A brief introduction to public interest litigation.

1. PUBLIC INTEREST LITIGATION
Bhagya Wickramsinghe
LL B(Hon), LL M (Colombo)
Attorney-at –Law
Lecturer in Law,
General Sir John Kotelawala Defence University

2. OUTLINE
1. Rationale behind Public Interest Litigation (PIL)
2. History & Inter linkages
3. Hostility towards PIL
4. Administrative Law and Common Law heritage
5. Evolution of PIL in Sri Lanka
1. Writ Jurisdiction
2. Environmental issues
3. Judicial Review of Bills
4. FR jurisdiction of the Supreme Court
6. India – Evolution of PIL and relevant case law
7. Lessons for future
8. References

3. EXPECTED OUTCOMES OF THE LECTURE
• Gain an understanding of the nature and conceptual
background of PIL
• To engage in a jurisprudential analysis of PIL
• Engage in a discussion of case law in different jurisdictions
• To analyse the development so far and the future
possibilities with a view to enhance the applicability
and/or effectiveness of the application of PIL – on a
theoretical and a practical level.

4. 1. RATIONALE BEHIND PUBLIC INTEREST LITIGATION
(PIL)
• One of the main purposes of law is to achieve justice
PIL is used by the judiciary and proactive citizens and groups
to achieve this objective.
• PIL is a useful tool for the public with a conscience to bring
certain broad matters of public interest to the attention of the
court & to ensure participatory democracy – where by citizen
concerns are made a part of the state’s decision making
process.
• Not an enigma. A very practical ground reality.
Not an abstract concept. But a concept with sound
jurisprudential support and immense practical impact.

5. RATIONALE BEHIND PUBLIC INTEREST LITIGATION (PIL)
• PIL is the use of litigation, or legal action, which seeks to
advance the cause of minority or disadvantaged groups or
individuals, or which raises issues of broad public concern.
• By taking cases that can benefit disadvantaged groups or
minorities rather than just one person, PIL can be used to
provide access to justice to those who are most in need of it
and yet who find themselves furthest from it.

6. HOW DOES PIL WORK?
Ensure that
citizens have a
forum to voice
their concerns and
participate in the
decision making
Effective method
to be used when
collective/ group
rights are
infringed for
which individual
litigation is not
practicable or
effective
Afford judicial
protection to
disadvantaged
groups

7. MANY USES
OF PIL
Provide access
to justice
Reform the
law
Ensure
government
accountability
Raise
awareness
Empower the
disadvantaged
Save costs

8. 2. HISTORY & INTER LINKAGES
• Stringent rule of locus standi
• Relaxation of standing to allow a case of “special interest “
The courts started to decide that a citizen can bring in a case to
secure enforcement of public law.
Robinson v Western Australian Museum (1977) 138 C.L.R. 283
Mason J. remarked16:
“Reflection on the considerations which underlie the rule does not provide much
assistance in defining the nature of the interest which a plaintiff must possess in order to
have locus standi. However, it does indicate that the plaintiff must be able to show that
he will derive some benefit or advantage over and above that to be derived by the
ordinary citizen if the litigation ends in his favour. The cases are definitely various and so
much depends in a given case on the nature of the relief which is sought, for what is a
sufficient interest in one case may be less than sufficient in another. Here the plaintiff
does not seek performance of a public duty; nor does he assert that he will suffer special
damage through interference with a public right – cases which are notorious for their
difficulties.”

9. HISTORY & INTER LINKAGES
Democracy
Direct and
representaive
Rule of law
Public participation
Violation of
fundamental rights
Social contract theory
Constitutionalism
Role of the judiciary

10. 3. HOSTILITY TOWARDS PIL
1. Opening flood gates argument
It is perceived as likely to overload the courts with what
are essentially political controversies that should be
thrashed out in a political party or a parliamentary
forum, rather than in a court room
2. Trusting public and private officials
we should generally resolve issues of governance by
enhancing democratic and political solutions to public
interest conflicts rather than promoting their resolution
in courts, constituted by unelected judges.

