Social Interest Litigation

CHANAKYA NATIONAL LAW UNIVERSITY

A PROJECT WORK ON SOCIAL ACTION LITIGATION

 SUBMITTED TO: MR. PUSHPENDRA PANDEY   ASSISTANCE PROFFESOR (LAW)  SUBMITTED BYNEERAJ KUMAR  ROLL NO. 757   SEMESTER: FIRST 

ACKNOWLEDGEMENT Apart from the efforts of the researcher, the success of any project depends largely on the encouragement and guidelines of many others. I take this opportunity to express my gratitude to the people who have been instrumental in the successful completion of this project. I would like to show my greatest appreciation to Mr. Pushpendra Pandey. I can’t say thank you enough for his tremendous support and help. I feel motivated and encouraged every time I attend his lectures. Without his encouragement and guidance this project would not have materialized. The guidance and support received from all the members who contributed and who are contributing to this project, was vital for the success of the project. I am grateful for their  constant support and help. To complete this project was not easy, but due to kind help from many persons I was able to complete my project work without any difficulty I am thankful to my librarians, who provided me the books and materials required for the completion of this project. I am grateful to all my friends, from whom I got the meticulous comments and suggestions which  proved very beneficiary in the the completion of this project. project. Finally, I am thankful to all those individuals and institutions that directly and indirectly provided me the materials which helped me to complete this project. NEERAJ KUMAR  ROLL NO-757 SEMESTER: FIRST

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ACKNOWLEDGEMENT Apart from the efforts of the researcher, the success of any project depends largely on the encouragement and guidelines of many others. I take this opportunity to express my gratitude to the people who have been instrumental in the successful completion of this project. I would like to show my greatest appreciation to Mr. Pushpendra Pandey. I can’t say thank you enough for his tremendous support and help. I feel motivated and encouraged every time I attend his lectures. Without his encouragement and guidance this project would not have materialized. The guidance and support received from all the members who contributed and who are contributing to this project, was vital for the success of the project. I am grateful for their  constant support and help. To complete this project was not easy, but due to kind help from many persons I was able to complete my project work without any difficulty I am thankful to my librarians, who provided me the books and materials required for the completion of this project. I am grateful to all my friends, from whom I got the meticulous comments and suggestions which  proved very beneficiary in the the completion of this project. project. Finally, I am thankful to all those individuals and institutions that directly and indirectly provided me the materials which helped me to complete this project. NEERAJ KUMAR  ROLL NO-757 SEMESTER: FIRST

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TABLE OF CONTENTS (1) INTRODUCTION……………… INTRODUCTION……………………………… ……………………………… ………………….4-6 ….4-6 (2) RESEARCH METHODOLOGY… METHODOLOGY………………… ………………………………7 ………………7-8 -8 (3) CHAPTERS……………………… CHAPTERS……………………………………… ……………………………… ……………………. …….

1) SOCIAL ACTION LITIGATION- AN INTRODUCTION…………………………………………....9-15 a) What What is social social Action Action ligati ligation on b) Or Orig igin in and and evo evolu luti tion on c) Whe When n and how how to find find a social social Acti Action on litig litigati ation on

2) CONCEPT OF SOCIAL ACTION LITIGATION……………………………………………….16-26 a) Expand Expanding ing old old rights rights and and creatin creating g new ones ones b) SAL in IndiaIndia- locus locus standi standi c) SAL SAL in Indi Indiaa- the the oth other er sid sidee d) Factors Factors contributi contributing ng to the growth growth of socia sociall Action Action litigation litigation e) Cases Cases which which chan changed ged the the tr tradi aditio tional nal rule ruless

3) SOCIAL ACTION LITIGATION AND JUDICIAL RESPONSES………………………………………….…… 27-35 a) Aspect Aspectss of socia sociall Action Action liti litigat gation ion b) Frivol Frivolous ous socia sociall Action Action litiga litigatio tions ns

4) IMPACT OF SOCIAL ACTION LITIGATION ON SOCIETY……………………………………………….36-37 a) Social Social Action Action Litigati Litigation on as an an Instrumen Instrumentt of Social Social Change Change

5) CONCLUTION- ………………………………………..38-40 6) BIBLIOGRAPHY………………………………………41

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INTRODUCTION Apart Apart from laying laying down down the law of the land, the Consti Constitut tution ion of our country 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 Cons Consti titu tuti tion on.. The The fact fact of the the matt matter er rema remain inss that that even even toda today y in Indi India, a, afte afterr it has 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 Social Action Litigation (SAL) came in. “The majority of the people of our country are subjected to denial of access to justice and, overtake overtaken n by despai despairr and helple helplessn ssness ess,, they they contin continue ue to remain remain victim victimss of an exploitative society where economic power is concentrated in the hands of a few and is used for perpetration of domination over large masses of human beings.” beings.”1 Social Action Litigation, which is also known as PIL and 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 justice2 and a 1

Bihar Legal Support Society v. Society  v. Chief Justice of India ,(1986) 4 SCC 767.

2

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

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 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. 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. Although SAL is not defined in any statute or act, it has been interpreted by judges as to  be the intent of the public at large. SAL is in fact read into Article 32 if the Indian constitution. So where the subject is the breach of a fundamental right, the court can be approached with a PIL under Article 32, and when the subject is a ‘legal wrong’, the High Court can be approached under Article 226 of the Indian Constitution. There are various areas where a Public Interest Litigation can be filed, such as: •

violation of fundamental or religious rights

•

content or conduct of government policy

•

compel municipal authorities to perform their duties

•

Violation of the human rights of the poor .3

All the above are the general scenarios which have been laid down so as to make sure that they cover the most frequent situations in which the common poor man faces exploitation. And if any one of them is applicable to a given situation then a PIL can be filed in the court of law. It must be noticed that although the concept of SAL has actually been taken from the  judicial system of USA, the scope of SAL is severely limited in India as compared to USA. In India, the courts have taken a social problem, of no justice being done to the  poor and the needy, and facilitate the old Indian tradition of voluntary social service and make sure that people can approach the court on behalf of the poor 4 while in the USA the concept is very different. Most of the litigation in the field of PIL is not merely in the 3

www.helplinelaw.com/docs/pub-i-litigation/index.php visited at 2 August 2006.

4

Mrs. K. Uma Devi, “Social Justice to Women through Public Interest Litigation”, 19(4) Indian Bar Review at 3 (1992).

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realm of human rights, a considerable portion of it is also initiated by private organizations seeking their own interests, which also happen to collide with the general interests of the public. However, in India the concept of SAL itself suggests its main purpose and the intent of  the judges in introducing it. While in the USA, the term used is Public Interest Litigation, in India the more fitting term for such litigation is Social Action Litigation, and it is so  because as the name suggests, the courts are very reluctant to allow PILs to be used for  furthering the interests of certain parties, and the focus is mainly on furthering litigation which will improve the social conditions in India. The researcher at this point itself would like to make sure that the scope of the project is clear. Since the topic on which the research paper is based is Social Action Litigation, the researcher has focused on this phenomenon in the context of India itself, and not as it is understood in its wider meaning. This is so because although Social Action Litigation is a term used interchangeably with Public Interest Litigation as it is understood in other  countries, however in the context of our country it acquires a different meaning, as explained in the above paragraph. The concept in India is one for achieving social justice for the poor and the disadvantaged, with the courts being downright hostile to those who approach the court with their own interests garbed as public interest.

