in PIL cases. 53  The Constitution also provides that the law declared by the Supreme Court shall be binding on all 51

 Surya Deva, Public Interest Litigation in India: A Critical Review, C.J.Q., VOL 28, ISSUE 1. Desai and Muralidhar in Kirpal et al. (eds), Supreme but not Infallible, pp.159 – 162. 53 ‗‗The Supreme Court in the exercise of its jurisdiction may pass such decree or make such orders as is necessary for doing complete justice in any cause or matter pending before it. ‘‘ Constitution of India 1950 art. 142(1). 52

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courts54 and that ‗‗[a]ll authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court ‘‘.55

Thirdly, the rise of PIL corresponds to the extent and level of judicial activism shown by the Indian Supreme Court and High Courts. 56  Through its activism over the years, the Indian Supreme Court has arguably become the most powerful court in the world. 57  Some major instances of activism, which directly provided impetus to PIL are: introducing the due  process requirement in art.21, despite its rejection by the Constituent Assembly58; employing DPs to create new FRs 59; reading implied limitations in the form of basic feature on the  power of Parliament to amend the Constitution 60; declaring judicial review a basic feature of the Constitution61; and becoming, in effect, a self- appointed judiciary 62 with almost no real constitutional checks.63  Because of these landmark decisions, the judiciary became almost untouchable and chartered its PIL path subject only to self- restraints.

Fourthly, a relatively weak executive at the Centre after the assassination of the then Prime Minister Mrs Indira Gandhi in 1984, the era of coalition governments since the 1990s, and the growing gap between the constitutional promise and reality provided a conducive environment for the growth of PIL. In other words, through PIL the judiciary tried to fill in a

54

Constitution of India 1950 art. 141. Constitution of India 1950 art. 144. 56 PIL ‗‗is a result of judicial activism‘‘: Jain, ‗‗The Supreme Court and Fundamental Rights’ ‘ in Verma and Kusum (eds), Fifty Years of the Supreme Court of India, p.86. 57 ‗‗ In the process, they rewrote many parts of the Constitution‘‘: Baxi, ‗‗Taking Suffering Seriously: Social  Action Litigation in the Supreme Court of India’ ‘ (1985) Third World Legal Studies 107, 115.; 58  (1978) 2 S.C.C. 248. M aneka Gandhi v Union of I ndia  59 See Jain, ‗‗The Supreme Court and Fundamental Rights ‘‘ in Verma and Kusum (eds), Fifty Years of the Supreme Court of India, pp.22 – 37, 51 – 52; Sathe, Judicial Activism in India, pp.209 – 229. 60 Kesvananda Bhar ti v Stateof K er ala  AIR 1973 SC 1461 61   AIR 1981 SC 271; Sampath Kumar v Uni on of I ndia    AIR 1987 SC 386; Waman Rao v Uni on of I ndia   AIR 1997 SC 1125. Chandra Kumar v Union of I ndia  62  (1993) 4 SCC 441; Pr esidenti al Reference, Re    AIR S C Advocates on Record A ssociati on v Uni on of I ndi a  1999 SC 1. 63  The power of impeachment under Constitution art.124(4) has failed to deliver in the past. But recently, it has  been proposed to establish National Judicial Council to probe complaints against judges of higher judiciary: ‗‗Cabinet Nod to New Panel for Probing Judges ‘‘, The Times of India, October 9, 2008. 55

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governance vacuum 64 and sought to do what the two branches of the government should have done but did not do.

Last but least, being a democratic country, the civil society in India easily grabbed the opportunity to participate in governance through PIL cases. Civil society also found that PIL could help them in highlighting social issues/causes much more quickly rather than achieving the same result through long social campaigns.

65

POSITIVE CONTRIBUTIONS

As the positive contributions of PIL in India are well-known and well- documented, 66  only some of the main contributions are noted here briefly. The most important contribution of PIL, has been to bring courts closer to the disadvantaged sections of society such as  prisoners, destitute, child or bonded labourers, women, and scheduled castes/tr ibes. By taking up the issues affecting these people, PIL truly became a vehicle to bring social revolution through constitutional means, something that the founding fathers had hoped.

