REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.1134-1135 OF 2002

State of Uttaranchal .. Appellant

Versus

Balwant Singh Chaufal & Others .. Respondents

J U D G M E N T

Dalveer Bhandari, J.

1. 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.

2. 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.

3. 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

continue.

4. 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.

5. 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:

“165. 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.

(2) It 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.

(3) The Advocate-General shall hold office

during the pleasure of the Governor, and shall

receive such remuneration as the Governor may

determine.

6. 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:

217 - 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:

Provided that--

(a) a Judge may, by writing under his hand

addressed to the President, resign his office;

(b) a 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;

(c) the 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.

(2) A 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;

Explanation: 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;

(aa) in 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;

(b) in 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.

(3) If 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.”

7. 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.

It is 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 217.

8. 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:

“25. 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.

26. What 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.

27. The 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.

It was not suggested that the non-applicant does

not possess the qualifications prescribed in

that clause.

28. The 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.

29. We say as of right because under Art.

224 a 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.

The 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.

(30) If 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 sixty years.

We have 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.

(31) 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.”

9. 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.

10. 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:

11. 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”.

12. 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.

The Court 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.

13. 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:

“The 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.

The 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 different.”

14. 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:

“Having 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.”

15. 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.

16. This Court in Binay Kant Mani Tripathi v. Union of

India & Others (1993) 4 SCC 49 has re-affirmed this position.

The Court 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.

17. 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

pointed out:

“If 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.”

18. In Gurpal Singh v. State of Punjab & Others (2005) 5

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.

19. 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.

20. 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.

21. 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.

22. 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:

“3. 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.

(I)Sri 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

4. That 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.

Goel, Advocate General of U.P. who has passed the

age of 62 at the time of appointment was also

dismissed.

5. That 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 62

years.”

23. 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.

24. 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.

25. 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.

26. 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.

DEFINITIONS OF PUBLIC INTERST LITIGATION

27. Public Interest Litigation has been defined in the

Black’s Law Dictionary (6

th

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.

Interest shared by citizens generally in affairs

of local, state or national government....”

28. 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.”

29. 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:

“Public Interest Law is the name that has recently

been given to efforts provide legal representation

to previously unrepresented groups and interests.

Such 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).

30. 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”.

ORIGIN OF PUBLIC INTEREST LITIGATION :

31. The public interest litigation is the product of

realization of the constitutional obligation of the court.

32. 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.

33. 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 life.

34. 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 constitutional obligation.

35. The High Courts followed this Court and exercised

similar jurisdiction under article 226 of the Constitution.

The 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?

36. 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

jurisdictions.

37. 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.

38. 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.

39. 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 and

entitlements.

40. 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”.

41. 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

justice.

EVOLUTION OF THE PUBLIC INTEREST LITIGATION IN INDIA

42. 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.

43. 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.

44. The Indian Supreme Court broadened the traditional rule

of standing and the definition of “person aggrieved”.

45. 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.

Phase-I: 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.

Phase-II: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.

46. 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.

DISCUSSION OF SOME IMPORTANT CASES OF PHASE-I

47. 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 rule”.

48. 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:

“Traditionally 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 xxx 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.”

49. 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.”

50. 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 standi.

51. 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 law.”

Significantly, 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.

52. 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.

53. 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.

54. In Municipal Council, Ratlam v. Vardhichand & Others

AIR 1980 SC 1622, Krishna Iyer, J. relaxed the rule of locus

standi:

“The 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 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……”

55. 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:

“It 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.”

56. In People’s Union for Democratic Rights & Others

(supra), this Court observed as under:

“that 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 fibre.

They have 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?

57. 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.

In its place, the Court prescribed the modern rule on

standing:

“where 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.”

58. 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:

“……it 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 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.”

59. 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.

60. 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.”

61. Thereafter, in a series of cases, the Court treated

Post Cards and letters as writ petitions and gave directions

and orders.

62. 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.

63. 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.

64. 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.

65. 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.

66. 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 neglected.

