Jatiya Kabi Kazi Nazrul Islam University

Pa-422

Course Title: Administrative Law And Ethics

Assignment
On

Public Interest Litigation

(PIL) and
Social Action Litigation
(SAL)
SUBMITTED TO
Shamima Akhter
Assistant Professor
DEPARTMENT
OF
PUBLIC
ADMINISTRATION
GOVERNANC STUDIES
(JATIYA KABI KAZI NAZRUL ISLAM UNIVERSITY)

AND

SUBMITTED BY
Saifuddin Ahammed Monna
Roll:
11123144

Session-2010-2011,
(4th year, 2nd Semester]
Submission Date-25.12.2015
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Page | 2

Content
Abstract
Introduction
Scope and object of this assignment:
JUSTIFICATION OF THE STUDY:
Methodology of the study:
Literature Review:
PUBLIC INTEREST LITIGATION (PIL)
Public Interest Litigation (Pil)
What Is Public?
What Is Litigation?
What Is Pil?
Genesis
Goal & Purpose
Who Can File A Pil?
Features Of Pil
What Is Suo Moto?
Who Is Entitled To File Pil?
Types:
Q. How To File The Pil And What Is The Procedure?
The Procedure
Q. When A Pil Can Be Filed?
Q. Who Can File The Pil?
Q.. Against Whom A Pil Can Be Filed?
Q.. Can A Letter Explaining Facts To Chief Justice Be Treated As A Pil?
Q.. What Are The Various Reliefs Available By Pil?
Public Interest Litigation In Bangladesh
Background
Providing Access To Justice
Social Action Litigation (Sal)

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Features Of Pil In India

CRUCIAL Pils
Social Action Litigation In The Supreme Court Of India
108

THIRD WORLD LEGAL STUDIES-1985

TAKING SUFFERING SERIOUSLY

109

110

THIRD WORLD LEGAL STUDIES-1985

B.

Emergency Populism

C.

The SAGS-Press Nexus

114

THIRD WORLD LEGAL STUDIES-1985

116

THIRD WORLD LEGAL STUDIES-1985

HI. Dramatis Personae of Sal

TAKING SUFFERING SERIOUSLY

119

IV. The Social Substance of Sal

120

THIRD WORLD LEGAL STUDIES-1985

V. Old Structures, New Concerns

122

THIRD WORLD LEGAL STUDIES-1985

Evidentiary Problems in Sal

Conclusion
References

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Abstract
PUBLIC INTEREST LITIGATION (PIL Social Action Litigation (SAL) As An Instrument
For Securing Socioeconomic Justice For The Underprivileged Has Been One Of The
Outstanding Developments In The Contemporary The Legal World. Though The Origin Is
American,2 Since Its Inception In The Late 1970s SAL Has Undergone Significant
Developments And Has Now Acquired Legitimacy In The World. It Has Certainly
Revolutionised Modern The World Public Law And Has More Recently Played An Important
Role In Environmental4 And Consumer Protection. The Object Of The Present Assignmentis
To Discuss The Role Of Social Action Litigation And To Highlight New Developments In
The Context Of The Newly Emerging Consumer Protection Jurisprudence In The World.

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Introduction:
Public interest Environment litigation as our rights development mechanism is one of the
most important issue of the present scenarios of various legal sectors of our country. The term
Public Interestl Litigation (PIL) (PIEL), a new phenomenon in our legal system, is used to
describe cases where conscious citizens or organizations approach the court bona fide in
public interest. This is a significant new development from at least two points.
First, the courts are for the first time concerned with public interest matters. This is beyond
the traditional role of the judges who previously adjudicated private disputes only.
Second, it involves a public law approach with respect to the rules of standing, procedure and
remedies so that private citizens can advance public aims through the courts.
In Bangladesh, concerned citizens and organizations have challenged illegal detention of an
innocent person for 12 years without trial, importation of radio-active milkenvironmental
damage resulting from defective flood action programmed, appointment of the Chief
Metropolitan Magistrate without prior consultation with the Supreme Court and so on. Within
its scope, which is continuously expanding, Public Interest Litigation includes cases
involving poverty related problems, police atrocities, illegal detention, environmental and
consumer matters, health related problems, rights of children and women, minority affairs
and other human rights issues.
The system of governance in Bangladesh is quite chaotic in terms of its legal regime and all
institutions involved are responsible. There is hardly any consistency between policy, law and
the institutional framework. The lack of synchrony itself has created the regulatory anarchy.
The law enforcers are often the violators. Public accountability is almost non-existent and
hence there is the free hand. The so-called public activities are matters of the domain of
public agencies, and the general public has no effective role or voice. The complex and
conservative legal system has seemingly weakened peoples trust and confidence in it. In the
back drop of such scenario, the arrogance of the defiant law enforcers can be effectively
questioned, inter alia, by the people through the court as judicial scrutiny which is quite
popularly known in most legal systems as public interest litigation initiated by concerned
peoples or citizens groups and non government bodies. Until 1994, Bangladesh had no
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reported cases decided by the Supreme Court on environmental issues. The first such case
was filed in January 1994 by the Bangladesh Environmental Lawyers Association (BELA).
Since then this group has undertaken a large number of cases which have contributed to the
development of public interest litigation. Various environmental problems were the cause of
action in these suits in which relief was sought against anti-civic activities, industrial
pollution, vehicular pollution, and unlawful construction, illegal felling of public forests,
razing of hills, land use and unlawful development schemes among others. Offenses against
human health and dignity were also challenged in court

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Scope And Object Of This Assignment:

The main objective of this assignment is Public Interest Environment Litigation (PIEL) for
the conservation in Bangladesh. The aim of this assignment is to analyses the cachet and
efficaciousness of the instrument of Public Interest Litigation (PIL) in Bangladesh. At the
same time an attempt is made to evaluate the sociological aspect of the PIEL in Bangladesh.
Hence, this writes up especially for those who have no legal background but want to have an
idea about it.
Public interest litigation is one of the rare topics that interest lawyers and non-lawyers alike.
Not only in term of elegance and novelty, is this topic with a high profile due to its
importance, relevance and necessity. The concept of public interest litigation as has emerged
into the judicial administration of Bangladesh is yet to mature with the concept of justice as
guaranteed by the Constitution. This is a crucial concept in a country like ours where 65% of
the total populace have no or less access to judiciary although the constitution commits for
equality before law, justice, right to life and equal enjoyment of fundamental rights by all
citizens. With obvious socio-economic constraints and a long history of feudal past, the
realization of legally recognized rights is at its nascent stage.
In recent times the civil society movement for enjoyment of rights took a new dimension with
the judiciary being increasingly occupied with public interest cases seeking relief against
administrative anarchy and ignorance. It is interesting to note that the concept of PIL is
developing in Bangladesh as a performance of public duty by civil society groups advocating
in support of progressive ideologies.
Methodology Of The Study:
I have done the following works to prepare the given assignment: I went to Library to collect
some information about Public Interest Litigation which is so relevant. Then from another
day I have tried to collect Book and Law journal relating the Public Interest Litigation I
discuss with my fellow friends about the topics and it helps me to adorn my topic. In several
times I went to my teacher to get his advice to ready this assignment paper my honorable
teacher helps me to prepare the paper. According to my teachers information I went to various
web site to search Information about the Public Interest Litigation. Then from another day I
have search an Internet and have found so many information relating Public Interest

