Uttaranchal Vs. Balwant Singh Chaufal & Ors.  INSC 54 (18 January
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.1134-1135
OF 2002 State of Uttaranchal .. Appellant Versus Balwant Singh Chaufal & Others
These appeals have been filed by the State of Uttaranchal (now
Uttarakhand) against the orders dated 12.7.2001 and 1.8.2001 passed by the
Division Bench of the High Court of Uttaranchal at Nainital in Civil Miscellaneous
Writ Petition No. 689 (M/B) of 2001.
The appointment of L. P. Nathani was challenged before the High
Court in a Public Interest Litigation on the ground that he could not hold the
august Office of the Advocate General of Uttarakhand in view of Article 165
read with Article 217 of the Constitution. According to the respondent, Mr.
Nathani was ineligible to be appointed as the Advocate General because he had
attained the age of 62 years much before he was appointed as the Advocate
General. The High Court entertained the petition and directed the State
Government to take decision on the issue raised within 15 days and apprise the
same to the High Court.
The State of Uttaranchal preferred special leave petitions before
this Court on 6.8.2001. This Court vide order dated 9.8.2001 stayed the
operation of the impugned judgment of the High Court. Thereafter on 11.2.2002,
this Court granted leave and directed that the stay already granted shall
It may be pertinent to mention that, despite the service of
notice, the respondents who had initially filed the writ petition before the
High Court challenging the appointment of Nathani as the Advocate General did
not appear before this Court. This clearly demonstrates the non- seriousness
and non-commitment of the respondents in filing the petition.
Before we proceed to examine the controversy involved in this
case, we deem it appropriate to set out Articles 165 and 217 of the
Constitution dealing with the post of the Advocate General and the qualifications
for appointment to this post in the Constitution. Article 165 which deals with
the appointment of the Advocate General for the States is reproduced as under:
The Advocate-General for the State.-(1) The Governor of each State shall appoint
a person who is qualified to be appointed a Judge of a High Court to be
Advocate-General for the State.
shall be the duty of the Advocate-General to give advice to the Government of
the State upon such legal matters, and to perform such other duties of a legal
character, as may from time to time be referred or assigned to him by the
Governor, and to discharge the functions conferred on him by or under this
Constitution or any other law for the time being in force.
Advocate-General shall hold office during the pleasure of the Governor, and
shall receive such remuneration as the Governor may determine.
Article 217 which deals with the appointment and the conditions of
the office of a Judge of a High Court is set out as under:
Appointment and conditions of the office of a Judge of a High Court .- (1)
Every Judge of a High Court shall be appointed by the President by warrant
under his hand and seal after consultation with the Chief Justice of India, the
Governor of the State, and, in the case of appointment of a Judge other than
the Chief Justice, the Chief Justice of the High court, and shall hold office,
in the case of an additional or acting Judge, as provided in article 224, and
in any other case, until he attains the age of sixty-two years:
that-- (a) a Judge may, by writing under his hand addressed to the President,
resign his office;
Judge may be removed from his office by the President in the manner provided in
clause (4) of article 124 for the removal of a Judge of the Supreme Court;
office of a Judge shall be vacated by his being appointed by the President to
be a Judge of the Supreme Court or by his being transferred by the President to
any other High Court within the territory of India.
person shall not be qualified for appointment as a Judge of a High Court unless
he is a citizen of India and-- (a) has for at least ten years held a judicial
office in the territory of India; or (b) has for at least ten years been an
advocate of a High Court or of two or more such courts in succession;
For the purposes of this clause-- (a) in computing the period during which a
person has held judicial office in the territory of India, there shall be
included any period, after he has held any judicial office, during which the
person has been an advocate of a High Court or has held the office of a member
of a tribunal or any post, under the Union or a State, requiring special
knowledge of law;
computing the period during which a person has been an advocate of a High
Court, there shall be included any period during which the person has held
judicial office or the office of a member of a tribunal or any post, under the
Union or a State, requiring special knowledge of law after he became an advocate;
computing the period during which a person has held judicial office in the
territory of India or been an advocate of High Court, there shall be included
any period before the commencement of this Constitution during which he has
held judicial office in any area which was comprised before the fifteenth day
of August, 1947, within India as defined by the Government of India Act,1935,
or has been an advocate of any High Court in any such area, as the case may be.
any question arises as to the age of a Judge of a High Court, the question
shall be decided by the President after consultation with the Chief Justice of
India and the decision of the President shall be final."
The Division Bench of the High Court in the impugned judgment
observed that the first clause of Article 165 insists that the Governor shall
appoint a person as the Advocate General who is qualified to be appointed as a
Judge of a High Court. The qualifications for the appointment of a Judge of a
High Court are prescribed in the second clause of Article 217.
true that the first clause of Article 217 says that a Judge of a High Court
"shall hold office until he attains the age of 60 years" (at the
relevant time the age of retirement of a Judge of the High Court was 60 years and
now it is 62 years). The Division Bench further held that the real question
then was whether this provision is to be construed as one prescribing a
qualification or as one prescribing the duration of the appointment of a Judge
of a High Court. It was further held that as the provision does not occur in
the second clause, it can only be construed as one prescribing the duration of
the appointment of a Judge of a High Court. The Court further observed that the
provisions about duration in the first clause of Article 217 cannot be made
applicable to the Advocate General because the Constitution contains a specific
provision about the duration of the appointment of the Advocate General in the
third clause of Article 165 which says that the Advocate General shall hold
office during the pleasure of the Governor. This provision does not limit the
duration of the appointment by reference to any particular age, as in the case
of a Judge, it is not permissible to import into it the words "until he
attains the age of sixty years". The specific provision in the
Constitution must, therefore, be given effect to without any limitation. If a
person is appointed as an Advocate General, say at the age of fifty-five years,
there is no warrant for holding that he must cease to hold his office on his
attaining sixty two years because it is so stated about a Judge of a High court
in the first clause of Article 217. If that be a true position, as we hold it
is, then the appointment is not bad because the person is past sixty two years,
so long as he has the qualifications prescribed in the second clause of Article
Shri Dinesh Dwivedi, the learned senior counsel appearing for the
State of Uttarakhand submitted that, over half a century ago, in G.D. Karkare
v. T.L. Shevde & Others AIR 1952 Nagpur 330, this controversy has been
settled by the Division Bench of the Nagpur High Court and the said judgment
was approved by a Constitution Bench of this Court in the case of Atlas Cycle
Industries Ltd. Sonepat v. Their Workmen 1962 Supp. (3) SCR 89. In Karkare's
case (supra), it was observed as follows:
It is obvious that all the provisions relating to a Judge of a High Court
cannot be made applicable to the Advocate-General. The provisions about
remuneration are different for the two offices. A Judge of the High Court is
governed by Art. 221. The Advocate-General is governed by clause (3) of Art.
165 and receives such remuneration as the Governor may determine.
the first clause of Art. 165 insists is that the Governor shall appoint a
person who is qualified to be appointed a Judge of a High Court to be
Advocate-General for the State. The qualifications for the appointment of a
Judge of a High Court are prescribed in the second clause of Art. 217. It is
true that the first clause of Art 217 says that a Judge of a High Court
"shall hold office until he attains the age of 60 years". The real
question then is whether this provision is to be construed as one prescribing a
qualification or as one prescribing the duration of the appointment of a Judge
of a High Court. As the provision does not occur in the second clause, it can
only be construed as one prescribing the duration of the appointment of a Judge
of a High Court.
provision about duration in the first clause of Art. 217 cannot be made applicable
to the Advocate-General because the Constitution contains a specific provision
about the duration of the appointment of the Advocate- General in the third
clause of Art. 165 which says that the Advocate-General shall hold office
during the pleasure of the Governor. As this provision does not limit the
duration of the appointment by reference to any particular age, as in the case
of a Judge, it is not permissible to import into it the words "until he
attains the age of sixty years". The specific provision in the
Constitution must therefore be given effect to without any limitation. If a
person is appointed Advocate-General, say at the age of fifty-five, there is no
warrant for holding that he must cease to hold his office on this attaining
sixty years because it is so stated about a Judge of a High Court in the first
clause of Art. 217. If that be the true position, as we hold it is, then the
appointment is not bad because the person is past sixty years, so long as he
has the qualifications prescribed in the second clause of Art. 217.
not suggested that the non-applicant does not possess the qualifications
prescribed in that clause.
provision that every Judge of a High Court "shall hold office until he
attains the age of sixty years" has two aspects to it. While in one aspect
it can be viewed as a guarantee of tenure during good behaviour to a person
appointed as a Judge of a High Court until he attains the age of sixty, in
another aspect it can be viewed as a disability in that a Judge cannot hold his
office as of right after he attains the age of sixty years.
say as of right because under Art.
person who has retired as a Judge of a High Court may be requested to sit and
act as a Judge of a High court. The attainment of the age of sixty by a person
cannot therefore be regarded as a disqualification for performing the functions
of a Judge. But the learned counsel for the applicant tried to distinguish
between the case of a person qualified to be appointed a Judge of a High Court
under Article 217 and the case of a person requested to sit and act as a Judge
under Article 224.
distinction between the case of a person qualified to be appointed a Judge of a
High Court under Article 217 and the case of a person requested to sit and act
under Article 224 is not with respect to the qualifications for performing the
functions of a Judge, but with respect to the matters provided by Article 221,
222, 223, etc. In the language of the Constitution a Judge does not lose the
qualifications prescribed in the second clause of Article 217 on the attainment
of the age of sixty years. A person who attains that age cannot be appointed as
a Judge not because he is not qualified to be so appointed within the meaning
of the second clause of Article 217, but because the first clause of that
Article expressly provides that a Judge shall hold office until he attains the
age of sixty years.
the provision in the first clause of Article 217 viewed as a guarantee of tenure
of office until the age of sixty is not available to the Advocate-General
because he holds office during the pleasure of the Governor, we see no
compelling reason why the same provision construed as a disability should be
made applicable to him. We are, therefore, of the view that the first clause of
Article 217 cannot be read with the first clause of Article 165 so as to
disqualify a person from being appointed Advocate-General after the age of
no doubt on the point. Even if the question be considered as not free from
doubt, as the applicant desires to construe the first clause of Article 217 as
a disabling provision against the non-applicant, we cannot forget that
provisions entailing disabilities have to be construed strictly: `Parameshwaram
Pillai Bhaskara Pillai v. State', 1950-5 Dom L R (Trav) 382. The canon of
construction approved by their Lordships of the Privy Council is that if there
be any ambiguity as to the meaning of a disabling provision, the construction
which is in favour of the freedom of the individual should be given effect to :
`David v. De'silva', (1934) A C 106 at p. 114.
There is no force in the contention that the non-applicant could not have been
appointed Advocate-General because he had retired as a Judge of the High Court.
The learned counsel referred us to Clause (4)(a) of Article 22 of the
Constitution and submitted that the Constitution makes a distinction between a
person who has been a Judge and one who is qualified to be appointed as a Judge
of a High Court. The provision in our view only makes an exhaustive
enumeration of the classes of persons who can constitute an Advisory Board.
Such persons must either be or must have been or must be qualified to be
appointed as Judges of a High Court. The provision has therefore no bearing on
the question whether the first clause of Article 165 has to be read with the
first clause of Article 217, which question we have already answered in the
negative. The case of the non- applicant is unique. Article 220 is not
applicable to him because he did not hold office as a Judge of the High Court
after the commencement of the Constitution. So the bar contained in that
Article also does not come in his way."
Despite the fact that the controversy has been fully settled by a
judgment of this Court, it has been raised from time to time in a number of
writ petitions before the various High Courts. We would reproduce some of the
judgments to demonstrate that after the controversy has been finally settled by
this Court, the filing of indiscriminate petitions with the same relief creates
unnecessary strain on the judicial system and consequently leads to inordinate
delay in disposal of genuine and bona fide cases.
The following cases would demonstrate that, in how many High
Courts, the similar controversy has been raised after the matter was finally
settled by this Court:
In Ghanshyam Chandra Mathur v. The State of Rajasthan & Others
1979 Weekly Law Notes 773, the appointment of the Advocate General was once
again challenged. The court held that "...no age of superannuation has
been mentioned in Article 165 of the Constitution of India. This clearly means
that the age of superannuation which applies to a High Court Judge, does not
apply to the office of the Advocate General".
In Dr. Chandra Bhan Singh v. State of Rajasthan & Others AIR
1983 Raj. 149, the question regarding the validity of the appointment of the
Advocate General was challenged.
in this case had held that the age of superannuation of a High Court Judge did
not apply to the post of the Advocate General. The court noted that all
provisions in the Constitution for High Court Judges, such as remuneration and
tenure of office do not apply to the post of the Advocate General.
