GRASS-ROOT ACCESS TO JUSTICE IN INDIA BY RAWISEN GURIAEVOLUTION OF THE PUBLIC INTEREST LITIGATION AS THE GRASS ROOT ACCESSS TO JUSTICE MECHANISM IN INDIA Abstract No access to justice or denial of justice have forced the courts to evolve a novel branch of jurisprudence to deliver inclusive justice to these classes which came to be known as Public Interest Litigation (PIL). Public Interest Litigation as a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected. PIL is a policy for the protection of social and economic rights of the deprived groups. The critical objective of PIL is societal change by changing structural inequalities and power relations. PIL in India is primarily judge led and even judge induced. India has developed a judicial system that is responsive to the concerns of the poor and judges who are capable of giving legal effect to the claims that are voiced and find appropriate remedies. The expansion of PIL in the country discovered its own pitfalls and drawbacks. Indian PIL might rather be a Phoenix: a whole new creative arising out of the ashes of the old order 1 wanton. children.GRASS-ROOT ACCESS TO JUSTICE IN INDIA BY RAWISEN GURIA INTRODUCTION Justice is open to everybody in the same way as the Ritz Hotel – Judge Sturgess.”2 The Black Law’s Dictionary defines “Public Interest Litigation as a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected. 89 HARVARD LAW REVIEW 1281 (1976) As defined in Oxford English Dictionary 2nd Edition Volume XII 3 Right to life and human dignity has been recognized by the Supreme Court to grant social rights to various deprived groups of people. illiterate. The expression was initially used by American academic Abram Chaves to explain the tradition of people who wanted to bring social change through judgments that expanded rules and implemented accessible laws. An argument is put forward when the courts give judgement which change structural inequalities and power relations the question pertaining to legitimate role of courts in processes of societal change and whether an active role for the courts on social rights issues turn them into purely political bodies undermining their legitimacy. The impression that courts ought to device societal changes initiates the controversies regarding the appropriate role of courts as these changes blur the differences between law and politics. The Role Of The Judge In Public Law Litigation. The Chief Justice of India (AIR 1987 SC 38) No access to justice or denial of justice due to ignorance. public welfare. The term originated in the United States in the mid-1960s. have forced the courts to evolve a novel branch of jurisprudence to deliver inclusive justice to these classes which came to be known as Public Interest Litigation (PIL). 2 . 4 1 2 Abram Chaves. labourers etc.” PIL is a policy for the protection of social and economic rights of the deprived groups. women. 22 July 1928 The strategy of public interest litigation has been evolved by this Court with a view to bringing justice within the easy reach of the poor and disadvantaged sections of the community .Observation made by the honorable bench of the Supreme Court in the case of Bihar Legal Support Society v.3 The critical objective of PIL is societal change by changing structural inequalities and power relations. illiteracy and impecuniousness of the down trodden like poor. Constitutional privileges have been used to create social rights and litigation based on the right to equality has extended social benefits to new groups.1 The words ‘Public Interest’ means “the common well being. 4 Societal change is the desired common end which the courts or individuals want to achieve. K.). 462-485 See observations justifying the payment of compensation for human rights violations by state agencies in the following decisions: Bhim Singh v. 000 undertrial prisoners. at p. Bhagwati5 Though the earliest case of PIL was Hussainara Khatoon v. Judgement Today 2003 (7) Supreme Court 312 3 . provided legal aid. These proceeding led to the release of more than 40. unlawful detention and custodial torture by state authorities. JUSTICE AND CONSTITUTIONAL EMPOWERMENT (C. Supreme But Not Infallible (Oxford University Press. the term PIL was used for the first time in the case of Fertilizer Corporation Kamgar Union v. Oxford University Press 2007) at p. Upendra Baxi. (1985) 4 SCC 677. v. some changes may be effected whereby the judge is given a greater participatory role in the trial so as to place the poor. Bhagwati.8 5 Ashok Desai & S. Rajan. (1993) 2 SCC 746. Union of India (AIR 1981 SC 344) by Justice V. The Supreme Court accepted the locus standi of the advocate to maintain the writ petition. It is by the mechanism of PIL that the courts have been awarding monetary compensation for constitutional wrongs such as extra-judicial killings. Many of them had been in jail for longer periods than the maximum