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Litigation I check some important law books to get information about the Public Interest
Litigation. Finally I prepare my assignment from the book, Law Journal and online.
Justification Of The Study:
My opinion is that family is the first institution in our country after born a child. But those
children are deprived in various ways in the family. The female are also deprived not only
their right but also suffer torture, sexual harassment, discrimination, environmental pollution,
industrial pollution and there employment etc. So I have tried to present this problem. My
opinion is that this problem has been solved the public awareness, implementation of law &
as regarded the equal dignity between the male & female in every sectors.
Literature Review:
I have collected all the materials from different books, scholars articles and offices from Law
organization. I have collected the information about International aspect of PIEL from
different site of internet. At first I have collected different books relating to PIEL. I went to
head office of BLAST, BELA, MLAA, BWLA etc for information on PIL. I have taken their
annual report of their activities. For the laws regarding PIL of Bangladesh and international, I
have followed different Acts and Conventions.
. Scope Of The Assignment:
The scope of this assignment includes the areas of Information required to collect and
analyses regarding the judicial independence in Bangladesh. This entire report is focusing on
the initiatives, have been taken to separate the judiciary from the executive and what are the
obstacles available to implement the initiatives in this path.

Public Interest Litigation (Pil)

What Is Public?
Public means an individual, body of individuals or the masses in general.
What Is Litigation?
COURT CASE, LAW SUIT OR LEGAL ACTION.

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What Is Pil?
Public Interest Litigation means a legal action initiated in a court of law regarding a matter
which relates to or is connected with the interest of the public.
Genesis
In 1976, Professor Abram Chayes of the Harvard Law School coined the phrase "public law
litigation" to refer to the practice of lawyers in the United States seeking to precipitate social
change through court-ordered decrees that reform legal rules, enforce existing laws, and
articulate public norms. Its purpose is to provide justice to the ordinary people. It has been
devised for those people who are unable to approach the court on their own because of their
deprived conditions, i.e., illiteracy, poverty, social and economic backwardness, lack of
awareness. Public Interest Litigation is a new feature in, Indias judicial system.
Public interest litigation began to emerge in India around the late 1970s and early 1980s,
when the Indian judiciary responded in a sympathetic way to the initiatives of Indian social
action groups, journalists and scholars. It became possible for any member of the public, not
only public interest groups, to initiate litigation by merely addressing a letter to a judge. In
this way a number of public interest issues affecting prisoners, workers and children were
brought to the attention of the court
Goal & Purpose
PIL aims to change the situation of
marginalized people for the better, not only for the
individuals who are party to the litigation, but all similarly situated. The ultimate goal is
social transformation -to alter structured inequalities and power relations in society in ways
that reduce the weight of morally irrelevant circumstances, such as socio-economic
status/class, gender, race, religion or sexual orientation.
Justice P N Bhagwati and Justice V R Krishna Iyer were instrumental of this juristic
revolution of eighties to convert the apex court of India into a Supreme Court for all Indians.
Who Can File A PIL?
The PIL can be filed by a third party if the constitutional rights of an individual or group of
individuals are violated. In such case the individual or groups of individuals is not able to
move court personally for justice because of poverty, helplessness, lack of awareness or
socially and economically disadvantaged conditions.
A PIL can be filed when the following conditions are fulfilled:
There must be a public injury and public wrong caused by the wrongful act or
omission of the state or public authority.
It is for the enforcement of basic human rights of weaker sections of the community
who are downtrodden, ignorant and whose fundamental and constitutional rights have

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been
- It must not be frivolous litigation by persons having vested interests.

infringed.

Features Of PIL

In PIL the scope of the law suit is consciously shaped by the court and parties, rather
than being limited by a specific past event.

The fact inquiry resembles the kind of inquiry taken into current problems by
legislative bodies, rather than a simple investigation of past historical events.

The judgment does not end the court's involvement but requires a continuing
administrative judicial role

The judge plays an active role in organizing and shaping the litigation and is not
passive.

The subject matter of the law suit is a 'grievances, about public policy and is not a
private suit.

Manner of taking cognizance

Letters and Telegrams, Suo Moto

What Is SUO MOTO?

Even if nobody files a petition before the court, in case there is violation of the rights of
people, the court can initiate the proceedings own its own by simply taking not of it either
through newspaper or through any other source. Such practice is called suo moto.
Who Is Entitled To File Pil?

The right of a person to file a suit or conduct a litigation in a court of law is known as
'Locus Standi'.

However, a person is not entitled to file PIL, if he/she lacks sufficient public interest,
acts for self gain or personal profit, involves in political activities or has malafied
intention

Types:
Representative Social Action
This is a form of PIL whereby any member of the public can seek judicial redresal for a legal
wrong caused to a person or a determinate class of persons who by reason of poverty, or
socially and economically disadvantaged position, is unable to approach the court.
Citizen Social Action

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The cases under this category represent a shift from the traditional view of the courts
being a forum to enforce individual rights.

The Supreme Court in S.P. Gupta Vs Union of India, (1 982 SC 149) held that any
member of the public with sufficient interest could assert 'a diffuse, collective and
individual right'.

A PIL can be filed when the following conditions are fulfilled

There must be a public injury and public wrong caused by the wrongful act or
omission of the state or public authority.

It is for the enforcement of basic human rights of weaker sections of the community who are
downtrodden, ignorant and whose fundamental and constitutional rights have been infringed.
- It must not be frivolous litigation by persons having vested interests.

Q. How To File The Pil And What Is The Procedure?

PlL is filed in the same manner, as a writ petition is filed.
If a PIL is filed in a High Court, then two (2) copies of the petition have to be filed (for
Supreme Court, then (4)+(1)(i.e.5) sets) Also, an advance copy of the petition has to be
served on the each respondent, i.e. opposite party, and this proof of service has to be
affixed on the petition.
The Procedure
A Court fee of Rs. 50 , per respondent(i.e. for each number of party, court fees of Rs
50) have to be affixed on the petition. Proceedings, in the PIL commence and carry on
in the same manner, as other cases. However, in between the proceedings if the Judge
feels that he may appoint the commissioner, to inspect allegations like pollution being
caused, trees being cut, sewer problems, etc. After filing of replies, by opposite party,
or rejoinder by the petitioner, final hearing takes place, and the judge gives his final
decision.
Q. When A Pil Can Be Filed?
PIL can be filed only in a case where Public Interest at large is affected. Merely
because, only one person is effected by state inaction is not a round for PIL.
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There are some of the possible areas where PIL can be filed.
a)

Where a factory/ industry unit is causing air pollution, and people nearly are
getting effected.

b)

Where, in an area/ street there are no street lights, causing inconvenience to

commuters.

c)
d)

Where some Banquet Hall plays a loud music, in night causing noise pollution.
Where some construction company is cutting down trees,

causing

environmental pollution.
e)

Where poor people, are affected, because of state governments arbitrary

decision to impose heavy Tax.

f)For directing the police/ Jail authorities to take appropriate decisions in regards to jail
reforms, such as segregation of convicts, delay in trial, before the court on remand
dates.
g)

For abolishing child labour, and bonded labour.

h)

Where rights of working women are affected by sexual harassment.

i)

For keeping a check on corruption and crime involving holders of high political
officer.

j)
k)

For maintaining Roads, Sewer etc in good condition.