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RESEARCH METHODOLOGY:-

A.

Aims and Objectives

The aim of this project is to understand the concept of Social Action Litigation. The focus being India, for reasons given under the heading below, the objectives are to identify and analyse the motives behind SAL in India, its implementation, and its current status.

B.

Scope and Limitations

Since Social Action Litigation is what may be called as the Indian counterpart of Public Interest Litigation as it is understood in western countries, the researcher has limited the scope of the project to study this phenomenon within India itself and has limited references to its practice in other countries only when it is necessary in order to properly understand or elucidate a point. In this project, for purposes of simplicity, so that the concepts are clearer, SAL and PIL have been used more or less interchangeably unless the researcher is drawing a distinction between the two.

C.

Research Questions

The main research questions are: •

What exactly is Social Action Litigation?

•

What was the need for Social Action Litigation in India?

•

How did this concept come into India?

•

Has it been correctly and completely implemented in the country, and where do

the Indian courts stand with respect to Social Action Litigation?

D.

Chapterization

The project is divided into several chapters, each dealing with different aspects of Social Action Litigation in India. The first chapter deals with the issue of locus standi and its solution. The next two chapters deal with the misuse of social action litigation, and the

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attitude of the Indian courts towards social action litigation respectively. This is followed  by the conclusion.

E.

Methodology

The method of writing adopted is both descriptive and analytical.

F.

Sources of Data

For this paper, the researcher has relied upon secondary sources of data- i.e., books and internet websites and articles.

G.

Mode of Citation

A uniform mode of citation has been followed throughout the paper.

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CHAPTER 1- SOCIAL ACTION LITIGATIONAN INTRODUTION Social Action Litigation is both a challenge as well as opportunity for the government to make basic human rights meaningful to the deprived and vulnerable sections of society and to assure them social and economic justice which is the signature tune of our  constitution. Social change is the necessity of an y society. In India it is done through Social Action Litigation. The jurisprudence of Social A ction Litigation is necessary to understand the nature of Social Action Litigation in India.

Such is the Social Action Litigation lusionment with the state formal legal system that it is no longer demanded by law to do justice, if justice perchance is done, we congratulate ourselves for being fortunate. In these circumstances one o f the best things that have happened in the country in recent years is the process of social reform through Social Action Litigation.

Late 1970s marked discernible shift from legal centralism. Legal pluralism was very apparent now. It was realized that social conduct was regulated by the interaction of  normative orders, notion of popular justice, community justice, and distributive justice were sought to be institutionalised, though outside the sphere of the formal legal system and in opposition to it. What is Social Action Litigation : IN BLACK’S LAW DICTIONARY: “Social Action Litigation means a legal action

initiated in a court of law for the enforcement of Social Action or general Action in whichthe Social or class of the community have pecuniary Action or some Action by which their legal rights or liabilities are affected.” Social Action Litigation’s explicit purpose is to alienate the suffering off all those who have borne the brunt of insensitive treatment at the hands of fellow human being.

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Transparency in Social life & fair judicial action are the right answer to check increasing menace of violation of legal rights. Traditional rule was that the right to move the Supreme Court is only available to those whose fundamental rights are infringed.

In Indian law, Social Action Litigation means litigation for the protection of the Social Action. It is litigation introduced in a court of law, not by the aggrieved party but by the court itself or by any other private party. It is not necessary, for the exercise of the court’s  jurisdiction, that the person who is the victim of the violation of his or her right should  personally approach the court. In Social Action Litigation the power is given to the member of Social by courts etc through judicial consciousness judicial activism, that member of the Social can be a NGO, Institution or an individual. In INDIA SU PREME COURT rejecting the criticism of judicial activism, has said the judiciary has stepped in to give directions only because of executive inaction what with laws enacted by Parliament and the State legislatures in the last 63 years for the poor not being implemented properly. A Bench of Justices G.S. Singhvi and A.K. Ganguly  pointed out that laws enacted for achieving the goals set out in the Preamble to the Constitution had  been extremely inadequate and tardy, and the benefit of welfare measures enshrined in those legislation had not reached millions of poo r, downtrodden and disadvantaged sections, nor did efforts to bridge the gap between the haves and have-nots yield the desired result. Writing the judgment in a case related to sewerage workers, Justice Singhvi said: “The most unfortunate part of the scenario is that wheneve r one of the three constituents of the state i.e. the judiciary issues directions for ensuring that the right to equality, life and liberty no longer remains illusory for those who suffer from the handicaps of poverty, illiteracy and ignorance, and directions are given for implementation of the laws enacted  by the legislature for the benefit of the have-nots, a theoretical debate is started by raising the bogey of judicial activism or overreach.” The Bench clarified that it deemed it necessary to erase the impression and misgivings among some people that the superior courts, by entertaining Social Action Litigation  petitions for espousing the cause of the poor who could not seek protection and

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vindication of their rights, exceeded the unwritten boundaries of their jurisdiction. The  judges said it was the duty of the judiciary, like that of the political and executive constituents of the state, to protect the rights of every citizen and ensure that everyone lived with dignity. Such cases may occur in Social Action when the victims do not have the necessary consciousness, know-how or resources to commence litigation or h is/their freedom to move court has been suppressed or encroached upon. The court can itself take cognisance of the matter and precede suo motu or cases can commence on the petition of any Socialspirited individual or body. Further courts can also take cognisance on the basis of letters written to them or by Newspaper Reports.

Origins of Social Action Litigation: Prior to the 1980s, only the aggrieved party could approach the courts for justice. However, post 1980s and after the emergency era, the apex court decided to reach out to the people and hence it devised an innovative way wherein a person or a civil society group could approach the supreme court seeking legal remedies in cases where Social Action is at stake. Justice P. N.Bhagwati and Justice V. R. Krishna Iyer were among the first judges to admit Social Action Litigation’s in the court. Filing a Social Action Litigation is not as cumbersome as any other legal case and there have been instances when even letters and telegrams addressed to the court have been taken up as Social Action Litigation’s and heard by the court.

Necessity of informal justice:  Necessity of informal justice, whether as an alternative to state law or as to its agent to find its identity in opposition to state law stems from the nature of Anglo-Saxon law  prescribing legal formalism and due to the failure of formal legal system to deliver justice that forced informal justice to take on a separate identity from state law.

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The British rule bequeathed to India a colonial legal heritage. The Anglo-Saxon model of  adjudication insisted upon observance of procedural technicalities such as locus standi and adherence to adversarial system of litigation. The result was that the courts were accessible only to the rich and the influential people. The marginalized and disadvantaged groups continued to be exploited and denied basic human rights.

Social Action Litigation as exists today: Social Action Litigation today offers such a paradigm which locates the content of  informal justice without the formal legal system. Non Anglo-Saxon jurisdiction directs courts to transcend the traditional judicial function of adjudication and provide remedies for social wrongs. Social Action Litigation had already moulded the state in to the instrument of socio-economic change. Social justice is the by-product of this transcends from the formal legal system.

