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Extracts from a paper delivered at the International Centre for Ethnic Studies, Colombo by Dr. Lakshman Marasinghe, Fellow of the Indo-Canadian Shastri Institute, New Delhi, and Emeritus Professor of Law, University of Windsor, Windsor, Ontario, Canada.

It is a first requirement of public interest litigation that the action must be commenced not for the enforcement of an individual grievance of the petitioner but for a grievance of a group that comprises the public.

Of that group, the petitioner may be one such person with a grievance or he may just be a public-spirited person who is taking the matter on behalf of others. The real purpose of PIL is to vindicate a Rule of Law and to facilitate access to Justice to those who are economically weak. It is also to provide for a meaningful realisation of fundamental rights which could ultimately result in the betterment of society. It could not be used for the betterment of an individual, by obtaining a relief for an individual grievance.

The Supreme Court has the power to examine the litigant's record of public service, so as to determine his bona fides, and ascertain whether the action was brought in good faith and whether the petitioner is merely an intermeddler. An individual dispute between two individuals is no basis to commence a public interest litigation. Similarly, by means of public interest litigation courts will not allow parties to derive a personal benefit either directly or indirectly.

However, there could be a claim to establish a legal remedy that might benefit the party pursuing the litigation so long as that remedy is available equally to all in the community.

Parties who have not been parties to a public interest litigation before the High Court, have no capacity to appeal against a decision of that court to the Supreme Court. However, they if they wish they may commence fresh proceedings before the Supreme Court.

A taxpayer has a power to challenge the misuse of state funds, because he belongs to that category of persons who suffers an injury by such misuse. For the purposes of commencing Public Interest Litigation there must prima facie be a triable issue. It is important to note that a total stranger to the dispute may engage in Public Interest Litigation, while a total stranger to a dispute is incapacitated from raising such a dispute before an Administrative Tribunal.

One of the most effective aspects of Public Interest Litigation is that the Supreme Court under Article 32 of the Indian Constitution has the power to fill in gaps that may be found in statutes, so as to make the enforcement of Human Rights more effective.

In Vishaka v State of Rajasthan the action was commenced by certain social activists and NGOs with the aim of finding suitable methods for the realisation of 'Gender Equality'. The Supreme Court laid down certain guidelines to be implemented at the work place "having regard to the definition of Human Rights found in Section 2(d) of the Protection of Human Rights Act."

The court referred to several international conventions which protect gender rights and declared that it had the power to fill in any lacuna left by a statute for the greater protection of Human Rights. This power was claimed as a concomitant power arising out of Article 32 of the constitution.

As a general rule in public interest litigation the courts shall not exercise its powers of judicial review of governmental policy. However such review is possible under three conditions.

First, where there is evidence that the policy so formulated violates a mandate given to the government by the constitution. Second, where such governmental policy violates some statutory provision. Third, where there is evidence that the policy formulated was actuated by malice or vindictiveness. There is such malice or vindictiveness when a policy is either made ad hominem or is targeted at a specific group of persons and that group has been harmed by it or is threatened with harm.

The way in which public interest litigation is conducted is in a spirit of corporation and collaboration between the courts and the State. This justifies the courts from devising remedies which are not even called for by the parties in their writ application.

The foundation of the PIL process being non-adversarial, the courts could evolve new and novel methods, tools and procedures to remedy the grievance alleged in the petition. The grievances in most cases arise out of violations of fundamental rights. It is important to mention that an Appeal made to courts under a statute must satisfy the requirements for "Standing" under the statute.

The statute indicates the grounds upon which a person may lodge the appeal. These grounds are narrowly described. That is the general position. However, it was mentioned earlier that in PIL a wider concept of "Standing" has been recognised. This wider concept of standing has been introduced into public interest litigation when the matter litigated arises even out of a statute.

Therefore, notwithstanding the fact that Appeals ordinarily made under statutes have a narrower concept of "Standing", matters raised under a statute in public interest litigation recognises a wider concept of "Standing". This observation applies to proceedings brought under both Articles 32 and 226 of the Indian constitution.

There is also an issue concerning the drafting of a petition to commence a public interest litigation. The courts have a tendency to look at the way it is drafted to determine the mental attitude of the petitioner to the dispute. The use of particular words and the style of drafting indicates whether the petitioner was motivated by "malice, was an intermeddler or a busybody".

These characteristics disqualify him from commencing a public interest litigation. Once a petition is filed it cannot be withdrawn without the consent of the court. The court has a discretion in this matter and will have the public interest at heart when making a decision regarding the withdrawal of the petition.

A litigant engaged in public interest litigation cannot choose his court as other litigants could. The court to which he makes the application has the power to transfer the matter to any other court, if in the view of the court to which the application is made considers that it is propitious to do so. The court entertaining public interest litigation shall always consider the best interest of those for whose benefit the matter is being litigated. With that in mind the court may feel free to transfer the matter litigated to a court which could provide a remedy more effectively and quickly. Some times in matters such as ecological degradation a court at the locus could be more effective than the Supreme Court in Delhi.

