law & direct action

8/6/2019 Law & Direct Action

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Law & Direct Action


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Public Interest Litigation

According to Black's Law Dictionary, "PublicInterest Litigation means a legal action initiatedin a court of law for the enforcement of public

interest or general interest in which the public orclass of the community have pecuniary interestor some interest by which their legal rights orliabilities are affected."

Public Interest Litigation popularly known as PILcan be broadly defined as litigation in theinterest of that nebulous entity: the public ingeneral.


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Historical Back ground

Prior to 1980s, only the aggrieved party could personallyknock the doors of justice and seek remedy for hisgrievance and any other person who was not personallyaffected could not knock the doors of justice as a proxyfor the victim or the aggrieved party.

In other words, only the affected parties had the locusstandi (standing required in law) to file a case andcontinue the litigation and the non affected persons hadno locus standi to do so.

As a result, there was hardly any link between the rightsguaranteed by the Constitution of Indian Union and thelaws made by the legislature on the one hand and thevast majority of illiterate citizens on the other.


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However, all these scenario gradually changed whenthe post emergency Supreme Court tackled theproblem of access to justice by people throughradical changes and alterations made in therequirements of locus standi and of party aggrieved.

The splendid efforts of Justice P N Bhagwati and

Justice V R Krishna Iyer were instrumental of thisjuristic revolution of eighties to convert the apex courtof India into a Supreme Court for all Indians.

And as a result any citizen of India or any consumergroups or social action groups can approach the

apex court of the country seeking legal remedies inall cases where the interests of general public or asection of public are at stake.

Further, public interest cases could be filed withoutinvestment of heavy court fees as required in private

civil litigation.


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Evolution of PIL

The Indian PIL is the improved version of PIL of U.S.A.According to Ford Foundation of U.S.A., Publicinterest law is the name that has recently been given toefforts that provide legal representation to previouslyunrepresented groups and interests.

Such efforts have been undertaken in the recognitionthat ordinary marketplace for legal services fails toprovide such services to significant segments of thepopulation and to significant interests.

Such groups and interests include the properenvironmentalists, consumers, racial and ethnicminorities and others.


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According to the jurisprudence of Article 32 of theConstitution of India, The right to move the Supreme

Court by appropriate proceedings for theenforcement of the rights conferred by this part isguaranteed. Ordinarily, only the aggrieved party hasthe right to seek redress under Article 32.In 1981 Justice P. N. Bhagwati in .S. P. Gupta v.

Union of India, 1981 (Supp) SCC 87, articulated theconcept of PIL as follows:Where a legal wrong or a legal injury is caused to a

person and such class of persons by reasons ofpoverty, helplessness or disability or socially oreconomically disadvantaged position unable toapproach the court for relief, any member of publiccan maintain an application for an appropriatedirection, order or writ in the High Court under Article226 and in case any breach of fundamental rights ofsuch persons or determinate class of persons, in this

court under Article 32 seeking judicial redress for thelegal wrong or legal injury caused to such person or


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When a PIL can be filed?

According to the guidelines of the Supreme Court anymember of public having sufficient interest maymaintain an action or petition by way of PIL provided:-

There is a personal injury or injury to a

disadvantaged section of the population for whomaccess to legal justice system is difficult,

The person bringing the action has sufficientinterest to maintain an action of public injury,

The injury must have arisen because of breach ofpublic duty or violation of the Constitution or of thelaw,


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When a PIL can be filed?

So, PIL can be filed only in a case where Public Interestat

large is affected. Merely because, only one person is

effectedby state inaction is not a ground for PIL.There are some of the possible areas where PIL can be

filed.a) Where a factory/ industry unit is causing air pollution,

and people nearly are getting effected.b) Where, in an area/ street there are no street lights,

causing inconvenience to commuters.c) Where some Banquet Hall plays a loud music, in night

causing noise pollution.

d) Where some construction company is cutting downtrees causin environmental ollution.