In Manendra Nath Rai & Another v. Virendra Bhatia & Others
AIR 2004 All. 133, the appointment of the Advocate General was yet again
challenged. The Court held as under:
argument that the provision of Sub-clause (1) of Article 217 of the
Constitution should be followed in the matter of appointment of Advocate
General is wholly misconceived. Article 217 of the Constitution deals with the
appointment and conditions of the office of a Judge of a High Court. The
consultation with the Chief Justice of the State in the matter of appointment
of a Judge of the High Court cannot be made a requirement in the matter of the
appointment of Advocate General.
appointment of Advocate General is not governed by the aforesaid Article which
falls in Chapter-V Part-6 of the Constitution whereas Article 165, which deals
with the appointment of Advocate General for the State falls in Chapter II of
Part 6. The scheme of the Constitution for the appointment of Advocate General
as well as for appointment of a Judge of the High Court is totally
In a Division Bench judgment dated 4.2.2005 of the Allahabad High
Court in Prem Chandra Sharma & Others v. Milan Banerji & Others in writ
petition No. 716 (M/B) of 2005 reported in 2005 (3) ESC 2001, the appointment
of the Attorney General for India was challenged and a prayer was made to issue
a writ in the nature of quo warranto, because according to the petitioner, the
respondent Milan Banerji had already attained the age of 65 years and he could
not be appointed as the Attorney General for India. In that case, the Division
Bench relied upon the judgment of the Division Bench of the Nagpur High Court
in G.D. Karkare's case (supra). The Court held as under:
examined various provisions of the Constitution, it is quite clear that the
Constitution of India does not provide the retirement age of various
constitutional appointees. No outer age limit has been provided for the
appointment of the Attorney General, Solicitor General and Advocate General in
the State. In the democratic system, prevailing in our country the Attorney
General is appointed on the recommendation of the Prime Minister by the
President of India and traditionally, he resigns along with the Prime Minister.
Learned Counsel for the petitioner could not show any law relating to the age
of retirement of Attorney General or embargo provided in Constitution on
appointment of a person as Attorney General, who has already attained the age
of 65 years. We are of the considered opinion that the letter and spirit of the
Constitution as far as appointment of the Attorney General is concerned,
looking to significance, responsibility and high status of the post, it lays
down certain requirements for a Member of Bar to be appointed as Attorney
General of India. It is in this backdrop that the framers of the Constitution
thought it necessary to prescribe minimum requisite qualification by laying
that a person who is qualified to be appointed as Judge of the Hon'ble Court
can be appointed as Attorney-General of India. This situation, however, cannot
lead us to the conclusion by any stretch of imagination that the Attorney
General cannot hold his office after the age of 65 years. As already indicated
herein-above there are various constitutional functionaries where no outer age
limit is provided to hold the office."
In view of the clear enunciation of law in the aforesaid
judgments, the controversy has been fully settled that the Advocate General for
the State can be appointed after he/she attains the age of 62 years. Similarly,
the Attorney General for India can be appointed after he/she attains the age of
65 years. In a number of other cases regarding the appointment of other
authorities, the Courts have consistently taken the similar view.
This Court in Binay Kant Mani Tripathi v. Union of India &
Others (1993) 4 SCC 49 has re-affirmed this position.
pointed out that the decision of appointing D.K.Aggarwal to the position of the
Vice-chairman of the Central Administrative Tribunal could not be held to be
illegal or wrong on the ground that he was more than sixty two years old.
In Baishnab Patnaik & Others v. The State AIR 1952 Orissa 60,
the appointment of a person to the Advisory Board under the Preventive
Detention Act was challenged on the grounds that he was older than 60 years
(the age of superannuation for High Court judges at that time). The court
the makers of the Constitution thought that the age limit was one of the
qualifications for appointment as a Judge of a High Court they would not have
specified it in Clause (1) of Article 217 but would have included it in Clause
(2) of the said Article."
In Gurpal Singh v. State of Punjab & Others (2005) SCC 136,
the appointment of the appellant as Auction Recorder was challenged. The Court held
that the scope of entertaining a petition styled as a public interest
litigation and locus standi of the petitioner particularly in matters involving
service of an employee has been examined by this Court in various cases. The
Court observed that before entertaining the petition, the Court must be
satisfied about (a) the credentials of the applicant; (b) the prima facie
correctness or nature of information given by him; (c) the information being
not vague and indefinite. The information should show gravity and seriousness
involved. The court has to strike balance between two conflicting interests;
(i) nobody should be allowed to indulge in wild and reckless allegations
besmirching the character of others; and (ii) avoidance of public mischief and
to avoid mischievous petitions seeking to assail, for oblique motives,
justifiable executive actions.
The aforementioned cases clearly give us the picture how the
judicial process has been abused from time to time and after the controversy
was finally settled by a Constitution Bench of this Court, repeatedly the
petitions were filed in the various courts.
In the instant case, one of the petitioners before the High Court
is a practicing lawyer of the court. He has invoked the extraordinary
jurisdiction of the High Court in this matter. It was expected from a Hon'ble
member of the noble profession not to invoke the jurisdiction of the court in a
matter where the controversy itself is no longer res integra.
Similarly, it is the bounden duty of the court to ensure that the
controversy once settled by an authoritative judgment should not be reopened
unless there are extraordinary reasons for doing so.
In the instant case, the High Court entertained the petition
despite the fact that the controversy involved in the case was no longer res
integra. In reply to that writ petition, the Chief Standing Counsel of
Uttrakhand also filed a Miscellaneous Application before the High Court. The
relevant portion of the application reads as under:
That the following Attorney Generals appointed under Article 76 of the
Constitution were appointed when they were appointed as Attorney General were
beyond prescribed age for appointment as Supreme Court of India.
M. C. Setalvad (II) Sri C. K. Dapatary (III)Shri Niren De (IV) Sri Lal Narain
Singh (V) Sri K. Parasaran (VI) Sri Soli Sorabjee
the appointment of present Attorney General (Mr. Milon Banerjee) was challenged
before the Delhi High Court and the petition was dismissed in limine. The
appointment of Mr. R.P.
Advocate General of U.P. who has passed the age of 62 at the time of
appointment was also dismissed.
in the Hon'ble High Court of Judicature at Allahabad Sri JV. K.S. Chaudhary,
Sir Rishi Ram, Pt. Kanhaiya Lal Mishra, Sri Shanti Swaroop Bhatnagar and
several others were appointed as Advocate General after crossing the age of 62
years. There were several Advocate Generals in India who were appointed after
The State of Uttrakhand was a part of the State of U.P.a few years
ago. In the State of U.P., a large number of Advocate Generals appointed were
beyond 62 years of age at the time of their appointment. The petitioner, a
local practicing lawyer, ought to have bestowed some care before filing this
writ petition in public interest under Article 226 of the Constitution.
The controversy raised by the petitioner in this case was decided
58 years ago in the judgment of Karkare (supra) which was approved by the
Constitution Bench of the Supreme Court way back in 1962. Unfortunately, the
same controversy has been repeatedly raised from time to time in various High
Courts. When the controversy is no longer res-integra and the same controversy
is raised repeatedly, then it not only wastes the precious time of the Court
and prevent the Court from deciding other deserving cases, but also has the
immense potentiality of demeaning a very important constitutional office and
person who has been appointed to that office.
In our considered view, it is a clear case of the abuse of process
of court in the name of the Public Interest Litigation. In order to curb this
tendency effectively, it has now become imperative to examine all connected
issues of public interest litigation by an authoritative judgment in the hope
that in future no such petition would be filed and/or entertained by the Court.
To settle the controversy, we deem it appropriate to deal with
different definitions of the Public Interest Litigation in various countries.
We would also examine the evolution of the public interest litigation.
OF PUBLIC INTERST LITIGATION
Public Interest Litigation has been defined in the Black's Law
Dictionary (6th Edition) as under:- "Public Interest - Something in which
the public, the community at large, has some pecuniary interest, or some
interest by which their legal rights or liabilities are affected. It does not
mean anything so narrow as mere curiosity, or as the interests of the
particular localities, which may be affected by the matters in question.
shared by citizens generally in affairs of local, state or national
Advanced Law Lexicon has defined `Public Interest Litigation' as
under:- "The expression `PIL' means a legal action initiated in a Court of
law for the enforcement of public interest or general interest in which the
public or a class of the community has pecuniary interest or some interest by
which their legal rights or liabilities are affected."
The Council for Public Interest Law set up by the Ford Foundation
in USA defined "public interest litigation" in its report of Public
Interest Law, USA, 1976 as follows:
Interest Law is the name that has recently been given to efforts provide legal
representation to previously unrepresented groups and interests.
efforts have been undertaken in the recognition that ordinary market place for
legal services fails to provide such services to significant segments of the
population and to significant interests. Such groups and interests include the
proper environmentalists, consumers, racial and ethnic minorities and
others." (M/s Holicow Pictures Pvt. Ltd. v. Prem Chandra Mishra & Ors.
- AIR 2008 SC 913, para 19).
This court in People's Union for Democratic Rights &Others v.
Union of India & Others (1982) 3 SCC 235 defined `Public Interest
Litigation' and observed that the "Public interest litigation is a
cooperative or collaborative effort by the petitioner, the State of public
authority and the judiciary to secure observance of constitutional or basic
human rights, benefits and privileges upon poor, downtrodden and vulnerable
sections of the society".
PUBLIC INTEREST LITIGATION:
The public interest litigation is the product of realization of
the constitutional obligation of the court.
All these petitions are filed under the big banner of the public
interest litigation. In this view of the matter, it has become imperative to
examine what are the contours of the public interest litigation? What is the
utility and importance of the public interest litigation? Whether similar
jurisdiction exists in other countries or this is an indigenously developed
jurisprudence? Looking to the special conditions prevalent in our country,
whether the public interest litigation should be encouraged or discouraged by
the courts? These are some of the questions which we would endeavour to answer
in this judgment.
According to our opinion, the public interest litigation is an
extremely important jurisdiction exercised by the Supreme Court and the High
Courts. The Courts in a number of cases have given important directions and
passed orders which have brought positive changes in the country. The Courts'
directions have immensely benefited marginalized sections of the society in a
number of cases. It has also helped in protection and preservation of ecology,
environment, forests, marine life, wildlife etc. etc. The court's directions to
some extent have helped in maintaining probity and transparency in the public
This court while exercising its jurisdiction of judicial review
realized that a very large section of the society because of extreme poverty,
ignorance, discrimination and illiteracy had been denied justice for time
immemorial and in fact they have no access to justice. Pre-dominantly, to
provide access to justice to the poor, deprived, vulnerable, discriminated and
marginalized sections of the society, this court has initiated, encouraged and
propelled the public interest litigation. The litigation is upshot and product
of this court's deep and intense urge to fulfill its bounded duty and
The High Courts followed this Court and exercised similar
jurisdiction under article 226 of the Constitution.
courts expanded the meaning of right to life and liberty guaranteed under article
21 of the Constitution. The rule of locus standi was diluted and the
traditional meaning of
`aggrieved person' was broadened to provide access to justice to a very large
section of the society which was otherwise not getting any benefit from the
judicial system. We would like to term this as the first phase or the golden
era of the public interest litigation. We would briefly deal with important
cases decided by this Court in the first phase after broadening the definition
of `aggrieved person'. We would also deal with cases how this Court prevented
any abuse of the public interest litigation?
This Court in Akhil Bharatiya Soshit Karamchari Sangh (Railway) v.
Union of India & Others AIR 1981 SC 298 at page 317, held that our current
processual jurisprudence is not of individualistic Anglo-Indian mould. It is
broad-based and people-oriented, and envisions access to justice through `class
actions', `public interest litigation', and `representative proceedings'.
Indeed, little Indians in large numbers seeking remedies in courts through
collective proceedings, instead of being driven to an expensive plurality of
litigations, is an affirmation of participative justice in our democracy. We
have no hesitation in holding that the narrow concepts of `cause of action',
`person aggrieved' and individual litigation are becoming obsolescent in some
In Bandhua Mukti Morcha v. Union of India & Others AIR 1984 SC
802, this court entertained a petition even of unregistered Association
espousing the cause of over down- trodden or its members observing that the
cause of "little Indians" can be espoused by any person having no
interest in the matter.
In the said case, this court further held that where a public
interest litigation alleging that certain workmen are living in bondage and
under inhuman conditions is initiated it is not expected of the Government that
it should raise preliminary objection that no fundamental rights of the
petitioners or the workmen on whose behalf the petition has been filed, have
been infringed. On the contrary, the Government should welcome an inquiry by
the Court, so that if it is found that there are in fact bonded labourers or
even if the workers are not bonded in the strict sense of the term as defined
in the Bonded
Labour System (Abolition) Act, 1976 but they are made
to provide forced labour or any consigned to a life of utter deprivation and
degradation, such a situation can be set right by the Government.