Evolution of Social Action Litigation: The Indian Social Action Litigation is the improved version of Social Action Litigation of  U.S.A. According to “Ford Foundation” of U.S.A., “Social Action law is the name that has recently been given to efforts that provide legal representation to previously unrepresented groups and Actions. Such efforts have been undertaken in the recognition that ordinary. Marketplace for legal services fails to provide such services to significant segments of  the population and to significant Actions. Such groups and Actions include the proper  environmentalists, consumers, racial and ethnic minorities and others”. The emergenc y  period (1975-1977) witnessed colonial nature of the Indian legal system. During emergency state repression and governmental lawlessness was widespread. Thou sands of  innocent people including political opponents w ere sent to jails and there was complete deprivation of civil and political rights. The post emergenc y period provided an occasion for the judges of the Supreme Court to openly disregard the impediments of Anglo-Saxon  procedure in providing access to justice to the poor . Notably two justices of the Supreme Court, Justice V. R. Krishna Iyer and P. N. Bhagwati recognised the possibility of providing access to justice to the poor and the exploited people by

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relaxing the rules of standing. In the post-emergency period when the political

situations had changed, investigative journalism also began to expose gory scenes of  governmental lawlessness, repression, custodial violence, drawing attention of lawyers,  judges, and social activists. Social Action Litigation emerged as a result of an informal nexus of pro-active judges, media persons and social activists. This trend shows stark  difference between the traditional justice delivery system and the modern informal justice system where the judiciary is performing administrative judicial role. Social Action Litigation is necessary rejection of laissez faire notions of traditional jurisprudence. The first reported case of Social Action Litigation in 1979 focused on the inhuman conditions of prisons and under trial prisoners. In Hussainara Khatoon v. State of  Bihar, AIR 1979 SC 1360 , the Social Action Litigation was filed by an advocate on the

 basis of the news item published in the Indian Express, highlighting the plight of  thousands of under trial prisoners languishing in various jails in Bihar. These proceeding led to the release of more than 40, 000 under trial prisoners. Right to speedy justice emerged as a basic fundamental right which had been denied to these prisoners. The same set pattern was adopted in subsequent cases. In 1981 the case of Anil Yadav v. State of Bihar, AIR 1982 SC 1008 , exposed the  brutalities of the Police. Newspaper report revealed that about 33 suspected criminals were blinded by the police in Bihar by putting the acid into their eyes. Through interim orders S. C. directed the State government to bring the blinded men to Delhi for medical treatment. It also ordered speedy prosecution of the guilty policemen. The court also read right to free legal aid as a fundamental right of every accused. Anil Yadav signalled the growth of social activism and investigative litigation. In (Citizen for Democracy v. State of Assam, (1995) 3SCC 743), the S. C. declared that the handcuffs and other fetters shall not be forced upon a prisoner while lodged in jail or  while in transport or transit from one jail to another or to the court or back.

A Social Action Litigation can be filed in any High Court or directly in the Supreme Court. It is not necessary that the petitioner has suffered some injury of his own or has

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had personal grievance to litigate. Social Action Litigation is a right given to the socially conscious member or a Social spirited NGO to espouse a Social cause by seeking judicial for redressal of Social injury. Such injury may arise from breach of Social duty or due to a violation of some provision of the Constitution. Social Action Litigation is the device  by which Social participation in judicial review of administrative action is assured. It has the effect of making judicial process little more democratic.

According to the guidelines of the Supreme Court any member of Social having sufficient Action may maintain an action or petition by way of Social Action Litigation provided:

» There is a personal injury or injury to a disadvantaged section of the population for  whom access to legal justice system is difficult,

» The person bringing the action has sufficient Action to maintain an action of Social injury,

» The injury must have arisen because of breach of Social duty or violation of the Constitution or of the law,

It must seek enforcement of such Social duty and observance of the constitutional law or  legal provisions.

» This is a powerful safeguard and has provided immense social benefits, where there is essentially failure on the part of the executive to ameliorate the problems of the oppressed citizens. Considering the importance of this subject, three articles from the web on the subject are reproduced hereunder.

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When and how to File a SOCIAL ACTION LITIGATION: 1. Make an informed decision to file a case. 2. Consult all affected Action groups who are possible allies. 3. Be careful in filing a case because i. Litigation can be expensive. ii .Litigation can be time consuming. iii. Litigation can take away decision making capability/strength from communities. iv. An adverse decision can affect the strength of the movement. v. Litigation involvement can divert the attention of the community away from the real issues.

4 .If you have taken the decision: i. Collect all the relevant information ii. Be meticulous in gathering detail for use in the case. If you plan to use photographs, retain the negatives and take an affidavit from the photographer. Retain bills. iii. Write to the relevant authorities and be clear about your demands. iv. Maintain records in an organized fashion. v. Consult a lawyer on the choice of forum. vi. Engage a competent lawyer. If you are handling the matter yourself make sure you get good legal advice on the drafting. vii .A Social Action Litigation can be filed only by a registered organization. If you are unregistered, please file the Social Action Litigation in the name of an office  bearer/member in his/her personal capacity. viii. You may have to issue a legal notice to the concerned parties/authorities before filing a Social Action Litigation. Filing a suit against the government would require issuing a notice to the concerned officer department at least two months prior to filing.

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CHAPTER 2- CONCEPT OF SOCIAL ACTION LITIGATION EXPANDING OLD RIGHTS & CREATING NEW ONES There is an urgent need to expand old rights and create new rights. Indeed, the success of  legal advocacy needs to be viewed by the social activist in these terms and not merely in terms of winning or losing cases. For instance, although Haksar and others, as part of  their work on promoting human rights in North-eastern India, have been unsuccessful in their decade-long effort to get the Armed Forces Special Power Act repealed, they have succeeded in getting the provision in the criminal procedure code that women be searched only by women extended to the army. Similarly, it is important to try and create new rights based on a vision of the future. For  instance Article 14 of the Indian Constitution treats both an MNC and a citizen equally despite the inherent and yawning inequality between the two. Therefore if a citizen’s rights are to be fully protected in the wake of increasing MNC activity in the national economy, one needs to critique the concept of equality in liberal theory and develop new ideas on equality. The filing of test cases is one way of developing these new ideas.

The same holds true for individual rights vs. collective rights. The prevailing legal system recognizes only private property – where the owner has the right against the whole world  – and Social property, which belongs to the state. But before the imposition of the British legal system there existed a whole tradition of common property which now has no recognition in law. “As a result all forms of collective or shared realities whether they are in the realm of rights, relations, practices or knowledge h ave no place in the present legal scheme even though they are vital for human survival. They are not part of the language of legal discourse, either of the judges or lawyers and mention of these rights as ‘collective human rights’ is met with surprise, scepticism and often cynicism,” has had

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some recent success in getting the Supreme Court to accept the validity of oral testimonies of poor tribal as evidence. The Emergency of 1976 marked not just a political watershed in this country, but a  judicial one as well. In the euphoria of the return to democracy and in an attempt to refurbish its image that had been tarnished by some Emergency decisions, the Supreme Court of India opened the floodgates to Social Action Litigation. Under Social Action Litigation, courts take up cases that concern not the rights of the petitioner but of the Social at large. In the last two decades, Social Action Litigation has emerged as one of the most powerful tools for promoting social justice and for protecting the rights of the poor.

