Public interest litigation: origins, doctrine and limits

Judicial and Legislative Process · Unit III · Topic 8 of 20 · 5 min read

How Indian PIL relaxed standing and procedure, the remedies it invented, the critique from scholars and from the Court itself, and the guidelines now used to filter petitions.

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On this page

1. Why PIL arose
2. Standing
3. Procedure
4. Remedies
5. The critique
6. The Court s own limits
7. Comparison
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. PIL changed three things in the judicial process at once: who may sue (standing), how the case proceeds (non-adversarial procedure), and what the court may order (structural remedies). Organise every PIL answer around those three changes, then the critique.

1. Why PIL arose

The traditional rule of standing allowed only a person whose own legal right was infringed to approach the court. That rule assumed a litigant who knew his rights and could afford to enforce them. Marc Galanter’s essay “Why the ‘Haves’ Come Out Ahead” (1974) explained why the ordinary system favours repeat players with resources. In India the poor, the imprisoned and the bonded were the people least able to sue. After the Emergency, the Supreme Court, led by Krishna Iyer and P.N. Bhagwati JJ., opened its doors to people acting for them. Upendra Baxi called the result “social action litigation”, to distinguish it from the American public interest law movement, which was driven by organised interest groups.

Abram Chayes’s article “The Role of the Judge in Public Law Litigation” (Harvard Law Review, 1976) supplied the American model of a judge who manages ongoing institutional reform rather than deciding a bilateral dispute. Indian PIL went further than its American counterpart.

2. Standing

Early signs: Mumbai Kamgar Sabha v. Abdulbhai Faizullabhai, 1976 INSC 49, (1976) 3 SCC 832, where Krishna Iyer J. refused to defeat a union’s claim on technical grounds of standing, and Fertilizer Corporation Kamgar Union v. Union of India, 1980 INSC 217, (1981) 1 SCC 568.
The leading statement: S.P. Gupta v. Union of India, 1981 INSC 209, 1981 Supp SCC 87. Bhagwati J. held that where a legal wrong is done to a person or class who by reason of poverty, disability or socially or economically disadvantaged position cannot approach the court, any member of the public acting bona fide may do so; and that a member of the public with sufficient interest may sue for a public injury (the lawyers had standing to challenge the transfer of judges).

3. Procedure

Epistolary jurisdiction. Letters and newspaper reports were treated as writ petitions. People’s Union for Democratic Rights v. Union of India, 1982 INSC 67, (1982) 3 SCC 235 (the Asiad workers), began as a letter.
Commissions and fact-finding. The Court appointed commissioners, experts and socio-legal investigators because the poor could not lead evidence. Bandhua Mukti Morcha v. Union of India, 1983 INSC 203, (1984) 3 SCC 161, on bonded labour in quarries, upheld this practice and explained that PIL is not adversarial but a collaborative effort to secure basic rights.
Amicus curiae and the conversion of individual grievances into general directions.
Undertrials. Hussainara Khatoon v. Home Secretary, Bihar, 1979 INSC 34, (1980) 1 SCC 81, based on newspaper reports, recognised speedy trial as part of Article 21 and led to the release of thousands of undertrials.

4. Remedies

Guidelines that operate as law until the legislature acts (Vishaka, 1997).
Continuing mandamus — the case is kept pending and the court supervises compliance (Vineet Narain, 1997).
New liability rules. M.C. Mehta v. Union of India, 1986 INSC 281, (1987) 1 SCC 395 (oleum gas leak), laid down absolute liability for hazardous enterprises, without the exceptions in Rylands v. Fletcher.
Enforcing statutory duties against public bodies: Municipal Council, Ratlam v. Vardhichand, 1980 INSC 138, (1980) 4 SCC 162, where a municipality was ordered to build drains despite pleading lack of funds.
Compensation for breach of fundamental rights as a public law remedy.

5. The critique

Separation of powers — courts framing policy and running institutions (see the note on activism, Aravali Golf Club).
Institutional capacity — directions without the means to monitor.
Capture — PIL used by the middle class against the poor, especially in urban slum clearance and environmental cases. Anuj Bhuwania’s Courting the People (2017) argues that the abandonment of procedure made PIL arbitrary.
Docket pressure and the use of PIL for publicity, political or private ends.

6. The Court’s own limits

Janata Dal v. H.S. Chowdhary, 1992 INSC 226, (1992) 4 SCC 305: a stranger with no interest cannot intervene in a criminal case (the Bofors investigation); PIL is not for the “busybody” or the meddlesome interloper.
BALCO (2001): PIL is not a vehicle to challenge economic policy.
State of Uttaranchal v. Balwant Singh Chaufal, 2010 INSC 47, (2010) 3 SCC 402: the Court traced the phases of PIL and directed courts to verify the petitioner’s credentials and bona fides, check the correctness of the contents, ensure that substantial public interest is involved, and impose costs on frivolous or motivated petitions.

Three phases, a useful frame. Chaufal itself describes PIL in phases: first, protection of the rights of the disadvantaged (bonded labour, prisoners, undertrials); second, protection of the environment and ecology; third, probity and transparency in public life (corruption investigations, appointments). An answer that uses this frame and then adds the critique scores well.

7. Comparison

United States: standing requires injury in fact, causation and redressability under Article III (Lujan v. Defenders of Wildlife, 1992); class actions and structural injunctions do the work that PIL does in India.
United Kingdom: “sufficient interest” for judicial review (Senior Courts Act 1981, section 31(3)); the Fleet Street Casuals case (IRC v. National Federation of Self-Employed, 1982) and the later acceptance of representative public interest groups.
South Africa: section 38 of the 1996 Constitution expressly allows anyone acting in the public interest to approach a court for infringement of rights.

How this is examined

PIL may be set directly or folded into a question on judicial activism. Structure the answer as standing (S.P. Gupta), procedure (Bandhua Mukti Morcha, epistolary jurisdiction), remedies (M.C. Mehta, Vishaka, continuing mandamus), the critique (Baxi, Galanter, Bhuwania) and the Court’s own filters (Janata Dal, Chaufal). Comparative standing rules earn the extra marks.

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