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How to file a PIL

By Shambo Nandy

PILs have become a powerful tool of empowerment and access to justice for the common man, and a major grievance redressal mechanism for many unheard voices in the country. When and how should a PIL be filed?

Recently, the Supreme Court, in a public interest litigation (PIL) filed before it by an NGO, ruled that the Centre and states should provide basic infrastructure including drinking water and washroom facilities in all schools within six months. That very same day, in another case, the Supreme Court also ruled that the government should desist from altering the existing pricing system for essential medicines, a step which could allegedly lead to a steep hike in their prices.

Cases like these, wherein the interests of a large section of the populace are at stake, are routinely heard and disposed of by the Supreme Court and in most of the cases the petitioners get a favourable order. This is reflected in the fact that filing a PIL is now bread-and-butter for many lawyers, with several PILs being filed in various Indian high courts and the Supreme Court every day. And so, PILs have become not only an important and powerful tool of empowerment and access to justice for the common man over the years, it has also become a dominant grievance redressal mechanism for many unheard voices in the country.

But to say that PILs have largely helped the country’s aam admi better represent themselves and their cause before the courts of law is probably an understatement of the influential role the courts have begun to play in India’s political system. Our school civics lessons have taught us that the three branches of government are the executive, legislature and judiciary, each independent of the other. For some time though, the courts have been going beyond their domain, donning the mantle of the executive by ruling on policy matters which traditionally are within the realm of the executive and legislature. As a result of this ‘enthusiasm’, courts have ruled on a wide range of issues. From entertaining corruption-related petitions to environmental cases to prison reforms, meting out justice to undertrials or the functioning of tribunals, the courts have dealt with it all. In fact, instead of merely being adjudicatory forums, courts have now become all-powerful and sit in judgment over the way the other two branches function.

The primary advantage of filing a PIL is that one does not have to show an interest in a particular case. In legal terms, one does not need to exhibit a locus standi in the case or the fact that one has suffered or is likely to suffer legal injury. Thus, a person is able to approach the courts on behalf of others even though he is not the aggrieved person in the traditional sense of the term. One of the hallmarks of a PIL is the tendency of the courts to do away with stringent customs and rules which prohibit them from meting out justice. In the interests of the greater good, formal filing procedures are dispensed with in matters that are of urgent common interest. This is especially true of cases where poor and helpless people are involved who have almost no knowledge of the country’s formal adjudication process.

The first of such cases where a PIL was used to grant justice was in the Sunil Batra vs Delhi Administration case wherein Justice Krishna Iyer used a letter written by a prisoner to start a case. However, what really started the formal PIL mechanism in India was the Hussainara Khatoon vs Home Secretary, State of Bihar case. In this case, Kapila Hingorani, an advocate practising before the Supreme Court, brought before it through a habeas corpus petition (meaning ‘to produce the body’) based on a newspaper report, the case of 19 undertrials who were languishing in a jail in Bihar. The first-named petitioner was Hussainara Khatoon, a young woman who had fled with her family from Bangladesh some time in 1975. She was lodged in jail under protective custody despite an order by the central government to release all Bangladeshis arrested under the Foreigners Act.

Habeas corpus petitions are usually not filed by the aggrieved persons themselves but by their relatives. What made this case different was that Kapila Hingorani was in no way related to the petitioners, nor had she secured their permission before filing the case. On being admitted by the court for hearing, the case established four distinct principles of PIL in India: (a) a petition need not be filed by the person whose own legal rights are at issue and can be brought before the court by any public-spirited citizen, (b) a petitioner need not have personal knowledge of the case details but can support it by materials such as newspaper articles, (c) both legal principles and substantial relief can be used in the preliminary stage of litigation, and (d) the scope of litigation can expand rapidly beyond what was stated in the original petition if the progress of the case exposes greater injustice.

Although these principles were propounded in the Hussainara Khatoon case, they have travelled more widely and have since been used extensively to deliver justice to the helpless and needy. Thus, in most landmark PIL cases we see that the courts have waived the locus standirequirement. It has also actively involved itself in the investigation of facts and has quickly issued remedial relief in the form of interim orders.

Since PILs have become a part of the mainstream adjudicatory process of our country, it is important that we understand how a PIL is filed in court, the essential contents of a PIL, and the way it is to be presented in court. (Although courts often waive formal filing requirements, with the increasing number of PILs being filed every day the courts now use their discretionary powers to consider such letters.) Such an understanding will help us evaluate whether the situation merits filing a PIL in the first place, the chances of it being admitted in court, and the likely outcome from the court.

The basic thing that one needs to keep in mind while considering whether or not to file a PIL is the amount of public interest involved in the matter. It must be demonstrated that the concerns of a class, section or group of people are involved as opposed to that of an individual. It must also be shown that there is a constitutional or legal dimension to that interest or concern. It should have the potential to defend the rights of a large number of people and redress wrongs done to them. For the existence of a PIL, one needs to show that there has been an act or omission by the state or its authorities that has affected a substantial number of people. PILs are not meant to settle individual grievances. Even if the petitioner is interested in the matter, it must be an interest that he/she shares with other members of the public. Usually it helps if the motives of the petitioner are not personal in nature. For example, a PIL is least likely to be admitted if it alleges that a governmental authority is selectively targeting individuals who indulged in tax evasion when the petitioner himself has also committed the wrong. On the other hand, if a PIL is brought forward that a state authority is not offering minimum wages for work done, then it is most likely to be admitted if brought forward by any person.

