Opening up the Courts to the Marginalised: the Uses and Usefulness of Public Interest Litigation in India

Author:Orla Ni Chuilleaniin
Position:Senior Sophister Law, Trinity College, Dublin
Pages:18-33
OPENING
UP
THE
COURTS
TO
THE
MARGINALISED:
THE
USES
AND
USEFULNESS
OF
PUBLIC
INTEREST
LITIGATION
IN
INDIA
ORLA
Ni
CHUILLEANAIN*
An
assessment
of
the
changes
brought
about
in
Indian
public
interest
litigation
is
of
interest
to
the
Western
legal
tradition
as
a
whole because
the
courts
in
India
decide
cases
arising
out
of
that
country's
particular
economic
conditions
against
the
backdrop
of
its
British
legal
heritage.'
I
will
assess
the
changes
in
social
action
litigation
in
India,
the
arguments
made
about
its
legitimacy
and
effectiveness and
its
implications
for
Ireland.
An
Inclusive
Approach
to
Locus
Standi
The
rules
on
locus
standi
have
long been
treated
in
a
flexible
manner
by
the Indian
courts.
2
By
1982,
the
Supreme
Court
was
happy
to
accept
as
established
the
rule
that
anyone can
apply
for
a
remedy
in
the High
Court
on
behalf
of
a
person
or
class
who
cannot
seek
relief
themselves
due
to
poverty,
helplessness,
disability,
or
a
socially
or
economically
disadvantaged
position,
3
thus
allowing many
public-minded
people
to
Senior
Sophister
Law,
Trinity
College,
Dublin.
Craig
&
Deshpande,
"Rights, Autonomy
and
Process:
Public Interest Litigation
in
India"
(1989)
OJLS 356.
See
also
Sudarshan,
"Judges,
State and
Society
in
India"
in
Judges
and
the
Judicial
Power:
Essays
in
Honour
of
Justice
Krishna
Iyer
(Sweet
&
Maxwell.
1995),
at
268.
Dhavan
points
out
that
India's
'genocide
sector'
(the
group
that the
State
has no
economic
interest
in
keeping
alive
and
forcibly
kills
off)
is
one
of
the
largest
in
the
world.
He
estimates
it
may
be
between one
to
two
hundred
million
people.
Dhavan,
"Managing
Legal
Activism:
Reflections
on
India's
Legal
Aid
Programme"
(1986)
15
Anglo-American
Law
Review
282.
2
In 1976,
the
Court
anticipated
future
developments
in
holding
that
"locus
standi
has
a
larger
ambit
in
current
legal
semantics
than
the
accepted,
individualist
jurisprudence of
old",
in
Maharaj
Singh
v.
Uttar
Pradesh
AIR
[1976]
SC
2602,
at
2609.
Cited
in
Cassels, "Judicial
Activism
and
Public
Interest Litigation
in
India:
Attempting the Impossible?"
(1989)
American
Journal
of
Comparative
Law
497,
at
498.
3
S.P.
Gupta
v.
Union
ofIndia
[1982]
2
SCR
365,
at
520,
per
3hagwati
C.J.
Cited
in
Cassels,
loc.
cit.,
at
499.
See
also
Craig
&
Deshpande,
loc.
cit.,
at
360.
© 6
rla Ni
Chuilleandin and
Dublin
University
Law
Society
Opening
Up
the
Courts
to
the
Marginalised
espouse
vulnerable
causes.
4 The
courts
are
also
flexible
as
regards
the
locus
standi
of
aggrieved
parties,5
allowing
cases
to
be
brought
for
the
vindication
of
a
wider
public
interest.
6
The departure
from
the
UK
rules
on
locus
standi
was
justified
by
the
7.
courts
on
the
basis
of
their
constitutional role in
balancing
State
powers,
in
contrast
with
the
UK,
which
has
no
written
constitution.
8
In
Wadhwa
v.