For removal of Big Hoarding and signboards from the busy road to avoid traffic
problem.

Q. Who Can File The Pil?

Earlier it was only a person whose interest was directly affected along with others,
whereby his fundamental right is affected who used to file such litigation. Now, the
trend has changed, and, any Public-spirited person can file a case (PIL) on behalf of a

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group of person, whose rights are affected. It is not necessary, that person filing a case
should have a direct interest in this PIL.
For e.g. a person in Bombay, can file a PIL for, some labour workers being exploited in
Madhya Pradesh or as someone filed a PIL in supreme court for taking action against a
Cracker factory in Sivakasi Tamilnadu, for employing child labour or the case where a
standing practicing lawyer filed a PIL for release of 80 under trials in a jail, than the
period prescribed as punishment for offence, for which they were tried. It is clear that,
any person can file a PIL on behalf of group of affected people. However, it will
depend on every facts of case, whether it should be allowed or not.
Q.. Against Whom A Pil Can Be Filed?
A PIL can be filed against a State/ Central Govt., Municipal Authorities, and not any
private party. However, Private party can be included in the PIL as Respondent,
after making concerned state authority, a party. For example- if there is a Private
factory in Delhi, which is causing pollution, then people living nearly, or any other
person can file a PIL against the Government of Delhi, Pollution Control Board, and
against the private factory. However, a PIL cannot be filed against the Private party
alone.
Q.. Can A Letter Explaining Facts To Chief Justice Be Treated As A Pil?
In early 90s there have been instances, where judges have treated a post card
containing facts, as a PIL. Many PIL has been filed on this basis in the past. Since,
many people have tried to misuse the privilege of PIL, the court has required a detailed
narration of facts and complaint, and then decide whether to issue notice and call the
opposite party. However, as there is no statute laying down rules and regulations for a
PIL still the court can treat a letter as a PIL. However, the letter should bring the true
and clear facts, and if the matter is really an urgent one, the court can treat it as a PIL.
Even a writ petition filed by the aggrieved person, whether on behalf of group or
together with group can be treated as a PIL.
Q.. What Are The Various Reliefs Available By Pil?

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There are many kinds of remedies, which can be given in a PIL, to secure the public
interest, at large. They are:
(a)

The court can afford an early interim measure to protect the public interest,

(b)

The court may appoint a committee, or commissioner to look into the matter
and

(c)

The court may also give final orders by way of direction to comply within a
stipulated time.

Public Interest Litigation In Bangladesh

This case study is about a public interest litigation that was brought before the Supreme Court
of Bangladesh for enforcement of the rights of the consumers of edible salt. The case study
indicts

how

public

interest

litigation (PIL) is being adopted and developed in Bangladesh to enforce the fundamental
rights guaranteed in the Constitution, and how a particular legal aid organization the
Bangladesh

Legal

Aid

and

Services

Trust

(BLAST)1 has tried to provide access to justice while also addressing major legal issues on a
systemic level. The other important questions this case study highlights are some of the major
barriers

to

institutionalizing

public

interest litigation and the role of support organizations in this regard. Finally, it will try to
after some guidelines for sustaining public interest litigation. Part one of this case study
provides

the

historical

background

of

the legal system of Bangladesh. BLASTs organizational set up as a national legal aid NGO
and its endeavors to provide access to justice are discussed in Part Two. Part Three offers a
glimpse

of

how

PIL

is

being

developed

distinctively in the context of our legal system. The application of PIL to a particular case
seeking enforcement of the rights of consumers of iodized salt is discussed in Part Four, and
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the

problems

facing

PIL

are

elicited

in

Part Five. Part Six is the general conclusion, which outlines the necessary conditions required
for PIL to be effective in bringing changes.
Background
Bangladesh emerged as an independent and sovereign state on December 16, 1971, but has a
long political and legal history. In ancient times, it was ruled by the local Hindu rulers. The
administered

justice

according

to

local

customary laws based on religion. At the beginning of the 13th century the area was invaded
by the Muslims who ruled the country up to the middle of the 18th century. Muslim rules
introduced

Islamic

administration

of

justice. Later, though the British came to Indian Sub-continent at the beginning of the 17th
century, they were not able to establish political authority over Bengal and ultimately over the
whole of Indian Sub-continent until the middle of 18th century. The British imposed their
legal system and replaced Islamic law in the course of the colonial rule. The British left the
Sub-continent in 1947, and the colony sesame independent states, India and Pakistan, on
independence in 1947, Bangladesh that was previously a part of the colonial province of
Bengal became a province of Pakistan, named East Pakistan. 2 It was ruled by Pakistani
neo-colonial
rulers up to 1971 when it emerged as a sovereign State after a liberation war against
Pakistan.
Bangladesh adopted a progressive Constitution in

1972

with

a parliamentary

system of government, and making the judiciary the guardian of the Constitution to protect
the fundamental rights of the people. However, the constitution was suspended several times
over the years due to prolonged martial law and military dictatorships. By 1990, the
movement

for

democracy

in

Bangladesh

gained

momentum,

the

military

dictator was forced to resign and, following a national election in 1991, the civil government
began to operate. It is only a decade now that Bangladesh has been trying to institutionalize
democratic

values.

In

October

2001,

the

country held its eighth national election and an alliance of four political parties led by the
Bangladesh Nationalist Party formed the government with an absolute majority in Parliament.
Bangladesh inherited the British common law system. The Judiciary has two tiers. The higher
judiciary

is

composed

of

the

Supreme

Court

with

two
Page | 16

Divisions namely, the Appellate Division and the High Court Division. The lower judiciary is
located at the district level, and any judgement and order of the Supreme Court is binding
upon it. The High Court Division
of the Supreme Court has the authority of judicial review that preserves the supremacy of the
Constitution. The supremacy of the constitution is important because the Constitution itself
describes

it

as

the

solemn

expression of the will of the people. The Judges of the higher judiciary are appointed by the
President from a list of lawyers of the Supreme Court and senior judges of the lower
district

judiciary.

