Public interests Litigation and Judicial activism - By Kamaluddin Khan

By Kamaluddin Khan,

Public Interest Litigation: The words `Public Interest' mean "the common well being also public welfare (Oxford English Dictionary 2nd Edn. Vol.Xll) and the word 'Litigation' means "a legal action including all proceedings therein, initiated in a court of law with the purpose of enforcing a right or seeking a remedy." Thus, the expression `Public Interest Litigation' means "some litigations conducted for the benefit of public or for removal of some public grievance." In simple words, public interest litigation means. any public spirited citizen can move/approach the court for the public cause (or public interest or public welfare) by filing a petition in the Supreme Court under Art.32 of the Constitution or in the High Court under Art.226 of the Constitution or before the Court of Magistrate under Sec. 133 of the Code of Criminal Procedure, 1973.

The seeds of the concept of public interest litigation were initially sown in India by Krishna Iyer J., in 1976 in Mumbai Kamagar Sabha vs. Abdul Thai (AIR 1976 SC 1455; 1976 (3) SCC 832) and was initiated in Akhil I3/taratiya Sos/ail Karnuu:hari Sangh (Raihvaiy vs, Union of India, wherein an unregistered association of workers was permitted to institute a writ petition under Art.32 of the Constitution for the redrcssal of common grievances. Krishna lyer J., enunciated the reasons for liberalization of the rule of Locus Standi in Fertilizer Corporation Kamgar vs. Union of India (AIR 1981 SC 149; 1981 (2) SCR 52) and the ideal of 'Public Interest Litigation' was blossomed in S.F. Gupta and others vs. Union of India, (AIR 1982 SC 149).

Judicial Activism: The expression `Judicial Activism' signifies the anxiety of courts to find out appropriate remedy to the aggrieved by formulating a new rule to settle the conflicting questions in the event of lawlessness or uncertain laws. The Judicial Activism in India can he witnessed with reference to the review power of the Supreme Court under Article 32 and I (belt Courts under Article 226 of the Constitution particularly in Public Interest Litigation.

Earlier, in England there were two kinds of courts namely. Equity Courts (Court of Chancery) and Common Law Courts. Equity Courts used to decide cases applying the principles of equity i.e. Justice. equity and good conscience. Whereas the common law courts used to decide cases basing on common law i.e. the principles' rules evolved by the Judge; during judicial pronouncements. Hence. the common law is also known as the 'Judge-made-law:' The courts of Equity / Chancery played significant role in formulating the new piles of tart. The common law originated in England was spread in British Colonies including India. In India, almost all laws are originated ham the fairish Common law. I. the absence of ieilcf in certain cases due it, detective procedure, the court' of equity or chancery toxin new rules. 'The new rules lunnulatcd to settle the conflicting is called 'Judicial Activism'. The equity court- and common law courts were merged with the passing of the Judicature .Act, I875.

Judicial Activism in India: The significant feature of Indian Constitution is partial separation of powers. -The doctrine of separation of powers was propounded by the French Jurist, contesqeu. It is partly adopted tit India since the executive powers are vested in the president, Legislative powers tit the Parliament and the judicial powers in the Supreme Court and subordinate courts. The role of separation of powers in India is simple. The three organs of the Government viz. the Executive. Legislature and the Judiciary are not independently independent but inter-dependently independent. (The executive encroaches upon judicial power, while appointing the judges of Supreme Court and High Courts. Similarly the Judiciary, by its review power examines the law passed by file legislature pat lament and the legislature also ,intervenes in respect of impeachment of the president).

As stated earlier, the Judicial Activism tit India can he witnessed with reference to the review power of the Supreme Court under Art. 226 of the Constitution particularly in public interest litigation cases. The Supreme Court played crucial role in formulating several principles in public interest litigation cases. For instance, the principle of "absolute liability" was propounded in Oleum Gas Leak case. Public Trust Doctrine in Kamalnath Case (1998 I SCC .388) etc.

