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Public interest litigation

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A brief introduction to public interest litigation.

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Public interest litigation

  1. 1. PUBLIC INTEREST LITIGATION Bhagya Wickramsinghe LL B(Hon), LL M (Colombo) Attorney-at –Law Lecturer in Law, General Sir John Kotelawala Defence University
  2. 2. OUTLINE 1. Rationale behind Public Interest Litigation (PIL) 2. History & Inter linkages 3. Hostility towards PIL 4. Administrative Law and Common Law heritage 5. Evolution of PIL in Sri Lanka 1. Writ Jurisdiction 2. Environmental issues 3. Judicial Review of Bills 4. FR jurisdiction of the Supreme Court 6. India – Evolution of PIL and relevant case law 7. Lessons for future 8. References
  3. 3. EXPECTED OUTCOMES OF THE LECTURE • Gain an understanding of the nature and conceptual background of PIL • To engage in a jurisprudential analysis of PIL • Engage in a discussion of case law in different jurisdictions • To analyse the development so far and the future possibilities with a view to enhance the applicability and/or effectiveness of the application of PIL – on a theoretical and a practical level.
  4. 4. 1. RATIONALE BEHIND PUBLIC INTEREST LITIGATION (PIL) • One of the main purposes of law is to achieve justice PIL is used by the judiciary and proactive citizens and groups to achieve this objective. • PIL is a useful tool for the public with a conscience to bring certain broad matters of public interest to the attention of the court & to ensure participatory democracy – where by citizen concerns are made a part of the state’s decision making process. • Not an enigma. A very practical ground reality. Not an abstract concept. But a concept with sound jurisprudential support and immense practical impact.
  5. 5. RATIONALE BEHIND PUBLIC INTEREST LITIGATION (PIL) • PIL is the use of litigation, or legal action, which seeks to advance the cause of minority or disadvantaged groups or individuals, or which raises issues of broad public concern. • By taking cases that can benefit disadvantaged groups or minorities rather than just one person, PIL can be used to provide access to justice to those who are most in need of it and yet who find themselves furthest from it.
  6. 6. HOW DOES PIL WORK? Ensure that citizens have a forum to voice their concerns and participate in the decision making Effective method to be used when collective/ group rights are infringed for which individual litigation is not practicable or effective Afford judicial protection to disadvantaged groups
  7. 7. MANY USES OF PIL Provide access to justice Reform the law Ensure government accountability Raise awareness Empower the disadvantaged Save costs
  8. 8. 2. HISTORY & INTER LINKAGES • Stringent rule of locus standi • Relaxation of standing to allow a case of “special interest “ The courts started to decide that a citizen can bring in a case to secure enforcement of public law. Robinson v Western Australian Museum (1977) 138 C.L.R. 283 Mason J. remarked16: “Reflection on the considerations which underlie the rule does not provide much assistance in defining the nature of the interest which a plaintiff must possess in order to have locus standi. However, it does indicate that the plaintiff must be able to show that he will derive some benefit or advantage over and above that to be derived by the ordinary citizen if the litigation ends in his favour. The cases are definitely various and so much depends in a given case on the nature of the relief which is sought, for what is a sufficient interest in one case may be less than sufficient in another. Here the plaintiff does not seek performance of a public duty; nor does he assert that he will suffer special damage through interference with a public right – cases which are notorious for their difficulties.”
  9. 9. HISTORY & INTER LINKAGES Democracy Direct and representaive Rule of law Public participation Violation of fundamental rights Social contract theory Constitutionalism Role of the judiciary
  10. 10. 3. HOSTILITY TOWARDS PIL 1. Opening flood gates argument It is perceived as likely to overload the courts with what are essentially political controversies that should be thrashed out in a political party or a parliamentary forum, rather than in a court room 2. Trusting public and private officials we should generally resolve issues of governance by enhancing democratic and political solutions to public interest conflicts rather than promoting their resolution in courts, constituted by unelected judges.