Public interest litigation is not in the nature of adversary
litigation but it is a challenge and an opportunity to the government and its
officers to make basic human rights meaningful to the deprived and vulnerable
sections of the community and to assure them social and economic justice which
is the signature tune of our Constitution. The Government and its officers must
welcome public interest litigation because it would provide them an occasion to
examine whether the poor and the down-trodden are getting their social and
economic entitlements or whether they are continuing to remain victims of
deception and exploitation at the hands of strong and powerful sections of the
community and whether social and economic justice has become a meaningful
reality for them or it has remained merely a teasing illusion and a promise of
unreality, so that in case the complaint in the public interest litigation is
found to be true, they can in discharge of their constitutional obligation root
out exploitation and injustice and ensure to the weaker sections their rights
In Fertilizer Corporation Kamagar Union (Regd., Sindri &
Others v. Union of India & Others AIR 1981 SC 844, this court observed that
"public interest litigation is part of the process of participative
justice and `standing' in civil litigation of that pattern must have liberal
reception at the judicial doorsteps".
In Ramsharan Autyanuprasi & Another v. Union of India &
Others AIR 1989 SC 549, this court observed that the public interest litigation
is for making basic human rights meaningful to the deprived and vulnerable
sections of the community and to assure them social, economic and political
OF THE PUBLIC INTEREST LITIGATION IN INDIA
The origin and evolution of Public Interest Litigation in India
emanated from realization of constitutional obligation by the Judiciary towards
the vast sections of the society - the poor and the marginalized sections of
the society. This jurisdiction has been created and carved out by the judicial
creativity and craftsmanship. In M. C. Mehta & Another v. Union of India
& Others AIR 1987 SC 1086, this Court observed that Article 32 does not
merely confer power on this Court to issue direction, order or writ for the
enforcement of fundamental rights. Instead, it also lays a constitutional
obligation on this Court to protect the fundamental rights of the people. The
court asserted that, in realization of this constitutional obligation, "it
has all incidental and ancillary powers including the power to forge new
remedies and fashion new strategies designed to enforce the fundamental
rights". The Court realized that because of extreme poverty, a large
number of sections of society cannot approach the court. The fundamental rights
have no meaning for them and in order to preserve and protect the fundamental
rights of the marginalized section of society by judicial innovation, the
courts by judicial innovation and creativity started giving necessary
directions and passing orders in the public interest.
The development of public interest litigation has been extremely
significant development in the history of the Indian jurisprudence. The
decisions of the Supreme Court in the 1970's loosened the strict locus standi
requirements to permit filing of petitions on behalf of marginalized and
deprived sections of the society by public spirited individuals, institutions
and/or bodies. 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 analyzed, most of the public interest
litigation cases which were entertained by the courts are pertaining to
enforcement of fundamental rights of marginalized and deprived sections of the
society. This can be termed as the first phase of the public interest
litigation in India.
The Indian Supreme Court broadened the traditional rule of
standing and the definition of "person aggrieved".
In this judgment, we would like to deal with the origin and
development of public interest litigation. We deem it appropriate to broadly
divide the public interest litigation in three phases.
It deals with cases of this Court where directions and orders were passed
primarily to protect fundamental rights under Article 21 of the marginalized
groups and sections of the society who because of extreme poverty, illiteracy
and ignorance cannot approach this court or the High Courts.
It deals with the cases relating to protection, preservation of ecology,
environment, forests, marine life, wildlife, mountains, rivers, historical
monuments etc.etc. Phase-III: It deals with the directions issued by the Courts
in maintaining the probity, transparency and integrity in governance.
Thereafter, we also propose to deal with the aspects of abuse of
the Public Interest Litigation and remedial measures by which its misuse can be
prevented or curbed.
OF SOME IMPORTANT CASES OF PHASE-I
The court while interpreting the words "person
aggrieved" in Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed
& Others (1976) 1 SCC 671 observed that "the traditional rule is
flexible enough to take in those cases where the applicant has been
prejudicially affected by an act or omission of an authority, even though he
has no proprietary or even a fiduciary interest in the subject-matter. That
apart, in exceptional cases even a stranger or a person who was not a party to
the proceedings before the authority, but has a substantial and genuine
interest in the subject-matter of the proceedings will be covered by this
The rule of locus standi was relaxed in Bar Council of Maharashtra
v. M. V. Dabholkar & Others 1976 SCR 306. The court observed as under:
used to the adversary system, we search for individual persons aggrieved. But a
new class of litigation public interest litigation- where a section or whole of
the community is involved (such as consumers' organisations or NAACP-National
Association for Advancement of Coloured People-in America), emerges in a
developing country like ours, this pattern of public oriented litigation better
fulfils the rule of law if it is to run close to the rule of life.
xxx "The possible apprehension that widening legal standing with a public
connotation may unloose a flood of litigation which may overwhelm the judges is
misplaced because public resort to court to suppress public mischief is a
tribute to the justice system."
The court in this case observed that "procedural
prescriptions are handmaids, not mistresses of justice and failure of fair play
is the spirit in which Courts must view procession deviances."
In The Mumbai Kamgar Sabha, Bombay v. Abdulbhai Faizullabhai &
Others AIR 1976 SC 1455, this Court made conscious efforts to improve the
judicial access for the masses by relaxing the traditional rule of locus
In Sunil Batra v. Delhi Administration & OthersAIR 1978 SC
1675, the Court departed from the traditional rule of standing by authorizing
community litigation. The Court entertained a writ petition from a prisoner, a
disinterested party, objecting to the torture of a fellow prisoner. The Court
entertained the writ after reasoning that "these 'martyr' litigations
possess a beneficent potency beyond the individual litigant and their
consideration on the wider representative basis strengthens the rule of
citing "people's vicarious involvement in our justice system with a broad-based
concept of locus standi so necessary in a democracy where the masses are in
many senses weak," the Court permitted a human rights organization to
intervene in the case on behalf of the victim.
In Hussainara Khatoon & Others v. Home Secretary, State of
Bihar, Patna AIR 1979 SC 1369, P. N. Bhagwati, J. has observed that
"today, unfortunately, in our country the poor are priced out of the
judicial system with the result that they are losing faith in the capacity of
our legal system to (sic) about changes in their life conditions and to deliver
justice to them. The poor in their contact with the legal system have always
been on the wrong side of the line. They have always come across 'law for the
poor" rather than law of the poor'. The law is regarded by them as
something mysterious and forbidding--always taking something away from them and
not as a positive and constructive social device for changing the social
economic order and improving their life conditions by conferring rights and
benefits on them. The result is that the legal system has lost its credibility
for the weaker section of the community.
In Prem Shankar Shukla v. Delhi Administration AIR 1980 SC 1535, a
prisoner sent a telegram to a judge complaining of forced handcuff on him and
demanded implicit protection against humiliation and torture. The court gave
necessary directions by relaxing the strict rule of locus standi.
In Municipal Council, Ratlam v. Vardhichand & Others AIR 1980
SC 1622, Krishna Iyer, J. relaxed the rule of locus standi:
truth is that a few profound issues of processual jurisprudence of great
strategic significance to our legal system face us and we must zero-in on them
as they involve problems of access to justice for the people beyond the
blinkered rules of 'standing' of British Indian vintage. If the center of
gravity of justice is to shift, as the Preamble to the Constitution mandates,
from the traditional individualism of locus standi to the community orientation
of public interest litigation, these issues must be considered.....
xxx xxx xxx xxx Why drive common people to public interest action? Where
Directive Principles have found statutory expression in Do's and Don'ts the
court will not sit idly by and allow municipal government to become a statutory
mockery. The law will relentlessly be enforced and the plea of poor finance
will be poor alibi when people in misery cry for justice......"
In Fertilizer Corporation Kamgar Union (supra) Krishna Iyer, J.
and Bhagwati, J. had to answer in affirmative as to whether the workers in a
factory owned by government had locus standi to question the legality of sale
of the factory. They concluded with a quote: `Henry Peter Brougham: Nieman
Reports, April 1956 as under:
was the boast of Augustus that he found Rome of brick and left it of marble.
But how much nobler will be the sovereign's boast when he shall have it to say
that he found law dear and left it cheap; found it a sealed book and left it a
living letter; found it the patrimony of the rich and left it the inheritance
of the poor; found it the two-edged sword of craft and oppression and left it
the staff of honesty and the shield of innocence."
In People's Union for Democratic Rights & Others (supra), this
Court observed as under:
public interest litigation which is a strategic arm of the legal aid movement
and which is intended to bring justice within the reach of the poor masses, who
constitute the low visibility area of humanity, is a totally different kind of
litigation from the ordinary traditional litigation which is essentially of an
adversary character where there is a dispute between two litigating parties,
one making claim or seeking relief against the other and that other opposing
such claim or resisting such relief. Public interest litigation is brought
before the court not for the purpose of enforcing the right of one individual
against another as happens in the case of ordinary litigation, but it is
intended to promote and vindicate public interest which demands that violations
of constitutional or legal rights of large numbers of people who are poor,
ignorant or in a socially or economically disadvantaged position should not go
unnoticed and un-redressed. That would be destructive of the Rule of Law which
forms one of the essential elements of public interest in any democratic form
of government. The Rule of Law does not mean that the protection of the law
must be available only to a fortunate few or that the law should be allowed to
be prostituted by the vested interests for protecting and upholding the status
quo under the guise of enforcement of their civil and political rights. The
poor too have civil and political rights and the Rule of Law is meant for them
also, though today it exists only on paper and not in reality. If the sugar
barons and the 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 of 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 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 waste of time 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.
Large numbers of men, women and children who constitute the bulk of our
population are today living a sub-human existence in conditions of abject
poverty: utter grinding poverty has broken their back and sapped their moral
no faith in the existing social and economic system. What civil and political
rights are these poor and deprived sections of humanity going to enforce?
Justice Bhagwati of this court in his judgment in S.P.Gupta v.
President of India & Others AIR 1982 SC 149 altogether dismissed the
traditional rule of standing, and replaced it with a liberalized modern rule. In
this case, the Court awarded standing to advocates challenging the transfer of
judges during Emergency. Describing the traditional rule as an "ancient
vintage" of "an era when private law dominated the legal scene and
public law had not been born," the Court concluded that the traditional
rule of standing was obsolete.
place, the Court prescribed the modern rule on standing:
a legal wrong or a legal injury is caused to a person or to a determinate class
of persons by reason of violation of any constitutional or legal right or any
burden is imposed in contravention of any constitutional or legal provision or
without authority of law or any such legal wrong or legal injury or illegal
burden is threatened and such person or determinate class of persons is by
reason of poverty, helplessness or disability or socially or economically
disadvantaged position, unable to approach the Court for relief, any member of
the public can maintain an application for an appropriate direction, order or
writ, in the High Court under Article 226, and in case of breach of any
fundamental right, in this Court under Article 32."
Finding that the practicing advocates "are vitally interested
in the maintenance of a fearless and an independent Judiciary," the Court
granted standing to the advocates under the modern rule to bring cases
challenging the transfer of judges during Emergency. In this case, this Court
further observed as under:
must now be regarded as well settled law where a person who has suffered a
legal wrong or a legal injury or whose legal right or legally protected
interest is violated, is unable to approach the Court on account of some
disability or it is not practicable for him to move the Court for some other
sufficient reasons, such as his socially or economically disadvantaged
position, some other person can invoke assistance of the Court for the purpose
of providing judicial redress to the person wronged or injured, so that the
legal wrong or injury caused to such person does not go un-redressed and
justice is done to him.
xxx xxx xxx xxx ......Today a vast revolution is taking place in the judicial
process; the theatre of the law is fast changing and the problems of the poor
are coming to the forefront. The Court has to innovate new methods and devise
new strategies for the purpose of providing access to justice to large masses
of people who are denied their basic human rights and to whom freedom and
liberty have no meaning. The only way in which this can be done is by entertaining
writ petitions and even letters from public spirited individuals seeking
judicial redress for the benefit of persons who have suffered a legal wrong or
a legal injury or whose constitutional or legal right has been violated but who
by reason of their poverty or socially or economically disadvantaged position
are unable to approach the Court for relief. It is in this spirit that the
Court has been entertaining letters for Judicial redress and treating them as
writ petitions and we hope and trust that the High Courts of the country will
also adopt this pro- active, goal-oriented approach."
In Anil Yadav & Others v. State of Bihar and Bachcho Lal Das,
Superintendent, Central Jail, Bhagalpur, Bihar (1982) 2 SCC 195, a petition was
filed regarding blinding of under- trial prisoners at Bhagalpur in the State of
Bihar. According to the allegation, their eyes were pierced with needles and
acid poured into them. The Court had sent a team of the Registrar and Assistant
Registrar to visit the Central Jail, Bhagalpur and submit a report to the
Court. The Court passed comprehensive orders to ensure that such barbarous and
inhuman acts are not repeated.