The

Public

Service

Commission under a separate judicial cadre appoints the judges of the lower judiciary.
Although the judiciary has been trying to uphold and nurture democratic values in the society,
its

weak

institutional

capacity

poses a huge problem. The Judiciary receives inadequate financial support from the
government, it lacks sufficient infrastructure, the judges are not trained regularly, and it has a
shortage of judges at all levels. Consequently, delay in justice has emerged as a major
problem and there are a huge number of cases pending for speedy and effective disposal.
Thirty years haven elapsed since the independence of Bangladesh. The governments over this
period have received a tremendous amount of foreign aid, to eliminate the extreme poverty.
Although

Bangladesh

has

achieved some success in reducing poverty, such as, self-reliance in food production. At the
same time, a number of complex problems have arisen, such as confrontational and violent
politics,

pervasive

corruption

at

all

levels, and mismanagement of government agencies. All these have resulted in

inefficiency of government services and officials, and a lack of accountability, transparency,
and

responsiveess

by

the

government.

Soon

after independence, a number of NGOs began to help the government with building the
nation and today, their number has increased significantly, through only a few of them
provide

legal

services.

Besides

the

traditional legal aid services, these organizations are also active in advocacy for various
issues to make the government more responsive.
Providing Access To Justice
BLAST is among a very few NGOs in Bangladesh which were established to ensure that
opportunities for securing justice are not denied to any citizen by reason of economic or other
Page | 17

disabilities. Is has now emerged as the largest legal services organization in the country
with proven, documented expertise in protecting the fundamental and legal rights of the
marginalized.
Given
the
multiple
demands
for
resources
to
meet
competing needs in Bangladesh, legal services are far from being a priority area for the
government. However, it can be argued that more than any other service such as education,
health, or food, it is justice which people

Social Action Litigation (Sal)

Features Of Pil In India

An expansion of the doctrine of locus standi, which permitted any bona fide petitioner to
bring matters of public Interest before the court. The petitioner was not required to show that
he or she was personally affected.
Dispensing with formal court procedures for the commencement of such actions that could be
initiated by writing a letter to the court, and that would be converted into a formal petition
The use of novel methods to gather facts. Often the court appointed a socio-legal commission
of inquiry to investigate the disputed facts and submit a report to the court
CRUCIAL Pils
In 1981 the case of Anil Yadav v. State of Bihar, exposed the brutalities of the Police. News
paper report revealed that about 33 suspected criminals were blinded by the police in Bihar
by putting the acid into their eyes. Through interim orders Supreme Court directed the State
government to bring the blinded men to Delhi for medical treatment. It also ordered speedy
prosecution of the guilty policemen. The court also read right to free legal aid as a
fundamental right of every accused. Anil Yadav signaled the growth of social activism and
investigative litigation.
In Citizen for Democracy v. State of Assam, the S. C. declared that the handcuffs and other
fetters shall not be forced upon a prisoner while lodged in jail or while in transport or transit
from one jail to another or to the court or back.
NATURE OF COURT ORDERS
Declaring Rights without Granting Relief
Granting Relief Without Declaring Rights
Appointment of Commissions
Granting Monetary Compensation by the Courts
Issues in PIL:
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Unlike mainstream law, PIL is not oriented to the individual nor does it deal with a range of
single disputes. PIL is invariably group-oriented. It deals with the assertion of group or
collective rights, involves questions of injustice pertaining to a group or collectivity, or may
involve a legal action where an individual is representative of a group.
ADVANTAGES & DISADVANTAGES
Access to a National Forum of decision making and power by those who were until now
voiceless and invisible.
There is always the possibility that the instrument of PIL may be misused by a person
purportedly litigating in the public interest.
HUMAN RIGHTS CONSIDERATIONS IN PIL:
THE PROBLEMS OF VIOLATIONS OF HUMAN RIGHTS HAD BEEN BROUGHT TO
THE NOTICE OF THE APEX COURT & ALSO DIFFERENT HIGH COURTS BY WAY
OF PIL & THEY ARE VIGILANT IN GRANTING APPROPRIATE RELIEFS & GIVING
SUITABLE DIRECTIONS.
THE UNDERNOTED ARE JUSTICIABLE:
FUNDAMENTAL RIGHTS
RIGHT FROM SLAVERY
FREEDOM OF RESIDENCE
FREEDOM OF PRESS
RIGHT TO HUMAN DIGNITY
RIGHT TO WORK
RIGHT AGAINST TORTURE
RIGHT TO PRIVACY
RIGHT OF AFFECTIVE REMEDY TO ENFORCE RIGHTS
RIGHT TO FAMILY ETC;

Social

Action
Of India

Litigation

In

The

Supreme

Court

Page | 19

The Supreme Court of India is at long last becoming, after thirty two years of the Republic,
the Supreme Court for Indians. For too long, the apex constitutional court had become "an
arena of legal quibbling for men with long purses."' Now, increasingly, the Court is being
identified by justices as well as people as the "last resort for the oppressed and the
bewildered."' The transition from a traditional captive agency with a low social visibility into
a liberated agency with a high socio-political visibility is a remarkable development in the
career of the Indian appellate judiciary.' A post-emergency phenomenon, the transformation is
characterized chiefly by judicial populism. The Court is augmenting its support base and
moral authority in the nation at a time when other institutions of governance are facing a
legitimation crisis.' In the process, like all political institutions, the Court promises more than
it can deliver and is severely exposed to the dynamics of disenchantment.
For the present, and the near future, however, there is little prospect of the Court reverting to
its traditional adjudicatory posture where people's causes appeared merely as issues, argued
arcanely by lawyers, and decided

* Vice-Chancellor, South Gujarat University, Surat, Gujarat, India.

1. Kesavnanda Bharathi v. State of Kerala
(hereinafter cited as

(1973) 4 S.C.C. 225 at

947

(1977) 3 S.C.C. 634 at

70

Kesavnanda).
2. State of Rajasthanv. Union of India
Goswami).

(per

Justice

3. It is customary to think about administrative and regulatory agencies as 'captive.' See, e.g.
D.M. Trubek "Public Policy Advocacy: Administrative Government and Representation of
Diffuse Interests" in III Access to Justice 445 (M. Cappelletti & B. Garth eds. 1979) and the
literature there cited. But, barring small causes courts and similar other judicial fora, the
notion of 'captive agency' has not been explicitly extended to appellate courts. Even these
latter can become 'captive' to certain professional interests, backed by societal dominant
groups.
108

THIRD WORLD LEGAL STUDIES-1985

Page | 20

in the mystery and mystique of the inherited common-law-like judicial process.