As stated earlier, PILs act as a grievance redressal mechanism by ensuring that there is good governance in the country. The courts usually direct that the government take appropriate measures in cases where the interests of a large section of the public are at stake. For example, the Calcutta High Court is currently hearing a PIL and passing orders relating to the misuse of red beacons on top of cars. Recently there have also been several anti-corruption-related PILs wherein the court was asked to direct the government to start an appropriate investigation against relevant officials. PILs are filed as writs under Article 32 of the Constitution in the Supreme Court of India, and under Article 226 in the various high courts of the country. Most of these writs are in the nature of mandamus (meaning ‘to direct’) and the court uses its powers to direct the government to carry out measures in the interest of the public.

Apart from the element of sufficient public interest, it helps if a credible person is filing the PIL. It is easier to establish then that the PIL has been brought forward in good faith and with no motive apart from the best interests of the public. This varies from case to case, but is easy to figure out. For example, if one wants to file a PIL regarding arsenic contamination in the groundwater of a particular village, it would help if the village sarpanch is the person filing the petition. Or an environmentalist working in the field. Petitions challenging the constitutionality of legislation are best done through someone from the bar or someone from academia. For example, in the case of D C Wadhwa vs State of Bihar (AIR 1987 SC 579), a professor of political science who had done substantial research and was deeply interested in ensuring proper implementation of constitutional provisions, challenged the practice followed by the state of Bihar in repromulgating a number of ordinances without getting approval from the legislature. The court held that the petitioner as a member of the public had ‘sufficient interest’ to maintain a petition under Article 32.

Another important aspect of filing a PIL is that one should properly implead the parties to the petition. If we take the previous example of arsenic contamination in groundwater then one should ideally make the central water resources ministry, the state water resources ministry, the central environment ministry, the state environment ministry and the state pollution control board the respondents. The thumb-rule in such cases is that one should implead as many parties as possible to the petition if they are in any way connected to the issue at hand. This is essential because all such parties have to be given an opportunity to be heard. Parties can be impleaded later in the case too, but that would mean further delays in disposing of the case as the court won’t pass any orders against any party without giving it enough time to hear its side of the story.

The main part of the PIL usually starts by introducing the petitioner and his reasons for filing the petition. Basically, it is to state what has made him approach the court. Earlier cases where the courts have entertained similar petitions should be mentioned and are helpful in getting the PIL admitted. Thereafter, one should present all the facts in the petition. The history of the case should be mentioned. For example, if one is challenging the constitutionality of a legislation, the petitioner should state the way the law came into existence, reasons for parliament enacting such legislation, details about the legislation, and so on. If there was a prior law in that field which the current statute replaced it should be mentioned along with some of its features. All this helps present a holistic picture of the scenario in which the court will be hearing the main issues of the case. Further, one should state the current facts and the situation on the ground. Here, the petition should be very well researched and, if possible, backed by field data. If such data and information runs to many pages then they should be put as annexures and summaries of such data should be included in the main petition. Good research in the petition reveals the seriousness of the petitioner and his credentials as a public-spirited person.

The next part is where one states the grounds for filing the PIL. This is the most important part, as this is where one states the legal and constitutional basis on which the PIL has been filed and relief asked for. One needs to state and substantiate clearly the reasons why one thinks rights have been violated. For example, in the Visakha vs State of Rajasthan case (the case in which the Supreme Court issued guidelines relating to sexual harassment of women in the workplace), it was alleged that the police and doctors violated the complainant’s rights under Articles 14, 19 and 21 of the Constitution of India. In cases where the constitutionality of a statute or a regulation is challenged, more often than not a violation of Article 14 (right to equality) is alleged. If a government regulation or activity or statute violates the directions given in a previous judgment of the Supreme Court or high court, that too forms independent grounds.

At the end comes the prayer portion of the petition where one lists the possible remedies one wants from the court. Usually there are two sorts of remedies -- one temporary and immediate, the other permanent. For example, in cases where statutes are challenged it is often prayed for that bodies created under it should stop functioning immediately until the case has been disposed of, otherwise there will be further miscarriage of justice.

PILs are often filed by poor and aggrieved people who approach the courts as a last resort, and so there are no court fees levied on any PIL. Since this provision has often been misused by people who file numerous PILs for publicity’s sake, courts of late have begun to impose costs on such petitioners to dissuade people from filing frivolous PILs and wasting the precious time of the court. Apart from this, the petitioner needs to pay the fees of the lawyer representing him in the case, from time to time. This amount is variable and depends on the quality of lawyer one hires. In many cases, however, lawyers waive their fees and argue the case as a pro bono matter. Stationery costs often need to be borne by the petitioner, which in almost all cases isn’t a significantly high amount.

If one is fully aware of the facts of the case and more or less aware of relevant portions of the law, one can also argue one’s own case in court. However, with the courts becoming increasingly wary of the large number of PILs being filed, a petitioner usually seeks out the services of an advocate to argue the case. In fact, senior counsel is often drafted to get a PIL admitted; thereafter, some other counsel argues the case.

One also needs to be aware of delays that could take place in the proceedings of a PIL. Often, government authorities take a long time replying and may submit their replies many months after the time limit fixed by the court. Court staff too often do not list matters properly on the days they should. Such cases should be immediately brought to the notice of the judges who heard the case or, in their absence, the chief justice of that court.

Though PILs constitute an excellent mechanism to force the government to work, rather to work in the most appropriate manner possible, there have been many instances of frivolous PILs being filed. Such petitions have earned PILs a bad name and have resulted in the Supreme Court and high courts issuing guidelines on the nature of cases that will be accepted as PILs. As citizens of this country, we must thwart the efforts of a few self-centred individuals or else this effective mechanism for grievance redressal will slip from our hands.

(Shambo Nandy is Executive Editor of Journal of Indian Law and Society. He is a petitioner in a PIL filed in the Supreme Court challenging the selection procedure of the judicial member of the Appellate Tribunal for Electricity)

Infochange News & Features, March 2013