Further, the Supreme Court, gave variety of guidelines in various cases of public interest litigation. Eg.: Ratlam Municipality Case, Oleum Gas Leak Case, Ganga Pollution Case etc.

Public Interest Litigation and Judicial Activism: Public interest litigation or social interest litigation today has great significance and drew the attention of all concerned. The traditional rule of "Locos Standi" that a person, whose right is infringed alone can file a petition, has been considerably relaxed by the Supreme Court in its recent decisions. Now, the court permits public interest litigation at the instance of public spirited citizens for the enforcement of constitutional o- legal rights. Now, any public spirited citizen can move/approach the court for the public cause (in the interests of the public or public welfare) by filing a petition:

1. in Supreme Court under Art32 of the Constitution;
2. in High Court under Art.226 of the Constitution; and
3. in the Court of Magistrate under Sec 133 Cr. P.C.

Justice Krishna layer fertilizer Corporation Kamgar Union vs. Union of India, (1981) enumerated the following reasons for liberalization of the rule of Locus Standi.

1. Exercise o: Stale power to eradicate corruption may result in unrelated interference with individuals' rights.
2. Social justice wan ants liberal judicial review administrative action.
3. Restrictive rules of standing are antithesis to a healthy system of administrative action.
4. “Activism is essential for participative public justice".

Therefore. public minded citizen must be given an opportunity to move the court in the interests of the public.

Further, the Supreme Court in S.P. Gupta vs. Union of India. (AIR 19S2 SC 149), popularly known as "Judges' Transfer Case", Bhagwati J . firmly established the validity of the public interest litigation. Since then, a good number of public interest litigation petitions were filed. Sonic of the Landmark decisions of the Supreme Court against the petitions of public interest

litigation are stated below:

