A PURVIEW ON DRAFTING  OF PIL

We all are aware that Justice Prafulla Natwarlal Bhagwati known as J. P.N. Bhagwati was the first person who introduced and defined the true sense of Public Interest Litigation in India. He broadened the scope of PIL and made them available to the socially disadvantaged group of people. PIL means Public Interest Litigation which protects the public interest at large through the process of litigation.

Issues:-

1) WHAT ARE THE PROBLEMS FACED BY PUBLIC INTEREST LITIGATION IN INDIA?

There are various problems faced in public interest litigation even before its broadening. The very first problem is that people fail to understand the real meaning of PIL and they start considering even their matters of personal interest as PIL. In most of the cases people misuse the PIL for gaining publicity. They fail to understand that PIL are meant for the public. They use it as their personal weapon. Some of the problems faced are as follows-

  • Negative use of PIL for publicity stunt- Some people use it as their personal instrument to gain publicity. There was a case filed which stated to ban Kedarnath Movie on the ground of hurting religious sentiments and promoting love jihad. The petitioners stated that the movie shows a Muslim boy inside a Hindu temple. The High court dismissed the PIL by considering it as a publicity stunt.
  • Private grievances in disguise of PIL- Since few decades, it has been noticed that the court has been constantly rejecting cases filed in the name of PIL. Cases like auction, sale of plot, personal cases which are purely of private interest.
  • A Medium of Harassment- It was also found by the lawyers and judges of the country that PIL are being constantly used a method of harassing the people as well as the court. As we know PIL does not cost heavy amount of fees which becomes a medium of harassment.
  • Absence of strict Locus standi[1]Prior to 1980, only the aggrieved party was asked to approach the court for filing PIL but gradually it extended to any person who are public spirited and has a genuine interest in serving people. On one hand the broadening of PIL has helped any person to file an PIL for the aggrieved as not every person can approach the court but on the other hand absence of strict locus standi has motivated people to approach the court for their private interests assuming it as public interest.
  • Not all public issues to be filed as PIL- Issues like rising prices in the country or   deducting salaries during emergency periods cannot be filed as PIL in the courts. Sometimes, people file writ petition for the rise of petrol price or price of vegetables. These issues cannot be treated as PIL as it shall also affect the livelihood of many families.
  • PIL Promotes Symbolic Justice- Public Interest Litigation has been providing symbolic justice because of the lack in the implementing the directions put forth by the courts. This affects the credibility of the entire judicial system. In the case of Visakha v. State of Rajasthan[2] , the Supreme court issued directions regarding prevention of sexual harassment still it has failed to achieve it.
  • Gigantic Increase in PILs- Because of the flexibility in filing PILs, the filing of numerous petitions has created a lot of pressure on the entire judiciary and there has been a delay in delivery of justice.

 2) WHAT ARE THE STAGES OF DEVELOPMENT OF PIL IN THE COUNTRY?

Most of the people believe that the development stone of PIL was first laid down by J. P.N Bhagwati but in real sense it was laid down by Justice Krishna Iyer in the year 1976 in the case Mumbai Kamagar Sabha vs. Abdul Thai[3] , this case was not a historic one but has been always regarded as the first PIL in India.

In the year 1979, the second PIL but the first historic PIL was filed regarding the rights of the undertrial prisoners. The name of the case was Hussainara Khatoon vs. State of Bihar[4]. This case played a major role in making people understand the value of human rights. A PIL was filed before the court regarding the brutal situation of the under-trial prisoners in Bihar. There were many jail inmates who lived half of their lives in the jail without any jail. It clearly violated their rights, in this case the court instructed for a speedy trial process and also directed for the release of nearly 40, 000 prisoners as they cross their detention period without any trial. This particular case inserted right to speedy trial as one of the fundamental right under the constitution of India.

After 1980, a new change was found in the Public Interest Litigation, the locus standi was made flexible and it was seen in the case S.P. Gupta vs. Union of India[5]. In this case, the court held that any member of the public or social action group acting bonafide can file a writ under Article 226 and 32 in the High Court and the Supreme Court respectively against the violation of any constitutional right of a larger section of people especially weaker section of the society. Even there is a provision under the section 133 of the Criminal Procedural Code also for prevention of Public Nuisance.

