Public Interest Litigation in India_ a Critical Review

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  Electronic copy available at: http://ssrn.com/abstract=1424236   Public Interest Litigation in India: A Critical Review By Surya Deva  Reprinted from Civil Justice Quarterly Issue 1, 2009  Sweet & Maxwell 100 Avenue Road Swiss Cottage London NW3 3PF (Law Publishers)  Electronic copy available at: http://ssrn.com/abstract=1424236 Public Interest Litigation in India: A Critical Review  19 Public Interest Litigation in India: ACritical Review Surya Deva *  Assistant Professor, School of Law, City University of Hong Kong, Hong Kong  India; Litigation; Public interest Abstract:  Public interest litigation (PIL) has a vital role in the civil justice system inthat it could achieve those objectives which could hardly be achieved through conventional  private litigation. PIL, for instance, offers a ladder to justice to disadvantaged sections of  society, provides an avenue to enforce diffused or collective rights, and enables civil societyto not only spread awareness about human rights but also allows them to participate in government decision making. PIL could also contribute to good governance by keeping the government accountable.This article will show, with reference to the Indian experience, that PIL could achieve these important objectives. However, the Indian PIL experience also shows us that it is critical to ensure that PIL does not become a facade to fulfil private interests,settle political scores or gain easy publicity. Judiciary in a democracy should also not use PIL as a device to run the country on a day-to-day basis or enter the legitimate domain of the executive and legislature. The challenge for states, therefore, is to strike a balance in allowing legitimate PIL cases and discouraging frivolous ones. One wayto achieve this balance could be to build in economic (dis)incentives in PIL and alsoconfine it primarily to those cases where access to justice is undermined by some kind of  disability. Introduction One of the overarching aims of law and legal systems has been to achieve justice in the society and public interest litigation (PIL) has proved to bea useful tool in achieving this objective. For example, PIL—in which thefocus is not on vindicating private rights but on matters of general public *B.A. (Hons), L.L.B., L.L.M. (Delhi); Ph.D. (Sydney). Formerly, Assistant Professor, NationalLaw Institute University, Bhopal; Lecturer, Faculty of Law, University of Delhi, Delhi. This articleis a revised version of a paper presented at a Seminar on  Civil Justice in Asia: Recent Developments ,co-organised by the Faculty of Law, University of Hong Kong and the School of Law, City Universityof Hong Kong, on September 10, 2008. I would like to thank Professor Adrian Zuckerman for invitingme to contribute this article for publication in the  Civil Justice Quarterly . C.J.Q., V OL  28, I SSUE  1 © 2009 T HOMSON  R EUTERS  (L EGAL ) L IMITED  20  Civil Justice Quarterly interest—extends the reach of judicial system to disadvantaged sections of society. It also facilitates an effective realisation of collective, diffused rights for which individual litigation is neither practicable nor an efficient method.Nevertheless, PIL has generally received peripheral attention in debateson civil justice reforms around the world. 1 This is not to suggest that theevolution of PIL in various jurisdictions has missed the attention of scholars. 2 To continue this tradition, this article aims to critically examine the evolutionand development of PIL in India. The main objective of this examination isto highlight the dark side of PIL so that other jurisdictions could learn usefullessons from the Indian experience. The choice of India—a democracy of over 1 billion people governed by a common law system, rule of law andindependent judiciary—for learning lessons in the area of PIL is an obviousone given the contribution of India to the PIL jurisprudence.I begin this article with a review of the evolution of PIL, which could betraced to mid-1970s, and the debate about its appropriate label. An attemptis then made to divide the past PIL cases of more than 30 years into threebroad phases to understand better the transformations that have taken place inthe PIL jurisprudence over these years. Finally, I highlight the major variableswhich provided impetus to the development of PIL in India.Although this article aims to highlight the dark side of PIL, it will not be fair if the positive contributions of PIL are not acknowledged. After all, the darkside could only be discussed in the backdrop of a bright side. The section on‘‘Positive contributions’’, therefore, briefly highlights the positive contributionsthat the PIL project has made within and outside India. ‘‘The dark side’’ thenoffers critical insights into various aspects of PIL, which together constitute itsdark side. Here again, before mapping these facets of the dark side, I will takereaders to a quick tour of some recent PIL cases in India. The conclusion willsum up the discussion and also throw some light on how other jurisdictionscould benefit from the Indian PIL experience. Evolution of PIL in India It should be noted at outset that PIL, at least as it had developed inIndia, is different