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This article has been written by Johana George, pursuing the Executive Certificate Course in Introduction to Legal Drafting from LawSikho.

Introduction

Supreme Court Statistics Pack 2018 has found a curious relationship between the 2 kinds of PILs – letter and writ petitions. Though both increased dramatically in the early 2000s, the PIL writ petitions did drop to historical lows in 2016-2017, whereas the letter-petitions didn’t. In 2018, the number of writ petitions (150) is not that significantly greater than that of 1985 (107). By contrast, for the same interval, the number of letter petitions doubled from 24,700 to 51,350. The drastic increase in the number of letters and the disturbing frequency in the number of writ petitions in this yearly account does not signify the overloading of PILs (since the percentage of PILs filed has reduced from 41% in 1990 to 1-2% rates as witnessed today), but the reduced awareness among people on how the drafting of writ public interest litigation is done so as to reduce the court work. 

What is a PIL and Who Can File It?

PILs are the legal practices undertaken to safeguard the rights of economically weaker and vulnerable communities as well as to effect changes in the development of social policies, monitoring state institutions like prisons, asylums, and protective homes, fieldwork, investment, assessment, compliance, and enforcement, campaigning, on ‘not-for-profit’ terms. They have now become a major legal tool enforcing the legal obligation to the Legislature and Executive and challenging the legality of decisions by public authorities. It safeguards group interests and not individual interests, thus diluting the concept of locus standi’. A public interest litigation isn’t introduced in the Court Of Law by the aggrieved party but by a private party or the court itself.

Power of judicial review 

 The apex court in the landmark judgment of S. P. Gupta v. Union of India elucidated that they must make it clear that the one who moves to court for judicial redress in these kinds of cases must act bona fide with a view to vindicate the cause of justice; If he is acting for personal gain, private profit, out of political motivation or any other oblique consideration, the court shouldn’t allow itself to be activated at the instance of that person and must reject the application at the threshold. The concept stems from the power of judicial review which has a big hand in Indian polity.

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Importance of giving ‘access to justice’ a wider scope 

Justice Anand comments that the Supreme Court has realized that it was necessary to depart from the traditional rule of locus standi, to broaden access to justice when a legal injury is caused to a person or a class of persons, who because of their poverty, disability or for being in a socially or economically disadvantaged position, cannot or could not approach the court for relief, by way of Public Interest Litigations any member of the public or social action group or interest group or even a concerned citizen, acting bona fide, can maintain an application in the High Courts or the Supreme Court, and seek judicial redress.

Understanding the jurisprudence of PILs in India 

Historically, the development of PIL is often attributed to the case of Brown v. Board of Education (1954) in which the US Supreme Court found that a state’s segregation of public school students by race was unconstitutional. In India, The famous Hussainara Khatoon case(1979) is held as the first-ever PIL, releasing almost 40000 undertrials from Patna’s jails. The successful petitioner, who had no personal locus standi, is therefore called the ‘Mother of PILs’. The case hence made PILs a permanent fixture in Indian jurisprudence.

Importance and vitality of PILs

Justice P.N. Bhagwati never insisted on the observance of procedural technicalities in PILs and treated even ordinary letters from public-minded individuals as writ petitions. The court can treat a letter as a writ petition and take action on it, if and only if, satisfied to be addressed by the aggrieved person, any public-spirited individual or social action group for the enforcement of legal or constitutional rights to any person who, upon poverty or disability, are not able to approach the court for redress. 

For the same, the Supreme Court has established a PIL cell within the Supreme Court Registry to look into all potential PIL petitions submitted to the Supreme Court in the form of letters. Upon assessing the letter, the registry will either dispose of the letter as insufficient for instituting a PIL; or refer the letters to the Supreme Court Legal Aid Committee (SCLAC), the Legal Aid and Advice Board (LAAB) of the respective state, or to the appropriate government department; Or register the letter as a writ petition to the Court. The Registry of the SC or HC only ensures that the technical requirements of filing a petition are fulfilled. 

Now, even the court itself can initiate legal action ‘on its own motion’ (suo motu), following public interest issues being raised in the media. Any Indian citizen or organization can move to court on public interest by filing a petition of PIL in High Courts (Article 226) or Supreme Court (Article 32). At present, only judges have the power to dismiss a petition. 