People now know that the Court has constitutional power of intervention, which can be
invoked to ameliorate their miseries arising from repression, governmental lawlessness and
administrative deviance. Undertrial as well as convicted prisoners, women in protective
custody, children in juvenile institutions, bonded and migrant labourers, unorganized
labourers, untouchables and scheduled tribes, landless agricultural labourers who fall prey to
faulty mechanization, women who are bought and sold, slum-dwellers and pavement
dwellers, kins of victims of extra judicial executions - these and many more groups now flock
to the Supreme Court seeking justice.
They come with unusual problems, never before so directly confronted by the Supreme
Court. They seek extraordinary remedies, transcending the received notions of separation of
powers and the inherited distinctions between adjudication and legislation on the one hand
and administration and adjudication on the other. They bring, too, a new kind of lawyering
and a novel kind of judging. They add a poignant twist to the docket explosion6 which was so
far merely a routine product of the Bar committed only to justice according to the fees. They
also bring a new kind of dialogue on the judicial role in a traumatically changeful society.'
The medium through which all this has happened, and is happening, is social action litigation,
a distinctive by-product of the catharsis of the 1975-1976 Emergency. What emerged as an
expiatory syndrome is now a catalytic component of a movement for "juridical democracy"'
through innovative uses of judicial power.
Throughout this paper, I use the term "social action litigation"

(SAL) in preference to the

more requish term "public interest litigation" (PIL). The label PIL has slipped into Indian
juridical diction as effortlessly as all Anglo-American conceptual borrowings readily do. But
while labels can be borrowed, history cannot be. The PIL represents for America a distinctive
phase of socio-legal development for which there is no counterpart in India; and the salient
characteristics of its birth, growth and, possibly, decay are also distinctive to American
history.

6. See R. DHAVAN, THE SUPREME COURT UNDER STRAIN: THE CHALLENGE OF

ARREARS (1977);
Page | 21

U. BAxI, THE CRISIS OF THE INDIAN LEGAL SYSTEM 58-83 (1982); (hereinafter
referred to as Baxi, Crisis).
7. See U. Baxi, "On How Not to Judge the Judges.. ."
(Mimeo: paper presented at a
Seminar on Judicial Process and Social Change, Indian Law Institute and Andhra Pradesh
University, (1980); Reddy, Judicial Process and Social Change 56 SUP. Cr. J. I (1981).
8. For an elaboration of the notion of juridical democracy, see, T. Low', THE END OF
LIBERALISM

291-303

(1969).

TAKING SUFFERING SERIOUSLY

109

The PIL efflorescence in the United States owed much to substantial resource investment
from the government and private foundations; the PIL work was espoused mainly by
specialized public interest law firms.9 The issues within the sway of PIL in the United States
concerned not so much state repression or governmental lawlessness but rather civic
participation in governmental decision making.1 Nor did the PIL groups there focus
preeminently on the rural poor." And, typically, PIL sought to represent "interests without
groups" such as consumerism or environment." Given the nature of state and federal politics,
PIL marched with public advocacy outside courts through well established mechanisms like
lobbying." In brief, the PIL movement in the United States involved innovative uses of the
law, lawyers and courts to secure greater fidelity to the parlous notions of legal liberalism and
interest group pluralism in an advanced industrial capitalistic society:14
No doubt, Indian social action groups should know the essence of the American PIL
experience, and particularly the structural reasons for its failures and successes. PIL activism
has instead of generating pressures for structural changes in law and society ended up
servicing the much exposed ideology of interest group pluralism and legal liberalism; indeed,
public advocacy programmes have tended to "enhance the legitimacy of processes that may
not really change." Similarly, PIL activism is, despite the affluent society, unable to overcome
problems of resources, both in terms of person-power and finances.16 Critiques of PIL
activism raise

Page | 22

9. See L.G. Trubek & D.M. Trubek, Civic Justice Through Civil Justice: New Approach
toPublic Interest Advocacy in the United States in ACCESS To JUSTICE & THE WELFARE
STATE119
(M.
Cappelletti ed. 1981).
10. Id.
11. See, generally, J. HANDLER, LEGAL SYSTEM AND SOCIAL CHANGE: A
THEORY OF LAW REFORM (1979); F.F. PIVEN & R.A. CLOWARD, POOR PEOPLE'S
MOVEMENTS: WHY THEY SUCCEED, How THEY FAIL (1977).
12. See supra note
9. Trubek's analysis of 'interests without groups' needs to be extended
to the wider setting of the political economy of advanced capitalist societies. See, e.g. C.
Offe, Political
Authority and Class Structure: An Analysis of the Late Capitalist Societies,
OF SOC.
73

2 INT. J.

(1972).
13. J.M. BARRY, LOBBYING FOR THE PEOPLE (1977).
14. See Trubek, supra note

9; also see the insightful analysis by Handler, supra note

11.

15. Trubek, supra note3, at 494.

16. The PIL Movement suffered a grievous setback when the Ford Foundation terminated its
grants to the PIL firms in 1979. Until that year the Foundation had provided US $21 million
to these firms. See, for a lively account of the resource - vicissitudes of the PIL movement,
D.S. BRODER, CHANGING OF THE GUARD: POWER AND LEADERSHIP IN
AMERICA 225 (1980).
The support from the bar is miniscule. In
1977 the Carnegie Endowment awarded
$250,000 to the Council on Public Interest Law, subject to the conditions that the American
Bar Association raise a like amount. The award was cancelled because the Association did not
raise the corresponding
110

THIRD WORLD LEGAL STUDIES-1985

Emergency Populism
During the

1975-76 emergency, legal aid to the people was one of the key points of the

twenty-point programme launched by Indira Gandhi, to which Justices Krishna Iyer and
Bhagwati, themselves deeply committed to the spread of the legal aid movement," readily
responded. They led a nationwide movement for the promotion of legal services. They
Page | 23

organised legal aid camps in distant villages; they mobilized many a High Court justice to do
padayatras (long marches) through villages to solve people's grievances. They, through
"camps" and lokadalats (people's courts), sought to provide deprofessionalized justice. They
also in their extracurial utterances, called for a total restructuring of the legal system, and in
particular of the administration of justice." In a sense, their movement constituted a juridical
counterpart of the 1971 Garibi Hatao (eliminate poverty) campaign, as well as of the TwentyPoint Programme. Although they stopped short of overtly legitimating the emergency regime,
they remain vulnerabje to the charge of acting as legitimators of the regime. Be that as it may,
many Supreme Court and High Court justices did systematically become people-prone in a
manner conducive to the growth of judicial populism.
In the immediate aftermath of the Emergency, populist rhetoric and stances decided many a
vital

issue of constitutional polity.14 Judicial populism was partly an aspect of post-

Emergency catharsis. Partly, it was an attempt to refurbish the image of the Court tarnished
by a few emergency decisions and also an attempt to seek new, historical bases of
legitimation of judicial power." Partly, too, the Court was responding, like all other dominant
agencies of governance, to the post-Emergency euphoria at the return of liberal democracy.

32. See the Krishna lyer Committee's report, Processual Justice to the People
and its

(1975);

critique in Baxi, Legal Assistance to the Poor,

(1975).