  11. 11. HOSTILITY TOWARDS PIL 3. Use of PIL for ulterior purposes and abuse of process. Since almost any issue can be questioned under PIL- there are instances where the process has been abused for absurd reasons. Desai and Muralidhar confirm the perception that: ‘‘PIL is being misused by people agitating for private grievances in the grab of public interest and seeking publicity rather than espousing public causes.’
  12. 12. HOSTILITY TOWARDS PIL 4. Judicial Populism The fear of judicial populism is not merely academic is clear from observation of Dwivedi J. in Kesavnanda Bharathi v Union of India: ‘‘The court is not chosen by the people and is not responsible to them in the sense in which the House of People is. However, it will win for itself a permanent place in the hearts of the people and augment its moral authority if it can shift the focus of judicial review from the numerical concept of minority protection to the humanitarian concept of the protection of the weaker section of the people.’’
  13. 13. HOSTILITY TOWARDS PIL 5. Disturbing the constitutional balance of power Jain cautions against such tendency: ‘‘PIL is a weapon which must be used with great care and circumspection; the courts need to keep in view that under the guise of redressing a public grievance PIL does not encroach upon the sphere reserved by the Constitution to the executive and the legislature.’’
  14. 14. 4. ADMINISTRATIVE LAW AND COMMON LAW HERITAGE • English Legal system, a citizen could take an administrative body to court to control its executive decisions by way of a writ. The primary function of the writ was for a court to call before it and examine the decisions of the administrative bodies whether they are Municipal Councils or Commissioners or any other administrative body.
  15. 15. 4. ADMINISTRATIVE LAW AND COMMON LAW HERITAGE • There were two main limitations in writ jurisdiction 1. courts would only allow a writ to examine whether there was an ultra vires action 2. not every person could petition to court with a writ : the capacity to petition a writ – standing. Early English tradition only a person directly affected by the decision of the administrator could challenge it (ex Parte, Sidebotham (1880) 14 Ch.D ) Any interested member of the public could not bring a writ application unless the administrative or policy decision has affected him directly.-----this was a main impediment to PIL.
  16. 16. 5. SRI LANKA FUNDAMENTAL RIGHTS, CONSTITUTIONAL PRINCIPLES AND WRIT JURISDICTION • In Sri Lanka- the strict rule of standing was a colonial legacy. • The modern Sri Lankan legal system is created in line with the Common law principles and hence the rule on standing also was preserved. • Sri lanka too began to question the stringent rule on standing following the trend initiated by the Indian supreme court
  17. 17. 5.1. WRIT JURISDICTION • Under the 1978 Constitution, court of appeal and high courts are vested with writ jurisdiction. • The law relating to standing was invoked in the case of Durayappah v. Fernando PC held that the MC against which the deicision was taken should have petitioned • Departure from Durayappah---Wijesiri v. Siriwardane
  18. 18. 5.1. WRIT JURISDICTION • Wijesiri v. Siriwardane- Wimalaratne J. “in the light of sequence of events the result of the investigation conducted by the authorities and the genuine interest evinced by the petitioner it would not be correct to label him as a mere busybody simply interfering in things which do not concern him. In instituting these proceedings he has acted bona fide as he may have thought he was acting in the public interest” • The test used in the case was to see a “sufficient interest.” This led to many a successful applications by NGOs etc.