Public Interest Litigation on Environmental Issues

“The environment is not an abstraction but represents the living space, the quality of life, and the very health of human beings, including generations unborn”. This statement, made by the International Court of Justice in the Nuclear Weapons Advisory Opinions, succinctly captures the paramount importance that an intact environment, i.e., the integrity of air, water, soil, flora, fauna, climate, and natural ecosystems has.

The value of PILs for sustainable development lies in the ability to correct decisions and render the government authorities accountable to civil society organizations. It can make human rights obligations meaningful to all parts of society, thus contributing to social and environmental justice. Petitions pertaining to environmental pollution, disturbance of ecological balance, drugs, food adulteration, maintenance of heritage and culture, antiques, forest and wildlife and other matters of public importance are now taking the stage. The Dehradun limestone quarrying case (1983), followed by the Ganga water pollution case, and Delhi vehicular pollution case to Vellore leather industry pollution case, and the T.N. Godavarman case, all cases were brought to the attention of the court through PILs. It should be thus noted that the development of environmental PIL in India is set against the country’s dramatic environmental degradation. 

Landmark Cases

  • In Rural Litigation and Entitlement Kendra Vs State of U.P., the Supreme Court held that the right to unpolluted environment and preservation and protection of nature’s gifts has been conceded under Article 21 of the Constitution of India. The constitutional provisions provide the bed-rock for the framing of environmental legislations in the country. Article 48-A of the Constitution deals with ‘Protection and Improvement of Environment and Safeguarding of Forests and Wildlife’. Under Article 51-A (g), the Constitution provides the Fundamental Duties with respect to the environment –“To protect and improve the natural environment including forests, lakes, rivers, and wildlife and to have compassion for living creatures”.

Other Environment-related Laws are enacted by the Parliament under Articles 252 and 253 of the Constitution of India. The Water (Prevention and Control of Pollution) Act, Air (Prevention and Control of Pollution) Act, 1981, and the Environment (Protection) Act, 1986 were promulgated, which empowered the Parliament to enact legislation on such matters as necessary for compliance of International Agreements in which India has been a party.

  • The right to a humane and healthy environment is seen indirectly approved in the MC Mehta group of cases, decided subsequently by the Supreme Court. The Supreme Court enlarged the scope of the Right to Live and explained the State’s power to restrict hazardous industrial activities to protect the rights of the people to live in a healthy environment. They posed the important question on the amount of compensation payable to the victims affected by the leakage of toxic substances or gases from industries and factories. The Court also issued directions to industries polluting river Ganga to set up effluent plants. It thus evolved a new jurisprudence of liability for activities against our environment and ecology.

Generally, in environmental public interest litigation, citizens usually proceed against the State, asking to take a particular action where regulation was unsuccessful or lacked enforcement. When petitions are directed against the government, they are compelled to fulfil its enforcement duty or prevent any other illegal government activity. Hence, in these instances, the Supreme Court makes use of existing environmental legislation and, through its actions, confirms the existing legislation, which largely remained ineffective due to a lack of enforcement. The judicial activism of the court is, in those cases, specifically aimed at doing what the Executive should have done. But if this strong involvement of the court covers a long period of time, it may lead to the Judiciary replacing the Executive as an environmental policymaker. This may then raise questions of legitimacy and accountability of the court to fulfil the role as it clearly violates the limits imposed by the “Doctrine of Separation of Powers”.

This role of the court is criticized for the simple reason that the court lacks the institutional equipment for undertaking legislative or administrative functions as judges are not elected. However, in some cases, the court seems to ignore legislation and sets up its own committee too.

When PIL plaintiffs require the court to order the State to undertake particular actions against other third parties, they will have to take actions subsequent to the court order. But remarkably, the industries affected by the order often do not appear as defendants in the case. However, recently, in a few PIL cases, the courts have made reference to the “precautionary principle” to argue that, there should be a “reversal of the burden of proof by which the onus of proof is on the developer or the industry to show that its action is environmentally benign. Here, rather than disputing the allegations, the State thus becomes the court’s helpful fact-finder.

Format of Writ Petition

Cover Page

This includes only the main information i.e., the name of the court, jurisdiction, petition reference number, names of the petitioners.

Memo of Parties

This clause includes the registered address of the petitioner/s and the respondent/s. Any change in addresses of any of the petitioners or respondents thereafter shall be communicated by him/her respectively to the Court and thereafter the changed address shall be deemed to be incorporated in the petition.

