UNIT-IV (Sources of Law and Legal Methods)
1. Custom; Precedent; Legislation-
Custom as a source of law-
Custom refers to the code of conduct that has the express approval of the community that observes it. In primitive societies, there were no institutions that acted as authority over the people. This led to people organising themselves to form cohesive groups in order to maintain fairness, equality, and liberty. They started developing rules with coordinated efforts to make decisions. They eventually started recognising the traditions and rituals practised by the community routinely and formed a systematised form of social regulation. In India, laws relating to marriage and divorce are mostly developed from customs followed by different religious communities. Additionally, several communities belonging to the Scheduled Tribes category have their own customs related to marriage. As a result of that Section 2(2) of the Hindu Marriage Act, 1955 has exempted Scheduled Tribes from the application of this Act. Requisites of a valid custom-
1. Reasonability: The custom must be reasonable or practical and must conform with the basic morality prevailing in the modern-day society.
2. Antiquity: It must have been practised for time immemorial.
3. Certainty: The custom must be clear and unambiguous on how it should be practised.
4. Conformity with statutes: No custom must go against the law of the land.
5. Continuity in practice: Not only the custom must be practised for time immemorial, but it should also be practised without interruption.
6. Must not be in opposition to public policy: The custom must adhere to the public policy of the state.
7. Must be general or universal: There must be unanimity in the opinion of the community or place in which it is practised. Hence, it should be universal or general in its application.
Sir Henry Maine’s views on customs-According to Sir Henry Maine, “Custom is conception posterior to that of Themistes or judgments”. Themistes refers to the judicial awards dictated to the King by the Greek goddess of justice. The following are the different stages of development of law according to Henry Maine:
1. At the first step, law is made by rulers who are inspired by the divine. Rulers were believed to be messengers of God.
2. At the second stage, following rules becomes a habit of the people and it becomes customary law.
3. At the third stage, knowledge of customs lies in the hands of a minority group of people called the priestly class. They recognise and formalise customs. 4. The final stage is the codification of customs.
Types of customs -
1. Customs without a binding obligation There are customs that are followed in society that do not have a legal binding force. Such customs are related to clothing, marriage, etc. Not abiding by such customs can only result in a social boycott and not legal consequences.
2. Customs with a binding obligationCustoms that are meant to be followed by law are called customs with a binding obligation. They are not related to social conventions or traditions. There are mainly two types of customs with binding obligations- Legal customs and Conventional customs.
1. Legal customs: Legal customs are absolute in sanction. They are obligatory in nature and attract legal consequences if not followed. Two types of legal customs are general customs and local customs. General customs are enforced throughout the territory of a state. Local customs on the other hand operate only in particular localities.
2. Conventional customs: Conventional customs are those customs that are enforceable only on their acceptance through an agreement. Such a custom is only enforceable on the people who are parties to the agreement incorporating it. Two types of conventional customs are general conventional customs and local conventional customs. General Conventional Customs are practised throughout a territory. Local Conventional Customs on the other hand is restricted to a particular place or to a particular trade or transaction.
Difference between custom and prescription-The main difference between the two is that custom gives rise to law and prescription gives rise to a right. Custom is generally observed as a course of conduct and is legally enforceable. Prescription refers to the acquisition of a right or title. When local custom applies to society, the prescription is applicable only to a particular person. For example, when a person X’s forefathers have been grazing their cattle on a particular land for years without restriction, X acquires the same right to graze his cattle on the land. The right acquired by X is called a prescription. For a prescription to be valid, it must be practised from time immemorial. In India, uninterrupted enjoyment for 20 years is essential to acquire a right to light and air as per the Indian Easements Act, 1882.
Precedent as a source of law-
Judicial precedents refer to the decisions given by courts in different cases. A judicial decision has a legal principle that is binding on the subordinate courts. Once a court has delivered a judgement on a particular case, the courts subordinate to it must abide by the precedent while deciding on similar cases with similar facts. Some of the most influential judicial precedents in India are the following:
1. Kesavananda Bharati v. the State of Kerala (1973): This case is what introduced the concept of the basic structure doctrine in India, protecting the fundamental features of the Indian Constitution from being removed.