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e) Where poor people, are affected, because of state

governments arbitrary decision to impose heavyTax.

f) For directing the police/ Jail authorities to takeappropriate decisions in regards to jail reforms, such

as segregation of convicts, delay in trial, before thecourt on remand dates.

g) For abolishing child labour, and bonded labour.

h) Where rights of working women are affected bysexual harassment.

i) For keeping a check on corruption and crimeinvolving holders of high political officer.

j) For maintaining Roads, Sewer etc in good condition.

k) For removal of Big Hoarding and signboards from

the busy road to avoid traffic problem.


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Who can file the PIL? any Public-spirited person can file a case (PIL) on

behalf of a group of person, whose rights areaffected. It is not necessary, that person filing a caseshould have a direct interest in this PIL.

For e.g. a person in Bombay, can file a PIL for, some

labour workers being exploited in Madhya Pradesh oras someone filed a PIL in supreme court for takingaction against a Cracker factory in SivakasiTamilnadu, for employing child labour.

There is the case where a standing practicing lawyer

filed a PIL for release of 80 under trials in a jail, thanthe period prescribed as punishment for offence, forwhich they were tried.

It is clear that, any person can file a PIL on behalf ofgroup of affected people.

However, it will depend on every facts of case,whether it should be allowed or not.


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Against whom a PIL can be Filed?

A PIL can be filed against a State/ Central Govt.,Municipal Authorities, and not any private party.

However, Private party can be included in the PIL as

Respondent, after making concerned state authority, aparty. For example- if there is a Private factory in Delhi, which

is causing pollution, then people living nearly, or anyother person can file a PIL against the Government ofDelhi, Pollution Control Board, and against the privatefactory.

However, a PIL cannot be filed against the Private partyalone.


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Features of PIL Through the mechanism of PIL, the courts seek to

protect human rights in the following ways:

1) By creating a new regime of human rights byexpanding the meaning of fundamental right toequality, life and personal liberty. In this process, theright to speedy trial, free legal aid, dignity, means andlivelihood, education, housing, medical care, cleanenvironment, right against torture, sexual

harassment, solitary confinement, bondage andservitude, exploitation and so on emerge as humanrights. These new reconceptualised rights providelegal resources to activate the courts for theirenforcement through PIL.

2) By democratization of access to justice. This isdone by relaxing the traditional rule of locus standi.Any public spirited citizen or social action group canapproach the court on behalf of the oppressedclasses. Courts attention can be drawn even bywriting a letter or sending a telegram. This has been

called epistolary jurisdiction.


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3) By fashioning new kinds of reliefs under the

courts writ jurisdiction. For example, the court canaward interim compensation to the victims ofgovernmental lawlessness..

4)By judicial monitoring of State institutions suchas jails, womens protective homes, juvenile homes,

mental asylums, and the like. Through judicialinvigilation, the court seeks gradual improvement intheir management and administration. This has beencharacterized as creeping jurisdiction in which thecourt takes over the administration of theseinstitutions for protecting human rights.

5) By devising new techniques of fact-finding. Inmost of the cases the court has appointed its ownsocio-legal commissions of inquiry or has deputed itsown official for investigation. Sometimes it has takenthe help of National Human Rights Commission or

Central Bureau of Investigation (CBI) or experts toin uire into human ri hts violations. This ma be


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Foundation case of PIL

The first reported case of PIL in 1979 focused on the inhumanconditions of prisons and under trial prisoners. In HussainaraKhatoon v. State of Bihar, AIR 1979 SC 1360.

The PIL was filed by an advocate on the basis of the news item

published in the Indian Express, highlighting the plight of thousandsof under trial prisoners languishing in various jails in Bihar.

These proceeding led to the release of more than 40, 000 under trialprisoners. Right to speedy justice emerged as a basic fundamentalright which had been denied to these prisoners. The same setpattern was adopted in subsequent cases.