State
of
Bihar,
9 the
Supreme
Court
argued
that
locus
standi
is
designed
to
prevent
the
'officious intermeddler',
which
is
not
applicable
to
public
interest
litigation
concerning
the
entire
community.
10
It
has
also
been
pointed
out
that
vulnerability
may
preclude
the
person
directly
affected
from taking
action."
The relaxation
of
these
rules
has
been
criticised,
as
it
leaves
the
courts
with
fewer criteria
by
which
to
rule out
cases.1
2
However,
it
has
been
held
that cases involving wild
allegations made
in
bad
faith will
be
excluded,
as
will
anonymous
petitions
(regardless
of
the
reasons),
and
4
Peirins,
"Public
Interest Litigation
in
the
Indian
Subcontinent: Current
Dimensions"
(1991)
40
ICLQ
70.
Examples
of
such
vulnerable
causes
are
an
advocate's
challenge
to
inadequate
censorship
of
a
politically
volatile
film
in
Chotalal
Dalal
v.
Union
ofIndia
[1988] 1
SCC
668;
and
'ecological groups'
challenges
to
development plans
in
Rao
v.
State
of Maharashtra
[1988] 1
SCC
586,
at
594.
In
Dr.
DC
Wadhua
v.
State
of
Bihar
[1987]
1
SCC
378,
a
professor
of
politics
and
economics
showed
the
court that
the
executive
was
constantly
re-enacting
temporary emergency
provisions
so
that
the effect
was
that
of
long-term legislation.
This
was
held to be
a
usurpation
of
the
legislative
role
and
the
man was
commended
by
the
court.
5
In
State
ofHimachal
Pradesh
v.
Umed
Ram
Sharma
[1986]
2
SCC
68,
the
Court allowed
a
depressed
caste living
in
a
snow-bound
state
to
seek
remedies
on
public expenditure
on
highway construction,
due
to
its
impact
on
their
contact
with
the
outside world.
Sabyasachi
Mukharji
J.
pointed
out
that
the issue
of
contact
with the
outside
world
is
indispensable
for
life.
Cited
in
Peirins,
loc.
cit.,
at
69-70.
6
See Craig
&
Deshpande,
loc.
cit.
7
Krishna
Iyer
J. in
Fertilizer
Corporation
Kamagar
Union
v.
Union
oflndia
AIR [1981]
SC
344,
at
359, said
public
interest
litigation was
about
"policing
the
corridors
of
power"
until
some other efficacious monitoring
arrangements
could
be
made.
8
Peirins,
loc.
cit.,
at
68-69.
He
cites
Misra
J.
in
Forward
Construction
Co.
v.
Prabhat
Mandal
[1986] 1
SCC
100,
who,
at
104,
says
public
interest litigation
is
the
necessary extenuation
of
traditional rules for
the
ends
of
justice.
9 [1987] 1
SCC
378.
Cited
by
Peirins,
loc.
cit.,
at
69.
In
that
case, the Supreme Court
also
emphasised
that
the rule
of
law
requires
that
State
organs
exercise
their
powers
within
constitutional constraints
and that
any
member
of
the
public
has an
interest
in
so
ensuring.
1o
But
there
may
be
some
instances
in
which
public interest
litigation
is
initiated
by
an
officious intermeddler and
there
the
courts
are
prepared
to
put
a
check
on
them.
It
has
been
held
by
Chinnappa
Reddy
J. in
Chaitanya
Kumar
v.
State
of
Kamataka
[1986]
2
SCC
594,
at
606 that
the
Court
should
not
act
at
the
instance
of
pseudo
public-spirited citizens
who indulge
in
wild, reckless
allegations.
Cited
in
Peirins,
loc.
cit.,
at
69.
1
"See
Peirins,
loc.
cit.
This
point
was
made
by
AN
Sen
J.
in
the
case
of
Bandhua
Mukti
Morcha
v.
Union
oflndia
[1984]
3
SCC
161,
at
236.
This
case
involved bonded
labour.
12
Cassels,
loc.
cit., at
507.
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