“Managing Public Interest Litigation”
Prepared By :
Mr.Justice R.K.Abichandani,
B.A.(Hons),LLM.(Br.I),LLM.(Br.IV)
Former Judge, High Court of Gujarat,
President,
Customs, Excise & Service Tax
Appellate Tribunal.
New Delhi
“Managing Public Interest Litigation”
By:
Mr.Justice R.K.Abichandani,
B.A.(Hons) LLM.(Br.I),LLM.(Br.IV)
: INDEX:
S.NO. SUB – TOPICS PAGE
1. Role of Courts in PIL 3-7
2. Theoretical Basis of PIL 7-9
3. Rules of Standing 9-11
4. Standing Tests 11-19
5. Reliefs in PIL 19-24
6. Abuse 24-27
7. Costs 28-30
8. Guidelines 31-32
“Managing Public Interest Litigation”
By:
Mr.Justice R.K.Abichandani,
B.A.(Hons),LLM(Br.I),LLM(Br.IV)
1. Role of Courts in PIL
1.1 Public Interest Litigations are proceedings which may be regarded as having a public element and which evolve remedies traditionally associated with matters of public concern. These proceedings focus generally on the enforcement of rules of constitutional and statute law and supervision of governmental and administrative tribunals, agencies and offices. The role of the courts has been fundamentally altered by adoption of the constitutional norms in the governance of the country. Numerous constitutional and statutory provisions have established governmental institutions regulating their conduct along with that of commercial enterprises and citizens, in a wide range of subjects such as, social welfare, industrial relations, consumer protection, improvement of environment and protection of forests, industrial health, protection of monuments and places of national importance, welfare of children and women. The fundamental choice that faces the courts in dealing with the new laws and institutions concerned with public rights and interests is of the role that judiciary should play in the governance of the country as an important limb of the State. Should its role be limited to preventing illegal encroachments on the rights of private individuals by examining the extent of infringement of individual rights and the regularity of law and administration only to that limited extent, or does its judicial function include a constitutional duty to confine the legislative and executive organs of the State within their powers in the interest of the public? Lord Denning regarded it as a matter of high constitutional principle that if there is good ground for supposing that a government department or a public authority is transgressing the law, or is about to transgress it in a way which offends or injures thousands of subjects, then anyone of them offended or injured can draw it to the attention of the courts of law and seek to have the law enforced, and the courts in their discretion can grant whatever remedy is appropriate. (R. v. London Council, ex parte Blackburn [1976] 1WLR 550, 556). As Lord Doplock echoed later, flagrant and serious breaches of the law by persons and authorities exercising governmental functions are continuing unchecked, and to revert to technical restrictions on locus standi to prevent this would be to reverse that progress towards a comprehensive system of administrative law that has been the greatest achievement of the courts. (See, Inland Revenue Commissioners v. National Federation of Self-Employed & Small Business Ltd. [1982] AC 617, 641). The Judiciary, on the basis of the doctrine of checks and balances, has a major part to play in curbing excesses of power by the legislature and by the executive. The question for consideration by the court would be whether the action challenged is unlawful being outside the ambit of the power conferred on the relevant state authority, or whether the prescribed mandatory procedures have not been followed in the exercise of power, or that an error of law is involved or that the principles of natural justice have not been followed.
1.2 The Courts comprising of judges who are non-elected and therefore unrepresentative, in educational, social, ethnic, economic and political terms are sometimes considered to be ill-equipped to cope up with the task of deciding disputes on matters of governmental administration and policies. Moreover, there are obvious limits to judicial expertise and to the information upon which judges have to decide cases. The common law adjudicatory process is not always the best way of tackling difficult issues of law and administration, and the costs, delays, and possible injustices to others inherent in expanding the role in the administrative process may more than outweigh any countervailing benefits.(de Smith’s Judicial Review of Administrative Action, Evan’s ed., 48). In addition to resolving new procedural problems, Judges in PIL are prone to become unusually innovative in investigating the relevant facts and devising remedies to effectively deal with the competing claims. Court-ordered commissions of inquiry have often been adopted as means of finding out the relevant facts, and the relief granted sometimes takes the form of a series of quasi-legislative directives, ordering governmental agencies to carry out remedial programmes and establishing monitoring procedures whereby the Court may review progress. (See, A. Chayes, The Role of the Judge in Public Law Litigation (1976) 89 Harv. L Rev-1282, 1288-1304; Bandhua Mukti Morcha v. U.O.I. AIR 1989 SC 802, 834-7).
2. Theoretical Basis of PIL
2.1 Intervention of the court may be sought by way of PIL in cases where the statutory provisions have arbitrarily and irrationally overlooked the interests of a significantly affected group that would otherwise suffer in silence. Public interest may demand judicial intervention in cases where the existing rules and standards are not complied with due to indifference towards a particular group, unjustly denying them any legal entitlements or resulting in unfair and hostile treatment. Public Interest Litigation may provide a platform for projecting social values for those who do not have a formal access or voice in the policy making processes.
