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M.C. Bhandari Memorial Lecture Public Interest Litigation as Aid to Protection of Human Rights
by Justice A.S. Anand*

Cite as : (2001) 7 SCC (Jour) 1

I feel greatly honoured to be invited to deliver Shri Mahaveer Chand Bhandari Memorial Lecture arranged by his family, friends, and admirers who are also present in large numbers in this august gathering. The presence of so many distinguished Judges, lawyers and prominent citizens shows the reverence in which Shri M.C. Bhandari was held. I must thank his son, Shri Justice Dalveer Bhandari of the Delhi High Court, for giving me this privilege, to pay my humble tribute to a great humanist.

I did not have the pleasure of meeting or knowing Shri Mahaveer Chand Bhandari personally but I must say that I have been greatly impressed by what I have read and learnt about him from those who know him well.

Shri Bhandari was an outstanding lawyer who had a unique combination of endearing qualities. He had remarkable understanding of legal principles and sound knowledge of law. He argued his cases fearlessly and forcefully while maintaining complete detachment from his clients and with full consciousness of his duties towards the court, to which he was always courteous. His qualities of head and heart made him a remarkably fair advocate. He was always available to his juniors to guide them. He believed that mere achievement of success at the Bar was not of much use unless one could render help to deserving juniors at the Bar to make them marshal professional skills.

Shri Bhandari enjoyed a formidable reputation for his fairness and gentlemanliness. It was his personal charm and the way he held out his hand in friendship, his courtesy, his fearlessness, his respect for seniors and regard for juniors, which made him popular amongst his colleagues as well as the common litigant.

Our everyday function is indeed to serve the law in the ordinary life of the community in which we live. There was, however, one man who also tried to express it and that was the late Shri M.C. Bhandari. The Bhagwat Geeta says that "whatsoever a great man thinks and does, other men follow; whatever standards he sets up, the generality of men observe the same". Likewise the Bible says "tribute to whom tribute is due; honour to whom honour is due". I am happy to be able to pay my tribute to a grand old man of the law who died young at the age of 66 years.

It is with all humility that I dedicate this morning lecture to the memory of Shri M.C. Bhandari. The topic for the lecture is: Public Interest Litigation as Aid to Protection of Human Rights.

We have a written Constitution. It has a Preamble which encapsulates the basic objective of the Constitution-makers to build a new socio-economic order where there will be social, economic and political justice for everyone and equality of status and opportunity for all. This basic objective of the Constitution mandates every organ of the State, the Executive, the Legislature and the Judiciary, working harmoniously to strive to realize the objectives concretised in the Fundamental Rights and the Directive Principles of State Policy. There is an increasing realisation that Fundamental Rights can have no meaning for a large number of people in India, unless a new socio-economic order is raised on the foundation of the Directive Principles. Since the last few years, the Supreme Court of India is increasingly invoking the Directive Principles in interpreting the Fundamental Rights and as a matter of fact the Directive Principles, which are dynamic, are fertilising the static provisions of the Fundamental Rights.

The task of enforcing Fundamental Rights has been assigned by the Constitution to the Supreme Court and the High Courts and the right to move the Supreme Court for enforcement of Fundamental Rights has itself been elevated to the status of a Fundamental Right under Article 32 of the Constitution.

Access to justice to protect their Fundamental Rights was almost illusory for weaker sections of Indian humanity due to their poverty, ignorance and illiteracy. To them, rights and benefits conferred by the Constitution meant nothing. Because of their handicap, they lacked the capacity to assert their rights. Thus, majority of the people of this country were subjected to denial of justice. The Constitution had indeed shown a great concern for the underprivileged, conferred on them many rights and entitlements and laid obligations on the State to take measures for improving the conditions of their life. Towards that end, laws were enacted and administrative programmes formulated by the State for bringing about social and economic change and ensuring distributive justice to the people. But these constitutional edicts, legal enactments and administrative measures needed to be implemented and enforced with vigour and dynamism, creatively and imaginatively and the underprivileged assisted to reap their benefits and assert their rights. Someone had to act.