permissible sentences for the offences they had been charged with. Muralidhar.R. Representative actions/ pro bono publico were entertained in trust of justice to the common man and a crucial deterrent to those who wished to evade the genuine issues on the virtues of suspect dependence on tangential technical shortcomings. SUPREME COURT CASES (Journal Section) (1980) . al.7 The Courts in pro bono publico granted relief to the inmates of the prisons. Basu v. in HUMAN RIGHTS. A writ petition was filed by an advocate drawing the Court’s attention to the deplorable plight of these prisoners.N. A prominent newspaper the Indian Express published series of articles which exposed the plight of under-trials prisoners in the state of Bihar. The courts evolved jurisprudence of empathy and in place of being objective and unflustered umpire and became vigorous contributor in the dispensation of justice. State of Orissa. 7 Lutz Oette. a series of cases followed in which the Court gave directions through which the ‘right to speedy trial’ was deemed to be an integral and an essential part of the protection of life and personal liberty. Nilabati Behera v.GRASS-ROOT ACCESS TO JUSTICE IN INDIA BY RAWISEN GURIA I. Union of India. State of Bihar6. India’s International Obligations Towards Victims Of Human Rights Violations: Implementation In Domestic Law And Practice. The Supreme Court under trial: Undertrials and the Supreme Court. State of Jammu and Kashmir. D. emphasized on maintenance of human dignity etc. (1997) 1 SCC 416 8 Guruvayur Devaswom Managing Commit. Kirpal et. 35. (eds. Krishna Iyer and Justice P. as far as possible. at p. C. directed speedy trial.K. Raj Kumar & K.N. Pro bono publico constitutes a noteworthy position in the present day judicial system as they give the courts greater responsibility to render justice to the underprivileged sections of the society. Chockalingam ed. Thereafter.” . on a footing of equality with the rich in administration of justice. 161 6 AIR 1979 SC 1360.Justice P. 2000) 159-192. PIL IN THE INDIAN JUDICIAL SYSTEM “Even while retaining the adversary system. Right to speedy justice emerged as a basic fundamental right which had been denied to these prisoners. ‘Public Interest Litigation: Potential and Problems’ in B.N. 13 They were introduced to provide easy access to the court. . through a letter or other means. for example in the environmental field. Judicial Activism And Public Interest Litigation. The dilution of the requirement of ‘locus standi’ for initiating proceedings and becoming ‘people-friendly’ procedure is an important hallmark of PIL in India. M.9 The rule of locus standi have been tranquilled and a person acting with bonafide intention and having sufficient interest in the proceeding of PIL can advance to dab out violation of fundamental rights and genuine infringement of constitutional provisions but not for individual gain or personal profit or political reason or any oblique contemplation to the courts. K. P. Ordinarily only the aggrieved party has the right to seek redress under Article 32. cheap and unbureaucratic and introduced a non-adversarial process and lenient criteria of legal standing. this resulted in a surge of public litigation. Andhyarujina. Through the Agra Protective Home case and the Bandhua Mukti Marcha case. COLUMBIA JOURNAL OF TRANSNATIONAL LAW Volume 23(1985) at p.12 Epistolary jurisdiction or letter petition which allows any person or group to get cognizance from the Supreme Court gave massive momentum to litigation on behalf of underprivileged groups.11 It has been argued that the dilution of the requirement of locus standi has opened up the floodgates for frivolous cases and PIL either involves the litigants’ private interests or are vehicles for gaining publicity rather than seeking justice for disadvantaged groups. misuse of the procedure.14 But these matters were filed directly at the level of the Supreme Court or the High Court and the parties did not had a 9 Susan D.GRASS-ROOT ACCESS TO JUSTICE IN INDIA BY RAWISEN GURIA Article 32 of the Constitution of India says.Judicial Activism And Public Interest Litigation.C. 1992) 13 Galanter. 4 HASTINGS LAW JOURNAL 55 (2004) at p. N.57. Union of India (1982 (2) S. P.R. and seek its intervention in a matter where another party's fundamental rights were being violated 12 T. COLUMBIA JOURNAL OF TRANSNATIONAL LAW Volume 23(1985) A landmark case is People's Union for Democratic Right vs. Krishnan.. 253) where the Indian Supreme Court held that a third party could directly petition the court. and prevent public interest litigation from becoming a means for the advancement of middle-class concerns. “The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this part is guaranteed”. Distant voices in the Courts of India: Transformation of standing in Public Interest Litigation. and J. Judicial Activism and Constitutional Democracy in India (Bombay: N. N. in terms of handling the increased case load. Bread for the poor: access to justice and the rights of the needy in India. 