Public Interest Litigation and Judicial Activism: Cases and PYQs

Public Interest Litigation, usually shortened to PIL, is a petition filed in the Supreme Court under Article 32 or in a High Court under Article 226 by any public-spirited person on behalf of people who cannot reach the court themselves. It turned the courtroom, which had always been a place where a person came with a personal grievance, into a forum where poverty, bonded labour, prison conditions, pollution and corruption could be raised by a stranger to the dispute. Judicial activism is the broader habit of mind behind it: the willingness of judges to read rights expansively and to issue directions to the executive when a constitutional duty is being ignored. Examiners ask this chapter every year because it ties together Article 32, Article 226, Article 39A, Article 142 and a short list of landmark cases whose names and years a paper can test in one line.

What makes a petition a PIL

In ordinary litigation only the person whose own right is violated can approach the court. That requirement is called locus standi, Latin for a place of standing. A PIL relaxes it: the petitioner need not be the injured party and need not show any personal loss. The matter must involve a question of public interest, not a private dispute dressed up as one, and the court will not entertain a petition filed for publicity, for private gain or out of political rivalry. Professor Upendra Baxi preferred the name Social Action Litigation, because the Indian form grew out of the condition of the poor rather than out of organised interest groups as in the United States.

Constitutional basis

PIL has no separate article of its own. It rests on provisions the Constitution already contained. Article 32 gives every person the right to move the Supreme Court for the enforcement of fundamental rights, and Dr B. R. Ambedkar called it the heart and soul of the Constitution. Article 226 gives the High Courts a wider writ power, usable for fundamental rights and for any other legal right. Article 39A, a Directive Principle inserted by the Forty-second Amendment Act of 1976, directs the State to secure equal justice and to provide free legal aid so that no citizen is denied justice because of poverty. Article 142 lets the Supreme Court pass any order necessary for doing complete justice in a case before it, and it is the source of many of the directions issued in PIL matters.

How PIL began

Two judges are remembered as its architects, Justice P. N. Bhagwati and Justice V. R. Krishna Iyer. In Sunil Batra v. Delhi Administration the Supreme Court treated a letter written by a prisoner about the treatment of a fellow inmate as a writ petition, and that practice of accepting a postcard or a letter as a petition is called epistolary jurisdiction. In Hussainara Khatoon v. State of Bihar, decided in 1979 on the condition of undertrial prisoners who had already spent longer in jail than the maximum sentence for their offence, the Court ordered their release and held that a speedy trial is part of the right to life under Article 21. That case is generally described as the first PIL in India. In S. P. Gupta v. Union of India in 1981, the Judges Transfer case, the Court stated the relaxed rule of locus standi in the clearest terms and opened the door to every later PIL.

Landmark public interest litigations

Judicial activism, restraint and overreach

The expression judicial activism was coined by the American historian Arthur Schlesinger Jr. in 1947. In India it describes a court that reads a right broadly, fills a gap left by the legislature and supervises the executive until a constitutional duty is performed. The Vishaka guidelines are the standard illustration: with no law on sexual harassment at the workplace, the Court framed binding guidelines that governed the field until Parliament passed its own law in 2013. Judicial restraint is the opposite posture, under which a court leaves policy to the elected branches and confines itself to legality. Judicial overreach is activism carried past the constitutional line, where the court effectively makes policy or runs an administration. The separation of powers and the basic structure doctrine of Kesavananda Bharati mark the boundary that the debate turns on.

The limits the Court itself has drawn

• A PIL cannot be filed for a purely private grievance or a service dispute.
• Frivolous and motivated petitions attract exemplary costs, and in Balwant Singh Chaufal the Court asked every High Court to frame rules for verifying a petitioner's credentials.
• The court checks whether the petitioner has any personal interest in the outcome before admitting the matter.
• Policy choices, such as what a budget should contain, remain with the executive and the legislature.

For an aspirant the practical point is that PIL is not a new right but a procedure. It works because Article 32 is itself a fundamental right, so the Supreme Court cannot refuse to hear a genuine complaint of a violation, and because Article 39A commits the State to carrying justice to people who cannot pay for it.