11. HOSTILITY TOWARDS PIL
3. Use of PIL for ulterior purposes and abuse of process.
Since almost any issue can be questioned under PIL-
there are instances where the process has been abused
for absurd reasons.
Desai and Muralidhar confirm the perception that:
‘‘PIL is being misused by people agitating for private
grievances in the grab of public interest and seeking
publicity rather than espousing public causes.’

12. HOSTILITY TOWARDS PIL
4. Judicial Populism
The fear of judicial populism is not merely academic is
clear from observation of Dwivedi J. in Kesavnanda
Bharathi v Union of India:
‘‘The court is not chosen by the people and is not
responsible to them in the sense in which the House of
People is. However, it will win for itself a permanent
place in the hearts of the people and augment its moral
authority if it can shift the focus of judicial review from
the numerical concept of minority protection to the
humanitarian concept of the protection of the weaker
section of the people.’’

13. HOSTILITY TOWARDS PIL
5. Disturbing the constitutional balance of power
Jain cautions against such tendency:
‘‘PIL is a weapon which must be used with great care
and circumspection; the courts need to keep in view
that under the guise of redressing a public grievance
PIL does not encroach upon the sphere reserved by
the Constitution to the executive and the
legislature.’’

14. 4. ADMINISTRATIVE LAW AND COMMON LAW
HERITAGE
• English Legal system, a citizen could take an
administrative body to court to control its executive
decisions by way of a writ. The primary function of the
writ was for a court to call before it and examine the
decisions of the administrative bodies whether they are
Municipal Councils or Commissioners or any other
administrative body.

15. 4. ADMINISTRATIVE LAW AND COMMON LAW
HERITAGE
• There were two main limitations in writ jurisdiction
1. courts would only allow a writ to examine
whether there was an ultra vires action
2. not every person could petition to court with a
writ : the capacity to petition a writ – standing.
Early English tradition only a person directly affected by
the decision of the administrator could challenge it (ex
Parte, Sidebotham (1880) 14 Ch.D )
Any interested member of the public could not bring a
writ application unless the administrative or policy
decision has affected him directly.-----this was a main
impediment to PIL.

16. 5. SRI LANKA
FUNDAMENTAL RIGHTS, CONSTITUTIONAL PRINCIPLES
AND WRIT JURISDICTION
• In Sri Lanka- the strict rule of standing was a colonial
legacy.
• The modern Sri Lankan legal system is created in line
with the Common law principles and hence the rule on
standing also was preserved.
• Sri lanka too began to question the stringent rule on
standing following the trend initiated by the Indian
supreme court

17. 5.1. WRIT JURISDICTION
• Under the 1978 Constitution, court of appeal
and high courts are vested with writ
jurisdiction.
• The law relating to standing was invoked in
the case of Durayappah v. Fernando
PC held that the MC against which the
deicision was taken should have petitioned
• Departure from Durayappah---Wijesiri v.
Siriwardane

18. 5.1. WRIT JURISDICTION
• Wijesiri v. Siriwardane- Wimalaratne J.
“in the light of sequence of events the result of the
investigation conducted by the authorities and the
genuine interest evinced by the petitioner it would not
be correct to label him as a mere busybody simply
interfering in things which do not concern him. In
instituting these proceedings he has acted bona fide as
he may have thought he was acting in the public
interest”
• The test used in the case was to see a “sufficient
interest.” This led to many a successful applications by
NGOs etc.

19. 5.1. WRIT JURISDICTION
• Centre for Policy Alternatives v. Commissioner of
Elections [2003] 1 Sri LR 277
- applicant was successful in seeking a writ of certiorari to quash the
decision of the Commission of elections to fill a vacancy in a PC by
appointing a person who was not nominated by the party originally.
• Kithsiri Gunaratne v. Commissioner of Motor Traffic
[1990] 2 Sri LR 14
– Applicant was a lawyer acting in the public interest- seeking to quash
the decision of the Commissioner to substitute driver’s license with a
new plastic card. Application was accepted and the decision was
quashed
• CA Writ Application No. 1776/2003, CA Minute of
25.07.2005
• CA Writ Application No. 1312/2004