In Munna & Others v. State of Uttar Pradesh & Others,
(1982) 1 SCC 545, the allegation was that the juvenile under- trial prisoners
have been sent in the Kanpur Central Jail instead of Children's Home in Kanpur
and those children were sexually exploited by the adult prisoners. This Court
ruled that in no case except the exceptional ones mentioned in the Act, a child
can be sent to jail. The Court further observed that the children below the age
of 16 years must be detained only in the Children's Homes or other place of
safety. The Court also observed that "a Nation which is not concerned with
the welfare of the children cannot look forward to a bright future."
Thereafter, in a series of cases, the Court treated Post Cards and
letters as writ petitions and gave directions and orders.
In Sheela Barse v. State of Maharashtra AIR 1983 SC 378, Sheela
Barse, a journalist, complained of custodial violence to women prisoners in
Bombay. Her letter was treated as a writ petition and the directions were given
by the court.
In Dr. Upendra Baxi (I) v. State of Uttar Pradesh &Another
1983 (2) SCC 308 two distinguished law Professors of the Delhi University
addressed a letter to this court regarding inhuman conditions which were
prevalent in Agra Protective Home for Women. The court heard the petition on a
number of days and gave important directions by which the living conditions of
the inmates were significantly improved in the Agra Protective Home for Women.
In Veena Sethi (Mrs.) v. State of Bihar & Others AIR 1983 SC
339, some prisoners were detained in jail for a period ranging from 37 years to
19 years. They were arrested in connection with certain offences and were
declared insane at the time of their trial and were put in Central Jail with
directions to submit half-yearly medical reports. Some were convicted, some
acquitted and trials were pending against some of them. After they were
declared sane no action for their release was taken by the authorities. This
Court ruled that the prisoners remained in jail for no fault of theirs and
because of the callous and lethargic attitude of the authorities. Even if they
are proved guilty the period they had undergone would exceed the maximum
imprisonment that they might be awarded.
In Labourers Working on Salal Hydro Project v. State of Jammu
& Kashmir & Others AIR 1984 SC 177, on the basis of a news item in the
Indian Express regarding condition of the construction workers, this Court took
notice and observed that the construction work is a hazardous employment and no
child below the age of 14 years can therefore be allowed to be employed in
construction work by reason of the prohibition enacted in Article 24 and this
constitutional prohibition must be enforced by the Central Government.
In Shri Sachidanand Pandey & Another v. The State of West
Bengal & Others (1987) 2 SCC 295, in the concurring judgment, Justice
Khalid, J. observed that the public interest litigation should be encouraged
when the Courts are apprised of gross violation of fundamental rights by a
group or a class action or when basic human rights are invaded or when there
are complaints of such acts as shock the judicial conscience that the courts,
especially this Court, should leave aside procedural shackles and hear such
petitions and extend its jurisdiction under all available provisions for
remedying the hardships and miseries of the needy, the underdog and the
The case of B. R. Kapoor & Another v. Union of India &Others
AIR 1990 SC 752 relates to public interest litigation regarding mismanagement
of the hospital for mental diseases located at Shahdara, Delhi. This Court
appointed a Committee of Experts which highlighted the problems of availability
of water, existing sanitary conditions, food, kitchen, medical and nursing
care, ill-treatment of patients, attempts of inmates to commit suicide, death
of patients in hospital, availability of doctors and nurses etc. The Court went
on to recommend the Union of India to take over the hospital and model it on
the lines of NIMHANS at Bangalore.
In Smt. Nilabati Behera alias Lalita Behera v. State of Orissa
& Others AIR 1993 SC 1960, this Court gave directions that for
contravention of human rights and fundamental freedoms by the State and its
agencies, a claim for monetary compensation in petition under Article 32 of 226
is justified. In a concurring judgment, Anand, J. (as he then was) observed as
old doctrine of only relegating the aggrieved to the remedies available in
civil law limits the role of the courts too much as protector and guarantor of
the indefeasible rights of the citizens. The courts have the obligation to satisfy
the social aspirations of the citizens because the courts and the law are for
the people and expected to respond to their aspirations."
In Punjab and Haryana High Court Bar Association, Chandigarh
through its Secretary v. State of Punjab & Others (1994) 1 SCC 616, the
allegation was that a practicing advocate, his wife and a child aged about two
years were abducted and murdered. This Court directed the Director of the CBI
to investigate and report to the Court.
In Navkiran Singh & Others v. State of Punjab through Chief
Secretary & Another (1995) 4 SCC 591, in a letter petition the advocates
from the Punjab & Haryana High Court expressed concerned about the
kidnapping/elimination of advocates in the State of Punjab. This Court directed
the CBI to investigate the matter and also directed the State of Punjab to
provide security to those advocates who genuinely apprehend danger to their
lives from militants/anti-social elements. The Court also observed that if the
request for security is recommended by the District Judge or the Registrar of
the High Court, it may treated as genuine and the State Government may consider
the same sympathetically.
In Delhi Domestic Working Women's Forum v. Union of India &
Others (1995) 1 SCC 14, the Court expressed serious concern about the violence
against women. The Court gave significant directions and observed that
compensation for victims shall be awarded by the court on conviction of the
offender and by the Criminal Injuries Compensation Board whether or not a
conviction has taken place. The Board will take into account pain, suffering
and shock as well as loss of earnings due to pregnancy and the expenses of
child birth if this occurred as a result of the rape.
In Citizens for Democracy v. State of Assam & Others (1995) 3
SCC 743, this Court held that handcuffing and tying with ropes is inhuman and
in utter violation of human rights guaranteed under the international law and
the law of the land. The Court in para 15 observed as under:
..... The handcuffing and in addition tying with ropes of the patient-prisoners
who are lodged in the hospital is, the least we can say, inhuman and in utter
violation of the human rights guaranteed to an individual under the
international law and the law of the land. We are, therefore, of the view that
the action of the respondents was wholly unjustified and against law. We direct
that the detenus - in case they are still in hospital - be relieved from the
fetters and the ropes with immediate effect."
In Paramjit Kaur (Mrs.) v. State of Punjab & Others (1996) 7
SCC 20, a telegram was sent to a Judge of this Court which was treated as a
habeas corpus petition. The allegation was that the husband of the appellant
was kidnapped by some persons in police uniform from a busy residential area of
Amritsar. The Court took serious note of it and directed the investigation of
the case by the Central Bureau of Investigation.
In M. C. Mehta v. State of Tamil Nadu & Others (1996) 6 SCC
756, the Court was dealing with the cases of child labour and the Court found
that the child labour emanates from extreme poverty, lack of opportunity for
gainful employment and intermittency of income and low standards of living. The
Court observed that it is possible to identify child labour in the organized
sector, which forms a minuscule of the total child labour, the problem relates
mainly to the unorganized sector where utmost attention needs to be paid.
In D. K. Basu v. State of West Bengal (1997) 1 SCC 416, this Court
observed that the custodial death is perhaps one of the worst crimes in a
civilized society governed by the rule of law. The rights inherent in Articles
21 and 22(1) of the Constitution require to be jealously and scrupulously
protected. The expression "life or personal liberty" in Article 21
includes the right to live with human dignity and thus it would also include
within itself a guarantee against torture and assault by the State or its
functionaries. The precious right guaranteed by Article 21 cannot be denied to
convicts, undertrials, detenus and other prisoners in custody, except according
to the procedure established by law by placing such reasonable restrictions as
are permitted by law.
gave very significant directions which are mandatory for all concerned to
In Vishaka & Others v. State of Rajasthan & Others (1997)
6 SCC 241, this Court gave directions regarding enforcement of the fundamental
rights of the working women under Articles 14, 19 and 21 of the Constitution.
The Court gave comprehensive guidelines and norms and directed for protection
and enforcement of these rights of the women at their workplaces.
In a recently decided case Prajwala v. Union of India & Others
(2009) 4 SCC 798, a petition was filed in this Court in which it was realized
that despite commencement of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995, disabled
people are not given preferential treatment. The Court directed the State
Governments/local authorities to allot land for various purposes indicted in
section 43 of the Act and various items indicated in section 43, preferential
treatment be given to the disabled people and the land shall be given at concessional
rates. The percentage of reservation may be left to the discretion of the State
Governments. However, total percentage of disabled persons shall be taken into
account while deciding the percentage.
In Avinash Mehrotra v. Union of India & Others (2009) 6 SCC
398, a public interest litigation was filed, when 93 children were burnt alive
in a fire at a private school in Tamil Nadu. This happened because the school
did not have the minimum safety standard measures. The court, in order to
protect future tragedies in all such schools, gave directions that it is the
fundamental right of each and every child to receive education free from fear
of security and safety, hence the Government should implement National Building
Code and comply with the said orders in constructions of schools for children.
All these abovementioned cases demonstrate that the courts, in
order to protect and preserve the fundamental rights of citizens, while
relaxing the rule of locus standi, passed a number of directions to the
We would not like to overburden the judgment by multiplying these
cases, but brief resume of these cases demonstrate that in order to preserve
and protect the fundamental rights of marginalized, deprived and poor sections
of the society, the courts relaxed the traditional rule of locus standi and
broadened the definition of aggrieved persons and gave directions and orders.
We would like to term cases of this period where the court relaxed the rule of
locus standi as the first phase of the public interest litigation.
Court and the High Courts earned great respect and acquired great credibility
in the eyes of public because of their innovative efforts to protect and
preserve the fundamental rights of people belonging to the poor and
marginalized sections of the society.
- DIRECTIONS TO PRESERVE AND PROTECT ECOLOGY AND ENVIRONMENT
The second phase of public interest litigation started sometime in
the 1980's and it related to the courts' innovation and creativity, where
directions were given to protect ecology and environment.
There are a number of cases where the court tried to protect
forest cover, ecology and environment and orders have been passed in that
respect. As a matter of fact, the Supreme Court has a regular Forest Bench
(Green Bench) and regularly passes orders and directions regarding various
forest cover, illegal mining, destruction of marine life and wild life etc.
of some cases is given just for illustration.
In the second phase, the Supreme Court under Article 32 and the
High Court under Article 226 of the Constitution passed a number of orders and
directions in this respect.
The recent example is the conversion of all public transport in
the Metropolitan City of Delhi from diesel engine to CNG engine on the basis of
the order of the High Court of Delhi to ensure that the pollution level is
curtailed and this is being completely observed for the last several years.
Only CNG vehicles are permitted to ply on Delhi roads for public transport.
Louise Erdrich Bigogress, an environmentalist has aptly observed
that "grass and sky are two canvasses into which the rich details of the
earth are drawn." In 1980s, this court paid special attention to the
problem of air pollution, water pollution, environmental degradation and passed
a number of directions and orders to ensure that environment ecology, wildlife
should be saved, preserved and protected. According to court, the scale of
injustice occurring on the Indian soil is catastrophic. Each day hundreds of
thousands of factories are functioning without pollution control devices.
Thousands of Indians go to mines and undertake hazardous work without proper
safety protection. Everyday millions of litres of untreated raw effluents are
dumped into our rivers and millions of tons of hazardous waste are simply
dumped on the earth. The environment has become so degraded that instead of
nurturing us it is poisoning us. In this scenario, in a large number of cases,
the Supreme Court intervened in the matter and issued innumerable directions.
We give brief resume of some of the important cases decided by
this court. One of the earliest cases brought before the Supreme Court related
to oleum gas leakage in Delhi. In order to prevent the damage being done to
environment and the life and the health of the people, the court passed number
of orders. This is well-known as M.C.
& Another v. Union of India & Others AIR 1987 SC 1086.
in this case has clearly laid down that an enterprise which is engaged in a
hazardous or inherently dangerous industry which poses a potential threat to
the health and safety of the persons working in the factory and residing in the
surrounding area owes an absolute and non- delegable duty to the community to
ensure that no such harm results to anyone on account of hazardous or
inherently dangerous nature of the activity which it has undertaken. The court
directed that the enterprise must adopt highest standards of safety and if any
harm results on account of such activity, the enterprise must be absolutely
liable to compensate for such harm and it should be no answer to the enterprise
to say that it had taken all reasonable care and that the harm occurred without
any negligence on its part.
In Rural Litigation and Entitlement Kendra, Dehradun &Others
v. State of U.P. & Others AIR 1985 SC 652 the Supreme Court ordered closure
of all lime-stone quarries in the Doon Valley taking notice of the fact that
lime-stone quarries and excavation in the area had adversely affected water
springs and environmental ecology. While commenting on the closure of the
lime-stone quarries, the court stated that this would undoubtedly cause
hardship to owners of the lime-stone quarries, but it is the price that has to
be paid for protecting and safeguarding the right of the people to live in
healthy environment with minimal disturbance of ecological balance and without
avoidable hazard to them and to their cattle, homes and agricultural land and
undue affectation of air, water and environment.
Environmental PIL has emerged because of the court's
interpretation of Article 21 of the Constitution. The court in Chhetriya
Pardushan Mukti Sangharsh Samiti v. State of U.P.& Others AIR 1990 SC 2060
observed that every citizen has fundamental right to have the enjoyment of quality
of life and living as contemplated by Article 21 of the Constitution of India.