Equally important is the part played by PIL in expanding the jurisprudence of fundamental (human) rights in India. As noted before, DPs are not justiciable but the courts imported some of these principles into the FRs thus making various socio-economic rights as important — at least in theory — as civil and political rights. This resulted in the legal recognition of rights as important as education, health, livelihood, pollution-free environment, privacy and speedy trial.

64

See Surya Deva, ‗‗Who will Judge the Judges: A Critical Purview of Judicial Activism ‘‘ (1997) 1 Delhi University Law Journal 30. 65  Surya Deva, Public Interest Litigation in India: A Critical Review, C.J.Q., VOL 28, ISSUE 1. 66 See, e.g. Sathe,  Judicial Activism in India, pp.195 –248; Baxi, ‗‗Taking Suffering Seriously: Social Action  Litigation in the Supreme Court of India‘‘ (1985) Third World Legal Studies 107, 111 – 132.

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As we have seen before, in the second phase, the PIL became an instrument to promote rule of law, demand fairness and transparency, fight corruption in administration, and enhance the overall accountability of the government agencies. The underlying justification for these  public demands and the judicial intervention was to strengthen constitutionalism — a constant desire of the civil society to keep government powers under check. This resulted in the  judiciary giving directions to the government to follow its constitutional obligations 67

Through PIL, judiciary also triggered legislative reforms and filled in legis lative gaps in important areas. Just to illustrate, the Supreme Court in the Vi shak a case    laid down detailed guidelines on sexual harassment at the workplace. Similarly welcome, were guidelines on arrest and detention laid down by the Court in Basu . To what extent these guidelines have  been successful in achieving the intended objectives and whether courts were justified in acting like a legislature are moot points. Nevertheless, such guidelines, which were totally in consonance with the mandate of the Indian Constitution as well as various international covenants ratified by the Indian government, helped in enhancing sensitivity to these issues.

The Indian judiciary, courtesy of PIL, has helped in cooling down a few controversial policy questions on which the society was sharply divided. One could think of the controversy about the reservation of seats for SCs/STs and other backwards classes in employment or educations institutions, the government policies of liberalisation and privatisation, and the contested height of the Narmada dam as examples of this kind of contribution.

67

 For example, art.45 of the Constitution had originally provided that that state shall provide ‗‗free and compulsory‘‘ education to all children up to the age of 14 years ‗‗within a period of ten years from the commencement of the Constitution‘‘. Failure of state to do so even after 42 years lead to the judicial recognition of right to education as a FR in M ohini Jain v State of Karn ataka    (1992) 3 S.C.C. 666 and Unni Kri shnan v   (1993) 1 S.C.C. 645. See also the obligation to enact the Uniform Civil Code under State of A ndhr a Pradesh  art.44 and the Supreme Court judgments in M ohd Ahm ed Khan v Shah Bano Begum   AIR 1985 SC 945 and  AIR 1995 SC 1531. Sarla M udgal v Union of I ndia 

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On a theoretical level, PIL has helped the Indian judiciary to gain public confidence and establish legitimacy in the society. The role of an independent judiciary in a democracy is of course important. But given that judges are neither elected by public nor are they accountable to public or their representatives ordinarily, the judiciary in a democracy is susceptible to  public criticism for representing the elite or being undemocratic and anti-majoritarian. Therefore, it becomes critical for the judiciary to be seen by the public to be not only independent but also in touch with social realities.

One positive contribution of PIL in India, which has extended outside the Indian territory, deserves a special mention. The Indian PIL jurisprudence has also contributed to the trans judicial influence— especially in South Asia — in that courts in Pakistan, Sri Lanka, Bangladesh and Nepal have cited Indian PIL cases to develop their own PIL jurisprudence. 68 In a few cases, even Hong Kong courts have cited Indian PIL cases, in particular cases dealing with environmental issues. 69  Given that the civil society that is following the development of PIL in China is familiar with the Indian PIL jurisprudence, 70  it is possible that Indian PIL cases might be cited even before the Chinese courts in the future.

