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Public Interest Litigations And High Court Of Kerala (Pre 1990 Senario)

About the Author

Laya V L is a 4th Semester student pursuing LLM in Criminal Law at Bharata Mata School of Legal Studies, Aluva

Introduction

The overall the main and primary objective of judicial process is to attain Justness in Society. And public interest litigation (PIL) can be said to be a powerful tool to attain it with the help of enforcement of laws that promote human rights and equality, or to emphasize major issues of public concern. PIL can be used as a strategy to raise the voice of minorities and disadvantaged group or groups. Indian legal system is wedded to the idea of socialistic pattern of society, assuring to all its citizens justice, social, economic and political, liberty of thought, expression, belief, faith and worship, and equality of status and of opportunity. Introduction of PIL, to which Upendra Baxi has given the name of ‘Social Action Litigation’, in Indian jurisprudence is the most important achievement of our Supreme Court. Its origin and growth are the evidence behind the implementation of rule of law and Constitutionalism in the legal system of India. The Public Interest Litigation has emerged as the jurisprudence of masses. A wave of Public Interest Litigation has brought to illiterate and exploited ones, the Goddess of justice. PIL is not exactly defined in any Regulations or in any Act. The Judge explained whether the Will of the public was taken into account. This is just like a written appeal filed with HC under U/A. 226, and the Supreme Court also filed U/A. 32. This may be the case when the public likes large-scale contacts, but feelings about singles are not the reason for filing this petition. Public Interest Litigation as it has developed in recent years marks a significant departure from traditional judicial proceedings. Public Interest Litigation was not a sudden phenomenon. It was an idea that was in the making for some time before its vigorous growth in the early eighties. It now dominates the public perception of the Supreme Court. The Court is now seen as an institution not only reaching out to provide relief to citizens but even venturing into formulating policy which the State must follow.

Definitions of Public Interest Litigation

Public interest litigation has been defined in the Black’s Law Dictionary (6thedition) as under:

Public Interest Litigation is something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal right or liabilities are affected. It does not mean anything so narrow as a mere curiosity, or as the interests of the particular localities, which may be affected by the matters in dispute.

The council for public interest Law set up by the Ford Foundation in the USA-defined “public interest litigation” in its report of public interest law in the USA,1976 as follow:

Public interest Law is the name that has recently been given to effort provide legal representation to previously unrepresented group and interest. Such efforts have been undertaken in the recognition that ordinary marketplace for legal service fails to provide such services to significant segment environmentalist, consumer, racial and ethnic minorities and others.

Origin of Public Interest Litigation (PIL) in India

The term PIL originated in the United States in the mid-1980s. Since the nineteenth century, various movements in that country had contributed to public interest law, which was part of the legal aid movement. The first legal aid office was established in New York in 1876. In the 1960s the PIL movement began to receive financial support from the office of Economic Opportunity, this encouraged lawyers and public-spirited persons to take up cases of the under-privileged and fight against dangers to environment and public health and exploitation of consumers and the weaker sections.

In Indian law, public interest litigation means litigation for the protection of the public interest. It is litigation introduced in a court of law, not by the aggrieved party but by the court itself or by any other private party. It is not necessary, for the exercise of the court’s jurisdiction, that the person who is the victim of the violation of his or her right should personally approach the court. Public interest litigation is the power given to the public by courts through judicial activism. However, the person filing the petition must prove to the satisfaction of the court that the petition is being filed for a public interest and not just as a frivolous litigation by a busy body. Such cases may occur when the victim does not have the necessary resources to commence litigation or his freedom to move court has been suppressed or encroached upon. The court can itself take cognizance of the matter and proceed Suo Motu or cases can commence on the petition of any public spirited individual.

PIL has today acquired unprecedented legitimacy and binding power and is acknowledged as a powerful weapon to combat governmental lawlessness and social oppression. The judicial messages radiated through PIL cases provide legal resources to launch struggles against domination and abuses of power. The Indian PIL has grown in the context of political history of State repression. It emerged as a device to activate judicial power to force the government to live up to its commitments. PIL is a unique phenomenon in the Indian constitutional jurisprudence which has no parallel in the world. This technique is concerned with the protection of the interests of a class or group of persons who are either the victims of governmental lawlessness, oppression, or social oppression or denied their constitutional or legal rights and who are not in a position to approach the court for the redressal of their grievances due to the lack of resources or ignorance or their disadvantaged social and economic position. The Indian Supreme Court began to identify itself as an institution of last resort when the other two branches of the government were facing legitimating crisis.