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In 1981 the case of Anil Yadav v. State of Bihar, AIR

1982 SC 1008, exposed the brutalities of the Police.News paper report revealed that about 33 suspectedcriminals were blinded by the police in Bihar byputting the acid into their eyes.

Through interim orders S. C. directed the Stategovernment to bring the blinded men to Delhi formedical treatment. It also ordered speedyprosecution of the guilty policemen. The court alsoread right to free legal aid as a fundamental right of

every accused. Anil Yadav signalled the growth of social activism and

investigative litigation.


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In the Judges Transfer Case - AIR 1982,SC 149: Court held Public Interest

Litigation can be filed by any member ofpublic having sufficient interest for publicinjury arising from violation of legal rightsso as to get judicial redress. This is

absolutely necessary for maintaining Ruleof law and accelerating the balancebetween law and justice.


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Shiram Food & Fertilizer case AIR (1986) 2 SCC 176 SC throughPublic Interest Litigation directed the Co. Manufacturing hazardous& lethal chemical and gases posing danger to life and health ofworkmen & to take all necessary safety measures before re-opening

the plant. In the case of M.C Mehta V. Union of India (1988) 1SCC 471 - In a Public Interest Litigation brought against Gangawater pollution so as to prevent any further pollution of Ganga water.Supreme court held that petitioner although not a riparian owner isentitled to move the court for the enforcement of statutory provisions, as he is the person interested in protecting the lives of the peoplewho make use of Ganga water.


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Parmanand Katara V. Union of India - AIR 1989, SC2039 :- Supreme Court held in the Public InterestLitigation filed by a human right activist fighting for

general public interest that it is a paramount obligation ofevery member of medical profession to give medical aidto every injured citizen as soon as possible withoutwaiting for any procedural formalities.


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Council For Environment Legal ActionV. Union Of India - (1996)5 SCC281 :

Public Interest Litigation filed by registeredvoluntary organization regarding economicdegradation in coastal area. Supreme

Court issued appropriate orders anddirections for enforcing the laws to protectecology.


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Advantages of PIL

1. In Public Interest Litigation (PIL) vigilantcitizens of the country can find an inexpensive

legal remedy because there is only a nominalfixed court fee involved in this.

2. Further, through the so-called PIL, the litigantscan focus attention on and achieve results

pertaining to larger public issues, especially inthe fields of human rights, consumer welfareand environment.


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Abuse of PIL

The development of PIL has also uncoveredits pitfalls and drawbacks. As a result, theapex court itself has been compelled to laydown certain guidelines to govern themanagement and disposal of PILs. And theabuse of PIL is also increasing along with itsextended and multifaceted use.

Of late, many of the PIL activists in thecountry have found the PIL as a handy tool of

harassment since frivolous cases could befiled without investment of heavy court feesas required in private civil litigation and dealscould then be negotiated with the victims ofstay orders obtained in the so-called PILs.


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STEPS NECESSARY With the view to regulate the abuse of PIL the apex

court itself has framed certain guidelines to governthe management and disposal of PILs.

The court must be careful to see that the petitionerwho approaches it is acting bona fide and not for

personal gain, private profit or political or otheroblique considerations.

The court should not allow its process to be abusedby politicians and others to delay legitimateadministrative action or to gain political objectives.

Political pressure groups who could not achieve theiraims through the administrative process or politicalprocess may try to use the courts (through the meansof PILs) to further their closely vested aims andinterests.


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PIL as an Instrument of Social Change

PIL is working as an important instrument of social change. It isworking for the welfare of every section of society. Its the swordof every one used only for taking the justice.

The innovation of this legitimate instrument proved beneficial forthe developing country like India. PIL has been used as astrategy to combat the atrocities prevailing in society.