2. Gian Kaur v. the State of Punjab (1996): This judgement affirmed that the right to die does not come within the scope of Article 21 of the Indian Constitution. The court affirmed that every person has the right to die with dignity. The court also stated that the right to die in a dignified manner is not the same as the right to die in an unnatural way.
3. Maneka Gandhi v. the Union of India (1978): The court held Section 10(3)(c) of the Passports Act, 1967 as void since it violated Article 14 and 21 of the Indian Constitution.
4. Indra Sawhney v. the Union of India (1992): This judgement set a ceiling of 50% for reservation of backward classes. It also held that the criteria of classifying groups as backward classes cannot be limited to economic backwardness.
The doctrine of Stare Decisis -The authority of judicial precedents is based on the doctrine of stare decisis. The term stare decisis means to not disturb the undisturbed. In other words, precedents that have been valid for a long time must not be disturbed.
In India, subordinate courts are bound by the precedents of higher courts, and higher courts are bound by their own precedents. But when it comes to High Courts, the decision of one High Court is not binding on the other High Courts. Their decisions are binding on the subordinate courts. In cases where there are conflicts between decisions of court with the same authority, the latest decision is to be followed. As per Article 141 of the Constitution of India, the Supreme Court’s decisions are binding on all the courts across the country. However, the Supreme Court’s decisions are not binding on itself. In subsequent cases where there are sufficient reasons to deviate from the earlier decision, the Supreme Court can do so.
Doctrine of Res Judicata-
The term res judicata means subject matter adjudged. As per this doctrine, once a lawsuit has been decided upon, the parties are barred from raising the same issue in courts again, unless new material facts have been discovered. They can’t raise another issue arising from the same claim either since they could have raised the same in the previous suit.
Ratio Decidendi-
As per Salmond, a precedent is a judicial decision that contains a legal principle with an authoritative element called ratio decidendi. Ratio decidendi means reason for the decision. Whenever a judge gets a case to decide on, he has to adjudicate it even when there is no statute or precedent concerning it. The principle that governs such a decision is the reason for the decision which is also called ratio decidendi.
Obiter Dicta-
The term obiter dictum means mere say by the way. This term is used to refer to statements of law that are not required for the case at hand. A judge may in the judgment of a case declare some legal principles to be applied in a hypothetical situation. It does not have much impact or authority. However, the subordinate courts are bound to apply the principles.
Types of precedents -
Authoritative and Persuasive
Authoritative precedents are those precedents that must be followed by subordinate courts whether they approve of it or not. They create direct and definite rules of law. They fall into the category of legal sources of law. Persuasive precedents on the other hand do not create a binding obligation on the judges. Persuasive precedents can be applied as per the discretion of the judge. Authoritative precedents can be classified into the following two types:
Absolute authoritative
An absolutely authoritative precedent is binding on subordinate courts in an absolute manner and it cannot be disobeyed even if it is wrong.
Conditional authoritative
A conditionally authoritative precedent is binding on other judges but it can be disregarded in certain special circumstances as long as the judge shows the reason for doing so.
Original and Declaratory
According to Salmond, a declaratory precedent is a precedent that simply declares an already existing law in a judgement. It is a mere application of law. An original precedent creates and applies a new law.
Factors increasing the authority of a precedent-
1. The number of judges constituting the bench that makes the decision.
2. A unanimous decision has more weight.
3. Approval by other courts, especially the higher courts.
4. The enactment of a statute that carries the same law subsequently.
Factors decreasing the authority of a precedent-
1. Abrogation of judgment by reversal or overrule of a higher court.
2. Abrogation of judgment by a statutory rule enacted subsequently.
3. Affirmation or reversal of decision on a different ground.
4. Inconsistency with the previous decision of a higher court.
5. Inconsistency with previous decisions of the court of the same rank.
6. Inconsistency with already existing statutory rules.
7. Erroneous decision.
Legislation as a source of law-
Legislation refers to the rules or laws enacted by the legislative organ of the government. It is one of the most important sources of law in jurisprudence. The word legislation is derived from the words legis and latum, where legis means law and latum means making.
Types of legislation
According to Salmond, legislation can be classified into two types- Supreme and Subordinate.