It should be noted that this trans- judicial influence is an example of a second tier trans judicial influence—the first tier being Indian courts relying on the  US judicial decisions to establish the PIL jurisprudence in the 1970s. Generally what we see is the first tier trans  judicial influence in that common law courts of former colonies (such as India and Hong Kong) cite and rely heavily on the judgments of the US and UK courts. 71  The second tier

68

See generally Jona Razzaque, ‗‗ Linking Human Rights, Development, and Environment: Experiences from  Litigation in South Asia’ ‘ (2007) 18 Fordham Environmental Law Review 587. 69 See, e.g. Society for Pr otection of the Har bour L td v Town Planni ng Board  [2003] HKEC 849. 70 China Labour Bulletin, Public I nterest L itigation in China: A N ew F orce for Social Justice    (Research Reports, October 10, 2007). 71  For example, one scholar has found that about 25% of all Indian Supreme Court judgments have relied on the foreign law: Adam M. Smith, ‗‗ Making Itself at Home: Understanding Foreign Law in Domestic Jurisprudence: The Indian Case‘‘ (2006) 24 Berkeley Journal of International Law 218, 240.

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trans- judicial influence is a welcome addition in the sense that it might help in fostering learning dialogues (not one-way influence) among courts at the horizontal level rather than at a vertical level.

ABUSE OF THE PUBLIC INTEREST LITIGATION

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

 Bhagwati, J. also while expanding the scope of  Locus standi also expressed his concern. He observed72:

―but we must be careful to see that the member of the public, who approaches the court in case of this kind, is acting bona fide and not for the personal gain or private profit or  political motivation or other oblique consideration. The court must not allow its process to be abused by politicians and others…. ‖

In BAL CO Employees' U ni on (Regd.) v. Un ion of I ndia & Other s  ,73 this Court recognized that there have been, in recent times, increasing instances of abuse of public interest litigation. Accordingly, the court has devised a number of strategies to ensure that the attractive brand name of public interest litigation should not be allowed to be used for suspicious products of mischief. Firstly, the Supreme Court has limited standing in PIL to individuals "acting bonafide." Secondly, the Supreme Court has sanctioned the imposition of "exemplary costs" as a deterrent against frivolous and vexatious public interest litigations.

72

Janata Dal v. H. S, Chowdhari , (1992) 4 SCC 305

73

 AIR 2002 SC 350

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Thirdly, the Supreme Court has instructed the High Courts to be more selective in entertaining the public interest litigations.

In S. P. Gupta v. Pr esident of I ndi a & others  ,74 this Court has found that this liberal standard makes it critical to limit standing to individuals "acting bona fide. To avoid entertaining frivolous and vexatious petitions under the guise of PIL, the Court has excluded two groups of persons from obtaining standing in PIL petitions. First, the Supreme Court has rejected awarding standing to "meddlesome interlopers". Second, the Court has denied standing to interveners bringing public interest litigation for personal gain.

In Chhetriya Pardushan M ukti Sangharsh Samiti v. State of U .P. & Others   AIR 1990 SC 2060, the Court withheld standing from the applicant on grounds that the applicant brought the suit motivated by enmity between the parties. Thus, the Supreme Court has attempted to create a body of jurisprudence that accords broad enough standing to admit genuine PIL  petitions, but nonetheless limits standing to thwart frivolous and vexations petitions.

The Supreme Court broadly tried to curtail the frivolous public interest litigation petitions by two methods - one monetary and second, non-monetary.

 Monetary Methods

The first category of cases is that where the court on filing frivolous public interest litigation  petitions, dismissed the petitions with exemplary costs. In Neetu v. State of Pu bjab & 75

,  the Court concluded that it is necessary to impose exemplary costs to ensure that Others  the message goes in the right direction that petitions filed with oblique motive do not have the approval of the Courts.

74

 AIR 1982 SC 149  AIR 2007 SC 758

75

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In S.P. Anand v. H .D. Deve Gowda & Others  ,76  the Court warned that it is of utmost importance that those who invoke the jurisdiction of this Court seeking a waiver of the locus standi rule must exercise restraint in moving the Court by not plunging in areas wherein they are not well-versed.