Among the numerous factors that have contributed to the growth of Social Action Litigation in this country, the following deserve special mention:

» The character of the Indian Constitution. Unlike Britain, India has a written constitution which through Part III (Fundamental Rights) and Part IV (Directive Principles of State Policy) provides a framework for regulating relations between the state and its citizens and between citizens inter-se.

» India has some of the most progressive social legislation to be found anywhere in the world whether it be relating to bonded labour, minimum wages, land ceiling, environmental protection, etc. This has made it easier for the courts to haul up the executive when it is not performing its duties in ensuring the rights of the poor as per the law of the land.

» The liberal interpretation of locus standi where an y person can apply to the court on  behalf of those who are economically or physically unable to come before it has helped. Judges themselves have in some cases initiated suo moto action based on newspaper  articles or letters received

» Although social and economic rights given in the Indian Constitution under Part IV are not legally enforceable; courts have creatively read these into fundamental rights thereby

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making them judicially enforceable. For instance the “right to life” in Article 21 has been expanded to include right to free legal aid, right to live with dignity, right to education, right to work, freedom from torture, bar fetters and hand cuffing in prisons, etc.

» Sensitive judges have constantly innovated on the side of the poor. For instance, in the Bandhua Mukti Morcha case in 1983, the Supreme Court put the burden of proof on the

respondent stating it would treat every case of forced labour as a case of bonded labour  unless proven otherwise by the employer. Similarly in the Asiad workers judgment case, Justice P.N. Bhagwati held that anyone getting less than the minimum wage can

approach the Supreme Court directly without going through the labour commissioner and lower courts

» In Social Action Litigation cases where the petitioner is not in a position to provide all the necessary evidence, either because it is voluminous or because the parties are weak  socially or economically, courts have appointed commissions to collect information on facts and present it before the bench.

SAL IN INDIA – LOCUS STANDI: Despite the Constitution guaranteeing many rights to the people of India, due to the abject poverty and illiteracy of many, these rights are often violated with impunity  because the people who violate them are sure that they will not be punished for the same. The usual manner of claiming one’s rights by initiating litigation against those who violate them are not available to the poor and the uneducated because often they are not aware of how to approach these matters. Even of someone was concerned enough to inform these people of their rights and their  violation, nothing could come out of it as the poor were either lacking funds to initiate and then sustain litigation, or were just lacking faith in the judicial system. To resolve

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this issue, and to make the courts more accessible to the deprived and the illiterate5, the Supreme Court had to relax the long standing rule of locus standi. Two people who were instrumental in introducing the concept of Social Action Litigation were P.N. Bhagwati and V R Krishna Iyer, JJ. As a result of their efforts now any individual or organization can freely approach the court with any case which involves the general social good, and is in the interest of the public, and do so without the fear of incurring heavy costs which are involved in private litigation. As Bhagwati C.J. said in the case S.P. Gupta v. Union of India6  “Where a legal wrong or a legal injury is caused to a person or to a determinate class of   persons…and such a person or determinate class of persons is by reasons 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  appropriate direction…”

Yet another decision of the Supreme Court, from which the following excerpt is taken clearly shows the intent of the Supreme Court of India, “Where a wrong against  community interest is done, ‘no locus standi’ will not always be a plea to non-suit an interested public body chasing the wrong doer in court…Locus standi has a larger ambit  in current legal semantics than the accepted, individualistic jurisprudence of old.”7  The fact that locus standi if interpreted in the manner in which it was interpreted earlier,  being a product of Anglo Saxon Jurisprudence, would merely create hurdles in achieving the purpose of social good, and ensuring that the poor and the needy were not deprived of  their rights, . For example in a case8 where an organization brought a petition to the court on the behalf  of workers working in a stone quarry in appalling conditions, the court did not dismiss the petition on the grounds that since the rights of the organization as such were not 5

R.K. Mahajan, “Public Interest Litigation: Courts Role as Administrator and Social Dimensions”, 23(1) Indian Bar Review at 53 (1996). 6

S.P. Gupta v. Union of India, (1982) 2 S.C.R 365, at 520.

7

Maharaj Singh v. Uttar Pradesh, A.I.R. 1976 Supreme Court 2602, at 2609.

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directly affected, they could not bring an action in the court, rather it accepted and decided on the case after holding that the very conditions which had necessitated the filing of the litigation were enough for the suit not to be dismissed because the party  bringing the matter to the attention of the court did not have locus standi.

SAL IN INDIA – THE OTHER SIDE: While it cannot possibly be doubted that Social Action Litigation in India has gone a long way in ensuring that the fundamental rights granted by the Constitution to the people of  India are not violated, at the same time one must also consider the fact that in actuality, SAL is not the pure form of delivering justice to the poor that it was once thought to be. While it is no doubt helping the people in making sure that no violation of fundamental rights goes unnoticed simply because no one could bring it in front of the court and ask  for justice, at the same time the PILs being filed are becoming a mere vehicle in the hands of people who know how to use it to further their private interests under the garb of seeking social justice. Time and again the court has expressed its disapproval of this  practice, and yet the parasites in the legal system keep on attempting to exploit the new found freedom which has been inadvertently granted to them by the courts due to the relaxing of the standards of locus standineeded to bring a suit in the court. Numerous cases are filed simply with the motive of harassing and creating bargaining situations, the same being filed in order to gain private ends using the garb of public interest.9 The courts have expressed disapproval of this practice which is becoming rampant in India by raising the issue of the wastage of the precious time of the court in frivolous and false Public Interest Litigations file in the courts by such bogus parties, this same time being denied to the genuine litigant . The flipside of this whole scenario is that the courts now  being reluctant to look into each and every PIL filed with genuine interest and zeal due to the diminishing faith in this system, might end up acquiring a hostile attitude towards Social action litigation as a whole, and this would severely hamper the efficiency of  social action litigation in achieving social justice.

8

Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161, at 236.

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In order to substantiate this assertion, the researcher would like to discuss some such cases, and analyze the Supreme Courts reaction. In Dev Sebastian v. P.R. Kurup and  Orissa10, for example, a PIL was filed in the court asking it to look into the credentials of  a person who was being appointed to a public office, the petitioner claiming that the  person is a corrupt man and hence is totally unfit for the post to which he is being appointed. However, these allegations were based completely on newspaper reports, and the petitioner had made absolutely no effort to ascertain the truth or to substantiate his claims. The court expressing its disapproval dismissed the PIL, holding that such attempts to divert the time and attention of the court from the thousands of cases that were pending in order to look into such matters which are constituted of private motives hidden in the mantel of public interest, should be discouraged at every level. Dilip  Karambelkar v. Rear Admiral Vishnu Bhagwat 11 is another such case. The reputation of  some of the candidates for the top post in the Indian navy was challenged on grounds that these candidates were not qualified to do so. However the petition itself was filed about 5 years after some vital facts had ceased to exist and it was contended on the part of the respondents that this was merely an attempt to delay the proceedings and tarnish the reputation of the said candidates. The Supreme Court held: “ In the present case also we feel that the public interest litigation is misused by the  petitioner for some extraneous purpose. Unfortunately, these so-called public interest   petitions are fought with more vehemence than the litigations where some personal   stakes are involved; reason may be that petitioner has not to lose anything in such  petitions. It is forgotten that in public interest litigation the party has only to draw attention of the Court where some directions are required to be issued for doing justice in accordance with law… Further, legal process cannot be permitted to be misused for  tarnishing someone’s reputation.” 9

G.L. Peiris, “Public Interest Litigation in the Indian Subcontinent: Current  Dimension”, The International and Comparative Law Quarterly, 40(1), (1991).