1. Supreme legislation -
Legislation is said to be supreme when it is enacted by a supreme or sovereign law-making body. The body must be powerful to the extent that the rules or laws enacted by it cannot be annulled or modified by another body. Indian Parliament cannot be said to be a sovereign law-making body as the laws passed by the parliament can be challenged in the courts. The British Parliament, on the other hand, can be said to be a sovereign law-making body since the validity of laws passed by it cannot be challenged in any court.
2. Subordinate legislation -
Legislation enacted by a subordinate law-making body is said to be subordinate legislation. The subordinate body must have derived its law-making authority from a sovereign law-making body. It is subject to the control of the supreme legislative body. The following are the different kinds of subordinate legislation:
• Executive legislation: This is a form of subordinate legislation where the executive is granted or conferred certain rule-making powers in order to carry out the intentions of the legislature.
• Colonial legislation: Many territories across the globe were colonised by Britain and such territories were called colonies. The legislation passed by the legislature of such colonies was subject to the control of the British Parliament.
• Judicial legislation: Courts also have a role in enacting laws that aid in regulating the internal affairs and functioning of courts.
• Municipal legislation: Municipal authorities also possess the law-making power as they enact bye-laws.
• Autonomous legislation: Another kind of legislation is autonomous legislation, which is concerned with bodies like universities, corporations, clubs, etc.
• Delegated legislation: Sometimes legislative powers may be delegated to certain bodies by the parliament through principal legislation. A principal act may create subsidiary legislation that can make laws as provided in the principal legislation.
2. Legal Aid and Lok Adalat-
Legal Aid-
Legal aid is a government program that provides help, advice, and representation to those who cannot afford it. Free legal aid is every Indian’s fundamental human right according to the Indian Constitution. The National Legal Services Authority regulates this component of legal services. It guarantees help to the poorer parts of society who fall under section 12 of the Legal Services Authority Act, 1987. Legal help to the poor, weak, and illiterate is required for the rule of law to exist. Poor, illiterate people are denied access to justice unless they are given legal counsel. The Indian Constitution requires the court to be independent and impartial. As a result, courts are accountable for upholding the Constitution and protecting citizens’ rights, regardless of their financial circumstances.
Objectives of Legal Aid
The objective of legal aid lies in bridging the gap and making legal services accessible to all segments of our society. Its core aim is to protect the rights and interests of people. Legal aid is a step by which weaker sections of our country can become strong and enable themselves to live with confidence.
The concept of legal aid is made such that no one feels like they are treated separately. There are many negative aspects of the society because of which some have remained underprivileged – the objective of providing legal aid is the upliftment of one and all. The three-A guide on the framework is mentioned below.
• Awareness: People are empowered when they are aware of their rights and power and learn how to secure these rights for themselves.
• Assertion: Encourage those people to assert those rights as a “right” and not as a favour.
• Arrangements: Once objectives 1 and 2 are achieved, it is the responsibility of the State to make the necessary arrangements. It must ensure that these rights are given to those who claim them in a fair and just manner.
Types of Legal Aid Fund
1. Grants by the Central Government (National Legal Aid Fund): The Central Government shall make grants to the Central Authority to carry out the purposes of legal aid in the amount it deems fit.
2. State Legal Aid Fund: Established by State Authority
3. District Legal Aid Fund: Established by District Authority
Types of Legal Services
Legal services can be divided into two types; pre-litigation services and post-litigation services.With each passing day, the number of lawsuits is on the rise, which poses a risk to the smooth administration of justice. Before now, the emphasis has been on post-litigation assistance or help. However, this focus is changing as it becomes apparent that pre-litigation legal services are of greater value than post-litigation legal services.
Pre-litigation services include:
• Legal education
• Legal advice
• Legal awareness
• Pre-litigation settlement
The incorporation of legal aid puts forth challenges and opportunities to the legal community. Let’s review these in detail.Benefits of Legal AidLegal aid provides support to the underprivileged and weaker sections of our society. Below are ways in which legal aid has benefitted India’s marginalised communities:
• It has increased people’s trust in the fairness of the system
• It has made the judicial system accessible to everyone.