1. S.P. Gupta vs. Union of India. AIR 1982 SC 149.
2. Mrs. Veena Sethi vs. State of Bihar. AIR 1983 SC 339: 1982 (2) SCC 583.
3. People’s Union for Democratic Riglits vs. Union of India, AIR 1982 SC 1473.
4. Dr. Upendra Bavi (1) vs. State of U.P., 1983 (2) SCC 308.
5. Bandlur Mukti Moreha vs. Union of India, AIR 1984 SC 802; 1984 (2) SCR 67.
6. Olga Tellis vc Bombay Municipal Corporation. AIR 1986 SC 180; 1985 (3) SCC 545; 1955 Supp. (2) SCR 51.
7. Dr. [).C Wadhwa and others vs. State of Bihar and others. AIR 1987 SC 579.
8. M. C. Mehta and another vs. Shri Ram Foods and Fertilizer industries and others. AIR 1987 SC 965.
9. Supreme Court Advocates-on-Record .Association vs. Union of India, (1993) 4 SCC 441: AIR 1994 SC 268.
10. Municipal Council, Ratlam vs. Vardhichand, AIR 1980 SC 1622 (EL p.36).
11. Vellore Citizens Welfare Forum vs. Union of India and others, AIR 1996 SC 2115.
12. Kamalnath vs. Union of India, (1997) I SCC 388.
13. M. C. Mehta vs. Union of India, AIR 1988 SC 1115 (Ganga River Pollution Case): and
14. Mohanlal Sharma vs. State of UP., (1989) 2 SCC 609.
1. S.P. Gupta vs. Union of India, AIR 1982 SC 149 (Popularly known as 'Judges' Transfer Case'): In this case, Bhagwati J., firmly established the validity of the public interest litigation. Since then, a good number of public interest litigation petitions were filed.
2. Mrs. Veena Sethi vs. State of Bihar, AIR 1983 SC 339: 1982 (2) SC( 5N,): The Supreme Court treated a letter addressed to a Judge of the Supreme Court by the Free Legal Aid Committee at Hazaribagh, Bihar as a writ petition.
3. People's Union for Democratic Rights vs. Union of India, AIR 1982 SC: 1473 (Popularly known as 'Asiad Case'): The Govt. of India, in connection with the Asiad Games 1982 employed some contractors for construction of buildings and projects. The labourers/workmen engaged in the construction work were paid very meagre wages. The Supreme Court treated the letter by the People's Union for Democratic Rights as a writ petition and directed the authorities concerned to pay the wages according to the Minimum Wages Act, 1948.
4. Dr. Upendra Baxi (1) vs. State of UP., 1983 (2) SCC 308: [he Supreme Court entertained a letter sent by two professors of Delhi University seeking enforcement of the Constitutional right of the inmates of a Protective Home at Agra who were living in inhuman and degrading conditions in utter violation of Article 21 of the Constitution. And the Supreme Court issued proper and effective directions to the State of U.P. and the authorities concerned in the matter, assuming that letter to be a public interest litigation.
5. Bandhu Mukti Morcha Union of India. AIR 1984 SC 802: 1984 (2) SCR 67: In this case. the Supreme Court treated a letter as PIL petition and directed the Central Government and the State of Haryana for the release of the bonded labourers and also ordered to pay the appropriate wages and provide proper working conditions.
6. Olga Tellis vs. Bombay Municipal Corporation: AIR 1986 SC 180; 1985 (3) 5CC 545; 1985 Supp. (2) SCR 51: The petitioners this case were pavement dwellers. They challenged the validity of Sections 313, 313-A, 314 and 497 of the Bombay Municipal Corporation Act, 1988, which empowered the Municipal authorities to remove their huts from pavements and public places on the ground that it deprives of their right to Svelihood as included in Art.2l of the Constitution. The Court directed the authorities of the Bombay Municipal Corporation to frame a Scheme for Hawking and Non-hawking Zones and issue licences to sell their goods in Hawking Zones.
7. Dr. D.C. fradinva anti others v/s. State of Bihar and others, 1987 SC 579: The petitioner in the instant case, a professor of Political Science, filed a writ petition against the State of Bihar alleging the misuse of ordinance power, and challenged the Constitutional validity of three ordinances issued by the Governor of Bihar. The Supreme Court admitted the petition treating it as PIL and struck down the ordinance (The Bihar Intermediate Education Council Ordinance, 1985). The Court also appreciated the petitioner and directed the State Government to pay Rs.10,000/- to the petitioner as costs of the suit.
8. M.C. Mehta and Another vs. Shri Ram Foods and Fertilizer Industries and others, AIR 1987 SC 965: Shri Ram Foods and Fertilizer Industries is a subsidiary of Delhi Cloth Mills Ltd., located in a thickly populated area of Delhi. On 4.12.1985, there was a leakage of oleum gas resulting in the death of an Advocate in the Tees Hazari Court and injuries to several others. The petitioner, M.C. Mehta, an Advocate of Supreme Court tiled public interest litigation petition in the Supreme Court under Art.' 2 of the Constitution. The petitioner, in his petition requested the court to direct the Government to lake necessary steps to avoid such leakages from the industries engaged in dangerous and hazardous manufacturing processes. He also prayed the Govt. to direct the Management of the Company to shift the plant to a place far away from the city. The Supreme Court admitted the petition and evolved the principle of 'Absolute Liability' and laid dins a the appropriate the petitioner and also appreciated the petitioner and ordered the Shri Ram Foods and Fertilizer Industries to pay him Rs.10.000 toward, costs.