10

11

Dev Sebastian v. PR Kurup, A.I.R. 1997 Kerela 214. Dilip Karambelkar v. Rear Admiral Vishnu Bhagwat , A.I.R. 1997 Bombay 131.

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The first part of this extract clearly identifies the petition as an attempt by the petitioner  to achieve ulterior motives using public interest litigation as a mask for his true intentions. The same is true for other cases where in the name of social justice, individual seek to attain their private goals, minimizing the cost of litigation and the time taken for  deciding the court by filing frivolous public interest litigations.

Lawyers Given the above scenario, one of the most difficult tasks for a social activist is to find a lawyer with a vision who is able to see the bigger picture and be prepared to fight for it. This calls for activists to sensitize lawyers on an ongoing basis and not restrict this activity to the peculiarities of a specific case. Also there is a need to sensitise law students in order to build a body of Social Action lawyers in this country.

Part of the reason why there are few Social Action lawyers in India is due to how poorly it pays. Social Action lawyers in the US (sometimes derisively called 'ambulance chasers') are easier to find. They largely operate on a 'no-win, no-fee' basis, given the huge damages that are awarded by US courts and which are then split between the client and the lawyer. In India even where free legal aid is provided - as it is to SCs & STs, industrial workers, women, bonded labourers, etc. - Soc ial- spirited lawyers end up  paying out of their pocket as the amounts that are fixed for even photocopying of  documents do not cover the cost of the service. In the U.K., where courts like those in India don't award massive damages, there has been an innovation in legal aid with wealthy benefactors pitching in to underwrite legal costs. One property developer underwrote the legal costs of a large number of arthritis patients who sued- for compensation for side effects they suffered from the drug Opren. Similarly Sir James Goldsmith, billionaire financier and father-in-law of Imran Khan, set up the Goldsmith Libel Fund which provided support to a motley assortment of libel defendants. But it is debatable if such private initiative would be forthcoming, or indeed welcome, to support Social Action Litigation cases involving the poor and the marginalised. Activists,

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however, need to seriously consider the issue of getting more Social-spirited lawyers to enter the fray.

Though the Constitution of India guarantees equal rights to all citizens, irrespective of  race, gender, religion, and other considerations, and the "directive principles of state  policy" as stated in the Constitution obligate the Government to provide to all citizens a minimum standard of living, the promise has not been fulfilled. The greater majority of  the Indian people have no assurance of two nutritious meals a day, safety of employment, safe and clean housing, or such level of education as would make it possible for them to understand their constitutional rights and obligations. Indian newspapers abound in stories of the exploitation - by landlords, factory owners, businessmen, and the state's own functionaries, such as police and revenue officials - of children, women, villagers, the poor, and the working class.

Though India's higher courts and, in particular, the Supreme Court have often been sensitive to the grim social realities, and have on occasion given relief to the oppressed, the poor do not have the capacity to represent themselves, or to take advantage of   progressive legislation. In 1982, the Supreme Court conceded that unusual measures were warranted to enable people the full realization of not merely their civil and political rights, but the enjoyment of economic, social, and cultural rights, and in its far- reaching decision in the case of PUDR [People's Union for Democratic Rights] vs. Union of  India [1982 (2) S.C.C. 253 ], it recognised that a third party could directly petition,

whether through a letter or other means, the Court and seek its intervention in a matter  where another party's fundamental rights were being violated. In this case, adverting to the Constitutional prohibition on "beggar", or forced labour and traffic in human beings, PUDR submitted that workers contracted to build the large sports complex at the Asian Game Village in Delhi were being exploited. PUDR asked the Court to recognize that "beggar" was far more than compelling someone to work against his or her will, and that work under exploitative and grotesquely humiliating conditions, or work that was not even compensated by prescribed minimum wages, was violation of fundamental rights. As the Supreme Court noted, the rule of law does not mean that the protection of the law

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must be available only to a fortunate few or that the law should be allowed to be  prostituted by the vested Actions 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 rule of law is meant for them also, though today it exists only on paper  and not in reality. If the sugar barons and the alcohol kings have the fundamental right to carry on their business and to fatten their purses by exploiting the consuming Social, have the chamars belonging to the lowest strata of society no fundamental right to earn an honest living through their sweat and toil? Thus the court was willing to acknowledge that it had a mandate to advance the rights of  the disadvantaged and poor, though this might be at the behest of individuals or groups who themselves claimed no disability. Such litigation, termed So cial Action Litigation by its foremost advocate, Professor Upendra Baxi , has given the court "epistolary  jurisdiction".

The traditional rule was considerably relaxed by the Supreme Court in its recent rulings: Peoples Union for Democratic Rights v. Union of India (A.I.R.. 1982, S C 1473 ). The

court now permits Social Action Litigation at the instance of “Social spirited citizens" for  the enforcement of constitutional & legal rights of any person or group of persons who  because of their socially or economically disadvantaged position are unable to approach court for relief. Social Action Litigation is a part of the process of participate justice and standing in civil litigation of that pattern must have liberal reception at the judicial door  steps.

In the Judges Transfer Case - AIR 1982, SC 149 : Court held Social Action Litigation

can be filed by any member of Social having sufficient Action for S ocial injury arising from violation of legal rights so as to get judicial redress. This is absolutely necessary for  maintaining Rule of law and accelerating the balance between law and justice. It is a settled law that when a person approaches the court of equity in exercise of  extraordinary jurisdiction, he should approach the court not only with clean hands but with clean mind, heart and with clean objectives.

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Shiram Food & Fertilizer case AIR (1986) 2 SCC 176 SC through Social Action

Litigation directed the Co. Manufacturing hazardous & lethal chemical and gases posing danger to life and health of workmen & to take all necessary safety measures before reopening the plant.

In the case of M.C Mehta V. Union of India (1988) 1 SCC 471 - In Social Action

Litigation brought against Ganga water pollution so as to prevent any further pollution of  Ganga water. Supreme court held that petitioner although not a riparian owner is entitled to move the court for the enforcement of statutory provisions, as he is the person Actioned in protecting the lives of the people who make use of Ganga water.

Parmanand Katara V. Union of India - AIR 1989, SC 2039 :- Supreme Court held in

the Social Action Litigation filed by a human right activist fighting for general Social Action that it is a paramount obligation of every member of medical profession to give medical aid to every injured citizen as soon as possible without waiting for any  procedural formalities.

