Essay Writing in UPSC Main Examination in 2018- Check Here
Essay Writing in UPSC Main Examination
This article caters to the Polity and Governance portion of General Studies- Paper ll and for Essay Paper in UPSC Main Examination.
“Injustice anywhere is threat to justice everywhere. ”
—Martin Luther King
Public Interest Litigation (PIL)
The Emergency of 1976 marked not just a political watershed in our country, but a judicial one as well. In the euphoria of the return to democracy and in an attempt to refurbish its image that had been tarnished by some Emergency decisions, the Supreme Court of India opened the floodgates to Public Interest Litigation (PIL). Justice P. N. Bhagwati and Justice V. R. Krishna Iyer were among the first judges to admit PILs in court.
The term “Public Interest” means the larger interests of the public, general welfare and interest of the masses 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 “any litigation 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 Article 32 of the Constitution or in the High Court under Article 226 of the Constitution or before the Court of Magistrate under Sec. 133 of the Code of Criminal Procedure, 1973. Under PIL, courts take up cases that concern not the rights of the petitioner, but of the public at large. The concept of Public Interest Litigation (PIL) is in consonance with the principles enshrined in Article 39A of the Constitution of India to protect and deliver prompt social justice with the help of law.
Among the numerous factors that have contributed to the growth of PIL in this country, the following deserve special mention:
– 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 citizensinter-se.
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India has some of the most progressive social legislation to be found anywhere in the world whether it be relating to bonded labour, 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 (In law, locus standi means the right to bring an action, to be heard in court, or to address the Court on a matter before it. Locus standi is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party’s participation in the case) 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 (Suo moto is a Latin term meaning “on its own motion”. It is used in situations where a government or court official acts of its own initiative) 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 includeright to free legal aid, right to live with dignity, right to education, right to work, freedom from torture, and handcuffing in prisons, etc.
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>- 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 labour as a case of bonded labour unless proven otherwise by the employer.
>- 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.
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 is use of judicial power to articulate and enforce what is beneficial for the society in general and people at large.
Judicial Activism in India:
The doctrine of separation of powers was propounded by the French Jurist Montesquieu. It has been adopted in India as well since the executive powers are vested in the President, Legislative powers in Parliament and the State Legislative Assemblies and the judicial powers in the Supreme Court and subordinate courts.
However, the adoption of this principle in India is partial and not total. This is because even though Legislature and the Judiciary are independent, yet
Judiciary is entrusted with implementation of the laws made by the legislature. On the other hand, in case of absence of laws on a particular issue, judiciary issues guidelines and directions for the Legislature to follow.
The Executive also encroaches upon judicial power, while appointing the. Judges of Supreme Court and High Courts. Similarly, the Judiciary, by its review power, examines die law passed by the Legislature and the Legislature on the other hand, intervenes in respect of impeachment of the President of India, who is a part of the Union Executive.
Relationship between PIL and Judicial Activism
The opening up of access to courts to the poor, indigent and disadvantaged sections of the nation through Public Interest Litigation is unexceptionable judicial activism. Judicial Activism in India can be witnessed with reference to the review power of the Supreme Court under Article 32 and Article 226 of the Constitution.
The higher Courts exercised wide powers given to them under Articles 32 and 226 of the Constitution. The sort of remedies sought from the courts in the public interest litigation goes beyond award of remedies to the affected individuals and groups. In suitable cases, the courts have also given guidelines and directions. The courts have monitored implementation of legislation and even formulated guidelines in absence of legislation. If the cases of the decades of 70s and 80s are analysed, most of the public interest litigation cases which were entertained by the courts are pertaining to enforcement of fundamental rights of marginalised and deprived sections of the society.
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For example in 1979, Supreme Court advocate Kapila Hingorani drew the Court’s attention to a series of articles in a newspaper exposing the plight of Bihar under trial prisoners, most of whom had served pretrial detention more than the period they could have been imprisoned if convicted. Sunil Batra, a prisoner, wrote a letter to Justice Krishna Iyer of the Supreme Court drawing his attention to torture by prison authorities and the miserable conditions of prisoners in jails. This was taken up as a petition and the Court passed orders for humane conditions in jails.
In 1980, two Professors of Law wrote a letter to the editor of a newspaper describing the barbaric conditions of detention in the Agra Protective House for Women which was made the basis of a writ petition in the Supreme Court. The exploitation of workmen at construction sites in violation of labour laws was brought to the attention of the Supreme Court by a letter. The slave¬like condition of bonded labourers in quarries was brought to the attention of the Court by a social activist organisation. A journalist moved the court against the evictions of pavement dwellers of Bombay. Several cases of this type followed. In dealing with such cases, the Court evolved a new regime of rights of citizens and obligations of the State and devised new methods for its accountability.
However, over the years, there are allegations that the social action dimension of PIL has been diluted and eclipsed by another type of “public cause litigation” in courts. In this type of litigation, the court’s intervention is not sought for enforcing the rights of the disadvantaged or poor sections of the society but simply for correcting the actions or omissions of the executive or public officials or departments of government or public bodies.
In view of the above allegations and to prevent ‘Judicial Activism’ being converted into ‘Judicial Overreach’, the Supreme Court cautioned by observing that:
“Public interest litigation is a weapon which has to be used with great care and circumspection and the Judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/ or publicity seeking is not lurking. It is to be used as an effective weapon in the armoury of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at the redress of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta”.
Further, in order to preserve the purity and sanctity of the PIL, the following directions were issued:-
– The court must encourage genuine and bonafide PIL and effectively discourage and curb the PIL filed for extraneous considerations.
Instead of every individual judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives.
>-The court should prima facie verify the credentials of the petitioner before entertaining a PIL.
The court should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL.
5s- The court should be fully satisfied that substantial public interest is involved before entertaining the petition.
The court should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions.
The court before entertaining the PIL should ensure that the PIL is aimed at the redress of genuine public harm or public injury. The court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation.
> The court should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations.
In a nutshell, despite all the brouhaha about PIL and related judicial activism by some, Higher Courts within their Constitutional limitations have come up with flying colours as champions of justice in the true sense of the word. The judicial activism has touched almost every aspect of life in India to do positive justice and in the process, has gone beyond, what is prescribed by law or written in black and white. Only thing the Judiciary must keep in mind is that while going overboard to do justice to common man, it must not overstep the limitations prescribed by sacrosanct, i.e. the Constitution.
“The dead cannot cry for justice. It is the duty of the living to do so for them.”
—Lois Bujold (American novelist)