Its an institutional initiative towards the welfare of the needy

class of the society. For e.g. In Bandhu Mukti Morcha v. Union of India, S.C. ordered

for the release of bonded labourers. In Murli S. Dogra v. Unionof India, court banned smoking in public places. In a landmark

judgement of Delhi Domestic Working Womens Forum v. Unionof India, (1995) 1 SCC 14, Supreme Court issued guidelines for

rehabilitation and compensation for the rape on working women.In Vishaka v. State of Rajasthan Supreme court has laid downexhaustive guidelines for preventing sexual harassment ofworking women in place of their work.


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Conclusion

Supreme Court has now realised its proper role inwelfare state and it is using its new strategy for thedevelopment of a whole new corpus of law foreffective and purposeful implementation of PublicInterest Litigation.

One can simply approach to the Court for theenforcement of fundamental rights by writing a letteror post card to any Judge. That particular lettersbased on true facts and concept will be converted towrit petition.

When Court welcome Public Interest Litigation , itsattempt is to endure observance of social andeconomic programmes frame for the benefits ofhave-nots and the handicapped. Public InterestLitigation has proved a boon for the common men.


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Public Interest Litigation has set right a numberof wrongs committed by an individual or bysociety. By relaxing the scope of Public Interest

Litigation, Court has brought legal aid at thedoorsteps of the teeming millions of Indians;which the executive has not been able to dodespite a lot of money is being spent on newlegal aid schemes operating at the central and

state level. Supreme Court's pivotal role inexpanding the scope of Public Interest Litigationas a counter balance to the lethargy andinefficiency of the executive is commendable.


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Lok Adalat


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WHAT IS LOK ADALAT?

It is a judicial institution developed by the peoplethemselves for social justice.

It settles litigation by negotiation, arbitration or

conciliation.

It is a dispute settlement agency.

Lok Adalats are not alternative to the existing courts.They are only supplementary to the courts.


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Historical Background of Lok

Adalat Seekers of justice are in millions and it is becoming

rather difficult for the Courts to cope up with the ever-increasing cases with the present infrastructure andmanpower.

There is serious problem of overcrowding of dockets.Because of the ever-increasing number of cases theCourt system is under great pressure.

Therefore, if there was at the threshold a permanentmechanism or machinery to settle the matters at a pre-trial stage, many matters would not find their way to theCourts.


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Similarly, if there are permanent forums to which Courtsmay refer cases, the load of cases could be taken off theCourts. In order to reduce the heavy demand on Courttime, cases must be resolved by resorting to 'AlternativeDispute Resolution' Methods before they enter theportals of Court.

The evolution of this movement was a part of thestrategy to relieve heavy burden on the Courts withpending cases. The reason to create such camps wereonly the pending cases and to give relief to the litigantswho were in a queue to get justice.


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First Lok Adalat

Camps of Lok Adalat were started

initially in Gujaratin March 1982 and

now it has been extended throughoutthe Country.


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Gandhiji`s views on Lok Adalat

Mahatma Gandhi, the father of nation, hassaid:

"I had learnt the true practice of law. I hadlearnt to find out the better side of humannature, and to enter men's hearts. I realisedthat the true function of a lawyer was to uniteparties riven as under. The lesson was so

indelibly burnt unto me that the large part ofmy time, during the twenty years of mypractice as a lawyer, was occupied inbringing about private compromises ofhundreds of cases. I lost nothing, therebynot even money, certainly not my soul."


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Statutory Provisions

According to Legal Services Authorities (Amendment)Act 1994 effective from 09-11-1995 has since beenpassed, Lok Adalat settlement is no longer a voluntary

concept. By this Act Lok Adalat has got statutorycharacter and has been legally recognized. Certainsalient features of the Act are enumerated below:


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Section 20: Reference of Cases

Cases can be referred for consideration of Lok Adalat as under:

i. By consent of both the parties to the disputes.

ii. One of the parties makes an application for reference.

iii. Where the Court is satisfied that the matter is an appropriateone to be taken cognizance of by the Lok Adalat.

iv. Compromise settlement shall be guided by the principles ofjustice, equity, fairplay and other legal principles.

v. Where no compromise has been arrived at through conciliation,the matter shall be returned to the concerned court for disposal inaccordance with Law.