1005

2.7 ECON. Pot. WEEKLY

33. For example, both Justices Krishna lyer and Bhagwati called for thoroughgoing judicial
reforms, minimizing reliance on foreign models of adjudication, including the system of Stare
decisis.
They advocated return to swadeshi jurisprudence including justice by popular tribunals.
34. Baxi, Politics, supra note 4, at

121-177.

35. See Baxi, Politics, supra note

Law in

4, at

79-120.

Also see M. Ghouse, Constitutional

Page | 24

12 ANN. SUR. IND. L.

FUTURE SAFEGUARDS

240,

264-74 (1976); H.M. SEERVAI, THE EMERGENCY,

AND THE HABEAS CORPUS CASE (1978).

114

THIRD WORLD LEGAL STUDIES-1985

C.

The SAGS-Press Nexus

One such institution was the press, which for the first time since Independence strove
consistently to expose governmental lawlessness and social tyranny through investigative
journalism of a high order. Like judges, editors and correspondents realized that some of the
"excesses" of the emergency were not different in kind, but only in degree, from the everyday
excesses of State power on the hapless citizens.36 The press, too, felt the need for public
atonement; simultaneously, many journalists realized that they owed their freedom of the
press ultimately to the people." People's problems began to matter.38 The press, for example,
highlighted atrocities on untouchables and advasis, the sub-human plight of prisoners, the
cruel extra judicial executions through the so-called "encounters" involving use of the police
as a counter-insurgency force, the excesses of protective custody of women and children and
numerous related instances of violation of fundamental human rights of the people.
This print media transformation enabled activist social action groups (SAGS) to elevate what
were regarded as petty instances of injustice and tyranny at the local level into national
issues, calling attention to the pathology of public and dominant group power. SAGS found
thus a new ally in their struggle for social development and change. The SAGS-press nexus
provided a fertile setting (as we shall note later) for the birth and growth of the SAL.
At the same time, the press became a medium of evaluation of how the dominant institutions
of the government "collaborated" against the people.39 The role of judges and courts was
integral to this agonized

36. See the balanced account of the viccisitudes of the press during the Emergency, D.R.
MANKEKAR & KAMALA MANEKEKAR, DECLINE AND FALL OF INDIRA GANDHI:
19 MONTHS OF EMERGENCY
Page | 25

88-122 (1977).
37. This was, in my opinion, a lasting gain for the free press in India. The Sixth General
Elections witnessed the emergence of the consciousness on the part of many a professional,
hardboiled journalist that the so-called "illiterate dumb" masses of India, and not the decadent
leaders and patrons of the 'free press,' held the power to ensure continuance of political
freedom in India.
38. The expose of the Emergency excesses, highlighted in the day to day proceedings of the
Shah c ommission and other State level enquiries, created almost an altogether new
sensitivity among journalists and correspondents. For the first time, excesses of power against
the common people began to be considered newsworthy. People's sufferings did not
constitute headline, front-page news in the Pre-Emergency India. The censorship during the
Emergency also prepared ground for this new sensibility. In the absence of newsworthy
stories of political goings-on, national newspapers carried on the front page stories about the
bonded labourers and other related aspects of social tyranny. For an overall account of the
conditions which fostered the growth of new sensibility in the print media see ARUN
SHOURIE, THE INSTITUTIONS UNDER THE JANATA RULE (1980); A. SHOURIE,
SYMPTOMS OF FASCISM (1978).
39. See D. SELBOURNE, AN EYE TO INDIA
TAKING SUFFERING SERIOUSLY

(1979); Shourie, supra note

38.

115

reappraisal. And the Court, and some justices, became exposed to merciless professional
critiques of the Court's emergency performance.4 In this environment, an Open Letter to the
Chief Justice of India written by four anguished law teachers, chastizing the Court for its
reversal of conviction of two police persons for raping a tribal girl in the police station led to
a nationwide mobilization of women's organizations and groups. Unexpectedly, it culminated
in an unprecedented march by women's organizations to the Supreme Court of India
demanding a review of the decision, which it ultimately declined.'"

Page | 26

All this enhanced the visibility of the Court and generated new types of claims for
accountability for wielding of judicial power. And this deepened the tendency towards
judicial populism. Justices of the Supreme Court,

notably Justices Krishna Iyer and

Bhagwati, began converting much of constitutional litigation into SAL, through a variety of
techniques of juristic activism.42 The Court began to expand the frontiers of fundamental rights and of natural justice. In the process, they rewrote many parts of the
Constitution. The right to life and personal liberty under procedure established by law in
Article 21 was now converted de facto and de jure into a due process clause contrary to the
intendment of the makers of the Constitution.43 This expanding right was soon to encompass
within itself the right to bail, the right to speedy trial, the right to dignified treatment in
custodial institutions, the right to privacy, and the right to legal services to the poor." Prisons
and places of detention, theaters of torture and terror, received high priority attention,
especially at the hands of Justice Krishna Iyer who developed, on the whole, a new normative
regime -of rights and status of prisoners and detainees.45 The insistence that the states behave
in good faith and with utmost reasonableness in

40. The judiciary became, too, an object of the politics of hate in the immediate aftermath of
the Sixth General Elections; see Baxi, Politics, supra note 4, at

88-98.

41. See, for the text of the Open Letter, I S.C.C.

review bench

17

(Journal)

(1979).

The

declined representation by women's organizations, so irked were some justices at what they
thought to be pressure tactics of the protest march. The Bar too was indignant both at the
Open Letter and the protest. But Chief Justice Chandrachud not merely publicly welcomed
such calls for judicial accountability through the "Open Letter" but he also received the
women's delegation urbanely and even assured them a timely review, which in the event took
nearly two years.
42. Juristic activism involves enunciation of new ideas and techniques perhaps not even
urged at the Bar, which are in no way necessary to the instant decision but relevant, and in
some cases decisively so, for the future growth of the law. See Baxi, Introduction to K.K.
MATHEW, DEMOCRACY, EQUALITY AND FREEDOM xxviii (1978).
43. Baxi, Politics, supra note 4, at

151-66.
Page | 27

44. Id. at 233-245; Baxi, Crisis, supra note 6, at

244-95.

45. Ibid.
116

THIRD WORLD LEGAL STUDIES-1985

dealing with citizens and persons grew apace. Principles of administrative law met with
urgent, painstaking and thorough revisions." The doctrinal innovations in their exuberance
and normative impact provided further impetus to SAL.