The Judiciary regarded it as its duty to come to the rescue of the underprivileged to help them to reap the benefits of economic and social entitlements. The Supreme Court realised that one of the drawbacks of the justice delivery system has been the denial to the common man, access to justice. This truism was recognized by the Judiciary and the concern of the courts in that behalf was reflected in Bihar Legal Support Society v. Chief Justice of India1 when the Court said: (SCC p. 768, para 2)

"[T]hat the weaker sections of Indian humanity have been deprived of justice for long, long years: they have had no access to justice on account of their poverty, ignorance and illiteracy. They are not aware of the rights and benefits conferred upon them by the Constitution and the law. On account of their socially and economically disadvantaged position they lack the capacity to assert their rights and they do not have the material resources with which to enforce their social and economic entitlements and combat exploitation and injustice."

To reach out, the Supreme Court, therefore, liberated itself from the traditional thought, ways and made innovative use of judicial power by developing a variety of techniques to make access to justice a reality. The Supreme Court realised that it was necessary to depart from the traditional rule of locus standi and to broaden access to justice by providing that where a legal wrong or a legal injury is caused to a person or to a class of persons, who by reason of their poverty or disability or socially or economically disadvantaged position, cannot approach the court for relief, any member of the public or social action group or interest group or a concerned citizen, acting bona fide can maintain an application in the High Court or the Supreme Court, seeking judicial redress for the legal wrong or injury caused to such person or class of persons. This was in a way an extension of the principle under which habeas corpus petition is allowed to be filed by anyone for release of a person held under illegal detention since the person detained is, on account of his detention, not free to have access to justice. Thus, through judicial creativity, representative standing was expanded to the disadvantaged groups of persons who were not "free" to approach the courts due to economic and social factors rather than physical restraint. It was liberalisation of the rule of locus standi, which gave birth to public interest litigation or PIL for short.

A most powerful thrust to public interest litigation was given by a seven-Judge Special Bench in S.P. Gupta v. Union of India2. The judgment recognized the locus standi of lawyers to file writ petition by way of public interest litigation. The case concerned the transfer of a Chief Justice of a High Court and non-extension of the term of an Additional Judge. What was at stake was also the issue of independence of the Judiciary. Explaining the liberalisation of the concept of locus standi, it was said: (SCC p. 207, para 16)

"[I]t 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 the 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 unredressed and justice is done to him."

Lack of legislative thinking and executive inaction coupled with exploitation of the masses by the opportuned few, made the Judiciary to rise to the occasion and extend its hand of help to at least some of the needy people to bring justice within their easy reach. The history of public interest litigation is in a way the history of development of human rights jurisprudence in India during the last two decades. It represents a sustained effort on the part of the Judiciary to provide access to justice for the deprived sections of Indian humanity with a view to protect their human rights. During the last two decades or so, a new dimension of justicing process has, thus, been opened which has given new hope to the justice-starved millions of Indians through the mode of public interest litigation.

When we talk of public interest litigation, the concept of public interest litigation as evolved in the United States immediately comes to our mind. But our model of public interest litigation is different from the public interest litigation model in vogue in the United States. Our model is a judiciary-fashioned tool which deals with issues like consumer protection, prevention of environmental pollution and ecological destruction as in the United States and perhaps in other jurisdictions, but it does much more. Its primary focus is on exploitation of disadvantaged groups, denial of their human rights and entitlements and repression by agencies of the State. The public interest litigation model, which we have evolved, is directed towards finding social and political space for the disadvantaged and other vulnerable groups. It is concerned with immediate as well as long-term resolution of the problems of the disadvantaged. It also seeks to ensure that the authorities of the State fulfil the obligations of law under which they exist and function.