The seeds of the concept of public interest litigation were initially sown in India by Justice Krishna Iyer, in 1976 in Mumbai Kamagar Sabha vs. Abdul Thaiand 1 was initiated in Raihvaiy vs. Union of India, wherein an unregistered association of workers was permitted to institute a writ petition under Article 32 of the Constitution for the redress of common grievances.

The first reported case of PIL, in 1979, focused on the inhuman conditions of prisons and under trial prisoners. In Hussainara Khatoon vs. State of Bihar 2, the PIL was filed by an advocate on the basis of the news item published in the Indian Express, highlighting the plight of thousands of under trial prisoners languishing in various jails in Bihar. These proceeding led to the release of more than 40,000 under trial prisoners. Right to speedy justice emerged as a basic fundamental right which had been denied to these prisoners. The same set pattern was adopted in subsequent cases.

A new era of the PIL movement was heralded by Justice P.N. Bhagawati in the case of S.P. Gupta vs. Union of India3 . In this case it was held that “any member of the public or social action group acting bonafide” can invoke the Writ Jurisdiction of the High Courts or the Supreme Court seeking redressal against violation of legal or constitutional rights of persons who due to social or economic or any other disability cannot approach the Court. By this judgment PIL became a potent weapon for the enforcement of “public duties” where executed in action or misdeed resulted in public injury. And as a result, any citizen of India or any consumer groups or social action groups can now approach the apex court of the country seeking legal remedies in all cases where the interests of general public or a section of public are at stake.

Justice P.N. Bhagawati articulated the concept of PIL as follows:-
“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 or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons by reasons of poverty, helplessness or disability or socially or economically disadvantaged position unable to approach the court for relief, any member of public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case any breach of fundamental rights of such persons or determinate class of persons, in this court under Article 32 seeking judicial redress for the legal wrong or legal injury caused to such person or determinate class of persons.”

Public Interest Litigation is meant for enforcement of fundamental and other legal rights of the people who are poor, weak, ignorant of legal redressal system or otherwise in a disadvantageous position, due to their social or economic background. Such litigation can be initiated only for redressal of a public injury, enforcement of a public duty or vindicating interest of public nature. It is necessary that the petition is not filed for personal gain or private motive or for other extraneous consideration and is filed bona fide in public interest.

The following are the subjects which may be litigated under the head of Public Interest Litigation: –

  1. 1.The matters of public interest: –
    • bonded labour matters,
    • matters of neglected children,
    • exploitation of casual labourers and non-payment of wages to them (except in individual cases),
    • matters of harassment or torture of persons belonging to Scheduled Castes, Scheduled Tribes and Economically Backward Classes, either by co-villagers or by police,
    • matters relating to environmental pollution, disturbance of ecological balance, drugs, food adulteration, maintenance of heritage and culture, antiques, forests and wild life,
    • petitions from riot victims and
    • other matters of public importance.
  2. The matters of private nature: –
    • threat to or harassment of the petitioner by private persons,
    • seeking enquiry by an agency other than local police,
    • seeking police protection,
    • landlord tenant dispute,
    • service matters,
    • admission to medical or engineering colleges,
    • early hearing of matters pending in High Court and subordinate courts and are not considered matters of public interest.
  3. Letter Petitions: –
    • Petitions received by post even though not in public interest can be treated as writ petitions if so, directed by the Hon’ble Judge nominated for this purpose.
    • Individual petitions complaining harassment or torture or death in jail or by police, complaints of atrocities on women such as harassment for dowry, bride burning, rape, murder and kidnapping, complaints relating to family pensions and complaints of refusal by police to register the case can be registered as writ petitions, if so, approved by the concerned Hon’ble Judge.
    • If deemed expedient, a report from the concerned authority is called before placing the matter before the Hon’ble Judge for directions. If so, directed by the Hon’ble Judge, the letter is registered as a writ petition and is thereafter listed before the Court for hearing.