67. 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.

68. 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 under:

“The 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.”

69. 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.

70. 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.

71. 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.

72. 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:

“15. ….. 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.”

73. 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.

74. 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.

75. 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.

The Court gave very significant directions which are mandatory

for all concerned to follow.

76. 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.

77. 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.

78. 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.

79. 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 concerned authorities.

80. 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.

The Supreme 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.

PHASE-II – DIRECTIONS TO PRESERVE AND PROTECT ECOLOGY AND

ENVIRONMENT

81. 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.

82. 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.

Reference of some cases is given just for illustration.

83. 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.

84. 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.

85. 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.

86. 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.

Mehta & Another v. Union of India & Others AIR 1987 SC 1086.

The court 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.

87. 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.

88. 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.

89. 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 of life.

90. 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”.

91. 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.

92. 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 at large.

93. 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.

94. In A. P. Pollution Control Board v. Prof. M. V. Nayadu

(Retd.) & Others (1999) 2 SCC 718, this Court quoted A.

Fritsch, “Environmental Ethics: Choices for Concerned

Citizens”. The same is reproduced as under:

“The basic insight of ecology is that all living

things exist in interrelated systems; nothing

exists in isolation. The world system in weblike;

to pluck one strand is to cause all to vibrate;

whatever 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.

Fritsch, Environmental Ethics: Choices for

Concerned Citizens 3-4 (1980)] : (1988) Vol. 12

Harv. Env. L. Rev. at 313).”

95. 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.

96. 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:

“26. 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

4

th

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 adverse factors.

Nature 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".”

97. 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 environment.

This 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.

98. 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.

Any 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.

99. 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 and ecology.

100. 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.

101. 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 pollution.

Particularly, 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.

102. 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.

103. 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:

1. The 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.

2. The authority so constituted by the

Central Government shall implement "the

Precautionary principle" and "the Polluter Pays"

principles.

3. The 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.

4. All 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 31, 1997.

5. The 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.

6. No 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).

7. 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.

8. The 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.

9. The authority was directed to compute the

compensation under two heads namely, for reversing

the ecology and for payment to individuals.

10. The 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.

104. The Court also granted substantial costs to the

petitioners.

105. 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.

THE TRANSPARENCY AND PROBITY IN GOVERNANCE – PHASE-III OF THE

PUBLIC INTERST LITIGATION

106. 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 orders.

107. 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.

A number 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.”

108. 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.

109. 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.

110. 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.

111. 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.

112. 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.

The court upheld the petitions until the statutes are amended

appropriately.

113. 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 interest

litigation.

114. 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.

115. 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.

116. We have endeavoured to give broad picture of the public

interest litigation of Ist, IInd and IIIrd phases decided by

our courts.

117. We would briefly like to discuss evolution of the

public interest litigation in other judicial systems.

EVOLUTION OF PUBLIC INTERST LITIGATION IN OTHER JUDICIAL

SYSTEMS NAMELY, USA, U.K., AUSTRALIA AND SOUTH AFRICA.

AUSTRALIA

118. In Australia also for protecting environment, the

Australian court has diluted the principle of ‘aggrieved

person’.

119. 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:

“In 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.

The 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

endangered fauna.”

120. 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.

U.S.A.

121. 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.

122. 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

otherwise”.

123. 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.”

124. 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.

125. 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 loss.

126. 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.”

127. 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.

128. In Thomas E. Singleton v. George J. L. Wulff 428 U.S.

106 (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.

129. 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 lawsuit”.

ENGLAND

130. The use of PIL in England has been comparably limited.

The limited development in PIL has occurred through broadening

the rules of standing.

Broad Rules of Standing

131. 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.

132. 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.

133. 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 [1968] 2 W.L.R. 893 (“Blackburn I”) .

134. 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.

135. 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 [1971]

1 W.L.R. 1037).

136. 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 [1973] Q.B. 241.

137. 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 [1976] 1 W.L.R.

550.

138. 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 [1978] 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.

