Public interest litigation (PIL): India
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History
Dhananjay Mahapatra, Dec 12 2016: The Times of India
Three-and-a-half decades ago, the Supreme Court in S P Gupta case on December 30, 1981, broke away from legal orthodoxy to evolve a unique device public interest litigation or PIL.Those involved in affairs of the poor and the voiceless could file PILs before the SC and high courts to seek protection of rights of people condemned to live on the fringe.
Though formal coinage of the term `PIL' happened in the S P Gupta case, it was advocate Kapila Hingorani who was the first to file a `PIL' on behalf of hundreds of undertrial prisoners in Bihar, who languished in jail for periods which were much more than the maximum punishment they would have got if convicted. The SC decided Hingorani's petition, Hussainara Khatoon vs Bihar Home Se cretary , on March 9, 1979 and ruled that “every accused unable to engage a lawyer or secure legal services has a constitutional right to get free legal services, the cost of which must be borne by the state“.
The underlying intention in creating this special device was to universalise access to justice. After Hussainara Khatoon, the SC while dealing with another PIL by NGO `Bandhua Mukti Morcha', had secured the release of thousands of bonded labourers, many of them minors, from stone quarries in Haryana.
Advocate M C Mehta moved a PIL in the SC in 1985 seeking protection of environment and enforcement of Delhiites' right to clean air. Even after 30 years, this PIL survives as the court has used it as a base to deal with many environmental issues. Mehta went on to win the Magsaysay award. Despite winning the award, Mehta remained as simple as he was when he had filed the PIL. But the resultant fame and money did not escape the notice of advocates, who now aspire to walk in Mehta's footsteps.
This explains why so many advocates are seeking fame daily through PILs in the SC and HCs. Many genuine PILs are still filed. But a majority is frivolous, filed by lawyers who have no knowledge of the issue or cause they seek to highlight. On many occasions, PILs have been filed in the SC after coming to know of an incident from the morning paper.
PILs have touched all issues under the sun. It has become a fashion to file a PIL and seek immediate publicity in the media. That was certainly not the SC's intention when it devised the instrument to make justice reach those standing last in society.
This was explained by the SC in People's Union for Democratic Rights [1982 AIR 1473]. It had said, “If sugar barons and alcohol kings have the fundamental right to carry on their business and to fatten their purses by exploiting the consuming public, have the `chamars' belonging to the lowest strata of society no fundamental right to earn an honest living through their sweat and toil? The former can approach the courts with a formidable army of distinguished lawyers paid in four or five figures per day and if their right to exploit is upheld against the government under the label of fundamental right, the courts are praised for their boldness and courage and their independence and fearlessness and are applauded and acclaimed.
“But if the fundamental right of the poor and helpless victims of injustice is sought to be enforced by public interest litigation, the so-called champions of human rights frown upon it as a waste of ti me of the highest court in the land, which, according to them, should not engage itself in such small and trifling matters. Moreover, these self-styled human rights activists forget that civil and political rights, priceless and invaluable as they are for freedom and democracy, simply do not exist for the vast masses of our people.“
Times have changed considerably in the last 35 years. Changing times have convoluted the priorities of PILs. This was explained by the SC in 2004 in Dattaraj Nathuji Thaware case. It had said, “Public Interest Litigation, which has now come to occupy an important field in the administration of law, should not be `publicity interest litigation' or `private interest litigation' or `politics interest litigation' or the latest trend `paise income litigation'. It is depressing to note that on account of such trumpery proceedings initiated before the co urts, innumerable days are wasted, which time otherwise could have been spent for the disposal of cases of the genuine litigants.“
In Janata Dal vs H S Chowdhary [1992 (4) SCC 305], the SC had said, “Only a person acting bona fide and having sufficient interest in the proceeding of PIL will have locus standi and can approach the court to wipe out the tears of the poor and needy , suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly , a vexatious petition under the colour of PIL brought before the court for vindicating any personal grievance, deserves rejection at the threshold.“
The time has come for the SC to invent a procedure to separate real PILs from the other kind of PILs which were explained in the Thaware case more than a decade ago.
Hasty/ Frivolous PILs
From the archives of The Times of India 2007, 2009 2010
SC lays down guidelines to prevent frivolous PILs
Dhananjay Mahapatra | TNN
New Delhi: Despite the undeniable social benefit of public interest litigation (PIL), the Supreme Court has expressed concern over gross abuse of this instrument in courts in the recent past.
To curb PILs from being hijacked by vested interests, a Bench comprising Justices Dalveer Bhandari and M K Sharma has laid down a 10-point stringent guideline for all high courts, including imposing exemplary cost on busybodies and frivolous PIL petitioners.
Terming PIL jurisdiction as extremely important, the Bench said guidelines were necessary to preserve the purity and sanctity of PILs. Highlights of the guidelines are:
Encourage genuine and bonafide PIL and discourage and curb those filed for extraneous considerations.