In Sanjeev Bhatnagar v. Uni on of I ndia & Other s  ,77  this Court went a step further by imposing a monetary penalty against an Advocate for filing a frivolous and vexatious PIL  petition. The Court found that the petition was devoid of public interest, and instead labelled it as "publicity interest litigation." Thus, the Court dismissed the petition with costs of Rs.10,000/-.

 Non Monetary Methods

Supreme Court, in the second category of cases, even passed harsher orders. In Charan Lal 78

,   the Supreme Court observed that, "we Sahu & Other s v. Giani Zail Sin gh & An other  would have been justified in passing a heavy order of costs against the two petitioners " for filing a "light-hearted and indifferent" PIL petition. However, to prevent "nipping in the bud a well-founded claim on a future occasion," the Court opted against imposing monetary costs on the petitioners." In this case, this Court concluded that the petition was careless, meaningless, clumsy and against public interest. Therefore, the Court ordered the Registry to initiate prosecution proceedings against the petitioner under the Contempt of Courts Act. Additionally, the court forbade the Registry from entertaining any future PIL petitions filed  by the petitioner, who was an advocate in this case.

76

 AIR 1997 SC 272  AIR 2005 SC 2841. See also, Dattaraj N athuj i Th aware v. State of M aharashtr a & Others    (2005) 1 SCC 590, the Supreme Court affirmed the High Court's monetary penalty against a member of the Bar for filing a frivolous and vexatious PIL petition. It was found that the petition was nothing but a camouflage to foster  personal dispute. The Court concluded that the imposition of the penalty of Rs. 25,000 by the High Court was appropriate. 78  AIR 1984 SC 309 77

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In J. Jayalali tha v. Govern ment of T amil Nadu & Others  ,79 this court laid down that public interest litigation can be filed by any person challenging the misuse or improper use of any  public property including the political party in power for the reason that interest of individuals cannot be placed above or preferred to a larger public interest.

In Dattaraj N athuj i T haware v. State of M aharashtr a & Others  ,80  this court expressed its anguish on misuse of the forum of the court under the garb of public interest litigation and observed that the public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the  beautiful veil of public interest, an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armoury of law for delivering social justice to the citizens. The court must not allow its process to be abused for oblique considerations.

In Th awar e' s case  ,81 the Court encouraged the imposition of a non-monetary penalty against a PIL petition filed by a member of the bar. The Court directed the Bar Councils and Bar Associations to ensure that no member of the Bar becomes party as petitioner or in aiding and/or abetting files frivolous petitions carrying the attractive brand name of Public Interest Litigation. This direction impels the Bar Councils and Bar Associations to disbar members found guilty of filing frivolous and vexatious PIL petitions.

In H oli cow Pictures Pvt. Ltd. v. Pr em Chandra M ishra & Others  ,82 this Court observed as under:

79

 (1999) 1 SCC 53  (2005) 1 SCC 590. See also, BAL CO Employees' Uni on (Regd.) v. Union of I ndia & Others  , AIR 2002 SC 350, Supreme Court held that the jurisdiction is being abused by unscrupulous persons for their personal gain. Therefore, the court must take care that the forum be not abused by any person for personal gain. 81  Id. 82  AIR 2008 SC 913 80

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― It is depressing to note that on account of such trumpery proceedings initiated before the Courts, innumerable days are wasted, the time which otherwise could have been spent for disposal of cases of the genuine litigants. Though we spare no efforts in fostering and developing the laudable concept of PIL and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy, whose fundamental rights are infringed and violated and whose grievances go unnoticed, un-represented and unheard; yet we cannot avoid but express our opinion that while genuine litigants with legitimate grievances relating to civil matters involving properties worth hundreds of millions of rupees and criminal cases in which persons sentenced to death facing gallows under untold agony and persons  sentenced to life imprisonment and kept in incarceration for long years, persons suffering  from undue delay in service matters -government or private, persons awaiting the disposal of cases wherein huge amounts of public revenue or unauthorized collection of tax amounts are locked up, detenu expecting their release from the detention orders etc. etc. are all standing in a long serpentine queue for years with the fond hope of getting into the Courts and having their grievances redressed, the busybodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private profit either of themselves or as a proxy of others or for any other extraneous motivation or for  glare of publicity break the queue muffing their faces by wearing the mask of public interest litigation and get into the Courts by filing vexatious and frivolous petitions and thus criminally waste the valuable time of the Courts and as a result of which the queue  standing outside the doors of the Courts never moves, which piquant situation creates  frustration in the minds of the genuine litigants and resultantly they loose faith in the administration of our judicial system."