Council For Environment Legal Action V. Union Of India - (1996)5 SCC281 : Social

Action Litigation filed by registered voluntary organisation regarding economic degradation in coastal area. Supreme Court issued appropriate orders and directions for  enforcing the laws to protect ecology. A report entitled "Treat Prisoners Equally HC" published in THE TRIBUNE, Aug 23 Punjab & Haryana High Court quashed the provisions of jail manual dividing prisoners into A , B & C classes after holding that there cannot be any classification of convicts on the basis of their social status, education or habit of living .This is a remarkable ruling given by High Court by declaring 576-A paragraph of the manual to be " Unconstitutional".

State V. Union Of India - AIR 1996 Cal 181 at 218: Social Action Litigation is a

strategic arm of the legal aid movement which intended to bring justice. Rule Of Law

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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 abused and misused by the vested Action. In a recent ruling of Supreme Court on " GROWTH OF SLUMS" in Delhi through Social Action Litigation initiated by lawyers Mr. B.L. Wadhera & Mr. Almitra Patel Co urt held that large area of Social land is covered by the people living in slum area . Departments despite being giving a dig on the slum clearance, it has been found that more and more slums are coming into existence. Instead of "Slum Clearance", there is "Slum Creation" in Delhi. As slums tended to increase; the Co urt directed the departments to take appropriate action to check the growth of slums and to create an environment worth for  living.

During the last few years, Judicial Activism has opened up a new dimension for the  judicial process and has given a new hope to the millions who starve for their livelihood. There is no reason why the Court should not adopt activist approach similar to Court in America, so as to provide remedial amplitude to the citizens of India.

Supreme Court has now realised its proper role in welfare state and it is using its new strategy for the development of a whole new corpus of law for effective and purposeful implementation of Social Action Litigation. One can simply approach to the Court for the enforcement of fundamental rights by writing a letter or post card to any Judge. That  particular letters based on true facts and concept will be converted to writ petition. When Court welcome Social Action Litigation, its attempt is to endure observance of social and economic programmes frame for the benefits of have-nots and the handicapped. Social Action Litigation has proved a boon for the common men. Social Action Litigation has set right a number of wrongs committed by an individual or by society. By relaxing the scope of Social Action Litigation, Court has b rought legal aid at the doorsteps of the teeming millions of Indians; which the executive has not been able to do despite a lot of  money is being spent on new legal aid schemes operating at the central and state level. Supreme Court's pivotal role in expanding the scope of Social Action Litigation as a counter balance to the lethargy and inefficiency of the executive is commendable.

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CHAPTER 3- SOCIAL ACTION LITIGATION AND ITS JUDICIAL RESPONSES:According to the jurisprudence of Article 32 of the Constitution of India, “The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this part is guaranteed”. Ordinarily, only the aggrieved party has the right to seek redress under Article 32. In 1981 Justice P. N. Bhagwati in .S. P. Gupta v. Union of India, 1981 (Supp) SCC 87 , articulated the concept of Social Action Litigation as follows, “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 by reasons of poverty, helplessness or disability or socially or economically disadvantaged position unable to approach the court for relief, any member of Social can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case any breach of fundamental rights of such persons or  determinate class of persons, in this court under Article 32 seeking judicial redress for the legal wrong or legal injury caused to such person or determinate class of persons.” The rule of locus standi have been relaxed and a person acting bonafide and having sufficient Action in the proceeding of Social Action Litigation will alone have a locus standi and can approach the court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private p rofit or political motive or any oblique consideration (Ashok Kumar Pandey v. State of W. B., (2004) 3 SCC 349).

Supreme Court in Indian Banks’ Association, Bombay and ors v. M/s Devkala Consultancy Service and Ors., J. T. 2004 (4) SC 587 , held that “In an appropriate case,

where the petitioner might have moved a court in her private Action and for redressal of  the personal grievance, the court in furtherance of Social Action may treat it a necessity

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to enquire into the state of affairs of the subject of litigation in the Action of justice. Thus a private Action case can also be treated as Social Action case”. In Guruvayur Devaswom Managing Commit. And Anr. Vs. C.K. Rajan and Ors, J.T. 2003 (7) S.C. 312, S.C. held, “The Courts exercising their power of judicial review

found to its dismay that the poorest of the poor, depraved, the illiterate, the urban and rural unorganized labour sector, women, children, handicapped by 'ignorance, indigence and illiteracy' and other down trodden have either no access to justice or had been denied  justice. A new branch of proceedings known as 'Social Action Litigation' or 'Social Action Litigation' was evolved with a view to render complete justice to the aforementioned classes of persona. It expanded its wings in course of time. The Courts in  pro bono Socialo granted relief to the inmates of the prisons, provided legal aid, directed speedy trial, maintenance of human dignity and covered several other areas. Representative actions, pro bono Socialo and test litigations were entertained in keeping with the current accent on justice to the common man and a necessary disincentive to those who wish to by-pass the, real issues on the merits by suspect reliance on peripheral  procedural shortcomings… Pro bono Socialo constituted a significant state in the present day judicial system. They, however, provided the dockets with much greater  responsibility for rendering the concept of justice available to the disadvantaged sections of the society. Social Action Litigation has co me to stay and its necessity cannot be overemphasized. The courts evolved a jurisprudence of compassion. Procedural propriety was to move over giving place to substantive concerns of the deprivation of rights. The rule of locus standi was diluted. The Court in place of disActioned and dispassionate adjudicator became active participant in the dispensation of justice”.

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ATTITUDE OF COURTS TOWARD SAL:As shown in the last chapter, while the courts in India have taken a very strict stance as far as such petitions which are filed as PILs with the fraudulent intention of using this system of social action litigation to circumvent the cost and the time factor of normal litigation, when the courts do deal extensively with PILs, they have been exhibiting what may be called as double standards. On the one hand are cases where the Supreme Court has refused to act on a PIL on the ground that the PIL relates to matters which are related to policy formation, and as such fall outside the ambit of the Supreme Court. This phenomenon can be seen in Rural   Litigation and Entitlement Kendra v. State of Uttar Pradesh12, where the court decided that it could not entertain the PIL filed by the petitioner contesting the fast exploitation and depletion of natural resources by the government, on the grounds that the using or  not using of the resources which fall in the territory of the concerned government, is an issue of policy, and so the government can by itself decide where the correct balance  between the preservation of the environment and using of natural resources lies. Another  similar case which can be taken as an example of this attitude of the courts is where a  petition by an ex Director General of India, questioning the security to be provided by the government to certain protected people was rejected as it was held that this was a question to be deliberated over and decided by experts and did not want a judicial determination, being a matter of policy to be determined by the government. On the other hand however, we have cases where the courts have not hesitated in interfering to a very large extent in the so called policy matters. Where a PIL was filed claiming negligence on the part of the government which was leading to a large number  of train accidents, the court laid down definite guidelines on which the policy of the state should be based, announcing that the railways should be run as an organization for public service and not merely as a profit gaining venture13.

12

Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh, (1986) Supp. SCC 517. 13

Id.