Instead of every individual judge devising his own procedure for dealing with public interest litigation, it would be appropriate for each HC to properly formulate rules for encouraging genuine PILs and discouraging PILs filed with oblique motives. HCs should frame rules in this regard within three months.
Verify credentials of petitioner before entertaining a PIL.
Ascertain correctness of facts mentioned in PIL.
Check whether substantial public interest is involved.
Give priority to PILs involving larger public interest.
Ensure that the PIL seeks redressal of a genuine public harm or injury and that there is no personal gain, private motive or oblique motive behind it.
2016: SC’s displeasure
The Times of India, May 10 2016
Lawyer may've to pay dearly for hasty PIL
An advocate's attempt to rely on online information to file a PIL in the Supreme Court seeking eviction of encroachers from national monuments could become a very costly affair for him.
A bench of Chief Justice T S Thakur and Justices R Banumathi and U U Lalit asked petitioner Rajeshwar Singh's counsel whether he had done any ground study on the encroachments. The counsel conceded that most of the material annexed to the PIL was downloaded from the web. The bench said this tendency of rushing to the court without any study had resulted in waste of judicial time. Adjourning the hearing by two months, the bench asked the petitioner to go on an all-India tour, visit the monuments which had been encroached upon, take photographs and place them before the SC.
'Litigants should approach the government before courts'
From the archives of The Times of India 2007, 2009
‘Approach govt before courts’
Will Not Allow PIL Petitioners To Bypass Authorities, Says SC Bench
TIMES NEWS NETWORK
New Delhi: After warning that those filing frivolous PILs would be saddled with deterrent fines, the Supreme Court on Friday said even genuine PIL petitioners would have to first seek justice from the executive.
“No one, howsoever genuine their cause may be, should approach the courts with a PIL without even sending a notice to the authorities for redressal of the grievance,” said a bench comprising CJI S H Kapadia and Justices K S Radhakrishnan and Swatanter Kumar.
When counsel for NGO Ankush, which had sought implementation of road safety measures by the Andhra Pradesh government, said it had no personal interest and that it was acting in public interest, the CJI asked: “Where is your notice to the concerned authorities demanding justice in this issue?”
“A proper procedure has to be followed by the courts for entertaining PILs. There is no way that a petitioner, who comes straight to the court with a PIL, will be entertained,” said the CJI, speaking for the bench.
Addressing a long standing grievance of the executive that the judiciary has been encroaching into its turf, Justice Kapadia said: “The PIL petitioners have been moving the courts straightaway without even bringing the problem to the notice of the authorities. And the courts have been entertaining these PILs, virtually taking over the function of the authorities. We will not allow such bypassing of the authorities to take place any more.”
The new rules would drastically cut down the rate of filing of PILs in the court. For, while those filing frivolous ones would be scared of being saddled with heavy costs, which the CJI had said on Thursday would be utilized for improving infrastructure of the subordinate judiciary, even genuine PILs would not be entertained if the petitioners have not brought their problem to the notice of the concerned authorities for justice.
Source of funding litigation is relevant
The Times of India Apr 06 2015
Abhinav Garg
Show source of PIL funding: HC
In an unusual move, the Delhi high court has asked a lawyer to place his source of funding for every PIL either filed by him or where he has appeared on behalf of any petitioner. A bench of Chief Justice G Rohini and Justice Rajiv Sahai Endlaw asked advocate Gaurav Bansal to “file an affidavit which should disclose the source of funding for all the (public interest litigation) PILs which he is preferring either in his own name or as an advocate for other parties“.
The bench has of late been taking a very strict stand while entertaining PILs and has on many occasions pulled up petitioners for “trying to settle private scores“ by using the court as a platform. But even by its tough standards, the court's decision to ask for funding source of a lawyer caught everyone by surprise. Bansal is representing NGO MediaWatch-India, which has filed a PIL against the Centre and six private DTH operators, claiming these indulge in “illegal and exploitative practices“ by carrying 24x7 ads and even FM radio on their channels.
In December last year, the high court had issued a notice to the ministry of information and broadcasting, and the DTH operators on the PIL, seeking an answer to the allegations.
When the next hearing took When the next hearing took place earlier this month, one of the operators--Tata Sky--highlighted before the bench that the NGO and Bansal were hiding all the facts. While the petitioners alleged their complaint to TRAI in April 2014 was ignored, TRAI circulated a consultation paper on the topic in August and sent its recommendations to the government.
On being confronted by the court, Bansal, whose wife incidentally is secretary of the NGO, maintained that all parties must be directed to file an affidavit on the merits of the case, alleging that the business house is trying to deflect the main issue. Howev er, the court was not impressed and pointed out it wouldn't have issued a notice last year had it known these facts.
“A petitioner under Article 226 of the Constitution of India and more so a petitioner in a petition filed in public interest has to disclose all material facts and if does not do so runs the risk of the petition being dismissed on this ground only and cannot insist on this court nevertheless enquiring into the matter in pub lic interest in his petition. We cannot be unmindful of the rampant misuse of Public Interest Litigation (PIL) and which has already been noticed by the Supreme Court and this court,“ the court observed.