The Court cautioned by observing that:

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" Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social  justice to the citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. ‖

It further stated that the Court has to be satisfied about (a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; (c) the information being not vague and indefinite.

The information should show gravity and seriousness involved. Court has to strike balance  between two conflicting interests; (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the Court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the Executive and the Legislature. The Court has to act ruthlessly while dealing with imposters and busybodies or meddlesome interlopers impersonating as public-spirited holy men. They masquerade as crusaders of  justice. They pretend to act in the name of Pro Bono Publico though they have no interest of the public or even of their own to protect.

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In a recent case Ayaaubkh an N oorkhan Pathan v. State of M aharashtr a  ,83  the Supreme Court while dealing with a PIL regarding the review review/recall of caste certificate, filed by general category complainant under garb of serving the cause of Scheduled Tribe candidates held that as complainant had not been pursuing the matter in a bona fide manner, nor raised any public interest, rather abused process of court only to harass appellant, held, he is restrained from intervening in the matter any further, and also from remaining a party to it Costs of Rs 1 lakh also imposed on him, to be recovered as arrears of land revenue.

R ECENT PILS

MANOHAR LAL SHARMA V. THE PRINCIPAL SECRETARY & OTHERS84 (COALGATE CASE)

PILs were filled in the year 2012-13 in the Supreme Court regarding the allocation of the coal  blocks in India. It was contended that the allocation of the coal blocks to the private companies and foreign companies were illegal and the allocation was not done in accordance with the procedure established by law while allocating coal blocks. It was also contended that the coal blocks were distributed at a very low rate.

The Supreme Court on 25 th  August, 2014, while disposing PILs, popularly known as ―Coalgate‖ in media has held that the allocation were in violation of the statutory norms and involves large scale corruption. The court declared all the allocation illegal but stopping short of cancelling them en-masse.

The Supreme Court delivering the second part of the judgment on 24 th  September, 2014, cancelled 214 coal blocks allocations that had been in place since 1993. Out of 214 cancelled 83

 (2013) 4 SCC 465  WRIT PETITION (CRL.) NO. 120 OF 2012, decided on 24 th September, 2014.

84

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allotments, 42 coal blocks with end use plants that were already functional or were about to  become functional, have been allowed a six month window to wind down their operations. Cancellation with the respect of those coal blocks would come into force from 31 st  March 2015. In addition, the Supreme Court of India has established a fine of Indian Rupees 295 metric ton of coal mined from date of commissioning of these blocks.

85

SURESH K UMAR K AUSHAL V. NAZ FOUNDATION

The NAZ Foundation (India) Trust (NI) is a New Delhi based NGO that has been working on HIV/AIDS and sexual health from 1994 onwards. They filed a writ petition in the Delhi High Court challenging the constitutional validity of Section 377 of the Indian Penal Code. This section penalizes unlawful sexual acts ‗against the order of nature‘ which has the effect of criminalizing even consensual sexual intercourse between two adults of the same sex or even of the opposite sex indulging in penile non-vaginal sexual activities. The petitioner contended that Section 377 encroached upon Articles 14, 15, 19 and 21 of the Constitution of India and also that the section ought not to criminalise consensual penile non vaginal sex between two consenting adults of the same sex. In a milestone judgment conveyed on July 2, 2009, the Delhi High Court decided that Section 377 of the Indian Penal Code, 1860 disregarded various fundamental rights, including the right to privacy and right to dignity under the fundamental right to life and liberty (Article 21), the right to equality (Article 14), and forbiddance of separation on grounds of sex (Article 15). The said decision was appealed against in the Supreme Court of India in the Suresh Kumar Koushal and another v NAZ  Foundation and Others case and it was held that the Delhi High Court was wrong in its findings and was also wrong in reading down the section to allow consensual homosexual activities between two adults of the same sex.