from class action or group litigation. Whereas the latter  1 See, for example, the attention that PIL has received in recent civil justice reforms in the UK, Indiaand Hong Kong. 2 S.P. Sathe,  Judicial Activism in India  (New Delhi: OUP, 2002); Upendra Baxi, ‘‘Taking SufferingSeriously: Social Action Litigation in the Supreme Court of India’’ (1985)  Third World Legal Studies 107; C.D. Cunningham, ‘‘Public Interest Litigation in Indian Supreme Court: A Study in the Lightof the American Experience’’ (1987) 29  Journal of Indian Law Institute   494; Bhagwati J., ‘‘JudicialActivism and Public Interest Litigation’’ (1984) 23  Columbia Journal of Transnational Law   561; ChristineM. Forster and Vedna Jivan, ‘‘Public Interest Litigation and Human Rights Implementation: TheIndian and Australian Experience’’ (2008) 3(1)  Asian Journal of Comparative Law  ; Parmanand Singh,‘‘Human Rights Protection through Public Interest Litigation in India’’ (1999) XLV  Indian Journal of  Public Administration  731; Susan S. Susman, ‘‘Distant Voices in the Courts of India Transformationof Standing in Public Interest Litigation’’ (1994)  Wisconsin International Law Journal   57; HelenHershkoff, ‘‘Public Interest Litigation: Selected Issues and Examples’’,  http://siteresources.worldbank.org/ INTLAWJUSTINST/Resources/PublicInterestLitigation%5B1%5D.pdf    [Accessed October 8, 2008]. C.J.Q., V OL  28, I SSUE  1 © 2009 T HOMSON  R EUTERS  (L EGAL ) L IMITED  Public Interest Litigation in India: A Critical Review  21 is driven primarily by efficiency considerations, the PIL is concerned atproviding access to justice to all societal constituents. PIL in India has beena part of the constitutional litigation and not civil litigation. 3 Therefore,in order to appreciate the evolution of PIL in India, it is desirable tohave a basic understanding of the constitutional framework and the Indian judiciary. 4 After gaining independence from the British rule on August 15, 1947, thepeople of India adopted a Constitution in November 1949 with the hope toestablish a ‘‘sovereign socialist secular democratic republic’’. 5 Among others,the Constitution aims to secure to all its citizens justice (social, economicand political), liberty (of thought, expression, belief, faith and worship) andequality (ofstatusandofopportunity). 6 Theseaims were notmerelyaspirationalbecause the founding fathers wanted to achieve a social revolution through theConstitution. 7 The main tools employed to achieve such social change werethe provisions on fundamental rights (FRs) and the directive principles of statepolicy (DPs), which Austin described as the ‘‘conscience of the Constitution’’. 8 In order to ensure that FRs did not remain empty declarations, the foundingfathers made various provisions in the Constitution to establish an independent judiciary. As we willsee below, provisions related toFRs, DPsand independent judiciary together provided a firm constitutional foundation to the evolutionof PIL in India.Part III of the Constitution lays down various FRs and also specifies groundsfor limiting these rights. ‘‘As a right without a remedy does not have muchsubstance’’, 9 the remedy to approach the Supreme Court directly for theenforcement of any of the Pt III rights has also been made a FR. 10 Theholder of the FRs cannot waive them. 11 Nor can the FRs be curtailedby an amendment of the Constitution if such curtailment is against the 3 The Indian Code of Civil Procedure though allows for class action: ord.1 r.8 of the Code of CivilProcedure 1908. Furthermore, s.91 of the Code provides: ‘‘In the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for suchother relief as may be appropriate in the circumstances of the case, may be instituted  . . .  with the leaveof the Court, by two or more persons, even though no special damage has been caused to such personsby reason of such public nuisance or other wrongful act.’’ 4 See Sheetal B. Shah, ‘‘Illuminating the Possible in the Developing World: Guaranteeing the HumanRight to Health in India’’ (1999) 32  Vanderbilt Journal of Transnational Law   435, 463. 5 Constitution of India 1950 Preamble. Although the terms ‘‘socialist’’ and ‘‘secular’’ were insertedby the 42nd amendment in 1976, there were no doubts that the Constitution was both socialist andsecular from the very beginning. 6 Constitution of India 1950 Preamble. 7 Granville Austin,  The Indian Constitution: Cornerstone of a Nation  (Oxford: Clarendon Press, 1966),p.27. ‘‘The social revolution meant, ‘to get (India) out of the medievalism based on birth, religion,custom, and community and reconstruct her social structure on modern foundations of law, individualmerit, and social education’.’’ (Austin,  Cornerstone of a Nation , p.26, quoting K. Santhanam, a member of the Constituent Assembly.) 8 Austin,  Cornerstone of a Nation , p.50. 9 M.P. Jain, ‘‘The Supreme Court and Fundamental Rights’’ in S.K. Verma and Kusum (eds),  FiftyYears of the Supreme Court of India—Its Grasp and Reach  (New Delhi: Oxford University Press, 2000),pp.1, 76. 10 Constitution of India 1950 art.32. 11 Basheshar Nath v CIT   AIR 1959 SC 149;  Nar Singh Pal v Union of India  AIR 2000 SC 1401. C.J.Q., V OL  28, I SSUE  1 © 2009 T HOMSON  R EUTERS  (L EGAL ) L IMITED
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