• It has made the judicial system work more efficiently.
• It has empowered citizens by informing them about the different paths besides post-litigation.
• As a result, it has helped in getting better judgments.
Challenges to Legal Aid
• Illiteracy and lack of awareness: Legal aid has not yet achieved its goal because people are still unaware of their rights. Due to not knowing the meaning of legal aid and a general lack of information, poor people are abused and deprived of their rights and benefits.
• Insufficient financial support: According to sources, only 0.2 per cent of the GDP (Gross Domestic Product) is spent on the administration of law and justice in our country. This amount is grossly inadequate and insufficient in a democracy.
• Legal aids have a limitation: There are limitations in covering the total cost borne by the person. It only covers the deposition charges and lawyer fees, but it does not cover bribes, transportation costs, and other expenses required at the ground level. Who Is Entitled to Receive Legal Aid?The Indian Constitution states that every person is entitled to receive legal aid. Indian citizens, irrespective of age, gender, or ethnicity, qualify for legal aid if they fall under the following categories:
• A person belonging to Scheduled Caste or Scheduled Tribe
• A woman or a child
• People who have been victims of trafficking
• A mentally ill or otherwise disabled person
• A person under special circumstances
• An individual in custody, including custody in a protective home
The person to whom legal aid is provided need not have to pay any money for the following:
1. Court fees or any other legal costs related to litigation
2. Documentation fees (drafting of documents, getting copies, etc.)
Legal Framework for Legal Aid in India3. Fees of the lawyer
The articles and laws that have been formulated to make legal aid accessible to the people in need include:
• Article 14
• Article 21
• Article 22(1)
• Article 39(A)
• Rule 46 of Bar Council of India
• Rules in part-VI
• Section 304 of Criminal Procedure Code, 1973
• Order 33 of Civil Procedure Code, 1908
Conclusion
Legal aid is an important concept in the Indian legal system that uplifts low-income and underprivileged members of society by providing free legal services. It is funded by Central, State, and District-level authorities. Everyone is entitled to free legal aid, especially women, children, and people belonging to disadvantaged communities such as Scheduled Caste and Scheduled Tribe. The service covers court, documentation, and lawyer fees, allowing poor people the right to a fair trial. However, it does extend to bribes and transportation costs. Moreover, people need to know the meaning of legal aid and educate themselves to take advantage of this government program.
LOK ADALAT-
Introduction-
The concept of Lok Adalats stands as a unique contribution of the Indian legal system to world legal jurisprudence. It is an informal system of justice dispensation which has largely succeeded in providing a supplementary forum to litigants for determination and settlement of disputes[1]. Originating from Gandhian principles by Mahatma Gandhi, it has become a major helping hand to courts and is prescribed in Section 89 of the Code of Civil Procedure, 1908 as well[2].The advent of Legal Services Authority Act, 1987 further gives a statutory status to these Lok Adalats, promoting the constitutional mandate of Article 39-A of the Constitution of India, which directs the state to organize Lok Adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunity[3]. These Lok Adalats provide three-fold benefits involving speedy resolution of disputes coupled with reduced costs of litigation and avoiding further appeals, thereby making them the perfect instrument to resolve the heightened burdened on judiciary for disposing cases
Keeping in mind their contribution to Indian jurisprudence, the author shall discuss the concept of Lok Adalats in the country, their functioning, advantages, places for improvement and their role as functionaries towards access to justice for the poor and downtrodden.
The functioning of Lok AdalatsLevel of Organization-
Lok Adalats are better known as the people’s courts, therefore they need to be available to people on every level of governance. The Legal Services Authority Act, 1987 (Hereafter “the Act”) prescribes for several levels wherein Lok Adalats can be organized, ranging from the lowest courts to the apex court which can take cognizance and organize Lok Adalats for effective and speedy justice. The persons residing over these Adalats include serving or retired judicial officials as well as other persons as prescribed by the authority conducting the Lok Adalats in the given area.