A survey of public interest petitions in this country shows that people have gone to courts when they found that there was no other means of redressal. Unfortunately, the Executive in a vast number of cases was found to be no longer responsive to protests expressed by the people. The political leadership was expected to be sensitive to the urges and aspirations of the people. It was found not to be so. Matters, which have gone to courts under PIL, were essentially of concern to numerically small and powerless minorities. Where a group of people is small and is not likely to have any organized strength to make itself felt politically, judicial process is preferred through PIL, which has by now come to be accepted as a new method by which, to some extent, public injuries can be redressed or the Government, its agents or instrumentalities compelled to do their own duty in the interest of the citizen. This exercise by the courts is aimed to serve the cause of justice and wean the people away from the lawless street and bring them to the court of law - to maintain rule of law.

It has often been said that public interest litigation is a collaborative effort on the part of the petitioner, the court and the Government or the public official to see that basic human rights become meaningful for large masses of people. It merely seeks to draw the attention of the authorities to their constitutional and legal obligations and to enforce them so that the rule of law does not remain confined in its beneficent effects to a fortunate few, but extends to all, irrespective of their power, position or wealth. This approach has considerably diluted opposition to public interest litigation and the Government has also come to accept it as an essential part of the judicial process.

Perhaps one of the first PIL cases considered by the Supreme Court was Hussainara Khatoon case. A series of articles were published in The Indian Express exposing the plight of Bihar undertrial prisoners languishing in Bihar jails. Most of them had served long pre-trial detentions. A writ petition was filed by an advocate of the Supreme Court drawing attention of the Court to the plight of the undertrial prisoners. The Supreme Court accepted the locus standi of an advocate to maintain the writ petition and in a series of cases Hussainara Khatoon (I) to Hussainara Khatoon (VI) v. State of Bihar3 issued many meaningful directions and inter alia held that speedy trial was an integral and an essential part of right to "life and liberty" contained in Article 21 of the Constitution.

Close on the heels of Hussainara Khatoon two law professors in 1980 filed a writ petition in the Supreme Court, highlighting the inhuman conditions prevailing in protective homes, long pendency of trials, trafficking in women, importation of children for homosexual purpose, non-payment of wages to bonded labourers and inhuman condition of prisoners in jails. It was asserted that all these inhuman conditions were a gross violation of Article 21 of the Constitution of India4. The Supreme Court accepted their locus to agitate on behalf of the "sufferers" and passed orders giving certain guidelines in each of these matters. PIL took a leap forward.

In Sheela Barse v. State of Maharashtra5 the Supreme Court entertained a writ petition based on a letter addressed by Ms Sheela Barse, a journalist complaining of custodial violence to women prisoners while confined in the police lock-up in the city of Bombay. The Court directed the Director of College of Social Work, Nirmala Niketan, Bombay to visit Bombay Central Jail and interview women prisoners and ascertain whether they had been subjected to any torture or ill-treatment and to submit a report. Based on the findings of the report, the Supreme Court issued a number of directions which included the direction to lock up female prisoners only in female lock-ups guarded by female constables and to interrogate female accused only in the presence of the female police officials. A further forward step was now taken to protect and preserve human rights of female prisoners.

In Sunil Batra v. Delhi Admn.6 a prisoner lodged in the jail wrote a letter to a Judge of the Supreme Court complaining of a brutal assault by a Head Warder on another prisoner, Premchand. That letter was treated as a writ petition, forsaking the prescribed form because what was at stake was the right to "life and liberty" ensured by Article 21 of the Constitution. A three-Judge Bench heard the matter and while issuing various directions, it was opined that "technicalities and legal niceties are no impediment to the court entertaining even an informal communication as a proceeding for habeas corpus if the basic facts are found". The Supreme Court rose to the occasion and public interest litigation acquired a new dimension and legitimacy.