13 WISCONSIN INTERNATIONAL LAW JOURNAL 57 (1994) 10 Ashok Kumar Pandey v. Susman. But it also illustrates problems associated with lowering access barriers.M. State of West Bengal (2004) 3 SCC 349 11 Bhagwati.10 When the Supreme Court made direct access in such cases which were simple. 789-834. on behalf of the concerns of the poorest. 14 Bhagwati. Tripathi. But the objective of PIL was to guarantee redressal to those who were underprivileged or were ignorant of their legal entitlements. the Court institutionalized the “practice of appointing socio -legal commissions of inquiry for the purpose of gathering relevant material in public interest litigation” 4 .C. To overcome which the Courts evolved the practice of appointing ‘fact-finding commissions’ on a case-by-case basis which were deputed to inquire into the subject-matter of the case and report back to the Court.15 II. Muralidhar. 164-167 16 Upendra Baxi. THIRD WORLD LEGAL STUDIES(1985). (eds. history cannot be16 15 Ashok Desai & S. ‘Public Interest Litigation: Potential and Problems’ in B. p. 2000) 159-192.GRASS-ROOT ACCESS TO JUSTICE IN INDIA BY RAWISEN GURIA evocative prospect to present evidence on record before the start of the court proceeding.108 5 . al. Kirpal et. Taking Suffering Seriously: Social Action Litigation In The Supreme Court Of India.). at p. Supreme But Not Infallible (Oxford University Press. ROLE OF JUDGES IN PIL MOVEMENT While labels can be borrowed.N. Though even a single case may have an important consequence on jurisprudence but a universal consequence on social policy is more probable where there is an overall strategy building up jurisprudence in the field and organisational machinery that is capable to exploit on the impetus provided by the legal process and sustain political stress during mobilisation and deliberation. Barucha has expressed the need for caution in the following 17 K. Rights organizations exist but their funding is inadequate to finance continuing litigation campaigns. legal. but the fragmented.19 The escalating reputation of PIL with activists on social rights is somewhat surprising in light of the academic cynicism concerning its effectiveness as well as its suitability on normative justification20.18 India has developed a judicial system that is responsive to the concerns of the poor and judges who are capable of giving legal effect to the claims that are voiced and find appropriate remedies. questioning the justiciability of social rights on normative as well as methodological grounds 6 .M. such as Brown v Board of Education (The 1954 case in the US on desegregation in schools) There is also an extensive theoretical debate on whether social rights belong in the courtroom. The major reasoning behind his decisions was that he insisted that the law was meant for the people and not vice-versa.R. individualized structure of the legal profession limits the overall impact of their efforts.P. Justice Krishna Iyer. 38 18 Upendra Baxi. Legal Assistance to the Poor. In proceedings seeking guidelines to guarantee legislative responsibility or ecological security the courts are more like collective problemsolvers rather than rancorous dispute among the advocates. His neo-Marxists leanings meant that people meant the ‘proletariat’ and not the ‘properteriate’17 PIL gained further inducement during the Emergency period of 1975-76 when legal aid to people was one of the key points of the twenty two point programme launched by Indira Gandhi. and organizational resources necessary for appellate litigation. Krishna Iyer was one of the fore-runners in this and his elevation to the Supreme Court in 1974 opened the floodgates of populist decisions. Some lawyers frequently volunteer their services for arguing rights-based claims.GRASS-ROOT ACCESS TO JUSTICE IN INDIA BY RAWISEN GURIA PIL in India is primarily judge led and even judge induced. 4 SUPREME COURT CASES (Journal Section) (1981) at p. The Judicial Universe of Mr. The best justification for that paradox is that the Indian sustains edifice for legal mobilization remains weak and fragmented like the multifarious financial. Justice S. It also seems clear that proceedings that are branch of a broader scheme are more prone in affirmative verdict that are realized and cause changes in policy. Judges have developed a series of new methods to surmount impediments to tackle what they believed to be socially pertinent cases.27 ECONOMIC AND POLITICAL WEEKLY 1005 (1975) 19 The Indian Supreme Court definitely is amongst the most vigorous courts in the world and it also is among the most compassionate of democratic and procedural rights.Sharma. But it has been incapable to develop a persistent and profound schema on individual rights. 