  19. 19. 5.1. WRIT JURISDICTION • Centre for Policy Alternatives v. Commissioner of Elections [2003] 1 Sri LR 277 - applicant was successful in seeking a writ of certiorari to quash the decision of the Commission of elections to fill a vacancy in a PC by appointing a person who was not nominated by the party originally. • Kithsiri Gunaratne v. Commissioner of Motor Traffic [1990] 2 Sri LR 14 – Applicant was a lawyer acting in the public interest- seeking to quash the decision of the Commissioner to substitute driver’s license with a new plastic card. Application was accepted and the decision was quashed • CA Writ Application No. 1776/2003, CA Minute of 25.07.2005 • CA Writ Application No. 1312/2004
  20. 20. 5.2. ENVIRONMENTAL ISSUES • Environmental issues – through FR or writs • Deshan Harinda v. CEB 1998 South Asian Environmental Law Reporter v.5 (4) 116 EFL- legal aid to bring the issue to SC. The high level of noise pollution produced by the operation of private power plant was challenged • EFL v. AG (the Nawimana Case) 1996 South Asian Environmental Law Reporter v. 3(4)103 court granted leave for EFL subject to objections. However the case was settled. • Environmental Foundation Ltd. v. Wickramanayake challenged the license given to a private party to run a private zoo. Even thought standing was allowed the court refused to grant the writ as it was not an ultra vires action. However later a child died by being mauled by a lion and the zoo was closed down
  21. 21. ENVIRONMENTAL ISSUES • Public Interest Law Foundation v. Central Environmental Authority and Another [2001] 3 Sri LR 330 Petitioner sought to challenge the decision to construct a highway linking Colombo-Matara, without considering more environment friendly alternatives. The relief was not granted due to the technical nature of the matter.
  22. 22. ENVIRONMENTAL ISSUES • Bulankulame v. Secretary Ministry of Industrial Development [2000] 3 Sri LR 243 Per Amarasinghe J, I must confess surprise, for the question of 'public interest litigation' really involves questions of standing and not whether there is a certain kind of recognized cause of action. The Court is concerned in the instant case with the complaints of individual petitioners. On the question of standing, in my view, the petitioners, as individual citizens, have a Constitutional right given by Article 17 read with Articles 12 and 14 and Article 126 to be before this Court. They are not disqualified because it so happens that their rights are linked to the collective rights of the citizenry of Sri Lanka rights they share with the people of Sri Lanka. Moreover, in the circumstances of the instant case, such collective rights provide the context in which the alleged infringement or imminent infringement of the petitioners' fundamental rights ought to be considered. It is in that connection that the confident expectation (trust) that the Executive will act in accordance with the law and accountably, in the best interests of the people of Sri Lanka, including the petitioners, and future generations of Sri Lankans, becomes relevant.
  23. 23. ENVIRONMENTAL ISSUES • EFL v. UDA (Galle Face Green Case) The SC upheld the right of the petitioner to maintain a petition under Art.126 of the Constitution. petitioner- that right to information under freedom of expression was breached by UDA when it failed to disclose the information regarding a “deal” it entered into with a private company to lease the Galle face green, to develop a “mega leisure complex”.
  24. 24. 5.3. JUDICIAL REVIEW OF BILLS • Supreme Court determination on the Water Services Bill, SCSD Nos. 24 and 23 of 2003 • Intellectual Property Bill in 2003, SCSD Nos. 14-16 of 2003 • Article 121(1) a bill can be challenged for constitutionality within one week of being placed on the order paper. • Many of the challenges to bills have been made via PIL
  25. 25. 5.4. FR JURISDICTION OF THE SUPREME COURT • Article 126 of the constitution gives “sole and exclusive” jurisdiction over FR to the Supreme Court. • The FR jurisdiction in Sri Lanka is a novel feature to be introduced by the 1978 Constitution. • Landmark cases that relaxed the rule of standing in FR cases were Sriyani Silva v. Iddamalgoda , Somawathie v. Weerasinghe
  26. 26. FR JURISDICTION OF THE SUPREME COURT • Jayantha Adikari Egodawela v. Dayananda Dissanayake A petition was brought against the violation of right to vote, where the petitioner contended the violation of others right to vote affected his right as well. The Court accepted the contention. • Venerabel Omalpe Sobitha Thero v. Dayananda Dissanayake, Commissioner of Elections, SC Minutes of 26th August 2005 challenge to the P-TOMS agreed by the LTTE and the GoSL. Standing was given to 39 MPSs from JVP. They contended their rights would be violated by the proposed arrangement for the disbursement of tsunami relief and aid.
