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Mechanism of Public Interest Litigation: 

“ … because PIL was devised to bring quick results, bypassing normal procedures, and since it is considered a potent weapon, it was bound to attract forces which would use it for the wrong reasons”

If past is any indicator it will be seen that unusual measures are sometimes justified to enable people to fully realise not merely their civil and political rights but also their economic and cultural rights. One such technique used in our society in recent times is Public Interest Litigation (PIL for short). PIL began to emerge in India around the late 1970s and early 1980s when the Indian judiciary responded in a sympathetic way to the initiatives of Indian social action groups, journalists and scholars. It became possible for any member of the public, not only public interest groups, to initiate litigation by merely addressing a letter to a judge. In this way a number of public interest issues affecting prisoners, workers and children were brought to the attention of the court. This was achieved by an expansion of the doctrine of standing (locus standi) which permitted any bona fide petitioner to bring matters of public interest before the court. The petitioner was not required to show that he or she was personally affected. Even formal court procedures for the commencement of such actions were dispensed with. Actions could be initiated even by writing a letter to the court, and this would be converted into a formal petition and notice issued on the respondent. The court invented novel methods for collection of facts including appointing a socio-legal commission of inquiry to investigate the disputed facts and submit a report to the court. In developing this litigation the Supreme Court of India held that court procedures must be made less formal to enable all segments of society to have access to the courts. Most disadvantaged and economically underprivileged groups, it was pointed, lack the capacity to approach the courts on their own and the court should permit non-governmental organizations and public interest groups to litigate on their behalf.

On jurisprudential grounds also, PIL is different from traditional litigation inasmuch as it  normally touches issues reserved for other branches of the State.  The courts try to find broad social and economic facts, as opposed to facts between parties as provided in the adversarial legal system we have inherited from the British. In this kind of litigation the Courts have to weigh and balance competing and conflicting social and economic interests that are difficult to resolve by traditional methods of adjudication which provide for determination of rights of individuals only. At times it even involves continuing supervision of the court. Then PIL affects the lives of many more people than the traditional litigation. These features of PIL , however, also raise the issues of separation of powers and  legitimacy..

The philosophy, popularity and momentum of PIL in the last two decades has resulted in the Courts entertaining more PIL petitions than is constitutionally justified. In some recent environment PIL judgments,  eventhough the verdict of the Court was lauded by the public, the cost of the verdict was borne by displaced workmen, school bus drivers etc.. Their interest was not represented in the Court. Whereas industries were shifted from Delhi there was no effective rehabilitation of the workers. Norms were laid for the recruitment and retention in service of school bus drivers but no effective alternative was provided for those bus drivers who were liable to be retrenched in view of the Court directions. One of the reasons for this anomalous situation is that in PIL of large scope, the interests of all the groups or subgroups having diverse interests cannot be represented effectively in the Court. Even if the Court directs public notice of the proceedings to all interested persons by publication in newspapers, unrepresented and underrepresented interests would still remain. In this scenario the Court does not have enough material before it to weigh and balance social interests or conclude what is in the public interest. And if the Court still reaches a decision that decision is bound to be based on principles divorced from principles of natural justice. According to our Constitution when a person’s fundamental rights are affected, he may approach the higher Courts for justice. The issue is, what happens if the decision of the Court itself takes away the  fundamental rights of persons not even represented in the Court!

The other major argument is that, in PIL, the Courts determine issues of public policy which by definition belong to the domain of elected representatives. The absence of complete material and under representation of various interests, classes, groups or sub-groups make the judicial decision, at least in theory, a weak substitute for policy determined by the representatives of the people. However, it may be added that the Courts have rightly questioned government policies and action, considering the increasing incompetence of the governments to uphold constitutional values and public interest. The caution is only against excessive and indiscriminate use of a largely beneficial tool - and weeding out those petitions that are motivated by ulterior motives.

Finally, because PIL was devised to bring quick results, bypassing normal procedures, and since it is considered a potent weapon, it was bound to attract forces which would use it for the wrong reasons. In a recent judgment of the Delhi High Court (Dr. Ambedker Basti Vikas Sabha v. Delhi Vidyut Board, 87 (2000) DLT 170 (DB)), the Court warned against the misuse of PIL. The Court held that PIL 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 attractive brand name of public interest litigation should not be used for suspicious products of mischief. The Court must not allow its process to be abused for oblique considerations. It must be said, that in present times of political uncertainty and rampant corruption it is not desirable that the Courts just shut out PIL. However, the question of proper representation of various interests has to be seriously addressed lest the Court inadvertently deprive persons of their rights and entitlements especially when the same escaped notice of the Court.

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