20 Scholars have also questioned the efficacy of what are widely regarded as great triumphs of public interest litigation. Justice V. Chockalingam ed.). demands a long-term engagement. The petition in that case originated from the gang-rape of a grassroots social worker. like any sustained transformation. whatever the fundamental right may be and however good the cause. Raj Kumar & K. Sexual Harassment And Violence Against Women In India: Constitutional And Legal Perspectives. Though the decision has come under considerable criticism for encroaching into the domain of the legislature. ‘Public Interest Litigation: Potential and Problems’ in B. PIL AND SOCIAL RIGHTS 21 Ashok Desai & S. 7 . of cardinal importance that orders that are incapable of obedience and enforcement are not made. litigation is nevertheless an important step towards systemic reforms (1997) 6 SCC 241.”21 An example of such is the case of Vishaka v. Muralidhar. It is of cardinal importance to the confidence that people have in the Court that its orders are implicitly and promptly obeyed and is. (eds.K. Even though a particular petition may fail to secure relief in a wholesome manner or be slow in its implementation. in HUMAN RIGHTS. 2000) 159-192. Supreme But Not Infallible (Oxford University Press. Kirpal et. Srivastava. at p. JUSTICE AND CONSTITUTIONAL EMPOWERMENT (C. 182 22 D. It is counterproductive to have people say ‘The Supreme Court has not been able to do anything’ or worse. the fact remains that till date the legislature has not enacted any law on the point. It serves no purpose to issue some high profile mandamus or declaration that can remain only on paper. It must be remembered that meaningful social change. therefore. State of Rajasthan22 III.N. In that opinion the Court invoked the text of the Convention for the Elimination of all forms of Discrimination Against Women (CEDAW) and framed guidelines for establishing redressal mechanisms to tackle sexual harassment of women at workplaces.GRASS-ROOT ACCESS TO JUSTICE IN INDIA BY RAWISEN GURIA words: “This court must refrain from passing orders that cannot be enforced. al. Oxford University Press 2007) at p. 486-512. Critics warned that the Court began to act as a ‘parallel government’. 25 Often those whose social rights are most severely violated lack this knowledge.GRASS-ROOT ACCESS TO JUSTICE IN INDIA BY RAWISEN GURIA When traditional legal remedies were inadequate. legal literacy and rights awareness programmes in place. The poor cannot be allowed to be cheated out of their rights simply because those who should act do not act. environment. to which Justice Bhagwati replied that the judges were ‘merely enforcing the constitutional and legal rights of the underprivileged and obligating the Government to carry out its obligations under the law. COLUMBIA JOURNAL OF TRANSNATIONAL LAW Volume 23(1985) at p. and a focus on social rights issues in the media.24 Marginalised public in numerous cases lack essential legal literacy and are not conscious of their civil liberties or don’t see the trouble and objections they experience in terms of rights contraventions. It is as important to look at the broader impact of the litigation process on social policy directly and during influencing public discussions on social rights and the maturity of jurisprudence. To what extent there are civil society and community organisations mobilizing around social rights issues. local or international. They are entrenched in the rules. including monitoring agencies in charge of enforcing their orders.25The judges should be competent of pronouncing sufficient lawful way to tackle the social rights claims and find efficient solutions. education and gender.576. land. N. Courts must be receptive to social rights claims that are expressed. are important factors influencing the level of rights awareness and legal literacy and thus the likelihood of social rights claims being voiced. act partially.. Law is frequently portrayed as stationary authority which in shimmering power relations in society has an anti-poor bias.23 PIL is used and projected as a stratagem to influence social policy in fields such as health. The PIL may also indirectly impact on public discussion and policy. human rights education in schools. Campaigners see it as a means through which the voice of the marginalized can be expressed into the legal-political arrangement and as an instrument to make the state more receptive and responsible to their rights. or fail to monitor what they are doing’ 24 Structures of inequality involve both the formation of judiciary and the perspective within which they function. Legal and regulatory institutions in turn influence the allocation of opportunities and the processes by which these opportunities can be leveraged to augment well-being. P. The worth PIL ought to not only be judged in terms of how a case fares in court or whether the provisions of the decision