Public Interest Litigation In Kerala

The emergency of 1976 marked not just a political watershed in this country, but a judicial one as well. In the euphoria of the return to democracy and in an attempt to refurbish its image that had been tarnished by some emergency decisions, the Supreme Court of India opened the flood gates to PIL. Under PIL, courts take up cases that concern not the rights of the petitioners but of the public at large. In the last two decades, PIL has emerged as one of the most powerful tools for promoting social justice and for protecting the rights of the poor.

The State of Kerala was formed on 01-11-1956 as per the States Reorganisation Act, 1956 by merging the Travancore-Cochin State and the Malabar District of Madras State. Travancore-Cochin State was formed on 01-07-1949 by merging the princely States of Travancore and Cochin. The Malabar District of the Madras State was previously a district of Madras Presidency. The State of Travancore had a High Court at Thiruvananthapuram, the State of Cochin had its High Court at Ernakulam and Malabar District was under the jurisdiction of Madras High Court. With the integration of the States of Travancore and Cochin on 01-07-1949, the High Court of Travancore-Cochin was inaugurated with its seat at Ernakulam on 07-07-1949. With the formation of the State of Kerala, the High Court of Kerala was established on 01-11-1956 with its seat at Ernakulam. It was inaugurated on 05-11-1956. Its territorial jurisdiction extends to the entire State of Kerala and the Union Territory of Lakshadweep.

Case Studies

Environment, Wildlife and Animal

The Social Action &Legal Aid Society Vs State of Kerala Others 4

A petition was filed under article 226 by an organisation Ernakulam based on newspaper report. Buffaloes, cows and bullocks were brought from neighbouring state for slaughter and consumption. The petition contented that these animals were tortured of ten with club, while being transported and were butchered in unhygienic conditions. The petition was admitted and the court held that the requests were outside its jurisdiction under article 226 of constitution. The curt declared that it “hopes and trusts “that the government will do the necessary.

Environmental & Ecological Protection Samithy vs Executive Engineer 5

A petition was filed under article 226 of the constitution regarding the felling of trees and destruction of vegetation in eastern Attappadi region. The reason put forward for cutting bamboo, namely that they have reached full growth. And a likely to be submerged, were found to be untenable. The petition was allowed and the court clusters and others vegetation pending survey. There was no order of cost.

Brijithamma vs State of Kerala 6

This writ petition was registered on the basis of a letter that was published in the “Malayala Manorama” dated 22nd April 1988, Brijithamma, widow of one Cleetus, portrayed her plight alter her husband’s death through the columns of the newspaper aforesaid. It is said that the dead body of Cleetus, a forest guard, was found in a pond, inside the reserve forest. It was a suspected case of homicide, at the hands of persons who had trespassed into the reserved forest for unlawful purposes. Kerala high court held that the State of Kerala is directed to appoint petitioner in an available suitable vacancy or by creating a supernumerary vacancy within three weeks from today. They will also consider the question of compensating Brijithamma for her loss, which, in a manner of speaking, is incommensurable. The State shall also cause proper investigation to be made into the cause of death of Cleetus and take further necessary action.

Big Dams

Society for Protection of Silent Valley vs Union of India, State of Kerala and Kerala Electricity Board, Trivandrum 7

The case famously known as the ‘Silent Valley’ case is till today known as one of the most remarkable cases where a ‘people’s movement’ against deforestation came to fruition. This movement helped prevent the destruction of a bio-diverse forest from a hydro-electric project. Thousands of people, through seminars, newspapers, awareness- programs and petitions exerted pressure on the government to terminate the project. Their pleas and protests proved successful when in 1986 Silent Valley was declared a National Park. The power of people’s action and how effective it can be is portrayed by this movement.

A X Varghese vs State of Kerala 8

A petition was filed under article 226 of the constitution in Kerala H.C by an advocate challenging the construction of the Chimony Dam in Trichur district on the ground of environmental degradation. Admitting the petition, the court Sayed the cutting of trees and later modified its order stating that trees up a certain level could be cut and that those threes at higher levels were not permitted to be cut unit the dam was full.