85

 CIVIL APPEAL 10972 OF 2013

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The major issues that emerged before the Court for its attention and consideration involved the violation of Fundamental Rights under Article 14, 15 and 21 of the Constitution of India. In this paper, the author will be dealing with two of the major issues.

1. Whether Section 377 violates any of the provisions of the Part III of the Constitution of India and therefore whether it is constitutionally valid or not?

2. Whether Section 377, in so far it criminalizes consensual sexual activity of two adults of the same sex in private, is violating Article 21(Right to life and personal liberty) guaranteed  by the Constitution of India?

It was argued by the Respondents that Section 377 is based on traditional Judeo-Christian moral and ethical standards and is being used to legitimise discrimination against sexual minorities, i.e. LGBTs. They also contended that the section is detrimental to people‘s  lives and public health because of its direct impact on the lives of the homosexuals and serves as a weapon for police abuse.

It was further argued by the Respondents that Section 377, in so far as it criminalizes consensual sexual activities between two adults of the same sex and heterosexual penile non vaginal sexual intercourse between consenting adults is violative of Articles 14, 15 and 21 of the Indian Constitution. With regard to the first issue, the petitioners argued that Section 377, on the face of it, does not mention or classify any particular group or gender and hence is not violative of Article 14 and 15 and 21 respectively. The Court accepted their arguments and held that Section 377 is not violative of Articles 14, 15 and 21 and that carnal intercourse, as intended and defined by the petitioners to mean unnatural lust ought to be punished. Justice Singhvi also said that Section 377 is a pre-constitutional legislation and if it were violative of any of the rights guaranteed under Part III, then the Parliament would have noticed the same

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and repealed the section long ago. Based on this reasoning, he declared the section to be constitutionally valid. He also said that doctrine of severability and the practice of reading down a particular section flows from the presumption of constitutionality and that in the said case, the Delhi High Court‘s decision to read down the section was wrong because there is no  part of the section that can be severed without affecting the section as a whole which also happens to be the only law which governs cases of paedophilia and tyke sexual abuses and assaults. So, the Supreme Court held that Section 377 of the Indian Penal Code does not suffer from any constitutional infirmity and left the matter to the competent legislature to consider the desirability and legitimacy of deleting the Section from the statute book or altering the same to allow consensual sexual activity between two adults of the same sex in  private.

86 

NATIONAL LEGAL SERVICES AUTHORITY V. UNION OF INDIA

A Public Interest Litigation was filed by the National Legal Services Authority (NALSA) on  behalf for the Transgender Community seeking a legal declaration regarding their gender identity other than the one assigned to them, male or female, at the time of birth. Their prayer was that non-recognition of their gender identity violates Articles 14 and 21 of the Constitution of India.

These petitions essentially raise an issue of ―Gender Identity‖, which is the core issue. It has two facets, viz.:

1. Whether a person who is born as a male with predominantly female orientation (or vice-versa), has a right to get himself recognized as a female as per his choice more

86

 (2014) 5 SCC 438

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so, when such a person after having undergone operational procedure, changes his/her sex as well; 2. Whether transgender (TG), who are neither males nor females, have a right to be identified and categorized as a ―third gender‖?

The counsel for the petitioner has submitted that since the TGs are neither treated as male or female, nor given the status of a third gender, they are being deprived of many of the rights and privileges which other persons enjoy as citizens of this country. The petitioners argued that transgender persons have to be declared as socially and educationally backward classes of citizens and must be accorded all benefits available to that class of persons, which are  being extended to male and female genders.

The learned Additional Solicitor General, appearing for the Union of India, submitted that the  problem highlighted by the transgender community is a sensitive human issue, which calls for serious attention. The ASG pointed out that, under the aegis of the Ministry of Social Justice and Empowerment, a Committee, called ―Expert Committee on Issues relating to Transgender‖,  to study problems relating to transgender persons and make make appropriate recommendations to the ministry. Counsels appearing for various States and Union Territories who have explained the steps they have taken to improve the conditions and status of the members of TG community in their respective States and Union Territories.