Anything which endangers or impairs by conduct of anybody either in violation
or in derogation of laws, that quality of life and living by the people is
entitled to take recourse to Article 32 of the Constitution.
This court in Subhash Kumar v. State of Bihar & Others AIR
1991 SC 420 observed that under Article 21 of the Constitution people have the
right of enjoyment of pollution free water and air for full enjoyment of life.
If anything endangers or impairs that quality of life in derogation of laws, a
citizen has right to have recourse to Article 32 of the Constitution for
removing the pollution of water or air which may be detrimental to the quality
The case of M.C. Mehta v. Union of India & Others (1988) 1 SCC
471, relates to pollution caused by the trade effluents discharged by tanneries
into Ganga river in Kanpur.The court called for the report of the Committee of
experts and gave directions to save the environment and ecology. It was held
that "in Common Law the Municipal Corporation can be restrained by an
injunction in an action brought by a riparian owner who has suffered on account
of the pollution of the water in a river caused by the Corporation by
discharging into the river insufficiently treated sewage from discharging such
sewage into the river. But in the present case the petitioner is not a riparian
owner. He is a person interested in protecting the lives of the people who make
use of the water flowing in the river Ganga and his right to maintain the
petition cannot be disputed. The nuisance caused by the pollution of the river
Ganga is a public nuisance, which is widerspread in range and indiscriminate in
its effect and it would not be reasonable to expect any particular person to
take proceedings to stop it as distinct from the community at large. The
petition has been entertained as a Public Interest Litigation. On the facts and
in the circumstances of the case, the petitioner is entitled to move the
Supreme Court in order to enforce the statutory provisions which impose duties
on the municipal authorities and the Boards constituted under the Water (Prevention and
Control of Pollution) Act, 1974".
In Vellore Citizens Welfare Forum v. Union of India &Others
AIR 1996 SC 2715, this court ruled that precautionary principle and the
polluter pays principle are part of the environmental law of the country. This
court declared Articles 47, 48A and 51A(g) to be part of the constitutional mandate
to protect and improve the environment.
In M.C. Mehta v. Union of India & Others AIR 1988 SC 1037,
this court observed that the effluent discharged in river Ganga from a tannery
is ten times noxious when compared with the domestic sewage water which flows
into the river from any urban area on its banks. The court further observed
that the financial capacity of the tanneries should be considered as irrelevant
without requiring them to establish primary treatment plants. Just like an
industry which cannot pay minimum wages to its workers cannot be allowed to
exist, a tannery which cannot set up a primary treatment plant cannot be
permitted to continue to be in existence for the adverse effect on the public
In M.C. Mehta v. Union of India & Others AIR 1997 SC 734, this
court observed that in order to preserve and protect the ancient monument Taj
Mahal from sulphurdioxide emission by industries near Taj Mahal, the court ordered
299 industries to ban the use of coke/coal. The court further directed them to
shift-over to Compressed Natural Gas (CNG) or re-locate them.
In A. P. Pollution Control Board v. Prof. M. V. Nayadu (Retd.)
& Others (1999) 2 SCC 718, this Court quoted A.
"Environmental Ethics: Choices for Concerned Citizens". The same is
reproduced as under:
basic insight of ecology is that all living things exist in interrelated
systems; nothing exists in isolation. The world system in weblike;
one strand is to cause all to vibrate;
happens to one part has ramifications for all the rest. Our actions are not
individual but social; they reverberate throughout the whole ecosystem".
[Science Action Coalition by A.
Environmental Ethics: Choices for Concerned Citizens 3-4 (1980)] : (1988) Vol.
12 Harv. Env. L. Rev. at 313)."
The court in this case gave emphasis that the directions of the
court should meet the requirements of public interest, environmental
protection, elimination of pollution and sustainable development. While
ensuring sustainable development, it must be kept in view that there is no
danger to the environment or to the ecology.
In Essar Oil Ltd. v. Halar Utkarsh Samiti & Others AIR 2004 SC
1834, while maintaining the balance between economic development and
environmental protection, the court observed as under:
Certain principles were enunciated in the Stockholm Declaration giving broad
parameters and guidelines for the purposes of sustaining humanity and its
environment. Of these parameters, a few principles are extracted which are of
relevance to the present debate. Principle 2 provides that the natural
resources of the earth including the air, water, land, flora and fauna
especially representative samples of natural eco-systems must be safeguarded
for the benefit of present and future generations through careful planning and
management as appropriate. In the same vein, the 4th principle says "man
has special responsibility to safeguard and wisely manage the heritage of wild
life and its habitat which are now gravely imperiled by a combination of
conservation including wild life must, therefore, receive importance in
planning for economic developments". These two principles highlight the
need to factor in considerations of the environment while providing for
economic development. The need for economic development has been dealt with in
Principle 8 where it is said that "economic and social development is
essential for ensuring a favourable living and working environment for man and
for creating conditions on earth that are necessary for improvement of the
quality of life"."
On sustainable development, one of us (Bhandari, J.) in Karnataka
Industrial Areas Development Board v. Sri C.Kenchappa & Others AIR 2006 SC
2038, observed that there has to be balance between sustainable development and
Court observed that before acquisition of lands for development, the
consequence and adverse impact of development on environment must be properly
comprehended and the lands be acquired for development that they do not gravely
impair the ecology and environment; State Industrial Areas Development Board to
incorporate the condition of allotment to obtain clearance from the Karnataka
State Pollution Control Board before the land is allotted for development. The
said directory condition of allotment of lands be converted into a mandatory
condition for all the projects to be sanctioned in future.
In another important decision of this Court in the case of M.C.
Mehta v. Kamal Nath & Others (2000) 6 SCC 213, this Court was of the
opinion that Articles 48A and 51-A(g) have to be considered in the light of
Article 21 of the Constitution.
disturbance of the basic environment elements, namely air, water and soil,
which are necessary for "life", would be hazardous to
"life" within the meaning of Article 21. In the matter of enforcement
of rights under Article 21, this Court, besides enforcing the provisions of the
Acts referred to above, has also given effect to Fundamental Rights under
Articles 14 and 21 and has held that if those rights are violated by disturbing
the environment, it can award damages not only for the restoration of the
ecological balance, but also for the victims who have suffered due to that
disturbance. In order to protect the "life", in order to protect
"environment" and in order to protect "air, water and soil"
from pollution, this Court, through its various judgments has given effect to
the rights available, to the citizens and persons alike, under Article 21.
The court also laid emphasis on the principle of Polluter-pays.
According to the court, pollution is a civil wrong. It is a tort committed
against the community as a whole. A person, therefore, who is guilty of causing
pollution has to pay damages or compensation for restoration of the environment
In Managing Director, A.P.S.R.T.C. v. S. P.Satyanarayana AIR 1998
SC 2962, this Court referred to the White Paper published by the Government of
India that the vehicular pollution contributes 70% of the air pollution as
compared to 20% in 1970. This Court gave comprehensive directions to reduce the
air pollution on the recommendation of an Expert Committee of Bhure Lal
appointed by this Court.
In Re. Noise Pollution AIR 2005 SC 3136, this Court was dealing
with the issue of noise pollution. This Court was of the opinion that there is
need for creating general awareness towards the hazardous effects of noise
in our country the people generally lack consciousness of the ill effects which
noise pollution creates and how the society including they themselves stand to
benefit by preventing generation and emission of noise pollution.
In Indian Council for Enviro-Legal Action v. Union of India &
Others (1996) 5 SCC 281 the main grievance in the petition is that a
notification dated 19.2.1991 declaring coastal stretches as Coastal Regulation
Zones which regulates the activities in the said zones has not been implemented
or enforced. This has led to continued degradation of ecology in the said
coastal areas. The court observed that while economic development should not be
allowed to take place at the cost of ecology or by causing widespread
environment destruction and violation; at the same time, the necessity to
preserve ecology and environment should not hamper economic and other
developments. Both development and environment must go hand in hand, in other
words, there should not be development at the cost of environment and vice
versa, but there should be development while taking due care and ensuring the
protection of environment.
In S. Jagannath v. Union of India & Others (1997) 2 SCC 87,
this Court dealt with a public interest petition filed by the Gram Swaraj
Movement, a voluntary organization working for the upliftment of the weaker
section of society, wherein the petitioner sought the enforcement of Coastal
Zone Regulation Notification dated 19.2.1991 and stoppage of intensive and
semi-intensive type of prawn farming in the ecologically fragile coastal areas.
This Court passed significant directions as under:
Central Government shall constitute an authority conferring on the said
authority all the powers necessary to protect the ecologically fragile coastal
areas, seashore, waterfront and other coastal areas and specially to deal with
the situation created by the shrimp culture industry in coastal States.
authority so constituted by the Central Government shall implement "the
Precautionary principle" and "the Polluter Pays"
shrimp culture industry/the shrimp ponds are covered by the prohibition
contained in para 2(i) of the CRZ Notification. No shrimp culture pond can be
constructed or set up within the coastal regulation zone as defined in the CRZ
notification. This shall be applicable to all seas, bays, estuaries, creeks
rivers and backwaters. This direction shall not apply to traditional and
improved traditional types of technologies (as defined in Alagarswami report)
which are practised in the coastal low lying areas.
acquaculture industries/shrimp culture industries/shrimp culture ponds
operating/set up in the coastal regulation zone as defined under the CRZ
Notification shall be demolished and removed from the said area before March
agricultural lands, salt pan lands, mangroves, wet lands, forest lands, land
for village common purpose and the land meant for public purposes shall not be
used/converted for construction of the shrimp culture ponds.
acquaculture industry/shrimp culture industry/shrimp culture ponds shall be
constructed/set up within 1000 meter of Chilka lake and Pulicat lake (including
Bird Sanctuaries namely Yadurapattu and Nelapattu).
Acquaculture industry/shrimp culture industry/shrimp culture ponds already
operating and functioning in the said area of 1000 meter shall be closed and
demolished before March 31, 1997.
Court also directed that the shrimp industries functioning within 1000 meter
from the Coastal Regulation Zone shall be liable to compensate the affected
persons on the basis of the "polluter pays" principle.
authority was directed to compute the compensation under two heads namely, for
reversing the ecology and for payment to individuals.
compensation amount recovered from the polluters shall be deposited under a
separate head called "Environment Protection Fund" and shall be
utilised for compensating the affected persons as identified by the authority
and also for restoring the damaged environment.
The Court also granted substantial costs to the petitioners.
The courts because of vast destruction of environment, ecology,
forests, marine life, wildlife etc. etc. gave directions in a large number of
cases in the larger public interest. The courts made a serious endeavour to
protect and preserve ecology, environment, forests, hills, rivers, marine life,
wildlife etc. etc. This can be called the second phase of the public interest
litigation in India.
TRANSPARENCY AND PROBITY IN GOVERNANCE - PHASE-III OF THE PUBLIC INTERST
In the 1990's, the Supreme Court expanded the ambit and scope of
public interest litigation further. The High Courts also under Article 226
followed the Supreme Court and passed a number of judgments, orders or
directions to unearth corruption and maintain probity and morality in the
governance of the State. The probity in governance is a sine qua non for an
efficient system of administration and for the development of the country and
an important requirement for ensuring probity in governance is the absence of
corruption. This may broadly be called as the third phase of the Public
Interest Litigation. The Supreme Court and High Courts have passed significant
The case of Vineet Narain & Others v. Union of India & Another
AIR 1998 SC 889 is an example of its kind. In that case, the petitioner, who
was a journalist, filed a public interest litigation. According to him, the
prime investigating agencies like the Central Bureau of Investigation and the
Revenue authorities failed to perform their legal obligation and take
appropriate action when they found, during investigation with a terrorist,
detailed accounts of vast payments, called `Jain diaries', made to influential
politicians and bureaucrats and direction was also sought in case of a similar
nature that may occur hereafter.
of directions were issued by the Supreme Court. The Court in that case observed
that "it is trite that the holders of public offices are entrusted with
certain power to be exercised in public interest alone and, therefore, the
office is held by them in trust for the people."
Another significant case is Rajiv Ranjan Singh `Lalan' &
Another v. Union of India & Others (2006) 6 SCC 613. This public interest
litigation relates to the large scale defalcation of public funds and
falsification of accounts involving hundreds of crores of rupees in the
Department of Animal Husbandry in the State of Bihar. It was said that the
respondents had interfered with the appointment of the public prosecutor. This
court gave significant directions in this case.
In yet another case of M. C. Mehta v. Union of India &Others
(2007) 1 SCC 110, a project known as "Taj Heritage Corridor Project"
was initiated by the Government of Uttar Pradesh. One of the main purpose for
which the same was undertaken was to divert the River Yamuna and to reclaim 75
acres of land between Agra Fort and the Taj Mahal and use the reclaimed land
for constructing food plazas, shops and amusement activities. The Court
directed for a detailed enquiry which was carried out by the Central Bureau of
Investigation (CBI). On the basis of the CBI report, the Court directed
registration of FIR and made further investigation in the matter. The court
questioned the role played by the concerned Minister for Environment,
Government of Uttar Pradesh and the Chief Minister, Government of Uttar
Pradesh. By the intervention of this Court, the said project was stalled.