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Section 21

After the agreement is arrived by the consent of the parties, award ispassed by the conciliators. The matter need not be reffered to theconcerned Court for consent decree.The Act provisions envisages as under:

i. Every award of Lok Adalat shall be deemed as decree of CivilCourt.

ii. Every award made by the Lok Adalat shall be final and binding onall the parties to the dispute.

iii. No appeal shall lie from the award of the Lok Adalat.


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Section 22

Every proceedings of the Lok Adalat shall beconsidered to be judicial proceedings for thepurpose of

i. Summoning of Witnesses.

ii. Discovery of documents.

iii. Reception of evidences.

iv. Requistioning of Public record.


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Organization of Lok Adalat

Every State Authority or District Authority or theSupreme court Legal Services Committee or every HighCourt Legal Service Committee or as the case may be

Taluk Legal Service Committee may organize.LokAdalats at such intervals and places and for exercisingsuch jurisdiction and for such areas as it thinks fit.

The Lok Adalat is presided over by a sitting or retiredjudicial officer as the chairman, with two other members,usually a lawyer and a social worker.


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Procedure of Lok Adalats

Main condition of the Lok Adalat is that both parties in disputeshould agree for settlement. The decision of the Lok Adalat isbinding on the parties to the dispute and its order is capable ofexecution through legal process. No appeal lies against the order ofthe Lok Adalat.

Lok Adalat is very effective in settlement of money claims. Disputeslike partition suits, damages and matrimonial cases can also beeasily settled before Lok Adalat as the scope for compromisethrough an approach of give and take is high in these cases.

Lok Adalat is a boon to the litigant public, where they can get theirdisputes settled fast and free of cost.


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73rd & 74th Constitution Amendment

ActNeed1. Though the Panchayati Raj Institutions have been in existence

for a long time, it has been observed that these institutions havenot been able to acquire the status and dignityof viable and responsive people's bodies due to a number of

reasons including absence ofregular elections, prolonged suppressions, insufficientrepresentation of weaker sections likeScheduled Castes, ScheduledTribes and women, inadequate devolution of powers and lackof financial resources.

In an effort to give more powers to the panchayat, the UnionGovernment has decided to propose two amendments in the IndianConstitution.

The Indian Constitution has categorically given 29 functions to thepanchayat. None of the States, however, has given all these powersto the local bodies. Most of these powers are still held by the StateGovernments.


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Article 40 of the Constitutionwhich enshrines one of the

Directive Principles of State Policy lays down thatthe State shall take steps to organise villagepanchayats and endow them with such powersand authority as may be necessary to enable themto function as units of self-government. In the

light of the experience in the last forty years and inview of the short-comings which have beenobserved, it is considered that there is animperative need to enshrine in theConstitution certain basic and essential features

of Panchayati Raj Institutions to impart certainty,continuity and strength to them.


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. Accordingly, it is proposed to adda new Part relating to Panchayat in theConstitution to provide for among otherthings, Gram Sabha in a village or group of

villages; constitution of Panchayatat village and other level or levels; directelections to all seats in Panchayat at thevillage and intermediate level, if any, and to

the offices of Chairpersons of Panchayat atsuch levels.


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Aim & Object

The passage of the 73rd and 74th constitutionalamendments in 1994 has been hailed as a landmark inthe evolution of local governments in India.

The amendments provided

rural and urban local governments with a constitutional

status that they had previously lacked and reinforced this status by mandating regular elections to

locally elected bodies.

It mandated reservations of positions in these local

bodies for women and for individuals from twotraditionally disadvantaged (and constitutionallyrecognized) groups: Dalits, Scheduled Castes,Scheduled Tribes,


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At the national level, the ostensible aim ofthe constitutional amendments was clearly

to revitalize local government. This was seen as a means of promoting

greater community participation and

involvement in developmental efforts ofrural India.


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