Jurisdiction-
The jurisdiction of these Lok Adalats is parallel to the courts organizing them, therefore it extends to any case or matter which is being heard by that court under its original jurisdiction. Matters with respect to offences not compoundable under law are an exception to this jurisdiction. They cannot be adjudicated in Lok Adalats. These courts may also take cognizance of cases as per provisions of the Act for disputes agreed by the parties to be resolved under them or if one of the parties makes an application to the courts for referring the case to Lok Adalats for settlement and the court is prima facie satisfied that there are chances of settlement.
Resolution and Award
After admission of disputes, the Lok Adalats proceed to hear the case and dispose of the matter by reaching a settlement or compromise in an expeditious manner. The manner of resolution in Lok Adalats is more towards compromise and less towards conclusive determination. In any case, if the parties are unable to reach a compromise and the Lok Adalat deems that matter needs more determination, it can refer the matter back to the courts for adjudication.Eventually once the court is satisfied, it passes an award with respect to the dispute is final and binding on the parties. The award is enforceable as a decree of the civil court and no appeal lies from this award. Therefore, this provision ensures that the award is conclusive and the matter is put to rest once and for all.
Advantages of Lok Adalats-
The reason behind the efficiency of Lok Adalats is based on several advantages which it holds over normal courts of law. These factors are responsible for its quick disposal of several disputes. They are:
Procedural Flexibility-
There exist considerable procedural flexibility as major procedural laws such as the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1882 are not strictly enforced. The parties can interact directly through their counsels which is not possible in a regular court of law. This dynamic nature of Lok Adalats allows them to conciliate both party interests and pass awards which are acceptable to both parties.
No Court Fees-
There is no court fee payable when a matter is filed in a Lok Adalat. If a matter pending in the court of law is referred to the Lok Adalat and is settled subsequently, the court fee originally paid in the court on the complaints/petition is also refunded back to the parties.Final and Binding AwardUnder Section 21 of the Act, the award passed by the Lok Adalats stand final and binding. As no appeal lies to this conclusive determination, the cases are put to rest on first instance.
Maintenance of Cordial RelationshipsThe main thrust of Lok Adalats is on compromise between parties. While conducting the proceedings, a Lok Adalat acts as a conciliator and not as an arbitrator. Its role is to persuade the parties to reach a solution and help in reconciling their contesting differences. This encourages consensual arrangements. Therefore, disputes are not only settled but also the cordial relations between parties can be retained. Hence, it is a very healthy way of dispute resolution.Areas for Improvement within Lok AdalatsSome areas of improvement whereby the functioning of Lok Adalats can be improved are as follows:
Enforceability lies with Civil CourtThe awards passed by the Lok Adalats are deemed equivalent to decrees of the civil court. Although, the enforcement of these decrees cannot be carried out by the Lok Adalats. This function rests with the civil courts, therefore the parties need to apply for enforcement to execute the award. It is the author’s recommendation that this power to enforce needs to be provided to the Lok Adalats itself to ensure that the decisions passed are executed to their finality.Lack of Criminal JurisdictionThe jurisdiction of Lok Adalats with respect to criminal disputes is limited to offences which are compoundable under law. This removes crimes such as that of petty theft other small crimes from the purview of Lok Adalats. Hence, this should be reviewed to bring petty crimes within the purview of Lok Adalats.Lok Adalat and Access to Justice: A Symphonic Interplay
What is “Access to Justice”?
The term “access to justice” can be understood as “the right to ensure that every person is able to invoke the legal processes for legal redress irrespective of social or economic capacity” and “that every person should receive a just and fair treatment within the legal system”. Basically, the right of every person to access judicial forums for putting forth their case can be termed as a chance to access justice.Here, there lies an important point of difference between “access” to justice, and access to “justice”; wherein the former refers to whether a chance of redressal was provided to the aggrieved party whereas the latter refers to whether justice was served. Both these aspects have been analyzed in this article.