These are some of the matters where the efficacy, ethics and
morality of the governmental authorities to perform their statutory duties was
directed under the scanner of the Supreme Court and the High Courts.
In M. C. Mehta v. Union of India & Others (2007) 12 SCALE 91,
in another public interest litigation, a question was raised before the court
whether the Apex Court should consider the correctness of the order passed by
the Governor of Uttar Pradesh refusing to grant sanction for prosecution of the
Chief Minister and Environment Minister after they were found responsible in
`Taj Heritage Corridor Project". It was held that the judiciary can step
in where it finds the actions on the part of the legislature or the executive
to be illegal or unconstitutional.
In Centre for Public Interest Litigation v. Union of India &
Another AIR 2003 SC 3277, two writ petitions were filed in public interest by
the petitioner calling in the question of decision of the government to sell
majority of shares in Hindustan Petroleum Corporation Limited and Bharat Petroleum
Corporation Limited to private parties without Parliamentary approval or
sanction as being contrary to and violative of the provisions of the ESSO
(Acquisition of Undertaking in India) Act, 1974, the Burma Shell (Acquisition
of Undertaking in India) Act, 1976 and Caltex (Acquisition of Shares of Caltex
Oil Refining India Limited and all the undertakings in India for Caltex India
Limited) Act, 1977.
upheld the petitions until the statutes are amended appropriately.
These are some of the cases where the Supreme Court and the High
Courts broadened the scope of public interest litigation and also entertained
petitions to ensure that in governance of the State, there is transparency and
no extraneous considerations are taken into consideration except the public
interest. These cases regarding probity in governance or corruption in public
life dealt with by the courts can be placed in the third phase of public
We would also like to deal with some cases where the court gave
direction to the executives and the legislature to ensure that the existing
laws are fully implemented.
In Pareena Swarup v. Union of India (2008) 13 SCALE 84, a member
of the Bar of this court filed a public interest litigation seeking to declare
various sections of the Prevention of Money Laundering Act, 2002 as ultra vires
to the Constitution as they do not provide for independent judiciary to decide
the cases but the members and chairperson to be selected by the Selection
Committee headed by the Revenue Secretary. According to the petitioner,
following the case of L. Chandrakumar v. Union of India & Others (1997) 3
SCC 261 undermines separation of powers as envisaged by the Constitution.
We have endeavoured to give broad picture of the public interest
litigation of Ist, IInd and IIIrd phases decided by our courts.
We would briefly like to discuss evolution of the public interest
litigation in other judicial systems.
OF PUBLIC INTERST LITIGATION IN OTHER JUDICIAL SYSTEMS NAMELY, USA, U.K.,
AUSTRALIA AND SOUTH AFRICA.
In Australia also for protecting environment, the Australian court
has diluted the principle of `aggrieved person'.
In Australia, Public Interest Litigation has been a method of
protecting the environment. The courts have not given a definition of `Public
Interest Litigation', but in Oshlack v Richmond River Council (1998) 193 CLR 72
: (1998) 152 ALR 83, the High Court of Australia (apex court) upheld the
concept and pointed out the essential requirements. McHugh J., quoted Stein J.,
from the lower court:
summary I find the litigation to be properly characterised as public interest
litigation. The basis of the challenge was arguable, raising serious and
significant issues resulting in important interpretation of new provisions
relating to the protection of endangered fauna.
application concerned a publicly notorious site amidst continuing controversy.
Mr. Oshlack had nothing to gain from the litigation other than the worthy
motive of seeking to uphold environmental law and the preservation of
To the court it was important that the petitioner did not have any
other motive than the stated one of protecting the environment. The test
therefore in Australia seems to be that the petitioner when filing a public
interest litigation, should not stand to gain in some way.
The US Supreme Court realized the constitutional obligation of
reaching to all segments of society particularly the black Americans of African
origin. The courts' craftsmanship and innovation is reflected in one of the
most celebrated path-breaking judgment of the US Supreme Court in Oliver Brown
v. Board of Education of Topeka 347 U.S. 483, 489-493 (1954). Perhaps, it would
accomplish the constitutional obligation and goal. In this case, the courts
have carried out their own investigation and in the judgment it is observed
that "Armed with our own investigation" the courts held that all
Americans including Americans of African origin can study in all public
educational institutions. This was the most significant development in the
history of American judiciary.
The US Supreme Court dismissed the traditional rule of Standing in
Association of Data Processing Service Organizations v. William B. Camp 397
U.S. 150 (1970). The court observed that a plaintiff may be granted standing
whenever he/she suffers an "injury in fact" - "economic or
In another celebrated case Olive B. Barrows v. Leola Jackson 346
U.S. 249 (1953), 73 S.Ct. 1031 the court observed as under:- "But in the
instant case, we are faced with a unique situation in which it is the action of
the state court which might result in a denial of constitutional rights and in
which it would be difficult if not impossible for the persons whose rights are
asserted to present their grievance before any court. Under the peculiar
circumstances of this case, we believe the reasons which underlie our rule
denying standing to raise another's rights, which is only a rule of practice,
are outweighed by the need to protect the fundamental rights which would be
denied by permitting the damages action to be maintained."
In environment cases, the US Supreme Court has diluted the stance
and allowed organizations dedicated to protection of environment to fight cases
even though such societies are not directly armed by the action.
In United States v. Students Challenging Regulatory Agency
Procedures (SCRAP) 412 US 669 (1973), the court allowed a group of students to
challenge the action of the railroad which would have led to environmental
In Paul J. Trafficante v. Metropolitan Life Insurance Company 409
U.S. 205 (1972) the Court held that a landlord's racially discriminatory
practices towards non-whites inflicted an injury in fact upon the plaintiffs,
two tenants of an apartment complex, by depriving them of the "social
benefits of living in an integrated community."
Similarly, the Supreme Court of the United States has granted
standing in certain situations to a plaintiff to challenge injuries sustained
by a third party with whom he/she shares a "close" relationship.
In Thomas E. Singleton v. George J. L. Wulff 428 U.S.
(1976), the Court granted standing to two physicians challenging the
constitutionality of a state statute limiting abortions. Similarly, in Caplin
v. Drysdale 491 U.S. 617, 623-24 n. 3 (1989), the Court granted standing to an
attorney to challenge a drug forfeiture law that would deprive his client of
the means to retain counsel.
The Supreme Court has also granted organizational standing. In
Robert Warth v. Ira Seldin 422 U.S. 490, 511 (1975), the Court declared that
"even in the absence of injury to itself, an association may have standing
solely as the representative of its members." This judgment had far
reaching consequence. In James B. Hunt v. Washington State Apple Advertising
Commission, 432 U.S. 333, 343 (1977), the Court elaborated the parameters for
organizational standing where an organization or association "has standing
to bring suit on behalf of its members when: (a) its members would otherwise
have standing to sue in their own right; (b) the interests it seeks to protect
are germane to the organization's purpose; (c) neither the claim asserted, nor the
relief requested, requires the participation of individual members in the
The use of PIL in England has been comparably limited.
limited development in PIL has occurred through broadening the rules of
standing.Broad Rules of Standing
In Re. Reed, Bowen & Co. (1887) 19 QBD 174 to facilitate
vindication of public interest, the English judiciary prescribed broad rules of
standing. Under the traditional rule of standing, judicial redress was only
available to a `person aggrieved' - one "who has suffered a legal
grievance, a man against whom a decision has been pronounced which has
wrongfully deprived him of something or wrongfully refused him something or
wrongfully affected his title to something." However, the traditional rule
no longer governs standing in the English Courts.
One of the most distinguished and respected English Judge Lord
Denning initiated the broadening of standing in the English Courts with his
suggestion that the "words `person aggrieved' are of wide import and
should not be subjected to a restrictive interpretation." -
Attorney-General of the Gambia v. Pierre Sarr N'Jie (1961) AC 617.
The Blackburn Cases broadened the rule of standing in actions
seeking remedy through prerogative writs brought by individuals against public
officials for breach of a private right. (e.g., mandamus, prohibition, and
certiorari). Under the Blackburn standard, "any person who was adversely
affected" by the action of a government official in making a mistaken
policy decision was eligible to be granted standing before the Court for
seeking remedy through prerogative writs - Regina v. Commissioner of Police of
the Metropolis, Ex parte Blackburn  2 W.L.R. 893 ("Blackburn
In Blackburn I, the Court of Appeal granted standing to Blackburn
to seek a writ of mandamus to compel the Police Commissioner to enforce a
betting and gambling statute against gambling clubs.
In Blackburn II, the Court of Appeal found no defects in
Blackburn's standing to challenge the Government's decision to join a common
market. Blackburn v. Attorney-General  1 W.L.R. 1037).
In Blackburn III, the Court of Appeal granted standing to
Blackburn to seek a writ of mandamus to compel the Metropolitan Police to
enforce laws against obscene publications. Regina v. Commissioner of Police of
the Metropolis, Ex parte Blackburn  Q.B. 241.
In Blackburn IV, the Court of Appeal granted standing to Blackburn
to seek a writ of prohibition directed at the Greater London Council for
failing to properly use their censorship powers with regard to pornographic
films. Regina v. Greater London Council ex parte. Blackburn  1 W.L.R.
The English judiciary was hesitant in applying this broadened rule
of standing to actions seeking remedy through relator claims - Relator claims
are remedies brought by the Attorney General to remedy a breach of a public
right. (e.g., declaration and injunction). Initially, Lord Denning extended the
broadened rule of standing in actions seeking remedy through prerogative writs
to actions seeking remedy through relator claims. In Attorney General Ex rel
McWhirter v.Independent Broadcasting Authority, (1973) Q.B. 629 the Court
stipulated that, "in the last resort, if the Attorney-General refuses
leave in a proper case, or improperly or unreasonably delays in giving leave,
or his machinery works too slowly, then a member of the public who has a
sufficient interest can himself apply to the court." This rule was
promptly overturned by the House of Lords in Gouriet v. Union of Post Office
Workers  A.C. 435. In this case, the House of Lords held that in relator
claims, the Attorney General holds absolute discretion in deciding whether to
grant leave to a case. Thus, the English judiciary did not grant standing to an
individual seeking remedy through relator claims.
Finally, an amendment to the Rules of the Supreme Court in 1978
through Order 53 overcame the English judiciary's hesitation in applying a
broadened rule of standing to relator claims. Order 53 applied the broadened
rule of standing to both actions seeking remedy through prerogative writs and
actions seeking remedy through relator claims. Rule 3(5) of Order 53 stipulates
that the Court shall not grant leave for judicial review "unless it
considers that the applicant has a sufficient interest in the matter to which
the applicant relates." - ORDER 53, RULES OF THE SUPT. CT. (1981).
Revenue Commissioners v. National Federation of Self-Employed and Small
Businesses Ltd.  A.C. 617, the Court explained that "fairness and
justice are tests to be applied" when determining if a party has a
In Regina v. Secretary of State for the Environment, Ex parte Rose
Theatre Trust Co. (1990) 1 Q.B. 504, the Court elaborated that "direct financial
or legal interest is not required" to find sufficient interest. Thus,
under the new rule of standing embodied in Order 53, individuals can challenge
actions of public officials if they are found to have "sufficient
interest" - a flexible standard.
The South African Constitution has adopted with a commitment to
"transform the society into one in which there will be human dignity,
freedom and equality." - See:Soobramoney v. Minister of Health,
KwaZulu-Natal, 1998 (1) SA 765 (CC), p. 5. Thus, improving access to justice
falls squarely within the mandate of this Constitution. In furtherance of this
objective, the South African legal framework takes a favorable stance towards
PIL by prescribing broad rules of standing and relaxing pleading requirements.
Rules of Standing
Section 38 of the Constitution broadly grants standing to approach
a competent court for allegations of infringement of a right in the bill of
anyone acting in their own interest;
anyone acting on behalf of another person who cannot act in their own name;
anyone acting as a member of, or in the interest of, a group or class of
anyone acting in the public interest;
association acting in the interest of its members."
In expressly permitting class actions and third-party actions,
Section 38 prescribes broad rules of standing for constitutional claims.
Interpreting the language of Section 38, the Constitutional Court elaborated in
Ferreira v. Levin NO & Others 1996 (1) SA 984 (CC), p. 241 that a broad
approach to standing should be applied to constitutional claims to ensure that
constitutional rights are given the full measure of protection to which they
are entitled. In the said judgment by a separate concurring judgment, Justice
O'Regan suggested that a "wider net for standing" should be extended
to all "litigation of a public character."