20. 5.2. ENVIRONMENTAL ISSUES
• Environmental issues – through FR or writs
• Deshan Harinda v. CEB 1998 South Asian Environmental
Law Reporter v.5 (4) 116
EFL- legal aid to bring the issue to SC. The high level of noise pollution
produced by the operation of private power plant was challenged
• EFL v. AG (the Nawimana Case) 1996 South Asian
Environmental Law Reporter v. 3(4)103
court granted leave for EFL subject to objections. However the case was
settled.
• Environmental Foundation Ltd. v. Wickramanayake
challenged the license given to a private party to run a private zoo. Even
thought standing was allowed the court refused to grant the writ as it was
not an ultra vires action. However later a child died by being mauled by a
lion and the zoo was closed down

21. ENVIRONMENTAL ISSUES
• Public Interest Law Foundation v. Central
Environmental Authority and Another [2001] 3 Sri LR
330
Petitioner sought to challenge the decision to
construct a highway linking Colombo-Matara,
without considering more environment friendly
alternatives. The relief was not granted due to the
technical nature of the matter.

22. ENVIRONMENTAL ISSUES
• Bulankulame v. Secretary Ministry of Industrial
Development [2000] 3 Sri LR 243
Per Amarasinghe J,
I must confess surprise, for the question of 'public interest litigation' really
involves questions of standing and not whether there is a certain kind of
recognized cause of action. The Court is concerned in the instant case with
the complaints of individual petitioners.
On the question of standing, in my view, the petitioners, as individual
citizens, have a Constitutional right given by Article 17 read with Articles
12 and 14 and Article 126 to be before this Court.
They are not disqualified because it so happens that their rights are linked
to the collective rights of the citizenry of Sri Lanka rights they share with
the people of Sri Lanka. Moreover, in the circumstances of the instant case,
such collective rights provide the context in which the alleged infringement
or imminent infringement of the petitioners' fundamental rights ought to
be considered. It is in that connection that the confident expectation (trust)
that the Executive will act in accordance with the law and accountably, in
the best interests of the people of Sri Lanka, including the petitioners, and
future generations of Sri Lankans, becomes relevant.

23. ENVIRONMENTAL ISSUES
• EFL v. UDA (Galle Face Green Case)
The SC upheld the right of the petitioner to
maintain a petition under Art.126 of the
Constitution.
petitioner- that right to information under
freedom of expression was breached by UDA
when it failed to disclose the information
regarding a “deal” it entered into with a private
company to lease the Galle face green, to develop
a “mega leisure complex”.

24. 5.3. JUDICIAL REVIEW OF BILLS
• Supreme Court determination on the Water Services
Bill, SCSD Nos. 24 and 23 of 2003
• Intellectual Property Bill in 2003, SCSD Nos. 14-16 of
2003
• Article 121(1) a bill can be challenged for
constitutionality within one week of being placed on
the order paper.
• Many of the challenges to bills have been made via PIL

25. 5.4. FR JURISDICTION OF THE SUPREME COURT
• Article 126 of the constitution gives “sole and
exclusive” jurisdiction over FR to the Supreme
Court.
• The FR jurisdiction in Sri Lanka is a novel feature
to be introduced by the 1978 Constitution.
• Landmark cases that relaxed the rule of standing
in FR cases were Sriyani Silva v. Iddamalgoda ,
Somawathie v. Weerasinghe

26. FR JURISDICTION OF THE SUPREME COURT
• Jayantha Adikari Egodawela v. Dayananda Dissanayake
A petition was brought against the violation of right to vote,
where the petitioner contended the violation of others right
to vote affected his right as well. The Court accepted the
contention.
• Venerabel Omalpe Sobitha Thero v. Dayananda
Dissanayake, Commissioner of Elections, SC Minutes of
26th August 2005
challenge to the P-TOMS agreed by the LTTE and the GoSL.
Standing was given to 39 MPSs from JVP. They contended
their rights would be violated by the proposed arrangement
for the disbursement of tsunami relief and aid.