2.2 Resort to PIL may be made by filing a “test case” challenging the validity of a statutory provision or seeking its particular interpretation. A decision in PIL declarative of constitutional or statutory norm by the Supreme Court, in a test case, will have a binding effect on the governmental agencies even when rendered in the proceedings instituted by a single individual whose standing is recognized. PIL may assume form of proceedings calculated to challenge deficiencies in the enforcement of the existing laws and seeking to regulate the future conduct of the public authority “through the imposition and monitoring of detailed decrees that spell out in highly specific terms constitutional or statutory requirements”.(Public Interest Litigation: Selected Issues and Examples – A note written by Helen Hershkoff, Professor of Law at New York University School of Law). In India, the Supreme Court took the lead by allowing volunteer social activists – lay and legal, to represent the interests of the poor in judicial proceedings. By expanding the doctrine of locus standi in filing the petition and creating epistolary jurisdiction that enabled it to treat a letter written on behalf of a disadvantaged person as a petition and examine the merits of the grievances, the judiciary facilitated a public law practice that draws on, “…. nation’s tradition of volunteerism” (Cottrell, Courts and Accountability: Public Interest Litigation in the Indian High Courts, Third World Legal Studies – 1992).
3. Rules of Standing
3.1 The increase in PIL in the last two decades is closely related to the growth in administrative and judicial review of governmental decisions and to an increase in the number of statutory ‘public rights’. The laws creating public rights, such as those in relation to the environment and consumer protection rely on private enforcement as an integral part of ensuring compliance, and the Courts have in this field developed rules of standing to allow persons other than those whose immediate rights or interests are at stake to bring the matter to the Court.
3.2 There is an important role for private petitioners in public interest litigation because the enforcement of public rights by any governmental agency is likely to be “spasmodic and patchy due to a range of political, financial and bureaucratic factors” (ALRC Report 78 – paragraph 2.36). The rules of standing should therefore facilitate access to the legal system to ensure that a party with legitimate cause of action can pursue the action and get tested the validity of governmental decisions and legislation by furnishing adequate information to the courts for reaching its decisions for protecting public rights which have implications beyond the parties to the proceedings. The law of standing should not be a mechanism for determining the types of matters that may be litigated or for controlling the way in which litigation is conducted. These issues are more appropriately addressed by the law concerning justiciability, the rules on imposition of costs, the power of the courts to manage the litigation process and the availability of alternative methods of resolving disputes. (Pr.2.39 ARLC 78).
4. Standing Tests
4.1 In the U.K., for enabling an applicant seeking an order of ‘judicial review’ the applicant has to satisfy the test of ‘sufficient interest in the matter to which the application relates’. (Sec. 31(37) of Supreme Court Act 1981(UK); this provision is based on 0-53 r-3(5) of the Rules of the Supreme Court (UK) which was introduced in 1977 to implement the recommendations of the Law Commission in Report No.73, ‘Remedies in administrative law’). For satisfying this test an applicant need not have a direct legal or financial interest but a ‘mere busy body’ will not have sufficient interest. (IRC [1982] AC 617).It is, however, not necessary that applicant’s interest should be different from that of an ordinary member of the public. (See, R. v. Secretary of State for Foreign & Commonwealth Affairs; Ex parte Ree-Mogg [1989] 1 All E.R. 1047; R v. Her Majesty Treasury; Ex parte Smedley [1985] 1 All E.R. 589.) An applicant having no personal connection with the dispute, in the traditional sense of locus standi, may be allowed standing, if in its discretion, the court considers the case to be of sufficient public importance. The courts have held in the U.K. that standing should usually be considered along with the merits of the case and not as a preliminary issue. (R. v. IRC; Ex parte National Federation of Self-Employed and Small Business Ltd. [1981] 2 All ER 19.)
4.2 The Law Reform Commission of British Columbia recommended in its ‘Report on Civil Litigation in the Public Interest (LRC46)’, that any member of the public should be able to bring proceedings in respect of an actual or apprehended violation of a public right provided the Attorney General declined to bring the action in his or her own name or to grant a fiat. In its Report no. 69 on administrative law, the Manitoba Law Commission recommended that there be a single test for standing in judicial review matters. This test would have two tiers: (i) standing as of right for those actually affected by the administrative action in question; (ii) standing at the discretion of the court where, in court’s view, it would be appropriate to allow the applicant to proceed on the basis of the applicant’s interest as a member of public.
4.3 The Ontario Law Reform Commission Report on the law of Standing, 1989, recommended that any person should be able to commence a proceeding unless a party satisfies the Court that there exist factors against proceeding that outweigh the factors in favour of the proceedings. The factors to be considered by the court would include:
(i) whether the issue is trivial;
(ii) in case where the applicant does not have a personal, proprietary or pecuniary interest – the number of people affected;
(iii) whether another reasonable and effective method exists to raise the issues that are sought to be litigated;
(iv) whether another proceeding has been instituted against the same opponent in which the same issues arise and the interests of the applicant could be met by intervening in those proceedings and it is reasonable to expect the applicant to do so;
(v) whether to proceed would be unfair to persons affected;
(vi) Any other factors that the court considers just.
4.4 The Supreme Court of Canada has, in light of the Canadian Charter of Rights and Freedoms which entrenched the fundamental right of the public to government in accordance with the rule of law held that, under the Charter, the test must be interpreted in liberal and generous manner. Accordingly, the court must be satisfied while exercising its discretion to recognize public interest standing that:
(i) there is a serious issue as to the validity of a statue or administrative action;
(ii) the applicant is directly affected by the statue or action or has a genuine interest in its validity;
(iii) There is no other reasonable and effective way to bring the issue before the court.
(See,Canada Minister for Finance v. Finlay (1986) 33 DLR (4th) 321, Canadian Council of Churches v.The Queen & others [1992] 88 DLR (4th) 193; Hy and Zel’s Inc v. Attorney General of Ontario (1994) 107 DLR (4th) 634).
4.5 Standing would ordinarily not be granted to the applicant if it can be shown that the same issue will be challenged by the concerned private litigant, because the main purpose of allowing public interest standing is to prevent immunization of legislation or public acts from any challenge.