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Similarly, in a case where a PIL was filed questioning the standard of patients in a government mental hospital, the court freely dictated in the realm of administrative matters, making many provisions such as the providing of blankets to all patients, increasing the daily food allowance etc., which on their face are purely administrative in nature, mandatory and imposed the same on the institution.14 The court showed a similar  enthusiasm in deciding on administrative matters in a case where the bad conditions  prevailing in a protective home for girls being run by the Uttar Pradesh government.15 As is apparent from the two sets of decisions given by the Indian courts, there is in fact a double standard where the treatment of PILs by the Indian courts is concerned. While in some cases the courts have outright refused to intervene in the matter claiming that it is a  policy issue, and hence it would not be proper for the court to interfere in the same, in some other cases the court has taken the opportunity given to it and has tried to reform the existing administration and policies for the better. This has given rise to considerable concern as now the growing fear is that carried by the momentum of the wave of social action litigation that the courts in India are currently riding, the courts will overshoot the limit which has been draw for them, and this will result in the enforcing of non enforceable rights, namely the directive principles of state  policy. In order to circumvent the obstacle of the non enforceability of what might be called extended human rights, the courts have drawn from their power to issue directives16, in some cases conveniently ignoring that this power is also confined to the enforcing of fundamental rights alone17.

14

Rakesh Chand Narain v. State of Bihar , (1986) Supp. SCC 576.

15

Dr. Upendra Baxi v. State of Uttar Pradesh, (1986) 4 SCC 106.

16

Centre for Legal Research v. State of Kerela, A 1986 SC 2195.

17

D.D. Basu, Human Rights in Constitutional Law (Second Edition (First Reprint),  Justice B.P. Bannerjee and Dr. A.K. Massey, eds., New Delhi: Wadhwa, 2005) (1994) at 35.

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ASPECTS OF SOCIAL ACTION LITIGATION :(a) Remedial in Nature

Remedial nature of Social Action Litigation 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 changed the procedural nature of the Indian law into dynamic welfare one. Bandhu Mukti Morcha v. Union of India, Unnikrishnan 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 concep t of Social Action Litigation is much  broader in relation to the American, 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

In the words of S. C. in People’s Union for Democratic Rights v. Union of India, AIR  1982 S.C. 1473, “We wish to point out with all the emphasis at our command that Social

Action 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 or resisting such relief”. Non-adversarial litigation has two aspects. 1. Collaborative litigation; and 2. Investigative Litigation Collaborative Litigation: In collaborative litigation the effort is from all the sides. The

claimant, the court and the Government or the Social official, all are in co llaboration here 31

to see that basic human rights become meaningful for the large masses of the people. Social Action Litigation helps executive to discharge its constitutional obligations. Court assumes three different functions other than that from traditional determination and issuance of a decree. (i). Ombudsman- The court receives citizen complaints and brings the most important

ones to the attention of responsible government officials. (ii) Forum –  The court provides a forum or place to discuss the Social issues at length

and providing emergency relief through interim orders. (iii) Mediator –  The court comes up with possible compromises. Investigative Litigation : It is investigative litigation because it works on the reports of 

the Registrar, District Magistrate, comments of experts, newspapers etc. (e) Crucial Aspects

the flexibility introduced in the adherence to procedural laws. In Rural Litigation and Entitlement Kendra v. State of U.P., (1985) 2 SCC 431 , court rejected the defence of 

Res Judicta. Court refused to withdraw the Social Ac tion Litigation and ordered compensation too. In R.C. Narain v. State of Bihar , court legislated the rules for the welfare of the persons living in the mental asylum. To curtail custodial violence, Supreme Court in Sheela Barse v. State of Maharashtra , issued certain guidelines. Supreme Court has broadened the meaning of Right to live with human dignity available under the Article 21 of the Constitution of India to a greatest extent possible. (f) Relaxation of strict rule of Locus Standi

The strict rule of locus standi has been relaxed by way of (a) Representative standing, and (b) Citizen standing. In D.C.Wadhwa v. State of Bihar, AIR 1987 SC 579, S.C . held that a petitioner, a professor of political science w ho had done substantial research and deeply interested in ensuring proper implementation of the constitutional provisions, challenged the practice followed by the state of Bihar in promulgating a number of  ordinances without getting the approval of the legislature. The court held that the  petitioner as a member of Social has ‘sufficient Action’ to maintain a petition under  Article 32.

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The rule of locus standi have been relaxed and a person acting bona fide and having sufficient Action in the proceeding of Social Action Litigation will alone have a locus standi and can approach the court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private p rofit or political motive or any oblique consideration.

•

FRIVOLOUS SOCIAL ACTION LITIGATIONS

Social Action Litigation is a RULE OF DECLRED LAW by the Courts of  Record However, the person or entity filing the pe tition must prove to the satisfaction of 

the court that the petition is being filed for a larger Social Action and not just as a frivolous litigation by a busy body or for individual or pecuniary gains and profit. The 38th Chief Justice of India Justice S. H. Kapadia said huge costs would be imposed on litigants filing frivolous Social Action Litigation petitions. His statement was widely welcomed because instances of unscrupulous elements filing Social Action Litigation to advance personal or pecuniary Action had witnessed an upward trend in recent years. And last year too, a bench of the apex court raised concern over the misuse of Social Action Litigations. The same bench had also issued a set of guidelines, which it wanted all courts in the country to observe while entertaining Social Action Litigations. In a speech in September 2008, Prime Minister Manmohan Singh also expressed concern over the misuse of the Social Action Litigation: “Many would argue that like in so many things in Social life, in Social Action Litigation too we may have gone too far. Perhaps a corrective was required and we have had some balance restored in recent times.”  Now, in what could result in the most effective tool against frivolous Social Action Litigations, the Union Ministry of Law and Justice is giving final touches to a law to regulate the SOCIAL ACTION LITIGATION. And helping the Ministry in its endeavour  is none other than former Chief Justice of India P N Bhagwati , acknowledged as

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somebody who along with Justice V R Krishna Iyer pioneered the concept of Social Action Litigation in the country. Chastising those who move courts with such dubious motives , the judgment said: “This court wants to make it clear that an action at law is not a game of chess. A litigant who approaches the court must come with clean hands. He cannot prevaricate and take inconsistent positions.” Since the Amar Singh petition was vague , not conforming to the rules of procedure and riddled with inconsistencies, the court did not go into his main grievance — infringement of privacy. The only positive outcome of the case was the court’s request to the government to “frame certain statutory guidelines to prevent interception of telephone conversation on unauthorised requests.” In this case,

Reliance Infocom acted on a forged request from the police. In the judgment of Kalyaneshwari vs. Union of  India, the court deprecated misuse of 

Social Action Litigation to wage business battles. A writ petition was filed in the Gujarat High Court seeking the closure of asbestos un its, alleging that the material was harmful to humans. The high court dismissed it, stating that the petition was filed at the behest of rival industrial groups that wanted to push their products as substitute for asbestos. Undaunted, a similar petition was then moved in the Supreme Court. The plea was not only dismissed, but the person who mooted it was asked to pay cost of Rs 1 lakh and sit in the court for a whole day .

The judgment said: “The petition lacks bona fide and in fact was instituted at the behest of a rival industrial group, which was Actioned in banning of the activity of mining and manufacturing of asbestos. A definite attempt was made by it to secure a ban on these activities with the ultimate intention of increasing the demand of cast and ductile iron  products as they are some of the suitable substitute for asbestos. Thus it was litigation initiated with ulterior motive of causing industrial imbalance and financial loss to the industry of asbestos through the process of court.” The court declared that it was its duty in such circumstances to punish the petitioners exercising its power under the Contempt of Courts Act. The court must “ensure that such unscrupulous and undesirable Social Action Litigation be not instituted in

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courts of law so as to waste the valuable time of the courts as well as preserve the faith of the Social in the justice delivery system.”