27. FR JURISDICTION OF THE SUPREME COURT
• Water’s Edge Case
• LMSL Case
• Senarath v. Chandrika Bandaranike
Kumarathuna (Presidents Entitlements
after retirement case)
• Check point case
• Noise Pollution Case

28. 5. INDIA
EVOLUTION OF THE CONCEPT AND CASE LAW
• In India – PIL – used as a method to provide access to
justice to all the citizens and has been a part of
constitutional litigation not civil litigation.
• Therefore the PIL in India is closely linked to the
constitutional framework and the role of the Indian
judiciary.

29. CONSTITUTIONAL STRUCTURE IN INDIA
Gained independence in 1947, and the
people adopted the Constitution in 1949
The constitution had the hope of establishing a
“sovereign and secular democratic republic” ----
compare this with the purpose of creating the
Constitution of Sri Lanka.
Aims of the constitution of India: - To secure to all
citizens : justice (social, economic and political)
liberty (of thought, expression, belief, faith and
worship)
equality (of status and opportunity)

30. CONSTITUTIONAL STRUCTURE IN INDIA CONT…
• The founding fathers of the constitution wanted to
achieve social revolution.
Social revolution
FR provisions in
the Constitution
An Independent
JudiciaryDirective
principles of
State policy

31. CONSTITUTIONAL STRUCTURE IN INDIA CONT…
• Part III of the Constitution: FRs and grounds for limiting the
rights
• Since a “right without a remedy has not much substance”
the Supreme Court has recognised the right to approach
the Supreme Court directly, to be a FRs as well.
• Holders of FR cannot waive them and the FRs cannot be
curtailed.

32. CONSTITUTIONAL STRUCTURE IN INDIA CONT…
FR
Those available
only to citizens
Available citizens
and non-citizens
Available to
groups or a
community

33. CONSTITUTIONAL STRUCTURE IN INDIA CONT…
• There are rights guaranteed against the State bodies and
some rights guaranteed even against non-state bodies.
• “state” is liberally defined in Article 12 of the
Constitution, to include –
‘the Government and Parliament of India and the
Government and the legislature of each of the states and
all local or other authorities within the territory of India
or under the control of the Government of India’.

34. CONSTITUTIONAL STRUCTURE IN INDIA CONT…
• The judiciary is the ‘‘sole’’ and ‘‘final’’ judge of what
constitutes basic structure of the Constitution. Over a
period of time, various provisions have been given the
higher pedestal of basic structure or basic features of the
Constitution, e.g. independence of judiciary, judicial
review, rule of law, secularism, democracy, free and fair
elections, harmony between FRs and DPs, right to equality,
and right to life and personal liberty.
• Even though directive principles are not justiciable they are
nevertheless “fundamental in the governance of the
country and it shall be the duty of the state to apply these
principles in making laws’’

35. CONSTITUTIONAL STRUCTURE IN INDIA CONT…
• Indian supreme court has held that the FRs and DPs are
complementary of each other and FRs are means of
achieving the goals indicated in the DPs.
• In Minerva Mills Ltd v Union of India the Court held that
the,
‘‘harmony and balance between fundamental rights and
directive principles is an essential feature of the basic
structure of the Constitution’’

36. ROLE OF THE JUDICIARY IN SAFEGUARDING THE
CONSTITUTION
Founding fathers -
Judiciary as the bastion of
rights and justice
Independent judiciary +
power of Judicial Review
Power to enforce FR -
Supreme Court and the
High Courts
Judiciary can test the
validity of laws and
executive actions and
constitutional
amendments
Supreme court has
delivered judgments of
immense importance in
determination of public
policy, establishing rule of
law and constitutionalism

37. INDIAN JUDICIARY AND PIL
• The ground work for PIL in India was set by Bhagwati and
Iyer JJ. – in mind 1970- 1980s
• These judges modified the traditional requirement of
locus standi, and liberalised the procedure for writ
applications, expanded the FRs and introduced
innovative remedies.