 3) WHETHER PIL HAS A STRICT DOCTRINE OF SEPARATION OF POWERS?

There are three organs of government i.e.Legislature, Executive and Judiciary. They maintain a check and balance among themselves but judiciary has a special role to perform as a guarantor of the constitutional rights of people. Judiciary reviews the functioning of both the organs of the government. We also know that for the enforcement of the fundamental rights, we approach the superior courts i.e. the Supreme Court and the respective High Courts still the expensive and complicated litigation procedure make it difficult for the poor to knock the doors of the court. That’s why the procedure of Public Interest Litigation came into forefront to address their problems.

 4) WHAT ARE THE GUIDELINES FRAMED BY THE APEX COURT TO REGULATE THE ABUSE OF PIL?

When it comes to development, destruction to that development is must. The same thing also goes with the development of PIL. When the abuse of such cases increased, the Honourable Supreme Court released certain guidelines to regulate such abuses-

  • To look after the bonafide intention of the petitioner
  • To avoid taking petitions on personal gains
  • Not to get influenced by the politicians and political parties
  • To treat letters concerning violation of rights of poor and backward class as PIL
  • Any member who shows concern on public interest can file an PIL.

5) WHAT ARE THE MECHANISMS FOR PROTECTION OF HUMAN RIGHTS THROUGH PIL?

The basic ingredient of PIL is that it protects the human rights only. When any violation of human rights takes place and interest of a larger group is at stake, Public Interest Litigation is the most affordable thing a person can afford. It represents a sustained effort on the part of the judiciary to provide access to justice to the deprived section of the society. Public Interest Litigation has been started functioning in India mainly for the protection and promotion of human rights of the all group of people and especially the powerless and poor minority class.

Various Mechanisms-

  1. NHRC-

The best mechanism that has been made for the protection of human rights is the establishment of National Human Rights Commission of India (NHRC) under the National Human Rights Act in the year 1993.

As per section 12[i] of the NHR Act, the commission has been empowered to enquire either on its own or based on a petition submitted by a victim or any other person on behalf of the victim regarding the violation of their human rights.

They can also be a part of the proceedings by taking the prior permission of the court either to defend or to play the role of an informant by furnishing important information to the court of law regarding the human rights violation during the trial.

NHRC has made a lot of efforts and took full advantage from the said act for the protection of human rights in the country in the following ways: –

  • An organized formulated plan in order to prevent immoral trafficking;
  • Enhancement of “Right to Food” under the purview of Article 21 of the constitution;
  • Awareness programmes through seminar and conferences;
  • Providing financial assistance to other organizations and NGOs for the welfare of people;
  • Right to health;
  • To give justice by the way if suo moto cases i.e. through PILs.

From the above mentioned points, it can be clearly inferred that how PILs has helped even the National Human Rights Commission for providing justice to the people.

  • NGOs-

There are many NGOs who have served as a mechanism to protect the human rights through PILs. As it has been mentioned that the point of Locus Standi has been relaxed in such cases, so any person especially a public-spirited person can file such PILs when human rights are found of getting violated.

In India, various NGOs like CRY, CACL, Saheli, Chetna

The role of NGOs can be identified through the way they file cases on various issues like-

  • Abolishing Bonded Labor;
  • Protection of women and children from sexual exploitation and other kind of cruelty;
  • Filing PILs in the court of law for such cases.

CREDITS: Ashima Mishra, B.A.LLB (Honors)University Law College, Utkal University, Bhubaneswar

REFERENCES

  1. Mumbai Kamagar Sabha vs. Abdul Thai 1976 (3) SCC 832
  2. Hussainara Khatoon vs. State of Bihar 1980 1 SCC 98
  3. S.P. Gupta vs. Union of India 1981 Supp SCC 87
  4. Dr. J.N. Pandey, Constitutional Law of India, 55th edition, 2018

[1] Right or capacity to approach the court of law to get justice

[2] AIR 1997 SC 3011

[3] 1976 (3) SCC 832

[4]  1979 AIR 1369, 1979 SCR (3) 532

[5] AIR 1982 SC 149 , 1981 Supp (1) SCC 87, 1982 2 SCR  365


 

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