The Court examined various International treaties, covenants, judgments legislations of foreign countries and particularly Yogyakarta Principles related to human rights standards and their application to issues of sexual orientation gender identity. . The Court held that in India due to the absence of suitable legislation protecting the rights of the members of the transgender community, they are facing discrimination in various areas and hence it is necessary to follow the International Conventions to which India is a party and to give due Page | 46

respect to other non-binding International Conventions and principles. The court further  justified the need to grant legal protection on the basis of Article 14, Article 15, Article 16, Article 19 & Article 21 of the Constitution of India.

In a nutshell the Supr eme Court recognised the ‗third gender‘ status of Hijras/Eunuchs which comes under the category of ‗Transgender Community‘ for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature. The bench directed the Centre and state governments to identify them as a third gender and frame various social welfare and educational schemes for their upliftment. The court said that for the purposes of identification as the third gender, psychological and not  biological test was to be applied.

SOMA ISOLUX NH ONE TOLLWAY (P) LTD. V. HARISH K UMAR PURI87 

PIL was filed for improving management of traffic on national highway which was later metamorphosed into litigation regarding non-completion of construction of Panipat-Jullundur stretch of NH 1 Project for which a concession agreement was executed between appellant Concessionaire Company and National Highways Authority of India (NHAI).

The issues raised in this PIL were:

1. Whether the directions issued by the High Court which have far reaching consequences against the petitioner/appellant and which directions by a judicial fiat, has the effect of nullifying the terms of the Concession Agreement dated 09.05.2008 defeating the rights and obligations arising there from in a Public Interest Litigation while exercising  jurisdiction under Article 226 of the Constitution of India is an act of judicial overreach under the garb of public interest? 87

 (2014) 6 SCC 75

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2. Whether the terms and conditions of a concluded contract can be nullified by the High Court by issuing sweeping directions in an ongoing Public Interest Litigation Petition which renders the terms and conditions of the Concession Agreement between the contracting parties redundant at the instance and initiative of the Court itself when such directions has not even been sought by any of the parties to the Public Interest Petition?

The Supreme Court while examining the directions of High Court rendering terms and conditions of concluded agreement redundant besides imposition of heavy penalty on Concessionaire Company, directing NHAI to take over the project from appellant Company attributing entire delay to appellant without enquiring into reasons. therefore, held, are unsustainable and are set aside. The Supreme Court further held that the High Court although it recorded that it did not intend to traverse the contractual obligations and liabilities of  parties, in effect nullified the contract and has gone much further directing NHAI to ensure completion of the project. In effect it means NHAI would have to invite fresh tender for construction of balance 29% area of Highway Project. This is nothing short of cancellation of the concession agreement entered into with appellant. High Court ignored its devastating effect on the contracting party who had completed 71% of the project. In any event, question of termination of the concession agreement without adjudication could not arise at all when High Court was merely considering the application seeking vacation of the stay order to the show-cause notice issued by NHAI. High Court seems to have taken a giant leap forward by terminating the contract for all practical purposes without expressly using the expression termination when it directed NHAI to take over the project from appellant Company, nullifying the contract in its entirety. If High Court could not traverse terms of the agreement, it surely could not have passed an order which unequivocally had the effect of cancelling the agreement and that too without any adjudication at least by an arbitrator for which there is a clear provision in the agreement itself. High Court's orders set aside. Page | 48

Appellant permitted to restore construction of balance stretch of Highway Project by directing NHAI to permit appellant to shift the Toll Plaza from km 146 to any point between km 110 and km 117. Appellant were directed to restart the construction forthwith and complete entire construction of the highway on or before 31-3-2015 failing which it shall be liable for penal consequences to be determined by NHAI in terms of the concession agreement. Express directions issued that no further disputes shall be allowed to be raised by any of the parties before any court which may impede or slow down the progress of completion of the highway project in question.

The court further held that at times, courts may forego/overlook the technicalities coming in the way of issuance of any direction which may conflict with or jeopardise public interest, but such power cannot be allowed to reach to the extent or affect the contractual agreement itself which reduces a valid and a legal document into a worthless piece of paper. Contract cannot  be reduced to be a document having no legal significance in spite of its validity in the eye of the law.

