Dear Sir,
You may file PIL if the following factors are taken into consideration
Procedure for Filing Public Interest Litigation
(a) Filing
Public Interest Litigation petition is filed in the same manner, as a writ petition is filed. If a PIL is filed in a High Court, then two (2) copies of the petition have to be filed (for Supreme Court, then (4)+(1)(i.e.5) sets) Also, an advance copy of the petition has to be served on the each respondent, i.e. opposite party, and this proof of service has to be affixed on the petition.
(b) The Procedure
A Court fee of Rs. 50 , per respondent (i.e. for each number of party, court fees of Rs 50) have to be affixed on the petition. Proceedings, in the PIL commence and carry on in the same manner, as other cases. However, in between the proceedings if the Judge feels that he may appoint the commissioner, to inspect allegations like pollution being caused, trees being cut, sewer problems, etc. After filing of replies, by opposite party, or rejoinder by the petitioner, final hearing takes place, and the judge gives his final decision.
Against whom Public Interest Litigation can be filed
A Public Interest Litigation can be filed against a State/ Central Govt., Municipal Authorities, and not any private party. The definition of State is the same as given under Article 12 of the Constitution and this includes the Governmental and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. According to Art.12, the term “State” includes the Government and Parliament of India and the Government and the Legislatures of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.
Thus the authorities and instrumentalities specified under Art.12 are
• The Government and Parliament of India
• The Government and Legislature of each of the States
• All local authorities
• Other authorities within the territory of India or under the Government of India.
In Electricity Board, Rajasthan v. Mohan Lal, the Supreme Court held that “other authorities would include all authorities created by the Constitution of India or Statute on whom powers are conferred by law”.
However, “Private party” can be included in the PIL as “Respondent”, after making concerned state authority, a party. For example- if there is a Private factory in Delhi, which is causing pollution, then people living nearly, or any other person can file a PIL against the Government of Delhi, Pollution Control Board, and against the private factory. However, a PIL cannot be filed against the Private party alone.
Aspects of Public Interest Litigation
(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 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 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: In the words of Supreme Court in People’s Union for Democratic Rights v. Union of India, “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 or resisting such relief”.
Non-adversarial litigation has two aspects:
1. Collaborative litigation: In collaborative litigation the effort is from all the sides. The claimant, the court and the Government or the public official, all are in collaboration here to see that basic human rights become meaningful for the large masses of the people. PIL 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 public issues at length and providing emergency relief through interim orders. (iii) Mediator – The court comes up with possible compromises.
2. 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., Supreme Court rejected the defense of Res Judicta. Court refused to withdraw the PIL and ordered compensation too. 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, Supreme Court held that a petitioner, a professor of political science who 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 repromulgating a number of ordinances without getting the approval of the legislature. The court held that the petitioner as a member of public has ‘sufficient interest’ to maintain a petition under Article 32.
The rule of locus standi have been relaxed and a person acting bonafide and having sufficient interest in the proceeding of Public Interest 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 profit or political motive or any oblique consideration…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 and the legislature. It is depressing to note that on account of trumpery proceedings initiated before the courts, innumerable days are wasted, which time otherwise could have been spent for the disposal of cases of genuine litigants. Though the Supreme Court spares no efforts in fostering and developing the laudable concept of PIL and extending its ling arm of sympathy to the poor, ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go unnoticed, unrepresented and unheard.
(g) Epistolary Jurisdiction: The judicial activism gets its highest bonus when its orders wipe some tears from some eyes. This jurisdiction is somehow different from collective action. Number of PIL cells was open all over India for providing the footing or at least platform to the needy class of the society.
Factors that have contributed to growth of PIL
Among, the numerous factors that have contributed to the growth of PIL 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 labor, 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 any 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 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 labor as a case of bonded labor 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 labor commissioner and lower courts.
• In PIL 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.
Mechanism for protection of Human Rights through PIL
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 re-conceptualised 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 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 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 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.