“By now it ought to be plain and obvious that this Court does not approve of an approach that would encourage petitions filed for achieving oblique motives on the basis of wild and reckless allegations made by individuals, i.e., busybodies,” a Bench of Justices B Sudershan Reddy and SS Nijjar observed in their March 29 judgment released on Thursday. The Bench overruled an Andhra Pradesh High Court decision of April 2010 in which it set aside the services of a retired IPS officer on special duty with the Tirumala Tirupathi temple. The High Court’s decision was on a Social Action petition filed by one S Mangati Gopal Reddy, who alleged in court that the IPS officer, P Seshadri, was involved in the loss of “300 gold dollars” from the temple and should not continue in office.The Supreme Court, surprisingly, found that the High Court had decided against Seshadri with very little information about Reddy himself, except that he is an “agriculturist” by profession and a “staunch devotee of Lord Venkateshwara (the temple deity) since childhood”. “The parameters within which Social Action Litigation can be entertained have been laid down. The credentials, the motive and the objective of the petitioner have to be apparently and patently aboveboard. Otherwise the petition is liable to be dismissed at the threshold,” the judgment stated. Reasoning as to why it continues to

skeptical about a large number of SOCIAL ACTION LITIGATIONs, the Bench speaks for the Supreme Court when it says that “judiciary has to be extremely careful to see that  behind the beautiful veil of Social Action an ugly private malice, vested Action and/or  Sociality-seeking is not lurking”. “This Court (Supreme Court of India) must not allow its process to be abused for oblique considerations by masked phantoms that monitor at times from behind,” it

said.

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CHAPTER 4- SOCIAL ACTION LITIGATION AND ITS IMPACT ON SOCIETY:-

Through the mechanism of Social Action Litigation, 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 Social Action Litigation.

2) By democratization of access to justice. This is done by relaxing the traditional rule of locus standi. Any Social 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 epistolary 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 Social Action Litigation matters does not preclude the aggrieved person from bringing a civil suit for damages. In Social Action Litigation cases the court can fashion any relief to the victims.

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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 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.

SOCIAL ACTION LITIGATION AS AN INSTRUMENT OF SOCIAL CHANGE: Social Action Litigation is working as an important instrument of social change. It is working for the welfare of every section of society. It’s the sword of every one used only for taking the justice. The innovation of this legitimate instrument proved beneficial for  the developing country like India. Social Action Litigation has been used as a strategy to combat the atrocities prevailing in society. It’s an institutional initiative towards the welfare of the needy class of the society. In Bandhu Mukti Morcha v. Union of India, S.C. ordered for the release of bonded labourers. In Murli S. Dogra v. Union of India ,

court banned smoking in Social places. In a landmark judgement of Delhi Domestic Working Women’s Forum v. Union of India, (1995) 1 SCC 14 , Supreme Court issued

guidelines for rehabilitation and compensation for the rape on working women. In Vishaka v. State of Rajasthan Supreme court has laid down exhaustive guidelines for 

 preventing sexual harassment of working women in place of their work.

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CHAPTER 5: CONCLUSION In order to conclude this paper, one must analyze the concept of Social Action Litigation once again, this time in light of the entire phenomena which are related to it. Firstly, SAL is to be understood as the Indian counterpart of the PIL system prevalent in countries like USA and other western nations. However, the two although interchangeable in most circumstances are not always in the same context. As explained earlier in the paper, the concept in India is limited to the achieving of Social Justice for the poor, and such litigation which is prevalent in western countries and falls under Public Interest Litigation as understood in those countries, involving the interests of private organizations, is excluded in India. In India the motive behind introducing PIL is simply to ensure that justice is done, and the many underprivileged people of our country, who for any reason can not get their  fundamental rights enforced, are not deprived of the same. In as much as this is the objective of such litigation in India, the name, Social Action Litigation, given to it in specific context of India is very apt. Secondly, while it was necessary for the courts to lower the standards of locus  standi prevailing in the courts before this concept was introduced in order to ensure that this very same concept and its main aim and objective was not defeated at the very outset due to the cases not coming to the notice of the courts at all due to the inability of the directly affected to do so, this relaxation has led to the flooding of the already burdened and lagging Indian judicial system with frivolous suits filed with fraudulent intentions, creating an even greater burden on the Indian courts, which are already bowed down by the weight of years of pending cases. Thirdly, the courts seem to exhibit double standards as far as social action litigation is concerned. Sometimes the courts refuse to decide in a case on grounds that the issue involved is one of policy and so precludes the intervention of the courts, while in other  cases the courts seem to welcome the opportunity to introduce reforms in the administrative system, making sure that the policy of the government is on the right track. This has led to the claim that the Indian courts, are heavily indulging in judicial

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activism, and are thereby circumventing the provisions of the Constitution themselves, deciding on matters that they should not interfere in , and trying to enforce directive  principles of state policy, which should not be enforceable by any courts. In the researchers opinion however, this claim should not be the source of too much worry, due to the fact that as far as such matters are concerned, the courts do seem to draw a firm line as to the extent to which, if at all, they can interfere. This is apparent from such cases where the Supreme Court of India has warned the high courts form indulging in extensive judicial activism, and in their zeal forgetting their own limitations set by the Constitution of India18 Further, it is humbly submitted that Social Action Litigation is still is in experimental stage. Many deficiencies in handling the kind of litigation are likely to come on the front. But these deficiencies can be removed by innovating better techniques. In essence, the Social Action Litigation develops a new jurisprudence of the accountability of the state for constitutional and legal violations adversely affecting the Actions of the weaker  elements in the community. Finally, returning to the vital point of the growing misuse of the system of social action litigation in India in order to achieve private motives hidden in the mantel of public interest, it is important to note that there should not be a situation where the people and the courts alike loose faith in the whole concept of SAL, thereby discarding this excellent measure which is granting relief to the many poor and uneducated of our country, and is ensuring that their ignorance is not used to deny them their fundamental rights. We may end with the hope once expressed by Justice Krishna Iyer, “The judicial activism gets its highest bonus when its orders wipe some tears from some eyes”. On this note the researcher would like to end the paper with this quote by Dr. Upendra Baxi: “The Supreme Court of India is at long last becoming, after thirty-two years of the  Republic, the Supreme Court for Indians. For too long, the apex constitutional court had  become ‘an arena of legal quibbling for men with long purses’. Now increasingly, the court is being identified by Justices as well as people as the ‘last resort for the oppressed  18

State of Himachal Pradesh v. A parent of A Student of Medical College, Simla, (1985) 3 SCC 169.

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and the bewildered’. The transition fro a traditional captive agency with a low social  visibility into a liberated agency with a high socio-political visibility is a remarkable development in the career of the Indian appellate judiciary.”19

BIBLIOGRAPHY: 19

Upendra Baxi, Taking Suffering Seriously: Social Action Litigation in the Indian Supreme Court of India, Judges and Judicial Power, 1985.

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