HI. Dramatis Personae of Sal

Some justices of the Supreme Court were thus the prime actors in SAL. Regardless of the
argumentative strategies at the Bar, and often regardless of the immediate frameworks of the
writ proceeding, they blazed new trails in constitutional interpretation.47 By 1979 it was
clear to the discerning members of the Bar and to social activists that the Court was indeed in
search of a new kind of constitutional litigation.
And the first dramatic opportunity was provided by Supreme Court advocate, Ms. Kapila
Hingorani, who filed a writ based on a series of articles in a national daily, The Indian
Express, exposing the plight of Bihar undertrial prisoners, most of whom had served long
pre-trial

deten-

tion, indeed to a point that they had, as it were, sentences to their credit." In 1980, two
professors of law wrote a letter to the editor of the Indian Express describing the barbaric
conditions of detention in the Agra Protective Home for Women the basis for a Writ Petition
under Article
21.49 This was followed by a similar petition for Delhi Women's Home, by a third year law
student in Delhi Law Faculty and a social worker." A law teacher on a social science
assignment fellowship successfully brought to completion the trial of four young tribals, who
grew up in a sub-jail awaiting tria1.51 Three journalists after an expose of a thriving market
in which women were bought and sold as chattels, filed a writ derhanding prohibition of this
practice and immediate relief for their victims through programmes of compensation and
rehabilitation." In the same year, a legal correspondent of The Statesman brought to the
notice of the Court
Page | 28

TAKING SUFFERING SERIOUSLY

119

standi in constitutional litigation in the High Court Judge's Case.62 The judge-led and judgeinduced nature of SAL renders it strikingly distinctive.

IV. The Social Substance of Sal

Thus not merely in the style and process of generation of the SAL is the contemporary Indian
experience unique. The substance of the SAL in India is also distinctive to its contemporary
condition. In essence, much of SAL focuses on exposure of repression by the agencies of the
state, notably the police, prison and other custodial authorities. Close to this category are the
cases which seek to ensure that authorities of the state fulfill the obligations of law under
which they exist and function. In other
words, much of SAL is concerned with combating repression and governmental lawlessness.
Only, so far, in rare instances does the SAL concern assertion of new constitutional rights."
The other distinctive feature of SAL proceedings is that all of them are Article 32 petitions;
that is, they are writ proceedings for the enforcement of the fundamental rights. The Supreme
Court is empowered, and some would say rather obligated, to duly consider them.64

62. Among the many justifications provided by Justice Bhagwati, the following are important
from the present perspectives. First, the rules of law will be "substantially impaired" if "no
one can have standing to maintain an action for judicial redress in case of public wrong or,
public injury." It is "absolutely essential that the rule of law must wean people away from the
lawless street and win them for the court of law." If breach of public duties was "allowed" to
go unredressed by courts on the ground of standing, it would "promote disrespect for rule of
law." It will also lead to corruption and encourage inefficiency. It might also create
possibilities of the "political machinery" itself becoming "a participant in the misuse or abuse
of power." Finally, the newly emergent social and economic rights require new kind of
enforcement. I.M. Chaglay. P. Shiv Shankar, 4 S.C.A.L.E.
Page | 29

1975, 1991-92

(1981).

63. The petition moved by Ms. Indira Jaising asserts the existence of a constitutional fundamental right under Article 21 previously uncontemplated by anyone--namely, the right of
pavement dwellers in the city of Greater Bombay to dwell on pavements so long as they do
not constitute obstruction to pedestrian and vehicular traffic on the roads. It also argues that
the State is under corresponding duty to provide them with appropriate house-sites as
close as possible to their workplaces. Incidentally, the argument that state does not have
vacant land and therefore cannot perform this duty is not to be taken seriously in this case
since just in early 1982 the deposed Chief Minister of Maharastra (A.R. Antulay, who is also
a Bar-at-Law) invited four justices of the High Court and in the full glare of television
cameras at his residence was seen to hand over to judges scrolls of agreement conveying
housing sites. The many applicants for the housing scheme include aside from High Court
justices, Chief Justice Chandrachud, Justice P.N. Bhagwati, Justice V.D. Tulzapurkur and
Justice D.A. Desai. So the State has enough land as of date to give away for good causes.
Pavement dwellers have an equal, if not greater, moral right to housing (while they manage to
exist) as justices upon their superannuation. And that is in any case what Justice Chandrachud
has said, in general terms, in Kesavnanda (see text accompanying note 28; the 'teeming
millions' passage).
64. See U. Baxi, Laches and the Right to Constitutional Remedies: Quis custodiet Ipsos
Custodes? in CONSTITUTIONAL DEVELOPMENTS SINCE INDEPENDENCE 559
(1975).
120

THIRD WORLD LEGAL STUDIES-1985

Both these features lend a special complexity to the SAL in India. On the one hand, they
impart high visibility and exalted status to the cause; on the other hand, they present some
specific problems for the Court, since all the complaints of governmental repression and
lawlessness raise disputed questions of fact which the Court does not as a matter of practice
normally handle and which cannot be wholly satisfactorily dealt with by affidavit evidence.
We revert to these problems later. For the moment, it would suffice to emphasize this distinct
profile of the SAL in India. SAL thus compels judges and lawyers increasingly to take human
suffering seriously.65
Page | 30

V. Old Structures, New Concerns

The Court's handling of SAL is at the present in an experimental phase. Much of the future of
the SAL ultimately depends on the organizational learning capacity of the Court in dealing
with novel and complex problems. And this capacity is affected by existing judicial thoughtways and styles of decision-making.
The most crucial general factor affecting, for weal or woe, the career of SAL is the
fluctuating bench-structure. The bench which admits the writ petition is not necessarily the
same, unless there is a constitution bench of five justices, as the one hearing it. Even if the
presiding judge remains common, his companion justices may differ, often from one hearing
to the next. The presiding judge, as well as the SAL petitioner (whether in person or through
counsel) thus have to bear additional burdens of persuasion, more so because not all justices
are as yet equally attracted by or committed to the SAL.66 The difficulties are reinforced
when the presiding judge is unsympathetic to SAL, or even if moderately sympathetic, he is
daunted by the problems of evidence and of shaping new types of reliefs.
Epistolary jurisdiction as developed by Justice Bhagwati was partly addressed to this
problem. Once a letter received by him was treated by him as a writ petition, he ensured that
it came on his board. His Court No. 2 has, through this process, the largest number of SAL
matters. While this result is welcome to many a SAL petitioner, it carries its own costs. First,
it

indirectly

deprives

the

Chief

Justice

of

India

of

his

un-

doubtedly important role in docket management and allocation of work

122

THIRD WORLD LEGAL STUDIES-1985

Invariably, therefore, the Court has to satisfy itself about the factual foundations of the
proceedings; and this requires constancy of the Bench. Justice Bhagwati's initiative in
retaining many SAL matters with him seems to proceed on the appreciation of this
requirement. On the other hand, it imprints the SAL with the insignia of an individual justice,
whereas what is needed in days to come is a collective imprimatur of the Court for the new