Geetha Timbers, Chalakudy vs State of Kerala  9

Original Petition and opted to a public interest litigation. The petitioner’s contention is that the price fixed is extremely low and therefore public revenue is lost to the Government. Even though the petition is not a public interest litigation or social action litigation in the sense aforementioned, the petition can be justified as one filed by a citizen interested in seeing that the public revenue is not eroded from the Government coffers. In that way it can be contented that public interest suffer… But we cannot say that on the facts available the agreement was in any way unconscionable or against the public interest. The petitions were dismissed on the fact that, with no order for cost.   

Water

Attakoya Thangal v. Union of India10

Within the existing Constitutional Scheme of India there is possibility of evolving legal norms to control unfettered interference with natural resources to the detriment of the general public. One such tool, which is forged and developed by the Indian Judiciary, is the application of Article 21 of the Constitution of India. Through case law it has been accepted by the courts that every person has got a fundamental right to potable water as well as clean environment. Access to water is access to life and any interference, which adversely affects availability of potable water is an interference with the life of the persons thereby, deprives the constitutionally guaranteed right to life. The decision rendered by the High Court of Kerala in Attakoya Thangal case is a notable pronouncement based on fundamental rights. The Court restrained the Lakshadweep administration from tapping excessive ground water for the reason that it would interfere with the people’s right to get potable water.

The Rest of the Country

Molly Madhavan vs State of Kerala 11

A memorandum was sent to the chief justice of the Kerala high court by a tribal leader and 43 tribals from kuttempuzha. Chief justice Jagannatha Rao forwarded it to a special judge and it was registered as a writ petition under article 226 of the constitution. These tribals were originally from the forest of Edamalayar. When dam was built there, they were displaced and moved in to the interior on the instructions of the cultivation in Kuttampuzha forest, apparently without felling trees. After about twenty years, the forest officials their cultivated land. Crops were destroyed on the grounds that the tribals ere encroaching upon forest land.

Roads and Bridges

P.K Raghavan & others vs state of Kerala and others 12

A petition was field under Article 226 regarding the provision of road. After the Periyar valley irrigation project had been partially commissioned in 1967, kuttampuzha became isolated from the mainland when Boothathankettu barrage was built. The public works department then gave its permission for a road to be built this had not been done. The petition asked for the road to be built on the grounds that access to society was vital.

Tourism

Jayaraj vs chief conservator of forest and others 13

A petition was filed under article 226 of the constitution regarding a reserve forest which was declared as Parambikulam wildlife sanctuary in 1962. A forest lodge had been constructed for tourists in spite of opposition which felt that it would cause much harm to sanctuary. The petition challenged this construction as violative of the forest (conservation) Act 1980 as it involved disturbance to the eco-system, the felling of trees and clearing of a space and would bring human intervention in to the area in which there were many endangered species. As result of the inspection the petition was dismissed.

Niyamavedi And Etc. Etc. vs State of Kerala and Ors. 14

Petitioner ‘Niyamavedi, Kal-vathy, Kochi’ has filed O. P. 752/1992 challenging the action of the first respondent to establish a Biological Park in ‘Agasthyavanam’. The Original Petition has been filed as a public interest litigation.  Petitioners contend that the proposed project for Biological Park would result in denudation of forest in the State of Kerala, that it would amount to violation of Forest Conservation Act, that Central Government’s consent has not been obtained for the project and that if the project materialises it would pose threat to the environment and ecology.

Livelihood

Kerala Leprosy Patients Organization Committee Vs State of Kerala & Others 15

A petition was filed under article 226, asking that the respondents be prevented from prohibiting begging in Ernakulam district as it is fundamental right. The submission of the petitioner is that they have a fundamental right to begg.at the end of the hearing fair treatment has been given to the inmates of rehabilitation centre and a better living has been provided to them. This petition was dismissed.

Environmental Degradation & Pollution

Mathew Lukose vs Kerala State Pollution Control Board 16

A petition was filed under Article 226 of the constitution, by the secretaries of two associations formed to fight pollution and the residents of the area in question. The petition detailed the water pollution emanating from the lime statuary discharged in to local streams and the air pollution by the Kerala state pollution control board should serve as standard in this case. An institutional perspective must prevail in these areas and related questions must be upgraded to concern of national priority. Court stated that pollution limits should be brought down. There was no order by cost.