Urgent Application

The urgency of prayer should be included only if the petition is to be immediately considered. The prayer is addressed to the registrar of the concerned High Court or Supreme Court. The urgent case filed for listing will be accepted only if the Notice of Motion and an advance copy is personally served to the Respondents by the Petitioners.

Notice of Motion

It is a formal notice to the respondent/s in litigation with the intent to seek specific relief in an action for the petitioner/s and to inform the proposed date of the first hearing. If for any reason the writ petition is not listed for hearing on the specified date or within three (3) days of the specified date, a fresh Notice of Motion in the form of another annexure must be served on the Respondents stating the proposed new date of hearing.

Synopsis and List of Dates

This clause includes a summary of facts and legal arguments concerning the matter of dispute. Narrate briefly the facts leading to the filing of the petition (in chronological order) by consecutively numbered paragraphs. Include the complete list of the dates of relevant events here.

Index

It must include all important headings of clauses and annexures with proper pagination.

Preamble

The preamble must include the specific name of the court, the basis of the court’s jurisdiction, the petition number, the cause title, and the description of the petition. The names of the petitioner/s and the respondent/s come next. The petition is submitted to the Chief Justice (of the relevant High Court or Supreme Court) and his companion judges.

Main Body

The Main Body of the petition includes:

Question(s) of Law

  1. The opening paragraph includes here. It must be mentioned here that the present writ petition (under the relevant article of the constitution) is being filed by way of public interest litigation, with no personal interest for the petitioner but the benefit of the citizens of our country. State that he/she isn’t guided by any motives of self-gain or gain for any other person/institution/body and that he is filing the PIL on his own and not at the instance of someone else(Any personal interest, if present, must be disclosed and provide in details of that person/class of persons). Public spirited antecedents of the petitioner can be added. No one has a right to the waiver of the locus standi in public interest litigation. The court would permit the petition only if satisfied that the carriage of proceedings is within the competent hands of a person who is genuinely concerned in the public interest without being moved by any extraneous aims.
  2. Affirm that the petitioner/s has/have done enough and more research on the matter and has consulted all the individual/s and group/s affected. Be meticulous in gathering details for use and one must have in mind that a good cause can be lost if petitions are filed on half-baked information without proper research or are done by persons who are not qualified and competent enough to raise such issues as the rejection of such a petition as it may affect third party rights. 
  3. If you plan to use photos, one must retain the negatives and take an affidavit from the photographer. One must be careful enough to retain all the bills.
  4. Mention the complete details of the respondent/s including his name, designation, address, and field of work. If the petitioner is an organization, the names of the office-bearers must be furnished. To the best of the petitioner’s knowledge, no other persons/bodies/institutions than the ones aforesaid should likely be affected by the orders sought in the petition.
  5. It must be mentioned that the petitioner/s has/have the required means to pay if any cost is imposed by the Court. The source of funds of the petitioner must be disclosed. If the funds are borne by himself/themselves, then affirm that the litigation cost, including the advocate’s fee, and his/her travel expenses, if any, are met by the petitioner himself.
  6. Add all the efforts taken by the petitioner/s for the case. State whether the petitioner has/has not sent representation in the regard. (If yes, show the details of such representation and reply, from the authority concerned along with copies thereof, must be filed. If not, provide the reason for not sending such).
  7. Provide details of PILs or other cases, if any, filed before in any courts of law, by the petitioner himself or by anyone else on the same matter of dispute (include the case number, the court, status, and brief description of the order passed). It must also be stated in particular whether any costs had been awarded for or imposed against the petitioner in those cases; and whether any appreciation or stricture has been passed; and whether any commission or statutes were instituted. The complete officials list as well as all the information regarding the proceedings of the commission, if any, must be provided. If any statute or interim reports had been constituted, the complete clauses should be attached as an annexure, with the petition (The courts frequently call upon the National Environment Engineering Research Institute (NEERI) to submit the reports). It must also be stated specifically if the matter is held before the court for the first time. 
  8. If any earlier judgments had been passed or filed, in any courts of law, relating to the subject matter of dispute, references and court orders can be added here. If detailed descriptions are required they can be attached as a particular annexure.
  9. Describe the source of information on the facts pleaded. All vital documents and information to support the case have to be collected and submitted as evidence. It can be any news reports, statistics, studies, or that the applicant has verified the facts by personally visiting the place, talking to other people, or from the reporter/editor of the concerned newspaper. In reasonable situations, if the petitioner/s does/does not wish to disclose the source, mention the same. Make sure that the provided information is authentic.