9. Supreme Court Advocates – on – Record Association vs. Union of India. (1993) 4 SCC 441; AIR 1994 SC 268 (Popularly known as ...rhh•,btrnerrt/7ransfcr of Judges' Case'): Mr. Subhash Sharnta, an Advocate of the Supreme Court and the Supreme Court Advocates-on-Record Association filed public interest litigation petitions under Art.32 of the Constitution in the Supreme Court. praying the court to fill up the vacancies of Judges in the Supreme Court and High Courts and the appointment of Chief Justice of India shall be made on the basis of seniority. A Nine-Judge Bench of the Supreme Court by a 7:2 majority over uled its earlier decision in S.P- Gupta vs. Union of India. (AIR 1982 SC 149) and laid down the detailed guidelines governing the appointment and transfer of Judges.
10. Municipal Council, Ratlam vs. Vardhichand, AIR 1980 SC 1622: In this case. the petitioner. Vardhichand and residents of Ward No.12, Ratlam Municipality in Madhya Pradesh filed a complaint (public interest litigation petition) before the Sub divisional Magistrate of Ratlam under See.133 Cr. P.C, to direct the municipality to take steps for removal of the public nuisance. This matter remained pending for 8 years as it went upto the Supreme Court (The Court of Sub-Divisional Magistrate, The Supreme Court). The Supreme court through Krishna lyer J., directed the Municipal Council, Ratlam to provide for drainage system within one year and approved a scheme of Rs.6 Lakhs for construction of drainage.
11. Vellore Citizens Welfare Forum vs. Union of India and others, AIR 1996 SC 2115: The petitioner in this case. Vellore Citizens Welfare Forum filed a public interest litigation petition under Art 32 of scale pollution caused to the river Polar due to the discharge of untreated effluents by the tanneries and other industries in the State of Tamil Nadu. The Court appointed a committee to report on the matter. The Supreme Court after examining the report- submitted by the Committee, delivered its judgement making all efforts to maintain a balance/harmony between economic development of the people on one hand and welfare of the people on the other. The Court held that "sustainable development is a balancing concept between ecology and development.
12. Kamalnath vs. Union of India, (1997) 1 SCC 388: This case is of great importance. In this case, the Supreme Court condemned the misuse of political power by the then Union Minister for Environment and Forests for encroaching the Government/Forest land in 1990 for construction of a span club in Kullu Manali Valley: and evolved the principle of Public Trust Doctrine'.
13. M.C. Mehta vs. Union of India, AIR 1988 SC 1115 (Ganga River Pollution Case): The river Ganga is very famous for its historical significance and religious importance. It got polluted due to discharge of industrial wastes, effluents, human excreta into the river. Further, a number of dead bodies are being thrown into the river at Kasi, with a belief that the dead persons would too to heaven directly since they consider Kasi as holy place and the river as sacred. The petitioner. M.C. Mehta, Advocate. Supreme Court filed a PIL petition in the Supreme Court under Art.32 of the Constitution against the Union of India, Kanpur Municipal Corporation and others for removal of public nuisance caused by the polluted Ganga water, The Supreme Court allowed the petition and directed the authorities concerned to take up necessary steps for removal of the public nuisance and also appreciated the petitioner for taking imitative in this regard.
14. Mohanlal Sharma vs. State of U.P. (1989) 2 SCC 609: In this cast, a telegram was sent to the Court from the petitioner alleging that his son was murdered by the police in the police lock-up. 'The telegram was treated as writ-petition by the Court and the case was directed to be referred to C.B.I. for a thorough and detailed investigation.

In addition to the above, following are the sonic more cases on public interest litigation:

Janatha Dal vs. H.S. Chowdary and other others, AIR 1993 SC 892.

Ravi Kumar Misra vs. State of Bihar, AIR 1989 SC 348.

Sunil Batra vs. Delhi Administration. AIR 1980 SC 1579.

Sheela Barse vs. The Secretary, Children Aid Society and ot hers, 198 (4) SCC 3736.

Ambica quarries Ltd. as State of Gujrat, AIR 1987 SC 1073.

Peoples Union for Civil Liberties vs. Union of India, AIR 1997 SC 568.

Sarla Mudgal vs. Union of India, 1995 (3) SCC 635.

Kuljeet Singg vs. Ltd. Governor of Delhi. AIR 1982 SC 744.

D.K. Basu vs. State of West Bngal, 1997 (I) SCC 416.

Ramesh vs. Union of India (1988) I SCC 668: and Sachidanand Pandey vs. State of West Bengal, (198) 2 SCC 295 etc.

Kamaluddin Khan

Leccturer,

Patna Law College,

Patna University Patna