  27. 27. FR JURISDICTION OF THE SUPREME COURT • Water’s Edge Case • LMSL Case • Senarath v. Chandrika Bandaranike Kumarathuna (Presidents Entitlements after retirement case) • Check point case • Noise Pollution Case
  28. 28. 5. INDIA EVOLUTION OF THE CONCEPT AND CASE LAW • In India – PIL – used as a method to provide access to justice to all the citizens and has been a part of constitutional litigation not civil litigation. • Therefore the PIL in India is closely linked to the constitutional framework and the role of the Indian judiciary.
  29. 29. CONSTITUTIONAL STRUCTURE IN INDIA Gained independence in 1947, and the people adopted the Constitution in 1949 The constitution had the hope of establishing a “sovereign and secular democratic republic” ---- compare this with the purpose of creating the Constitution of Sri Lanka. Aims of the constitution of India: - To secure to all citizens : justice (social, economic and political) liberty (of thought, expression, belief, faith and worship) equality (of status and opportunity)
  30. 30. CONSTITUTIONAL STRUCTURE IN INDIA CONT… • The founding fathers of the constitution wanted to achieve social revolution. Social revolution FR provisions in the Constitution An Independent JudiciaryDirective principles of State policy
  31. 31. CONSTITUTIONAL STRUCTURE IN INDIA CONT… • Part III of the Constitution: FRs and grounds for limiting the rights • Since a “right without a remedy has not much substance” the Supreme Court has recognised the right to approach the Supreme Court directly, to be a FRs as well. • Holders of FR cannot waive them and the FRs cannot be curtailed.
  32. 32. CONSTITUTIONAL STRUCTURE IN INDIA CONT… FR Those available only to citizens Available citizens and non-citizens Available to groups or a community
  33. 33. CONSTITUTIONAL STRUCTURE IN INDIA CONT… • There are rights guaranteed against the State bodies and some rights guaranteed even against non-state bodies. • “state” is liberally defined in Article 12 of the Constitution, to include – ‘the Government and Parliament of India and the Government and the legislature of each of the states and all local or other authorities within the territory of India or under the control of the Government of India’.
  34. 34. CONSTITUTIONAL STRUCTURE IN INDIA CONT… • The judiciary is the ‘‘sole’’ and ‘‘final’’ judge of what constitutes basic structure of the Constitution. Over a period of time, various provisions have been given the higher pedestal of basic structure or basic features of the Constitution, e.g. independence of judiciary, judicial review, rule of law, secularism, democracy, free and fair elections, harmony between FRs and DPs, right to equality, and right to life and personal liberty. • Even though directive principles are not justiciable they are nevertheless “fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws’’
  35. 35. CONSTITUTIONAL STRUCTURE IN INDIA CONT… • Indian supreme court has held that the FRs and DPs are complementary of each other and FRs are means of achieving the goals indicated in the DPs. • In Minerva Mills Ltd v Union of India the Court held that the, ‘‘harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution’’
  36. 36. ROLE OF THE JUDICIARY IN SAFEGUARDING THE CONSTITUTION Founding fathers - Judiciary as the bastion of rights and justice Independent judiciary + power of Judicial Review Power to enforce FR - Supreme Court and the High Courts Judiciary can test the validity of laws and executive actions and constitutional amendments Supreme court has delivered judgments of immense importance in determination of public policy, establishing rule of law and constitutionalism
  37. 37. INDIAN JUDICIARY AND PIL • The ground work for PIL in India was set by Bhagwati and Iyer JJ. – in mind 1970- 1980s • These judges modified the traditional requirement of locus standi, and liberalised the procedure for writ applications, expanded the FRs and introduced innovative remedies.