Relaxing Formal Requirements of Pleadings
The Constitutional Court has been prompt to relax formal pleading
requirements in appropriate cases. In S V. Twala (South African Human Rights
Commission Intervening), 2000 (1) SA 879, the President of the Court directed
that a hand written letter received from a prisoner complaining about his
frustration in exercising his right to appeal be treated as an application for
leave to appeal.
In Xinwa & Others v. Volkswagen of South Africa (PTY) Ltd.
2003 (4) SA 390 (CC), p. 8 the Court cemented the Twala principle that
"form must give way to substance" in public interest litigation. The
Court explained that "pleadings prepared by lay persons must be construed
generously and in the light most favourable to the litigant. Lay litigants
should not be held to the same standard of accuracy, skill and precision in the
presentation of their case required of lawyers. In construing such pleadings,
regard must be had to the purpose of the pleading as gathered not only from the
content of the pleadings but also from the context in which the pleading is
PUBLIC INTEREST LITIGATION ON NEIGHBOURING COUNTRIES
The development of public interest litigation in India has had an
impact on the judicial systems of neighbouring countries like Bangladesh, Sri
Lanka, Nepal and Pakistan and other countries.
By a recent path-breaking historical judgment of the Pakistan
Supreme Court at Islamabad dated 31st July, 2009 delivered in public interest
litigation bearing Constitution Petition No.9 of 2009 filed by Sindh High Court
Bar Association through its Secretary and Constitution Petition No.8 of 2009
filed by Nadeem Ahmed Advocate, both petitions filed against Federation of
Pakistan through Secretary, Ministry of Law and Justice, Islamabad &
Others, the entire superior judiciary which was sacked by the previous political
regime has now been restored.
Another path breaking judgment delivered very recently on 16th
December, 2009 by all the 17 judges of the Pakistan Supreme Court in
Constitution Petition Nos.76 to 80 of 2007 and 59 of 2009 and another Civil
Appeal No.1094 of 2009 also has far-reaching implications.
In this judgment, the National Reconciliation Ordinance (No.XV)
2007 came under challenge by which amendments were made in the Criminal
Procedure Code, 1898 and the Representation of the People Act, 1976 and the
National Accountability Ordinance of 1999. The National Accountability
Ordinance, 1999 (for short, NAO) was designed to give immunity of the
consequences of the offences committed by the constitutional authorities and
other authorities in power and (NRO) was declared void ab initio being ultra
vires and violative of constitutional provisions including 4, 8, 25, 62(f),
63(i)(p), 89, 175 and 227 of the Constitution. This judgment was also delivered
largely in public interest.
In an important judgment delivered by the Supreme Court of
Pakistan in General Secrerary, West Pakistan Salt Miners Labour Union (CBA)
Khewra, Jhelum v. The Director, Industries and Mneral Development, Punjab,
Lahore reported in 1994 SCMR 2061 (Supreme Court of Pakistan) in Human Right
Case No.120 of 1993 on 12th July, 1994 gave significant directions largely
based on the judgments of this court.
The petitioners in the said petition sought enforcement of the
rights of the residents to have clean and unpolluted water. Their apprehension
was that in case the miners are allowed to continue their activities, which are
extended in the water catchment area, the watercourse, reservoir and the
pipelines would get contaminated. According to the court, water has been
considered source of life in this world.
water there can be no life. History bears testimony that due to famine and
scarcity of water, civilization have vanished, green lands have turned into
deserts and arid goes completely destroying the life not any of human being,
but animal life as well. Therefore, water, which is necessary for existence of
life, if polluted, or contaminated, will cause serious threat to human
The court gave significant directions including stopping the
functioning of factory which created pollution and environmental degradation.
Another significant aspect which has been decided in this case was
to widen the definition of the `aggrieved person'. The court observed that in
public interest litigation, procedural trappings and restrictions of being an
aggrieved person and other similar technical objections cannot bar the
jurisdiction of the court. The Supreme Court also observed that the Court has
vast power under Article 183(3) to investigate into question of fact as well independently
by recording evidence.
In another important case Ms. Shehla Zia v. WAPDA PLD 1994 Supreme
Court 693, a three-Judge Bench headed by the Chief Justice gave significant
directions. In the said petition four residents of Street No. 35,F-6/1, Islamabad
protested to WAPDA against construction of a grid station in F-6/1, Islamabad.
A letter to this effect was written to the Chairman on 15.1.1992 conveying the
complaint and apprehensions of the residents of the area in respect of
construction of a grid station allegedly located in the green- belt of a
residential locality. They pointed out that the electromagnetic field by the
presence of the high voltage transmission lines at the grid station would pose
a serious health hazard to the residents of the area particularly the children,
the infirm and the Dhobi-ghat families that live;
immediate vicinity. The presence of electrical installations and transmission
lines would also be highly dangerous to the citizens particularly the children
who play utside in the area. It would damage the greenbelt and affect the
environment. It was also alleged that it violates the principles of planning in
Islamabad where the green belts are considered an essential component of the
city for environmental and aesthetic reasons.
The Supreme Court observed that where life of citizens is
degraded, the quality of life is adversely affected and health hazards created
are affecting a large number of people.
Supreme Court in exercise of its jurisdiction may grant relief to the extent of
stopping the functioning of such units that create pollution and environmental
There has been great impact of Public Interest Litigation on other
countries. In Bulankulama and six others v. Secretary, Ministry of Industrial
Development and seven others (Eppawala case), the Supreme Court of Sri Lanka
gave significant directions in public interest litigation. In the said case,
Mineral Investment Agreement was entered between the Government and the private
company for rapid exploitation of rock phosphate reserves at Eppawala in Sri
Lanka's agriculture rich North Central Province - High intensity mining
operation plus establishment of a processing plant on Trincomalee coast was set
up which would produce phosphoric and sulphuric acid. Six residents of the area
of whose agricultural lands stood to be affected filed a petition before the
court in public interest. It was stated in the petition that the project was
not for a public purpose but for the benefit of a private company and would not
bring substantial economic benefit to Sri Lanka. The petitioners claimed
imminent infringement of their fundamental rights under various provisions of
the Constitution. The court invoked the public trust theory as applied in the
United States and in our country in the case of M.C. Mehta v. Kamal Nath (1997)
1 SCC 388. The court upheld the petitioners' fundamental rights. The
respondents were restrained from entering into any contract relating to the
Eppawala phosphate deposit. The court allowed the petition and the respondents
were directed to give costs to the petitioners. The Supreme Court of Sri Lanka
protected environmental degradation by giving important directions in this
A three-Judge Bench of the Supreme Court of Nepal in Surya Prasad
Sharma Dhungle v. Godawari Marble Industries in writ petition No.35 of 1992
passed significant directions. It was alleged in the petition that Godawari
Marble Industries have been causing serious environmental degradation to Godawari
forest and its surrounding which is rich in natural grandeur and historical and
religious enshrinement are being destroyed by the respondents. In the petition
it was mentioned that the illegal activities of the respondent Godawari Marble
Industries have caused a huge public losses.
The Supreme Court of Nepal gave significant directions to protect
degradation of environment and ecology. The court adopted the concept of
The Indian courts may have taken some inspiration from the group
or class interest litigation of the United States of America and other
countries but the shape of the public interest litigation as we see now is
predominantly indigenously developed jurisprudence.
The public interest litigation as developed in various facets and
various branches is unparalleled. The Indian Courts by its judicial
craftsmanship, creativity and urge to provide access to justice to the
deprived, discriminated and otherwise vulnerable sections of society have
touched almost every aspect of human life while dealing with cases filed in the
label of the public interest litigation. The credibility of the superior courts
of India has been tremendously enhanced because of some vital and important
directions given by the courts. The courts' contribution in helping the poorer
sections of the society by giving new definition to life and liberty and to
protect ecology, environment and forests are extremely significant.
THE PUBLIC INTEREST LITIGATION:
Unfortunately, of late, it has been noticed that such an important
jurisdiction which has been carefully carved out, created and nurtured with
great care and caution by the courts, is being blatantly abused by filing some
petitions with oblique motives. We think time has come when genuine and bona
fide public interest litigation must be encouraged whereas frivolous public
interest litigation should be discouraged.
In our considered opinion, we have to protect and preserve this
important jurisdiction in the larger interest of the people of this country but
we must take effective steps to prevent and cure its abuse on the basis of
monetary and non- monetary directions by the courts.
In BALCO Employees' Union (Regd.) v. Union of India &Others
AIR 2002 SC 350, this Court recognized that there have been, in recent times,
increasing instances of abuse of public interest litigation. Accordingly, the
court has devised a number of strategies to ensure that the attractive brand
name of public interest litigation should not be allowed to be used for
suspicious products of mischief. Firstly, the Supreme Court has limited
standing in PIL to individuals "acting bonafide." Secondly, the
Supreme Court has sanctioned the imposition of "exemplary costs" as a
deterrent against frivolous and vexatious public interest litigations. Thirdly,
the Supreme Court has instructed the High Courts to be more selective in
entertaining the public interest litigations.
In S. P. Gupta's case (supra), this Court has found that this
liberal standard makes it critical to limit standing to individuals
"acting bona fide. To avoid entertaining frivolous and vexatious petitions
under the guise of PIL, the Court has excluded two groups of persons from
obtaining standing in PIL petitions. First, the Supreme Court has rejected
awarding standing to "meddlesome interlopers".
the Court has denied standing to interveners bringing public interest
litigation for personal gain.
In Chhetriya Pardushan Mukti Sangharsh Samiti (supra), the Court
withheld standing from the applicant on grounds that the applicant brought the
suit motivated by enmity between the parties. Thus, the Supreme Court has
attempted to create a body of jurisprudence that accords broad enough standing
to admit genuine PIL petitions, but nonetheless limits standing to thwart
frivolous and vexations petitions.
The Supreme Court broadly tried to curtail the frivolous public
interest litigation petitions by two methods - one monetary and second,
non-monetary. The first category of cases is that where the court on filing
frivolous public interest litigation petitions, dismissed the petitions with
exemplary costs. In Neetu v. State of Pubjab & Others AIR 2007 SC 758, the
Court concluded that it is necessary to impose exemplary costs to ensure that
the message goes in the right direction that petitions filed with oblique
motive do not have the approval of the Courts.
In S.P. Anand v. H.D. Deve Gowda & Others AIR 1997 SC 272, the
Court warned that it is of utmost importance that those who invoke the
jurisdiction of this Court seeking a waiver of the locus standi rule must
exercise restraint in moving the Court by not plunging in areas wherein they
are not well-versed.
In Sanjeev Bhatnagar v. Union of India & Others AIR 2005 SC 2841,
this Court went a step further by imposing a monetary penalty against an
Advocate for filing a frivolous and vexatious PIL petition. The Court found
that the petition was devoid of public interest, and instead labelled it as
"publicity interest litigation." Thus, the Court dismissed the
petition with costs of Rs.10,000/-.
Similarly, in Dattaraj Nathuji Thaware v. State of Maharashtra
& Others (2005) 1 SCC 590, the Supreme Court affirmed the High Court's
monetary penalty against a member of the Bar for filing a frivolous and
vexatious PIL petition.
Court found that the petition was nothing but a camouflage to foster personal
dispute. Observing that no one should be permitted to bring disgrace to the
noble profession, the Court concluded that the imposition of the penalty of Rs.25,000
by the High Court was appropriate. Evidently, the Supreme Court has set clear
precedent validating the imposition of monetary penalties against frivolous and
vexatious PIL petitions, especially when filed by Advocates.
This Court, in the second category of cases, even passed harsher
orders. In Charan Lal Sahu & Others v. Giani Zail Singh & Another AIR
1984 SC 309, the Supreme Court observed that, "we would have been
justified in passing a heavy order of costs against the two petitioners"
for filing a
"light-hearted and indifferent" PIL petition. However, to prevent
"nipping in the bud a well-founded claim on a future occasion," the
Court opted against imposing monetary costs on the petitioners." In this case,
this Court concluded that the petition was careless, meaningless, clumsy and
against public interest. Therefore, the Court ordered the Registry to initiate
prosecution proceedings against the petitioner under the Contempt of Courts
Act. Additionally, the court forbade the Registry from entertaining any future
PIL petitions filed by the petitioner, who was an advocate in this case.
In J. Jayalalitha v. Government of Tamil Nadu & Others (1999)
1 SCC 53, this court laid down that public interest litigation can be filed by
any person challenging the misuse or improper use of any public property
including the political party in power for the reason that interest of
individuals cannot be placed above or preferred to a larger public interest.
This court has been quite conscious that the forum of this court
should not be abused by any one for personal gain or for any oblique motive.
In BALCO (supra), this court held that the jurisdiction is being
abused by unscrupulous persons for their personal gain. Therefore, the court
must take care that the forum be not abused by any person for personal gain.
In Dattaraj Nathuji Thaware (supra), this court expressed its
anguish on misuse of the forum of the court under the garb of public interest
litigation and observed that the 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 court must not allow its process to be
abused for oblique considerations.