139. 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).

In Inland Revenue Commissioners v. National Federation of

Self-Employed and Small Businesses Ltd. [1982] A.C. 617, the

Court explained that “fairness and justice are tests to be

applied” when determining if a party has a sufficient

interest.

140. 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.

SOUTH AFRICA

141. 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.

(A) Broad Rules of Standing

142. Section 38 of the Constitution broadly grants standing

to approach a competent court for allegations of infringement

of a right in the bill of rights to:

“(a) anyone acting in their own interest;

(b) anyone acting on behalf of another person

who cannot act in their own name;

(c) anyone acting as a member of, or in the

interest of, a group or class of persons;

(d) anyone acting in the public interest;

(e) an association acting in the interest of

its members.”

143. 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.”

(B) Relaxing Formal Requirements of Pleadings

144. 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.

145. 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 prepared.”

IMPACT OF PUBLIC INTEREST LITIGATION ON NEIGHBOURING COUNTRIES

146. 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.

PAKISTAN:

147. By a recent path-breaking historical judgment of the

Pakistan Supreme Court at Islamabad dated 31

st

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.

148. Another path breaking judgment delivered very recently

on 16

th

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.

149. 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.

150. 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 12

th

July, 1994 gave significant directions largely

based on the judgments of this court.

151. 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.

Without 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 existence.

152. The court gave significant directions including

stopping the functioning of factory which created pollution

and environmental degradation.

153. 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.

154. 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;

the immediate vicinity. The presence of electrical

installations and transmission lines would also be highly

dangerous to the citizens particularly the children who play

outside 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.

155. 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.

The 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 degradation.

SRI LANKA:

156. 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 case.

NEPAL:

157. 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.

158. The Supreme Court of Nepal gave significant directions

to protect degradation of environment and ecology. The court

adopted the concept of sustainable development.

159. 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.

160. 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.

ABUSE OF THE PUBLIC INTEREST LITIGATION :

161. 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.

162. 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.

163. 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.

164. 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”.

Second, the Court has denied standing to interveners bringing

public interest litigation for personal gain.

165. 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.

166. 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.

167. 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.

168. 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/-.

169. 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.

This 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.

170. 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.

171. 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.

172. 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.

173. 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.

174. 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.

175. 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.

176. In Holicow Pictures Pvt. Ltd. v. Prem Chandra Mishra &

Others AIR 2008 SC 913, this Court observed as under:

‘It is 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

system.”

The Court cautioned by observing that:

“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 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

vendetta.

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 him;

(c) the 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.”

177. 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.

The 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. (2

nd

Edn.) 294, the British

Columbia Court of Appeal granted special costs against the

Appellants for bringing a meritless appeal.

178. 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.

179. 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”

on 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.

180. 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 interest claims.

181. 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.

182. 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.

183. 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.

184. 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.

185. 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.

186. 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.

187. 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 Legislature.

188. 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.

189. 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 frivolous petition.

190. 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.

191. 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.

Unfortunately, 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.

192. 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 Land Revenue.

193. 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.

194. 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.

195. 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.

196. In our considered view, now it has become imperative to

streamline the P.I.L.

197. 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 of judgments.

198. 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

thereafter.

(3)The courts should prima facie verify the

credentials of the petitioner before

entertaining a P.I.L.

(4)The court should be prima facie satisfied

regarding the correctness of the contents of the

petition before entertaining a PIL.

(5)The court should be fully satisfied that

substantial public interest is involved before

entertaining the petition.

(6)The court should ensure that the petition which

involves larger public interest, gravity and

urgency must be given priority over other

petitions.

(7)The 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.

(8)The 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 extraneous considerations.

199. Copies of this judgment be sent to the Registrar

Generals of all the High Courts within one week.

200. These appeals are listed on 03.05.2010 to ensure

compliance of our order.

……….…………………………….J.

(Dalveer Bhandari)

.……..….………...……….……. J.

(Dr. Mukundakam Sharma)

New Delhi;

January 18, 2010.