Role of Lok Adalats in providing “access” to justice-
Since their inception in 1982, Lok Adalats have been the instrumentalities for the poor to have “access” to justice in our country, which is troubled with more than 3.3 crore cases (2018 figures) pending for adjudication till date. The functioning of these Lok Adalats have been responsible for the disposal of more than 50 lakh cases in 2017 itself, thereby being a major modality for reduction of judicial workload. The average number of cases resolved by Lok Adalats stand at 4000 cases a day, therefore their existence is undoubtedly vital for solving the judicial backlog which exists in recent times.A major feature of Lok Adalats to determine disputes without charging any fees has also been a strong incentive for the poor to approach the Lok Adalats for finality of their disputes. In contrast to filing an application as an indigent person under Order 33 of the Code of Civil Procedure, 1908, this alternative dispute resolution mechanism stands as a much friendlier means for the poor to access legal redressal mechanisms. Hence, Lok Adalats can be said to have passed the test for providing “access” to justice to the poor.Role of Lok Adalats in providing access to “justice”-The sheer right to get access to a legal redressal mechanism, cannot in the author’s view, be deemed sufficient justice. The financial status of parties to the dispute, their situations, fair procedure during trial and influence on the legal process also need to be considered to understand whether a proper chance to access “justice” was provided to them[32].Many times, parties settle in Lok Adalats as they cannot afford the expenses of continuing with litigation. There is compromise out of necessity rather than will. This can be related due to the issues in our legal system and therefore it is difficult to deem this as a fair chance. Hence, it is rather difficult to say that the Lok Adalats have passed the test for providing access to “justice” to the poor.
Conclusion-
Lok Adalats have become an integral part of the Indian legal system and have become the apertures for access to justice for the poor and downtrodden. The have bridged the gap to legal aid, but still have certain areas of improvement which could increase their efficiency even more. While they are acting well to bridge the gap of “access” to justice, there needs to be a review of their effectivity in providing aggrieved parties true access to “justice”. With finality, one can conclude that there is more than meets the eye which can be done to make Lok Adalats a better redressal system towards rising litigation.
3. Public Interest Litigation-Introduction-
The expression ‘Public Interest Litigation’ has been borrowed from American jurisprudence, where it was designed to provide legal representation to previously unrepresented groups like the poor, the racial minorities, unorganised consumers, citizens who were passionate about the environmental issues, etc.
public interest Litigation (PIL) means litigation filed in a court of law, for the protection of “Public Interest”, such as Pollution, Terrorism, Road safety, Constructional hazards etc. Any matter where the interest of public at large is affected can be redressed by filing a Public Interest Litigation in a court of law.
Public interest litigation is not defined in any statute or in any act. It has been interpreted by judges to consider the intent of public at large.
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.
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.
Some of the matters which are entertained under PIL are:
o Bonded Labour matters
o Neglected Children
o Non-payment of minimum wages to workers and exploitation of casual workers
o Atrocities on women
o Environmental pollution and disturbance of ecological balance
o Food adulteration
o Maintenance of heritage and cultureGenesis and Evolution of PIL in India: Some Landmark Judgements-
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 Thai.
The first reported case of PIL was Hussainara Khatoon vs. State of Bihar (1979) that focused on the inhuman conditions of prisons and under trial prisoners that led to the release of more than 40,000 under trial prisoners.
o 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 India.
o 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 (under article 226) or the Supreme Court (under Article 32) 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.
o By this judgment PIL became a potent weapon for the enforcement of “public duties” where executive 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 the public are at stake.o Justice Bhagwati did a lot to ensure that the concept of PILs was clearly enunciated. He did not insist on the observance of procedural technicalities and even treated ordinary letters from public-minded individuals as writ petitions.
The Supreme Court in Indian Banks’ Association, Bombay & Ors. vs. M/s Devkala Consultancy Service and Ors held :- “In an appropriate case, where the petitioner might have moved a court in her private interest and for redressal of the personal grievance, the court in furtherance of Public Interest may treat it a necessity to enquire into the state of affairs of the subject of litigation in the interest of justice.” Thus, a private interest case can also be treated as public interest case.
M.C Mehta vs. Union of India: In a Public Interest Litigation brought against Ganga water pollution so as to prevent any further pollution of Ganga water. Supreme Court held that petitioner although not a riparian owner is entitled to move the court for the enforcement of statutory provisions, as he is the person interested in protecting the lives of the people who make use of Ganga water.