are complied with. 8 . The universal impact of PIL is not inevitably straight to its success in court. new were created. In many cases the process of voicing social rights claims are not driven by marginalized groups themselves but initiated from the outside. by public interest litigators. But while judges and litigators alike acknowledge the importance of the 23 Bhagwati. practice and norms that propagate these institutions. Judicial Activism And Public Interest Litigation. Assemblage whose civil liberties are sullied should be proficient to recognize and articulate their civil liberties claims and voice them in the legal scheme or have their rights affirmed on their behalf. housing. easy access as well as. minorities are more likely to succeed than more ‘political’ demands for new policies or substantial budget allocations. the concrete acquiescence with the judgment as well as its broader social and political effects. In several cases litigation forms part of a broader stratagem and is appreciated both for its mobilisation prospective and for the executive acknowledgment that the court can give of the grievance as a rights contravention. In many cases the lower costs.27 For progressive social rights verdicts to have a societal impact they must be convincing. a more realistic methodology for assessing the ’transformative effect’ of particular judgments is to look qualitatively at their ‘ripple effects’. in some cases. investigate the steps taken to comply with and implement the judgment. or has changed the pattern of administrative/lower court decisions. regulations and policies. such as large state institutions. such as rich corporations. 28 Developing countries are frequently characterized by a legal pluralism which often includes a strong informal judicial system based on ‘traditional’ or ‘customary law’. This does not mean that litigation is always feinting out where potentially more effectual substitute exists.30 26 “Friend of the court” with relevant expertise who are accepted (and in some cases invited by the court) to present argument without being party to the case 27 Marc Galanter. Litigation is not an objective in itself but a possible means to be heard and there is little rationale for marginalised groups to turn to this if substitute strategies offer faster or improved projections for success are more cost effective. high local legitimacy of informal judicial systems may provide poor people with a disincentive to seek redress through the formal judicial system. since structural inequalities and power relations in a particular area are the combined outcomes of a host of different factors. homosexuals. 29 A number of factors coalesce to sway the impact of the litigation process. 9 LAW AND SOCIETY REVIEW 95 (1974) Investigations into whether and why “the haves come out ahead” shows that this to a large extent comes down to differentials in legal representation (the well off.GRASS-ROOT ACCESS TO JUSTICE IN INDIA BY RAWISEN GURIA legal arguments placed before them by the parties. and thus to some extent offset inequalities in legal representation. and the impact of a court decision is difficult to isolate. build expertise in engaging with the courts ). thus allowing them to draw analogies from areas with which they are more familiar. 29 This allows court to enforced social rights in the same way in which civil and political rights are traditionally enforced – by ordering the state to refrain from acting. Customary systems may be integrated with the formal judicial apparatus fulfilling functions within the lower courts or function an independent judicial system operating in parallel to the formal one. can afford better lawyers) and to the experience of ‘repeat players’ (big litigants. the ability of judges to independently assess the claims made. Usually. whether it has lead to changes in laws. and cuts in social benefits or cases concerning addition of rights to formerly debarred groups like women. Why The “Haves” Come Out Ahead: Speculations On The Limit Of Legal Change. 9 . and the norms applied by other institutions (for example in the monitoring standards of human rights commissions).28 Cases regarding tangible activities that debase the active circumstances concerning a right as is the case with forced evictions. less uncertain or more suitable. and in some cases by amicus curiae26. obeyed and executed through legislative/executive/administrative action and transformed into universal transformation through societal plan and opinionated exercise. is central to a fair hearing. 