88

SHABNAM HASHMI V. UNION OF INDIA

The petitioner, Ms. Shabnam Hashmi had moved the court back in 2005 after she was told that she had only guardianship rights over a young girl she had brought home. Being a Muslim, she was subject to Muslim Shariat law which did not recognize an adopted child on  par with biological child.

The Supreme Court held adoption by any person irrespective of religion, caste, creed, etc.,  permissible. It further held that any person can adopt a child under Juvenile Justice (Care and Protection of Children) Act, 2000 (as amended in 2006) - Prospective parents have option to

88

 (2014) 4 SCC 1

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employ the provisions of S. 41 of JJ Act, 2000 to adopt a child or they can also choose not to do so and to submit themselves to their applicable Personal Laws. However, Personal Laws cannot dictate the operation of provisions of an enabling statute like JJ Act, 2000 and cannot come in the way of person who chooses to adopt a child under JJ Act, 2000. Further held, JJ Act, 2000 is a secular law and a small step in reaching the goal of Uniform Civil Code under Art. 44 of Constitution.

The petitioner also raised a plea that right to adoption must be made a fundamental right under article 21 of the Constitution. The Supreme Court held it not to be a fundamental right as, elevation of this right to status of fundamental right not possible at present in view of conflicting faith/beliefs of different communities. View expressed by legislature for the  present by enactment of Juvenile Justice (Care and Protection of Children) Act, 2000 (as amended in 2006) under which adoption can be made by any person irrespective of religion, caste, creed, etc., however, must be given due respect.

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CONCLUSION

In this assignment on the importance/significance of PIL, we have seen that how the evolutionary concept of PIL was originated and how the Indian Judiciary has successfully helped this concept to grow and develop with time. By expanding the locus standi  and by improving the scope of Articles 32 and 226 of the Constitution, now the fight is being taken  by the people to the courts and a genuine power has been given to the people to fight against the government for their inactivity.

We have witnessed how PIL has brought about a change in the society by bringing up issues and problems. PIL has helped in the upliftment of the poor and downtrodden in the first phase and has been used for labour exploitment, child labor, condition of prisoners etc. etc. it has also in phase two and three take up very important issues and helped resolve it, like environmental issues and governance issues. Through PIL the courts have been able to fill up the gap with was created by the executive.

The good for which PIL was brought in our system is not being achieved as the abuse of PIL has been done by people for their private interests and publicity. Arguments have been raised criticizing PIL, that it overburdens the courts, that it is for the rich and not for the poor, that it is just a dazzling star for judiciary to wear but the fact remains that a few instances and shortcoming of a concept can be overlooked by its good. The courts from time to time have

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appreciated the whisteblowers, NGOs and other pubic spirited people for bringing up crucial issues and helping the nation.

Through the recent scenario of PIL we can see the role it is playing in our lives and how important it is. Through PIL various scams such as CWG scam, Coalgate scam, 2G Spectrum scam and other issues regarding environment, protecting our forests, rivers etc. The role and importance of PIL is such that the issues which are being brought up these litigation are huge which makes the people aware of their rights and obligations and actually makes them a part of the governance.

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BIBLIOGRAPHY

Articles

Surya Deva, Public Interest Litigation in India: A Critical Review, C.J.Q., VOL 28, ISSUE 1. Baxi, ‗‗Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India ‘‘ (1985) Third World Legal Studies Surya Deva, ‗‗Who will Judge the Judges: A Critical Purview of Judicial Activism ‘‘ (1997) 1 Delhi University Law Journal 30. Clark D. Cunningham; ― Public Interest Litigation in Indian Supreme Court: A study in the light of American Experience‖, J.I.L.I, V-29: 4. P-494 (1987). Praveen Dalal, The culture of public interest litigation In India, available at http://india.indymedia.org/content/2005/07/210805.shtml. Book s and Statutes

Constitution of India, 1950 Durga Das Basu, Commentary On The Constitution Of India , (8d ed. 2008) J.N. Pandey, The Constitutional Law of India , (50h ed. 2013) I.P. Massey, Administratice law, (8h ed. 2012)

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