Public interest litigation was further consolidated in Municipal Council, Ratlam v. Vardichan7 when a Division Bench of the Court recognized the standing of the citizens to seek directions against the Municipality for removal of stench and stink caused by open drains under Section 133 of the Code of Criminal Procedure. The concept of "access to justice" was elaborately considered and discussed. It was emphasized that if the "centre of gravity of justice is to shift as indeed the Preamble to the Constitution mandates, from the traditional individualism of locus standi to the community orientation of public interest litigation, the court must consider the issues as there is need to focus on the ordinary men" so that procedures which are conducive to the pursuit and protection of human rights are discovered and advanced.

In M.C. Mehta v. Union of India8 the petitioner prayed for directions for giving wide publicity to the messages and directions issued by the court from time to time to protect the environment and ecology on environmental protection, through the government-controlled television, radio and other modes of mass media, and also to make environment, as a compulsory subject in schools and colleges. The Supreme Court accepted the prayers on principle and issued directions to that effect.

Decisions on such matters as the right to protection against solitary confinement as in Sunil Batra case6, the right not to be held in fetters as in Charles Sobraj v. Supdt., Central Jail9, the right against handcuffing as in T.V. Vatheeswaran v. State of T.N.10, the right against custodial violence as in Nilabati Behera v. State of Orissa11, the rights of the arrestee as in D.K. Basu v. State of W.B.12, the right of the female employees not to be sexually harassed at the place of work as in the case of Vishaka v. State of Rajasthan13 and Apparel Export Promotion Council v. A.K. Chopra14 were rendered in public interest litigation, by expanding the ambit and scope of Article 21 so as to include within its fold the right to live with human dignity because the "dignity of man supersedes all other considerations".

Realising that while human rights are necessary to promote the personality development of human beings, healthy environment is necessary to safeguard conditions conducive to such a personality development, there being a natural link between environment development and human rights, this Court ruled in Subhash Kumar v. State of Bihar15 that the right to pollution-free water and air is also a facet of Article 21. In Doon Valley case16 the Court held that Article 21 includes in its sweep clean environment and that the permanent assets of mankind cannot be allowed to be exhausted.

Again, with a view to minimise, if not altogether, prevent the violation of Fundamental Rights, award of compensation consequential upon the deprivation of fundamental right to life and liberty of a citizen, as a "palliative" for the unlawful acts of the instrumentalities of the State as in Rudul Sah v. State of Bihar17 and the line of cases following it like Sebastian M. Hongray v. Union of India18 and Bhim Singh v. State of J&K 19 culminated in Nilabati Behera v. State of Orissa11 where this Court crystallised judicial right to compensation and held: (SCC p. 768, para 34)

"The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by this Court or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizens that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting 'compensation' in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of Fundamental Rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the Fundamental Rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty, of not protecting the Fundamental Rights of the citizen."

This view was reiterated in D.K. Basu v. State of W.B.12 In D.K. Basu case12 the Court went to the extent of saying that since compensation was being directed by the courts to be paid by the State held vicariously liable for the illegal acts of its officials, the reservation to clause 9(5) of ICCPR made by the Government of India at the time of its ratification had lost its relevance. In fact, the sentencing policy of the Judiciary in torture-related cases, against erring officials in India, has become very strict. For an established breach of Fundamental Rights, compensation can now be awarded in the exercise of public law jurisdiction by the Supreme Court and High Courts, in addition to private law remedy for tortuous action and punishment to the wrongdoer under criminal law. An enforceable right to compensation in cases of "torture" including "mental torture" inflicted by the State or its agencies is now a part of the public law regime in India.

In India, the right to health of the citizens is not an enumerated Fundamental Right in Part III of the Constitution. There is a reference to this right only in the Directive Principles of the State Policy, which are not justiciable per se. Similarly, the right to medical treatment, in case of emergency is not a Fundamental Right or for that matter, not even a legal right. Through cases filed as public interest litigation, the Supreme Court has succeeded in making people aware of these rights and also reminding the State of its obligation to protect and enforce the same.