Vishaka v. State of Rajasthan: The judgement of the case recognized sexual harassment as a violation of the fundamental constitutional rights of Article 14, Article 15 and Article 21. The guidelines also directed for the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
Factors Responsible for the Growth of PIL in India-
The character of the Indian Constitution. India has a written constitution which through Part III (Fundamental Rights) and Part IV (Directive Principles of State Policy) provides a framework for regulating relations between the state and its citizens and between citizens inter-se.
India has some of the most progressive social legislations to be found anywhere in the world whether it be relating to bonded labor, minimum wages, land ceiling, environmental protection, etc. This has made it easier for the courts to haul up the executive when it is not performing its duties in ensuring the rights of the poor as per the law of the land.
The liberal interpretation of locus standi where any person can apply to the court on behalf of those who are economically or physically unable to come before it has helped. Judges themselves have in some cases initiated suo moto action based on newspaper articles or letters received.
Although social and economic rights given in the Indian Constitution under Part IV are not legally enforceable, courts have creatively read these into fundamental rights thereby making them judicially enforceable. For instance the "right to life" in Article 21 has been expanded to include right to free legal aid, right to live with dignity, right to education, right to work, freedom from torture, bar fetters and hand cuffing in prisons, etc.
Judicial innovations to help the poor and marginalised: For instance, in the Bandhua Mukti Morcha, the Supreme Court put the burden of proof on the respondent stating it would treat every case of forced labor as a case of bonded labor unless proven otherwise by the employer. Similarly in the Asiad Workers judgment case, Justice P.N. Bhagwati held that anyone getting less than the minimum wage can approach the Supreme Court directly without going through the labor commissioner and lower courts.
In PIL cases where the petitioner is not in a position to provide all the necessary evidence, either because it is voluminous or because the parties are weak socially or economically, courts have appointed commissions to collect information on facts and present it before the bench.Who Can File a PIL and Against Whom?
Any citizen can file a public case by filing a petition:
o Under Art 32 of the Indian Constitution, in the Supreme Court.
o Under Art 226 of the Indian Constitution, in the High Court.
o Under sec. 133 of the Criminal Procedure Code, in the Court of Magistrate.
However, the court must be satisfied that the Writ petition fulfils some basic needs for PIL as the letter is addressed by the aggrieved person, public spirited individual and a social action group for the enforcement of legal or Constitutional rights to any person who are not able to approach the court for redress.
A Public Interest Litigation can be filed against a State/ Central Govt., Municipal Authorities, and not any private party. The definition of State is the same as given under Article 12 of the Constitution and this includes the Governmental 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.
Significance of PIL-
The aim of PIL is to give to the common people access to the courts to obtain legal redress.
PIL is an important instrument of social change and for maintaining the Rule of law and accelerating the balance between law and justice.
The original purpose of PILs have been to make justice accessible to the poor and the marginalised.
It is an important tool to make human rights reach those who have been denied rights.
It democratises the access of justice to all. Any citizen or organisation who is capable can file petitions on behalf of those who cannot or do not have the means to do so. It helps in judicial monitoring of state institutions like prisons, asylums, protective homes, etc.
It is an important tool for implementing the concept of judicial review.
Enhanced public participation in judicial review of administrative action is assured by the inception of PILs.Certain Weaknesses of PIL-
PIL actions may sometimes give rise to the problem of competing rights. For instance, when a court orders the closure of a polluting industry, the interests of the workmen and their families who are deprived of their livelihood may not be taken into account by the court.
It could lead to overburdening of courts with frivolous PILs by parties with vested interests. PILs today has been appropriated for corporate, political and personal gains. Today the PIL is no more limited to problems of the poor and the oppressed.
Cases of Judicial Overreach by the Judiciary in the process of solving socio-economic or environmental problems can take place through the PILs.
PIL matters concerning the exploited and disadvantaged groups are pending for many years. Inordinate delays in the disposal of PIL cases may render many leading judgments merely of academic value.Conclusion-
Public Interest Litigation has produced astonishing results which were unthinkable three decades ago. Degraded bonded labourers, tortured under trials and women prisoners, humiliated inmates of protective women’s home, blinded prisoners, exploited children, beggars, and many others have been given relief through judicial intervention. The greatest contribution of PIL has been to enhance the accountability of the governments towards the human rights of the poor.
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.