30 Effects of court decisions can rarely be measured directly. That is. When a petition is filed as a public litigation the Court must satisfy itself that the party which has brought the litigation is litigating bona fide for public good. Reckless PIL activists try to utilize this extraordinary remedy available at a cheaper cost as a substitute for ordinary ones. Even when public interest litigation is entertained.S. the Court must be careful to weigh conflicting public interest before intervening. RISE AND FALL OF PIL? Justice R.GRASS-ROOT ACCESS TO JUSTICE IN INDIA BY RAWISEN GURIA IV. The court must exercise greatest caution and adopt procedure ensuring sufficient notice to all interests likely to be affected. 232 (1999) 1 SCC 492 10 . Justice Sujata V Manohar fittingly articulated that when a stay order is acquired at the request of a private party or a body litigating in public interest. any interim order which impedes the venture from proceeding further must provide for the reimbursement of costs to the public in case ultimately the litigation started by such an individual or body fails. As a result the apex court has been constrained to set certain guidelines for PIL. Frivolous cases could be filed without investment of heavy court fees as required in private civil litigation. The public interest litigation should not be merely a cloak for attaining private ends of a third party or of the party bringing the petition. The authentic reasons and cases of public interest have retreated in the milieu. Pressure groups who could not achieve their aims through the administrative process or political process may try to use PIL to further their vested aims and interests. Pathak has observed – “There is always the possibility in public interest litigation. In other words the public must be compensated both for the delay in the implementation of the project and the cost escalation resulting from such delay. The lowering of the locus standi requirement has permitted privately motivated interests to pose as public interests. The court should not allow its process to be abused by vested interest to delay legitimate administrative action or to gain political objectives. In the landmark case of Raunaq International Limited v IVR Construction Ltd32. 31 32 (1984) 3 SCC 161. of succumbing to the temptation of crossing into territory which properly pertains to the legislature or to the executive government.”31 The expansion of PIL in the country discovered its own pitfalls and drawbacks. at p. The principle denigration against PIL is that it detracts from the constitutional principle of ‘separation of powers’ by allowing the Courts to capriciously meddle with policy-choices made by the legislature and pass orders that may be difficult for the executive agencies to implement. it is reasoned that quite often there are no checks against decisions or orders that amount to ‘judicial overreach’ or ‘judicial populism’.GRASS-ROOT ACCESS TO JUSTICE IN INDIA BY RAWISEN GURIA Even though it is very much essential to curb the misuse and abuse of PIL any move by the government to regulate the PIL results in widespread protests from those who are not aware of its abuse and equate any form of regulation with erosion of their fundamental rights. From the standpoint of the judges. It is argued that in light of the increasing case-load before the appellate judges. 11 . the PIL cases impose an additional ‘gate-keeping’ role and impede efficiency. “Indian PIL might rather be a Phoenix: a whole new creative arising out of the ashes of the old order. Public Interest Litigation In The Indian Supreme Court: A Study In The Light Of American Experience. The transfer from legal centralism to legal pluralism was provoked by the disenchantment with recognized legal scheme. “The judicial activism gets its highest bonus when its orders wipe some tears from some eyes”. Cunningham. PIL is still is in experimental stage and many deficiencies in handling the kind of litigation are likely to come on the front which can be removed by innovating better techniques. It has fundamentally changed the conventional legal responsibility so as to facilitate the court to transport justice within the reach of the common man. CONCLUSION It would be suitable to conclude by quoting Cunningham.”33 PIL symbolizes the initial endeavor by a budding common law state to sever away from legal imperialism perpetuated for centuries. PIL develops a new jurisprudence of the accountability of the state for constitutional and legal violations adversely affecting the interests of the weaker elements in the community. 33 Clark D.GRASS-ROOT ACCESS TO JUSTICE IN INDIA BY RAWISEN GURIA V. We may end with the hope once expressed by Justice Krishna Iyer. 29 JOURNAL OF INDIAN LAW INSTITUTE 494 (1987) 12 . The changes brought by PIL are both substantial and structural. R. Desai. Sudarshan.N. 1989) 13 . (New Delhi.. R. Working A Democratic Constitution – The Indian Experience (New Delhi: Oxford University Press. 2000) C. The Rights Revolution: Lawyers. 1987) M.. Ashok H.GRASS-ROOT ACCESS TO JUSTICE IN INDIA BY RAWISEN GURIA BIBLIOGRAPHY Books A. Chockalingam (eds. Co. Rajeev Dhavan & Raju Ramachandran (eds. 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