38. INDIAN JUDICIARY AND PIL
• Need for modifying the requirement of standing:
- it is a sine qua non for the evolution of PIL in any
public participation in justice administration.
-India- it is needed more with a majority of people
who are ignorant of their rights or living below the
poverty line to have access to court.
• Court has held that any member of public acting bona fide
and having sufficient interest has a right to access the
court to redress a legal wrong,
especially when the actual plaintiff suffers from some
disability or when the violation of collective diffused rights
is at stake.

39. INDIAN JUDICIARY AND PIL
• Gupta v Union of India (1981) Supp S.C.C. 87, 210
Where a legal wrong or a legal injury is caused to a
person or to a determinate class of persons by reason of
violation of any constitutional or legal right ... and such
person or determinate class of persons is by reasons of
poverty, helplessness, or disability or socially or
economically disadvantaged position, unable to approach
the Court for any relief, any member of the public can
maintain an application for an appropriate direction,
order or writ.’’
• PUDR v Union of India AIR 1982 SC 1473
• Bandhua Mukti Morcha v Union of India (1984) 3 S.C.C.
161.

40. • Justification for extension of standing:
-to enforce rule of law
-to provide justice to the disadvantaged sections in
the society.
- the constitution has provided that there should be
“appropriate proceedings” to enforce a FR. The court
has interpreted that it is the purpose that matters.
Therefore as long as it is to enforce a FR any
proceeding would do!
thereby court developed a form of FR applications
that is unique to India - epistolary jurisdiction
INDIAN JUDICIARY AND PIL

41. • Epistolary Jurisdiction
• There American supreme court in the case of Gideon
v. Wainwright (1963) 372 US 335 , treated a postcard
from a prisoner as a petition.
• The supreme court of India in the Judges Case, stated
that a public- spirited person could move the court
even by writing a letter.
• Sunil Batra v Delhi Administration AIR 1980 SC 1579
• Dr Upendra Baxi v State of UP (1982) 2 S.C.C. 308.
INDIAN JUDICIARY AND PIL

42. • After relaxing the rule of standing the Indian judiciary
developed a rage of issues that can be brought in
through PIL.
• This was done by interpreting existing FRs widely and by
creating new FRs.
• Article 21—‘‘no person shall be deprived of his life or
personal liberty except according to the procedure
established by law’’—proved to be the most fertile
provision in the evolution of new FRs.
INDIAN JUDICIARY AND PIL

43. • Expansion of right to life to include
-right to live with human dignity and all that goes along
with it : Francis Coralie v Union Territory of Delhi AIR
1981 SC 746, 753.
-right to health: Parmanand Kataria v Union of India AIR
1989 SC 2039; Paschim Banga Khet Mazdoor Samity v
State of West Bengal (1996) 4 S.C.C. 37.
-livelihood : Olga Tellis v Bombay Municipal Corp AIR
1986 SC 180; DTC Corp v DTC Mazdoor Congress AIR 1991
SC 101.
INDIAN JUDICIARY AND PIL

44. • Expansion of right to life to include
-free and compulsory education up to the age of 14
years: Unni Krishnan v State of AP (1993) 1 S.C.C. 645.
-unpolluted environment: Indian Council for Enviro Legal
Action v Union of India (1996) 3 S.C.C. 212; Mehta v
Union of India (1996) 6 S.C.C. 750; Vellore Citizens
Welfare Forum v Union of India (1996) 5 S.C.C. 647;
Narmada Bachao Andolan v Union of India (2000) 10
S.C.C. 664
INDIAN JUDICIARY AND PIL

45. INDIAN JUDICIARY AND PIL
• Expansion of right to life to include
-shelter: Gauri Shankar v Union of India (1994) 6 S.C.C.
349
-clean drinking water: A.P. Pollution Control Board II v M
V Nayudu (2001) 2 S.C.C. 62
-privacy: Kharak Singh v State of UP AIR 1963 SC 1295;
Govind v State of MP AIR 1975 SC 1378; Raj Gopal v State
of Tamil Nadu (1994) 6 SCC 632; PUCL v Union of India
AIR 1997 SC 568; X v Hospital Z (1998) 8 S.C.C. 296.
-legal aid, speedy trial and other matters in trials
Hoskot v State of Maharashtra AIR 1978 SC 1548;
Hussainara Khatoon v State of Bihar AIR 1979 SC 1369;
Khatri v State of Bihar AIR 1981 SC 928; Suk Das v Union
Territory of Arunachal Pradesh AIR 1986 SC 991.