In Vincent Panikurlangara v. Union of India20 the Supreme Court treated a letter from an advocate as public interest litigation, seeking directions in public interest banning the import, manufacture, sale and distribution of such drugs, which have been recommended for banning by the Drugs Consultative Committee. The Court considered the question to be of national importance, and dealt with the requirement of health care of citizens and issued directions to the Central Government to set up Regional Drug Laboratories in addition to the Central Laboratory to keep a check on sale and use of banned or harmful drugs.

In Parmanand Katara v. Union of India21 a Division Bench of the Supreme Court admitted an application filed under Article 32 by a practising advocate along with a new item entitled: "Law Helps the Injured to Die" published in The Hindustan Times, New Delhi, as a public interest litigation. The petitioner, through this public interest litigation, had highlighted the difficulties faced by the injured persons in getting medical treatment urgently required to save their lives, in view of the refusal by many doctors and hospitals on the ground that such cases are medicolegal cases. In that case, the petitioner narrated the unfortunate incident of a person dying due to the non-availability of immediate medical treatment. The Court extensively dealt with the professional ethics of the medical profession and issued a number of directions to ensure that an injured person is instantaneously given medical aid, notwithstanding the formalities to be followed under the procedural criminal law. The Court declared that the right to medical treatment is a Fundamental Right of the people under Article 21 of the Constitution. The Court issued directions to the Union of India, Medical Council of India, and Indian Medical Association etc., to give wide publicity to the Court's directions in this regard.

With the passage of time, PIL jurisdiction has been ballooning so as to encompass within its ambit subjects such as probity in public life, granting of largesse in the form of licences, protecting the environment and the like. The cases I have referred to are only illustrative in nature. There are numerous other cases where PIL has been used to protect and preserve human rights of the underprivileged citizens. I have refrained from giving their list for paucity of time.

Need for caution and restraint

While highlighting how PIL jurisdiction has assisted the underprivileged and the like to protect and preserve human rights, I must caution all concerned that with a view to retain legitimacy and its efficacy, the potent weapon of PIL forged for the benefit of the weaker sections of society and those who, as a class, cannot agitate their legal problems by themselves has to be used carefully so that it may not get blunted by wrong or overuse. Care has to be taken to see that PIL essentially remains public interest litigation and is not allowed to degenerate into becoming political interest litigation or private inquisitiveness litigation or publicity interest litigation. When that happens, it would be an unfortunate day. PIL would lose its legitimacy and the credibility of the courts would suffer. Finding the delicate balance between ensuring justice in the society around us and yet maintaining institutional legitimacy is a continuing challenge for the Higher Judiciary. One can say that the Judiciary has maintained that balance remarkably well. There have of course been some aberrations now and then. We must, however, remember that while exercising jurisdiction in PIL cases, courts do not forsake their duty and role as courts of law dispensing justice in accordance with law. It is only where there has been a failure on the part of any authority in acting according to law or in non-action or acting in violation of the law that the court needs to step in. While protecting the rights of the people from being violated in any manner, utmost care has to be taken that the courts do not transgress their jurisdiction. In exercise of its enormous power the court should not be called upon or undertake governmental duties or functions. The courts cannot run the Government nor permit the administration to indulge in abuse or non-use of power and get away with it. The essence of judicial review is a constitutional fundamental.

It is necessary and essential for the courts to ensure that "public interest litigation" which is taken recourse to for reaching justice to those who are for a variety of reasons unable to approach the court to protect their Fundamental Rights should develop on a consistent and firm path. The courts must be careful to see that by their overzealousness, they do not cause any uncertainty or confusion.