In Thaware's case (supra), the Court encouraged the imposition of
a non-monetary penalty against a PIL petition filed by a member of the bar. The
Court directed the Bar Councils and Bar Associations to ensure that no member
of the Bar becomes party as petitioner or in aiding and/or abetting files
frivolous petitions carrying the attractive brand name of Public Interest
Litigation. This direction impels the Bar Councils and Bar Associations to
disbar members found guilty of filing frivolous and vexatious PIL petitions.
In Holicow Pictures Pvt. Ltd. v. Prem Chandra Mishra &Others
AIR 2008 SC 913, this Court observed as under:
depressing to note that on account of such trumpery proceedings initiated
before the Courts, innumerable days are wasted, the time which otherwise could
have been spent for disposal of cases of the genuine litigants. Though we spare
no efforts in fostering and developing the laudable concept of PIL and
extending our long arm of sympathy to the poor, the ignorant, the oppressed and
the needy, whose fundamental rights are infringed and violated and whose
grievances go unnoticed, un-represented and unheard; yet we cannot avoid but
express our opinion that while genuine litigants with legitimate grievances
relating to civil matters involving properties worth hundreds of millions of
rupees and criminal cases in which persons sentenced to death facing gallows
under untold agony and persons sentenced to life imprisonment and kept in
incarceration for long years, persons suffering from undue delay in service
matters -government or private, persons awaiting the disposal of cases wherein
huge amounts of public revenue or unauthorized collection of tax amounts are
locked up, detenu expecting their release from the detention orders etc. etc.
are all standing in a long serpentine queue for years with the fond hope of
getting into the Courts and having their grievances redressed, the busybodies,
meddlesome interlopers, wayfarers or officious interveners having absolutely no
public interest except for personal gain or private profit either of themselves
or as a proxy of others or for any other extraneous motivation or for glare of
publicity break the queue muffing their faces by wearing the mask of public
interest litigation and get into the Courts by filing vexatious and frivolous
petitions and thus criminally waste the valuable time of the Courts and as a
result of which the queue standing outside the doors of the Courts never moves,
which piquant situation creates frustration in the minds of the genuine litigants
and resultantly they loose faith in the administration of our judicial
cautioned by observing that:
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 armory 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 redressal of genuine
public wrong or public injury and not publicity oriented or founded on personal
xxx xxx xxx
xxx xxx xxx The Court has to be satisfied about (a) the credentials of the
applicant; (b) the prima facie correctness or nature of information given by
information being not vague and indefinite. The information should show gravity
and seriousness involved. Court has to strike balance between two conflicting
interests; (i) nobody should be allowed to indulge in wild and reckless
allegations besmirching the character of others; and (ii) avoidance of public
mischief and to avoid mischievous petitions seeking to assail, for oblique
motives, justifiable executive actions. In such case, however, the Court cannot
afford to be liberal. It has to be extremely careful to see that under the
guise of redressing a public grievance, it does not encroach upon the sphere
reserved by the Constitution to the Executive and the Legislature. The Court
has to act ruthlessly while dealing with imposters and busybodies or meddlesome
interlopers impersonating as public-spirited holy men. They masquerade as crusaders
of justice. They pretend to act in the name of Pro Bono Publico though they
have no interest of the public or even of their own to protect."
The malice of frivolous and vexatious petitions did not originate
in India. The jurisprudence developed by the Indian judiciary regarding the
imposition of exemplary costs upon frivolous and vexatious PIL petitions is
consistent with jurisprudence developed in other countries. U.S. Federal Courts
and Canadian Courts have also imposed monetary penalties upon public interest
claims regarded as frivolous.
courts also imposed non-monetary penalties upon Advocates for filing frivolous
claims. In Everywoman's Health Centre Society v. Bridges 54 B.C.L.R. (2nd Edn.)
294, the British Columbia Court of Appeal granted special costs against the
Appellants for bringing a meritless appeal.
U.S. Federal Courts too have imposed monetary penalties against
plaintiffs for bringing frivolous public interest claims. Rule 11 of the
Federal Rules of Civil Procedure ("FRCP") permits Courts to apply an
"appropriate sanction" on any party for filing frivolous claims.
Federal Courts have relied on this rule to impose monetary penalties upon
frivolous public interest claims. For example, in Harris v.Marsh 679 F.Supp.
1204 (E.D.N.C. 1987), the District Court for the Eastern District of North
Carolina imposed a monetary sanction upon two civil rights plaintiffs for
bringing a frivolous, vexatious, and meritless employment discrimination claim.
The Court explained that "the increasingly crowded dockets of the federal
courts cannot accept or tolerate the heavy burden posed by factually baseless
and claims that drain judicial resources." As a deterrent against such
wasteful claims, the Court levied a cost of $83,913.62 upon two individual
civil rights plaintiffs and their legal counsel for abusing the judicial
process. Case law in Canadian Courts and U.S. Federal Courts exhibits that the
imposition of monetary penalties upon frivolous public interest claims is not
unique to Indian jurisprudence.
Additionally, U.S. Federal Courts have imposed non- monetary
penalties upon Attorneys for bringing frivolous claims. Federal rules and case
law leave the door open for such non-monetary penalties to be applied equally
in private claims and public interest claims. Rule 11 of the FRCP additionally
permits Courts to apply an "appropriate sanction"
Attorneys for filing frivolous claims on behalf of their clients. U.S. Federal
Courts have imposed non-monetary sanctions upon Attorneys for bringing
frivolous claims under Rule 11.
In Frye v. Pena 199 F.3d 1332 (Table), 1999 WL 974170, for
example, the United States Court of Appeals for the Ninth Circuit affirmed the
District Court's order to disbar an Attorney for having "brought and
pressed frivolous claims, made personal attacks on various government officials
in bad faith and for the purpose of harassment, and demonstrated a lack of
candor to, and contempt for, the court." This judicial stance endorses the
ethical obligation embodied in Rule 3.1 of the Model Rules of Professional
Conduct ("MRPC"): "a lawyer shall not bring or defend a
proceeding, or assert or controvert an issue therein, unless there is a basis
in law and fact for doing so that is not frivolous." Together, the FRCP,
U.S. federal case law, and the MRPC endorse the imposition of non-monetary
penalties upon attorneys for bringing frivolous private claims or public
In Bar Council of Maharashtra (supra) this court was apprehensive
that by widening the legal standing there may be flood of litigation but
loosening the definition is also essential in the larger public interest. To
arrest the mischief is the obligation and tribute to the judicial system.
In SP Gupta (supra) the court cautioned that important jurisdiction
of public interest litigation may be confined to legal wrongs and legal
injuries for a group of people or class of persons. It should not be used for
individual wrongs because individuals can always seek redress from legal aid
organizations. This is a matter of prudence and not as a rule of law.
In Chhetriya Pardushan Mukti Sangharsh Samiti (supra) this court
again emphasized that Article 32 is a great and salutary safeguard for
preservation of fundamental rights of the citizens. The superior courts have to
ensure that this weapon under Article 32 should not be misused or abused by any
individual or organization.
In Janata Dal v. H.S. Chowdhary & Others (1992) 4 SCC 305, the
court rightly cautioned that expanded role of courts in modern `social' state
demand for greater judicial responsibility. The PIL has given new hope of
justice-starved millions of people of this country. The court must encourage
genuine PIL and discard PIL filed with oblique motives.
In Guruvayur Devaswom Managing Committee & Another v.C.K.
Rajan & Others (2003) 7 SCC 546, it was reiterated that the court must
ensure that its process is not abused and in order to prevent abuse of the
process, the court would be justified in insisting on furnishing of security before
granting injunction in appropriate cases. The courts may impose heavy costs to
ensure that judicial process is not misused.
In Dattaraj Nathuji Thaware (supra) this court again cautioned and
observed that the court must look into the petition carefully and ensure that
there is genuine public interest involved in the case before invoking its
jurisdiction. The court should be careful that its jurisdiction is not abused
by a person or a body of persons to further his or their personal causes or to
satisfy his or their personal grudge or grudges. The stream of justice should
not be allowed to be polluted by unscrupulous litigants.
In Neetu (supra) this court observed that under the guise of
redressing a public grievance the public interest litigation should not
encroach upon the sphere reserved by the Constitution to the Executive and the
In M/s. Holicow Pictures Pvt. Ltd. (supra) this court observed
that the judges who exercise the jurisdiction should be extremely careful to
see that behind the beautiful veil of PIL, an ugly private malice, vested
interest and/or publicity- seeking is not lurking. The court should ensure that
there is no abuse of the process of the court.
When we revert to the facts of the present then the conclusion is
obvious that this case is a classic case of the abuse of the process of the
court. In the present case a practicing lawyer has deliberately abused the
process of the court. In that process, he has made a serious attempt to demean
an important constitutional office. The petitioner ought to have known that the
controversy which he has been raising in the petition stands concluded half a
century ago and by a Division Bench judgment of Nagpur High Court in the case
of Karkare (supra) the said case was approved by a Constitution Bench of this
court. The controversy involved in this case is no longer res integra. It is
unfortunate that even after such a clear enunciation of the legal position, a
large number of similar petitions have been filed from time to time in various
High Courts. The petitioner ought to have refrained from filing such a
A degree of precision and purity in presentation is a sine qua non
for a petition filed by a member of the Bar under the label of public interest
litigation. It is expected from a member of the Bar to at least carry out the
basic research whether the point raised by him is res integra or not. The
lawyer who files such a petition cannot plead ignorance.
We would like to make it clear that we are not saying that the
petitioner cannot ask the court to review its own judgment because of flaws and
lacunae, but that should have been a bona fide presentation with listing of all
relevant cases in a chronological order and that a brief description of what
judicial opinion has been and cogent and clear request why where should be
re-consideration of the existing law.
the petitioner has not done this exercise. The petition which has been filed in
the High Court is a clear abuse of the process of law and we have no doubt that
the petition has been filed for extraneous considerations. The petition also
has the potentiality of demeaning a very important constitutional office. Such
petition deserves to be discarded and discouraged so that no one in future
would attempt to file a similar petition.
On consideration of the totality of the facts and circumstances of
the case, we allow the appeals filed by the State and quash the proceedings of
the Civil Miscellaneous Writ Petition No. 689 (M/B) of 2001 filed in the
Uttaranchal High Court. We further direct that the respondents (who were the
petitioners before the High Court) to pay costs of Rs.1,00,000/- (Rupees One
Lakh) in the name of Registrar General of the High court of Uttarakhand. The
costs to be paid by the respondents within two months. If the costs is not
deposited within two months, the same would be recovered as the arrears of the
We request the Hon'ble Chief Justice of Uttrakhand High Court to
create a fund in the name of Uttarakhand High Court Lawyers Welfare Fund if not
already in existence. The fund could be utilized for providing necessary help
to deserving young lawyers by the Chief Justice of Uttarakhand in consultation
with the President of the Bar.
We must abundantly make it clear that we are not discouraging the
public interest litigation in any manner, what we are trying to curb is its
misuse and abuse. According to us, this is a very important branch and, in a
large number of PIL petitions, significant directions have been given by the
courts for improving ecology and environment, and directions helped in
preservation of forests, wildlife, marine life etc. etc. It is the bounden duty
and obligation of the courts to encourage genuine bona fide PIL petitions and
pass directions and orders in the public interest which are in consonance with
the Constitution and the Laws.
The Public Interest Litigation, which has been in existence in our
country for more than four decades, has a glorious record. This Court and the
High Courts by their judicial creativity and craftsmanship have passed a number
of directions in the larger public interest in consonance with the inherent
spirits of the Constitution. The conditions of marginalized and vulnerable
section of society have significantly improved on account of courts directions
in the P.I.L.
In our considered view, now it has become imperative to streamline
We have carefully considered the facts of the present case. We
have also examined the law declared by this court and other courts in a number
In order to preserve the purity and sanctity of the PIL, it has
become imperative to issue the following directions:- (1) The courts must
encourage genuine and bona fide PIL and effectively discourage and curb the PIL
filed for extraneous considerations. (2) 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. Consequently, we request that the High Courts who have not yet framed
the rules, should frame the rules within three months. The Registrar General of
each High Court is directed to ensure that a copy of the Rules prepared by the
High Court is sent to the Secretary General of this court immediately
courts should prima facie verify the credentials of the petitioner before
entertaining a P.I.L.
court should be prima facie satisfied regarding the correctness of the contents
of the petition before entertaining a PIL.
court should be fully satisfied that substantial public interest is involved
before entertaining the petition.
court should ensure that the petition which involves larger public interest,
gravity and urgency must be given priority over other petitions.
courts before entertaining the PIL should ensure that the PIL is aimed at
redressal 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.
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
Copies of this judgment be sent to the Registrar Generals of all
the High Courts within one week.
These appeals are listed on 03.05.2010 to ensure compliance of our
.......................................... J.(Dr. Mukundakam
January 18, 2010.