  38. 38. INDIAN JUDICIARY AND PIL • Need for modifying the requirement of standing: - it is a sine qua non for the evolution of PIL in any public participation in justice administration. -India- it is needed more with a majority of people who are ignorant of their rights or living below the poverty line to have access to court. • Court has held that any member of public acting bona fide and having sufficient interest has a right to access the court to redress a legal wrong, especially when the actual plaintiff suffers from some disability or when the violation of collective diffused rights is at stake.
  39. 39. INDIAN JUDICIARY AND PIL • Gupta v Union of India (1981) Supp S.C.C. 87, 210 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 ... and such person or determinate class of persons is by reasons of poverty, helplessness, or disability or socially or economically disadvantaged position, unable to approach the Court for any relief, any member of the public can maintain an application for an appropriate direction, order or writ.’’ • PUDR v Union of India AIR 1982 SC 1473 • Bandhua Mukti Morcha v Union of India (1984) 3 S.C.C. 161.
  40. 40. • Justification for extension of standing: -to enforce rule of law -to provide justice to the disadvantaged sections in the society. - the constitution has provided that there should be “appropriate proceedings” to enforce a FR. The court has interpreted that it is the purpose that matters. Therefore as long as it is to enforce a FR any proceeding would do! thereby court developed a form of FR applications that is unique to India - epistolary jurisdiction INDIAN JUDICIARY AND PIL
  41. 41. • Epistolary Jurisdiction • There American supreme court in the case of Gideon v. Wainwright (1963) 372 US 335 , treated a postcard from a prisoner as a petition. • The supreme court of India in the Judges Case, stated that a public- spirited person could move the court even by writing a letter. • Sunil Batra v Delhi Administration AIR 1980 SC 1579 • Dr Upendra Baxi v State of UP (1982) 2 S.C.C. 308. INDIAN JUDICIARY AND PIL
  42. 42. • After relaxing the rule of standing the Indian judiciary developed a rage of issues that can be brought in through PIL. • This was done by interpreting existing FRs widely and by creating new FRs. • Article 21—‘‘no person shall be deprived of his life or personal liberty except according to the procedure established by law’’—proved to be the most fertile provision in the evolution of new FRs. INDIAN JUDICIARY AND PIL
  43. 43. • Expansion of right to life to include -right to live with human dignity and all that goes along with it : Francis Coralie v Union Territory of Delhi AIR 1981 SC 746, 753. -right to health: Parmanand Kataria v Union of India AIR 1989 SC 2039; Paschim Banga Khet Mazdoor Samity v State of West Bengal (1996) 4 S.C.C. 37. -livelihood : Olga Tellis v Bombay Municipal Corp AIR 1986 SC 180; DTC Corp v DTC Mazdoor Congress AIR 1991 SC 101. INDIAN JUDICIARY AND PIL
  44. 44. • Expansion of right to life to include -free and compulsory education up to the age of 14 years: Unni Krishnan v State of AP (1993) 1 S.C.C. 645. -unpolluted environment: Indian Council for Enviro Legal Action v Union of India (1996) 3 S.C.C. 212; Mehta v Union of India (1996) 6 S.C.C. 750; Vellore Citizens Welfare Forum v Union of India (1996) 5 S.C.C. 647; Narmada Bachao Andolan v Union of India (2000) 10 S.C.C. 664 INDIAN JUDICIARY AND PIL
  45. 45. INDIAN JUDICIARY AND PIL • Expansion of right to life to include -shelter: Gauri Shankar v Union of India (1994) 6 S.C.C. 349 -clean drinking water: A.P. Pollution Control Board II v M V Nayudu (2001) 2 S.C.C. 62 -privacy: Kharak Singh v State of UP AIR 1963 SC 1295; Govind v State of MP AIR 1975 SC 1378; Raj Gopal v State of Tamil Nadu (1994) 6 SCC 632; PUCL v Union of India AIR 1997 SC 568; X v Hospital Z (1998) 8 S.C.C. 296. -legal aid, speedy trial and other matters in trials Hoskot v State of Maharashtra AIR 1978 SC 1548; Hussainara Khatoon v State of Bihar AIR 1979 SC 1369; Khatri v State of Bihar AIR 1981 SC 928; Suk Das v Union Territory of Arunachal Pradesh AIR 1986 SC 991.