V M Abraham vs State of Kerala &others 17

An appeal was filed in H.C against earlier order of the Kerala H C in a petition filed under article 226 of the constitution. The petition clamed forest in Agali village Palakkad district had been destroyed by private parties who used fictitious documents to fell timber. The court held that no more trees should be felled and that the land is question be declared forest. The appeal was allowed and the state was asked to pay cost.

Environmental Lawyer’s Movement &Others Vs State of Kerala & Others 18

By an association of lawyers in Ernakulam and other portioners including the young women’s Christian Association filed a petition under article 226. The petition asked the court to direct that licence for the factory not be renewed unless a proper inquiry was made. The petition therefore asked for an inquiry in to the environmental impact of factory, the extent of the pollution and the steps that should be taken to close the factory or about the pollution. The court issued a stay against the functioning of factory.

Conclusion

Public Interest Litigation popularly known as PIL can be broadly defined as litigation in the interest of that nebulous entity: the public in general. Prior to 1980s, only the aggrieved party could personally knock the doors of justice and seek remedy for his grievance and any other person who was not personally affected could not knock the doors of justice as a proxy for the victim or the aggrieved party. In other words, only the affected parties had the locus standi (standing required in law) to file a case and continue the litigation and the non-affected persons had no locus standi to do so. And as a result, there was hardly any link between the rights guaranteed by the Constitution of Indian Union and the laws made by the legislature on the one hand and the vast majority of illiterate citizens on the other. However, all these scenarios gradually changed when the post emergency Supreme Court tackled the problem of access to justice by people through radical changes and alterations made in the requirements of locus standi and of party aggrieved. The splendid efforts of 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. And as a result, any citizen of India or any consumer groups or social action groups can approach the apex court of the country seeking legal remedies in all cases where the interests of general public or a section of public are at stake. Further, public interest cases could be filed without investment of heavy court fees as required in private civil litigation. In Kerala at 1990s no PIL Cell had been constituted for dealing with letter-petitions, but a person had been assigned to the task of dealing with the letters according to the PIL guidelines. It seems that the Registry had not contemplated setting up a separate cell for PIL. Notwithstanding personal requests to the Chief Registrar and the Chief Justice of the Kerala High Court, the ledgers of the High Court were not made available for research, and no data or information was forthcoming. The PIL develops a new jurisprudence of the accountability of the state for constitutional and legal violations adversely affecting the interests of the weaker elements in the community. However, the Judiciary should be cautious enough in the application of PILs to avoid Judicial Overreach that are violative of the principle of Separation of Power. Besides, the frivolous PILs with vested interests must be discouraged to keep its workload manageable.

Footnote

  1. 1976(3) SCC 832 ↩︎
  2. 1979 AIR 1360, 1979 SCR (3) 169 ↩︎
  3. AIR 1982 SC 149, 1981 Supp (1) | SCC 87, 1982 2 SCR 365 ↩︎
  4. OP NO 448 of 1987-C, Kerala ↩︎
  5. OP NO 9711 of 1989, Kerala ↩︎
  6. (1990) IILLJ 104 Ker ↩︎
  7. O.P Nos. 2949 and 3025 of 1979 ↩︎
  8. OP No 4187 of 1990 W, Kerala ↩︎
  9. OP No 8793 of 1983, Kerala ↩︎
  10. 1990 (1) K.L.T. 580; see also F.K. Hussain v. Union of India, A.I.R. 1990 Ker. 321. ↩︎
  11. Op No 6721 Of 1992, Kerala ↩︎
  12. OP NO 14134 OF 1992, KERALA ↩︎
  13. OP NO 5086 OF 1990, KERALA ↩︎
  14. AIR 1993 Ker 262 ↩︎
  15. OP NO 11028 OF 1990-K, KERALA ↩︎
  16. OP NO 3473 &4622 OF 1988, Kerala ↩︎
  17. WA NO 167 of 1983 & OP NO 2203 OF 1983, Kerala ↩︎
  18. OP NO 7454 Of 1992, Kerala ↩︎
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