The exercise of this jurisdiction has often been described by critics of the Judiciary as judicial activism. The main thrust of the criticism is that the Judiciary by its directives to the administration is usurping the functions of the Legislatures and of the Executive and is attempting at running the country. The criticism is unfair. What these critics of the Judiciary overlook is that it is the tardiness of Legislatures and the indifference of the Executive to address itself to the complaints of the citizens about violations of their human rights which provides the necessity for judicial intervention. In cases where the Executive refuses to carry out the legislative will or ignores or thwarts it, it is surely legitimate for courts to step in and ensure compliance with the legislative mandate. When the court is apprised of and is satisfied about gross violations of basic human rights, it cannot fold its hands in despair and look the other way. The Judiciary can neither prevaricate nor procrastinate. It must respond to the knock of the oppressed and the downtrodden for justice by adopting certain operational principles within the parameters of the Constitution and pass appropriate directions in order to render full and effective relief. If the Judiciary were also to shut its door to the citizen who finds the Legislature as not responding and the Executive indifferent, the citizen would take to the streets and that would be bad both for the rule of law and the democratic functioning of the State.

Judicial activism in India, generally speaking, encompasses an area of legislative vacuum in the field of human rights. Judicial activism reinforces the strength of democracy and reaffirms the faith of the common man in the rule of law. The Judiciary, however, can act only as an alarm clock but not as a timekeeper. After giving the alarm call, it must ensure to see that the Executive performs its duties in the manner envisaged by the Constitution.

Judicial activism, however, is not an unguided missile. It has to be controlled and properly channelised. Courts have to function within established parameters and constitutional bounds. Decision should have a jurisprudential base with clearly discernible principles. Limits of jurisdiction cannot be pushed back so as to make them irrelevant. Courts have to be careful to see that they do not overstep their limits because to them is assigned the sacred duty of guarding the Constitution. Courts cannot create rights where none exist as to act otherwise would lead to utter confusion. We must ensure that judicial activism does not become judicial adventurism. There is an onerous duty cast on the Judiciary and it must ensure that it does not allow the instrumentality of the courts to be polluted thereby eroding public trust and confidence in the institution itself.

You would appreciate that this innovative tool of PIL has come to the aid of the disadvantaged and underprivileged to protect their human rights. It has also assisted the Judiciary to develop an indigenous model of human rights jurisprudence. It has been greatly appreciated but public adulation must not sway the Judges and personal aggrandisement must be eschewed. Let us preserve the sanctity and credibility of judicial process. We must utilise the great strength of the Judiciary in public interest for public good to serve the cause of law and justice. We, in the judicial family, must do our utmost to contribute fruitfully to the nation's progress.

*    Chief Justice of India. Lecture delivered at Jodhpur on 25-8-2001 Return to Text

  1. (1986) 4 SCC 767 Return to Text
  2. 1981 Supp SCC 87 Return to Text
  3. (1980) 1 SCC 81, 91, 93, 98, 108 & 115 Return to Text
  4. Upendra Baxi (Dr) v. State of U.P., (1983) 2 SCC 308 Return to Text
  5. (1983) 2 SCC 96 Return to Text
  6. (1978) 4 SCC 494 Return to Text
  7. (1980) 4 SCC 162 Return to Text
  8. (1992) 1 SCC 358 Return to Text
  9. (1978) 4 SCC 104 Return to Text
  10. (1983) 2 SCC 68 Return to Text
  11. (1993) 2 SCC 746 Return to Text
  12. (1997) 1 SCC 416 Return to Text
  13. (1997) 6 SCC 241 Return to Text
  14. (1999) 1 SCC 759 Return to Text
  15. (1991) 1 SCC 598 Return to Text
  16. Rural Litigation and Entitlement Kendra v State of U.P., (1985) 2 SCC 431 Return to Text
  17. (1983) 4 SCC 141 Return to Text
  18. (1984) 3 SCC 82 Return to Text
  19. (1985) 4 SCC 677 Return to Text
  20. (1987) 2 SCC 165 Return to Text
  21. (1989) 4 SCC 286 Return to Text
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