  46. 46. INDIAN JUDICIARY AND PIL • State Of Uttaranchal vs Balwant Singh Chaufal & Ors decided on 18 January, 2010, divide the public interest litigation in three phases: • • where directions and orders were passed primarily to protect fundamental rights of tmarginalized groups and sections of the society who cannot approach the Court or the High Courts. • More of recognition of rights than real change of status quo. Whether PIL was effective? Phase 1 • It deals with the cases relating to protection, preservation or ecology, environment, forests, marine life, wildlife, mountains, rivers, historical monuments etc. The cases became more institutionalised. Phase 2 • 21st century -deals with the directions issued by the Courts in maintaining the probity, transparency and integrity in governance. • Any one can file a PIL for almost anything Phase 3
  47. 47. • Remedies • The next problem was to find the suitable remedies for PIL petitioners. • SC appointed fact-finding commissioners and amicus curiae. • the Court developed ‘‘creeping’’ jurisdiction thereby issuing appropriate interim orders and directions. • The judiciary has also emphasised that PIL is not an adversarial but a collaborative and cooperative project in which all concerned parties should work together to realise the human rights of disadvantaged sections of society. INDIAN JUDICIARY AND PIL
  48. 48. The development of PIL jurisprudence in India has been impacted by many factors: 1. Constitutional framework – 2. Constitutional provisions concerning the powers of the Supreme Court helped the Court in coming up with innovative and unconventional remedies: ‘‘The Supreme Court in the exercise of its jurisdiction may pass such decree or make such orders as is necessary for doing complete justice in any cause or matter pending before it.’’ Constitution of India 1950 art.142(1) PIL IN INDIA
  49. 49. 3. Extent and level of judicial activism shown by the Indian Supreme Court and High Courts. 4. Relatively weak executive at the centre. 5. Supreme court has developed ‘‘Guidelines to be Followed for Entertaining Letters/Petitions Received by it as PIL’’. Based on the full-court decision of December 1, 1988, have been modified on the orders/directions of the Chief Justice of India in 1993 and 2003. PIL IN INDIA
  50. 50. THE WAY FORWARD IN PIL • Its all about balancing Allowing legitimate PIL cases Discourage misuse of PIL Protection of rights and engaging citizens
  51. 51. REFERENCES • Bhagwati J., ‘‘Judicial Activism and Public Interest Litigation’’, 1984, 23 Columbia Journal of Transnational Law 561 • Dr. Deepika Udagama, “Some Reflections on the Emerging Jurisprudence on Public Interest Litigation in Sri Lanka, Academic Conference on “Law on Context: An Agenda for Reform”, 2008, Faculty of Law, University of Colombo • Hon. Michael Kirby AC CMG, ‘Deconstructing the Law’s Hostility to Public Interest Litigation’ , Law Quarterly Review, 2011 • Sarbani Sen, ‘Public Interest Litigation in India: Implications for Law and Development ‘, Mahanirban Calcutta Research Group, 2012 • S.P. Sathe, Judicial Activism in India, New Delhi: OUP, 2002 • Surya Deva, Public Interest Litigation in India: A Critical Review, Reprinted from Civil Justice Quarterly Issue 1, Sweet & Maxwell, 2009 • Upendra Baxi, ‘‘Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India’’ , 1985, Third World Legal Studies 107 • Varun Gauri, ‘Public Interest Litigation in India: Overreaching or Underachieving?’, Policy Research Working Paper 5109, The World Bank Development Research Group Human Development and Public Services Team November 2009
  52. 52. Any Questions or Comments?
  53. 53. Thank you!

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