Page | 31

litigation. The future of SAL depends, in great measure, on a satisfactory resolution of this
dilemma.
Like the technique of epistolary jurisdiction for its initiation, SAL also requires "creeping"
jurisdiction for its progress. Not a single leading SAL matter has yet resulted in a final
verdict; the fundamental issue of how the Court should make the state and its agencies fully
liable for deprivations or denials of fundamental rights still remains to be authoritatively
answered. It is the task of the SAL entrepreneurs to ensure that these issues are ultimately
reached with desired results. But, in the meantime, the Court rules through interim directions
and orders. Bit by bit, it seeks improvement in the public administration making it more
responsive than before to the constitutional ethic and law.
This kind of creeping jurisdiction typically consists in taking over the direction of
administration in a particular arena from the executive. For example, the blinded undertrials
receive medical examination at New Delhi and the expenses of their stay and those of their
relatives are borne by the state under interim orders of the Court; conditions in Agra and
Delhi Protective Homes for Women begin to steadily improve, again through a series of
interim administrative orders. Fresh directions are issued by the Court to the state of Bihar,
from time to time, to ensure that undertrials at least serve less time in pre-trial detention and
not in any event more than the time which they would have served had they been tried and
convicted. These and many other examples show that the Court is undertaking those very
administrative decisions which the state should have taken in the first place." In the
meantime, the ultimate constitutional issues patiently await their turn.

. Evidentiary Problems in Sal

Accomplishing such a jurisprudential feat calls not just for the vision and commitment of a
high order on the part of justices; it also requires careful attention to the lowly details of how
facts about the violations of rights are proved. Without this, no jurisprudence of state liability
for constitutional violations can survive for long. "We accept the principle of compensation
for rights-violation" the State will say then, but it will immediately add: "prove it!"
The problems of proof are the most severe in cases of State repression and there seems
emergent a common pattern of argumentation by State counsel which make these problems
more acute. First, State counsel deny on affidavit any or all allegations of torture or terror.
Page | 32

Second, they contest if not the standing, the bona fides or the degree of reliable information
of the social activists who come to the Court. Often wildest ulterior motives are attributed to
them." Third, they decry the sources on which the SAL petitioners rely: mostly media and
social science investigative reportage. Fourth, they raise all kinds of claims under the law of
evidence and procedure to prevent the disclosure of documents relevant to the determination
of

violation

of

fundamental

rights.

Fifth,

even

when

dis-

closed, there is always the possibility of impugning their evidentiary value. This is made
possible by the device of multiple investigations; the State sets up many panels, one after
another, and often consents, in addition,
. Sal as an Aspect of Judicial Statepersonship
The growth of SAL in the Supreme Court bears out amply what I felt concerning the newly
emerging role of the Supreme Court in the dying hours of 1979. I said then:
"The politics of the Court - be it the "purest politics" of constitutional adjudication or the
hurly burly politics of power-sharing at times, powergrabbing at others, represents the best
hope for the millions of Indians for a new constitutional dawn."
All in all, SAL symbolizes the politics of liberation: the ruled and

SAL parties, as well as the state, to further efforts of a similar nature. There is a commission
looking into the conditions of migrant bonded labourers in Faridabad brick-klin industries;
and a team of officials appointed by the Court to investigate the alleged violations of labour
welfare laws for migrant and contract labour, in the construction of the Asia stadia and related
facilities like the multitude of flyovers now "beautifying" New Delhi.
82. In Baxiv. U.P., supra note 70, the Court appointed a panel of physicians and psychiatrists
for the inmates of the Homes. In Khatri extensive investigations were ordered to ascertain the
precise agent and scope of blindings by the top ranking eye specialists in India.
83. In Khatriv. Bihar two batches of separate petitions reached two different benches. The
first presided over by the Chief Justice asked the Registrar of the Supreme Court to conduct
Page | 33

the investigations in Jhagalpur jail; in the second, Justice Bhagwati expanded the registrar's
mandate somewhat further, while stating that a socio-legal commission would have been a
more preferable device.
84. E.G. Justice 0. Chinnappa Reddy directed in Olga Tellis v. State of Maharashtra the
Bombay High Court to appoint an official to hear and investigate the findings of the
Municipal Commissioner that pavement dwellers were constituting an obstruction to traffic
on the road. No demolition order can be made without this procedure being fulfilled.
85. Kanpur undertrial 'rape' cases, supra note

54.

The Court here asked the Dictrict

Judge (also an ex-officio Chairperson of the legal aid board) to investigate and report.
86. The District Judge, Agra, has been performing this role for about a year in Baxi v. Uttar
Pradesh, supra note

70.

Further proceedings embodying the Court's appreciation of the

several
reports made by him are yet to be reported.
87. Baxi, Politics, supra note 4, at

248-A.

Page | 34

Conclusion
This impressionistic account of the SAL movement in the last two years does indicate that
small, ad hoc beginnings have been made. These have received such nationwide attention as
to generate emulation as well as hostility. Many avoidable deficiencies characterize the SAL
work."" There is considerable introspection among the social activists on the role and limits
of the Court's intervention. We still lack an assessment of what is really happening although it
is perhaps too early to think of exploring the impact of the SAL. And there persists the need
for developing critical thought on the mainsprings and meanderings of SAL.
Projections of the future of the SAL can, at the present moment, be only subjective."' But to
me the future of SAL looks bright. The future of law in India is partly, but vitally, linked to
the future of social action litigation because, through it great and unending injustices and
tyranny begin to hurt the national conscience and prod at least one major institution of
governance to take people's miseries seriously.
For these who take people's sufferings seriously, there is no rejoicing; even revolutions
provide transient occasions of celebration. The SAL is at best an "establishment revolution;"2
still, it nourishes hope in an otherwise darkening landscape of Indian law and jurisprudence.
The method of Public Interestl Litigation (PIL) has opened up a new horizon. It is not alone a
mode of fostering the enforcement of environmental or other regulations through judicial
process, but a potential way in creating awareness amongst the members of a society about
their rights and duties. This species of litigation can be an unique vehicle of rendering service
to those who can not speak for themselves. It can clarify and promote judicial remedies
making the judiciary progressive and the ramification of which gives the people a fair idea
about the interface between the issues and the regulatory regime. It elaborates the functional
interpretation of law with precision thereby removing ambiguity lessening the scope of
exploitation with accountability. PIL fills in the gaps in law, the inconsistency in the
regulatory regime between law, policies and institutional framework and enjoins law with
morality.

Page | 35

References
Constitution of India
Divine Retreat Centre Vs. State of Kerala and Others [AIR 2008 SC 1614
Dembowski, Hans (2009). "Erratic justice?". Development and Cooperation
(Frankfurt am Main: Societts-Verlag) 36 (3): 122123.
Internet
Introduction to Public Interest Litigation
PIL A Boon Or A Bane
[Taking the State to Court: http://www.asienhaus.de/public/archiv/taking%20the
%20state%20to%20court.pdf]
"Supreme Court Judgment on Scavengers working under the Delhi Jal Board (Civil
Appeal No 5322 of 2011)".
Public Interest Lawyering Hub

Page | 36