A court engaged in hearing a public interest litigant must not give vague or general orders. The court must give specific directions as to how the remedy should be implemented. The carrying out of those directions is for the person upon whom the burden of carrying it out is placed. Such a person usually is a government officer with a statutory duty to execute matters connected with the litigation. A failure to carry those directions as structured by the court shall attract the sanctions of the court, and also be responsible to the State or Union government which employs him.

These are some of the legal principles that arise from the judgements on Public Interest Litigation. The law in this area is somewhat amorphous and is subject to growth with reference to social situations that may arise from time to time. Precedents do not apply strictly as it does in ordinary litigation. The law in this area evolves upon a case by case basis. In order to understand the full implication of the social dimensions of this new jurisprudence it would be necessary to examine a selection of decisions in a synoptic form.

(D) Some Landmark Decisions on Public Interest litigation

(i) Basic Amenities

State of Himachal Pradesh v Umed Ram Sharma (1986) 2 SCC 68; AIR 1986 SC 847. In the district of Shimla there were two villages separated by a mountain. The authorities commenced constructing a road connecting the two villages but abandoned the project on the grounds that there were no adequate funds to complete the construction.

The residents were compelled to climb the mountain and walk five miles carrying heavy loads on their backs. An action was taken on behalf of the residents of the two villages, before the High Court of Himachal Pradesh to complete the construction of the road.

The High Court directed the State government to provide the necessary funds through reallocation of priorities and directed the PWD engineer to complete the construction within the present financial year. The government of Himachal Pradesh appealed to the Supreme Court of India. The Apex court dismissed the Appeal. The court observed:

(a). "there is a constitutional obligation of the State to provide roads as a means of communications with each other, in the mountainous areas. Failure to make such provisions would be a denial of the quality of life as understood in its richness and fullness by the ambit of the constitution."

(b). "the High Court has merely directed the Executive to bring it to the notice of the legislature to effectively reallocate the priorities, so that this road could be built."

D. K. Johsi v Chief Secretary - State of Uttar Pradesh (1999) 9 SCC 578

As a result of a Public Interest Litigation in 1992, the court ordered the mayor of Agra to provide clean drinking water to the residents. This had not been done. In 1999 these proceedings were taken to implement that order. The Supreme Court appointed a monitoring committee chaired by the City Commissioner of the Town of Agra to implement the 1992 court order. This committee was answerable to the Supreme Court in implementing the 1992 Order. By this strategy the Supreme Court assumed the responsibility to provide clean drinking water to the residents of the city of Agra.

(ii) Exploitation of children

Lakshmi Kant Pandey v Union of India. (1984) 2 SCC 244; AIR 984 SC 469/(1985) Supp SCC 701/(1987) 1 SCC 66/(1991) 4 SCC 33.

Mr. Pandey an Advocate, by a letter addressed to the Supreme Court of India complained of malpractices indulged by social organizations and voluntary agencies engaged in the work of offering Indian children for adoption to foreign parents. Mr. Pandey complained that the system now in place was leading to trafficking and profiteering. In a series of directions given by the Supreme Court over a period of 7 years the Supreme Court regularized the adoption procedures.

The court observed that there was no law governing the adoption of children. Therefore one must fall back on the Imperial Statute - Guardians and Wards act 1890 - and upon the general law of the land where the courts must consider that the paramount obligation of the State was to ensure the welfare of the child. Accordingly, the cumulative effect of the directions given over a seven-year period by the Supreme Court helped to regulate the process of adoption of Indian children by foreigners in a manner in which the Indian courts were able to have a supervisory role.

The cumulative effect established three directives to the Union government. Namely: First, every application for child adoption should be made by a recognized/licensed, child welfare agency. The government of India was directed to recognize/license such agencies both, those operating abroad and also in India. Only through such agencies could an adoption of an Indian child by a foreigner take place.

Second, every such application should accompany an authenticated and certified home study report by the agency, detailing the foreigner's social and financial status and a complete background of the foreigner.

Third, the proceedings anterior to the grant of adoption papers must be held in court, but in camera. The biological parents should not be given an opportunity of knowing or choosing who the adoptive parents are. This is to ensure that there will not be any collusion between the two parties which might compromise the interest of the child, while jointly and severely furthering the interests of the biological and adoptive parents.

In the absence of a law regarding adoption the Supreme Court in this landmark case established a charter of rights for children who are the subjects for adoption by foreigners.

In a series of decisions the Supreme Court regulated several aspects concerning the interest of children. Namely, exploitation of children in adult prisons, long-term incarceration of children in prisons, long-term detention of children in jails awaiting trials and matters concerning the conditions under which children are held in jails. In all these matters through a series of public interest litigation the Indian Supreme Court assumed a supervisory role and have made directives to be carried out by the several bodies that are statutorily responsible for the welfare and well-being of the child.

(iii)Corrupt Practices

The Supreme Court has taken the view that PIL is an effective tool to be used to stamp out corruption. In Kazi Lehendup Dorji v Central Bureau of Investigation, it was alleged that the State government of Sikkim had directed the Central Bureau of Investigation to investigate the corrupt practices of an individual who subsequently was elected the Chief Minister of that State.

After that election, The State of Sikkim ordered that investigation to stop. By this action the former Chief Minister of Sikkim, who was defeated at a subsequent election moved by way of a PIL to have the investigation continued.

(To be continued)

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