46. INDIAN JUDICIARY AND PIL
• State Of Uttaranchal vs Balwant Singh Chaufal & Ors decided
on 18 January, 2010, divide the public interest litigation in
three phases:
•
• where directions and orders were passed primarily to
protect fundamental rights of tmarginalized groups and
sections of the society who cannot approach the Court or
the High Courts.
• More of recognition of rights than real change of status
quo. Whether PIL was effective?
Phase 1
• It deals with the cases relating to protection, preservation
or ecology, environment, forests, marine life, wildlife,
mountains, rivers, historical monuments etc. The cases
became more institutionalised.
Phase 2
• 21st century -deals with the directions issued by the
Courts in maintaining the probity, transparency and
integrity in governance.
• Any one can file a PIL for almost anything
Phase 3

47. • Remedies
• The next problem was to find the suitable remedies for
PIL petitioners.
• SC appointed fact-finding commissioners and amicus
curiae.
• the Court developed ‘‘creeping’’ jurisdiction thereby
issuing appropriate interim orders and directions.
• The judiciary has also emphasised that PIL is not an
adversarial but a collaborative and cooperative project in
which all concerned parties should work together to
realise the human rights of disadvantaged sections of
society.
INDIAN JUDICIARY AND PIL

48. The development of PIL jurisprudence in India has been
impacted by many factors:
1. Constitutional framework –
2. Constitutional provisions concerning the powers of the
Supreme Court helped the Court in coming up with
innovative and unconventional remedies:
‘‘The Supreme Court in the exercise of its jurisdiction may pass such
decree or make such orders as is necessary for doing complete justice in
any cause or matter pending before it.’’ Constitution of India 1950
art.142(1)
PIL IN INDIA

49. 3. Extent and level of judicial activism shown by the Indian
Supreme Court and High Courts.
4. Relatively weak executive at the centre.
5. Supreme court has developed ‘‘Guidelines to be
Followed for Entertaining Letters/Petitions Received
by it as PIL’’.
Based on the full-court decision of December 1, 1988,
have been modified on the orders/directions of the
Chief Justice of India in 1993 and 2003.
PIL IN INDIA

50. THE WAY FORWARD IN PIL
• Its all about balancing
Allowing legitimate
PIL cases
Discourage
misuse of
PIL
Protection
of rights and
engaging
citizens

51. REFERENCES
• Bhagwati J., ‘‘Judicial Activism and Public Interest Litigation’’, 1984, 23 Columbia
Journal of Transnational Law 561
• Dr. Deepika Udagama, “Some Reflections on the Emerging Jurisprudence on Public
Interest Litigation in Sri Lanka, Academic Conference on “Law on Context: An
Agenda for Reform”, 2008, Faculty of Law, University of Colombo
• Hon. Michael Kirby AC CMG, ‘Deconstructing the Law’s Hostility to Public Interest
Litigation’ , Law Quarterly Review, 2011
• Sarbani Sen, ‘Public Interest Litigation in India: Implications for Law and
Development ‘, Mahanirban Calcutta Research Group, 2012
• S.P. Sathe, Judicial Activism in India, New Delhi: OUP, 2002
• Surya Deva, Public Interest Litigation in India: A Critical Review, Reprinted from
Civil Justice Quarterly Issue 1, Sweet & Maxwell, 2009
• Upendra Baxi, ‘‘Taking Suffering Seriously: Social Action Litigation in the Supreme
Court of India’’ , 1985, Third World Legal Studies 107
• Varun Gauri, ‘Public Interest Litigation in India: Overreaching or Underachieving?’,
Policy Research Working Paper 5109, The World Bank Development Research
Group Human Development and Public Services Team November 2009

52. Any Questions or Comments?

53. Thank you!