Grounds

This clause requires a clear narration of the facts and a brief articulation of the legal grounds. State grounds with specific mention of the violation of particular constitutional or statutory provision/s or any other administrative instruction/s. These relevant provisions of the Constitution and statutes must be quoted and annexed.

All the annexed documents should be incorporated with the main petition so that no separate application is required to be filed for the purpose. They must bear an annexure mark which shall consist of the letter ‘P’ followed by the serial number of the document (Example- P1, P2).

Averments

Mention in this clause that the petitioner/s has/has not filed any other petition, claim, suit, or proceeding in any other court or tribunal throughout the territory of India regarding the matter in dispute. Affirm that petitions filed at any other courts before have been withdrawn and are not being further prosecuted in view of this petition. The petitioners have no better remedy available than that of this petition.

Interim Relief

  • Many kinds of relief are available under this clause at large. It may include interim orders or measures are taken in accordance with the nature of urgency of the case. The court can afford early interim measures to secure the public interest until the final order is passed. Some common ones are:
    • Closure of industrial plant/s emitting toxic gas/es or substance/s.
    • Setting up a victim compensation scheme.
    • Reopening of a plant subject to extensive directions.
    • Prohibiting deforestation in particular areas.
    • Making early provisions for the discharge of sewage.
  • The court may also appoint a committee, or commissioner, or an environmental specialist to look into the matter, inspect the allegations, and submit the report. Such committee or commissioner may also be given the power to take cognizance of grievances and settle it right in accordance with public intent. 
  • The court may also appoint senior advocates as amicus curiae to assist the court in PIL cases, fasten the proceedings and ensure that the process of the court is not misused.
  • The prayer of interim relief, if any, made after the filing of the writ petition shall be made by way of a separate application duly supported by an affidavit.
  • If interim relief is claimed, the petitioner shall ordinarily furnish to the respondent/s, copies of such petition and all documents in support of the plea, and the petition shall contain a statement to the effect.
  • If required, it can also be pleaded to pass the interim order as the final decision

Prayers

  • Any specific remedies or reliefs required or expected by the petitioners can be mentioned in the said clause. It may be prayed that the court, in the public interest, shall pass such other orders/writs or directions as may be deemed necessary, fit and proper under the facts and in the circumstances of the case.
  • It must be sworn and signed that the petitioner has filed the petition in person (if by any other ways, specify). The petitioners’ lawyer consulted for the matter of dispute should stamp his identity as well. Include the date and place where the petition is signed, at the end of the PIL.

Affidavit

  • The writ petition is to be accompanied by an affidavit duly sworn and signed by the petitioner in which he solemnly affirms that every provided information and prayer (mention the reference number of the clauses of Question of Law and Prayers here) about the case/incident is true and correct to the best of his/her knowledge and belief.
  • The deponent as well as the assigned lawyer must then confirm and sign the document. 

Grounds on Which a PIL Can Be Rejected

  1.  Infructuous petition.
  2.  Not impleading necessary parties.
  3.  Misrepresentation or suppression of facts.
  4.  Res Judicata- it means that if any competent Court of Law has dismissed a case, then there is no need of going to another (Section 11 of CrPC).
  5.  Delay or lache from the part of the petitioner- detailed particulars and adequate reasons for the delay are required, in case the petition is prima facie belated. If not provided, the petition may be dismissed.
  6. Malicious Petitions.

Challenges  

While the Court did entertain PILs on environmental problems such as water pollution, air pollution, and forest degradation, it has been observed that there has been an attempt within the judicial system to maintain a distance from PILs against infrastructure projects such as dams, thermal power plants, airports and railway constructions owing to environmental protection, showing a pre-development bias in courts. They thus lay down guidelines for entertaining public interest litigations thereby creating fear among the public-spirited persons for their fight for environmental justice.

The outcomes of the Tehri Dam case, the Narmada Dam case, and the construction of the thermal power plant in Dahanu taluka, near Mumbai, offer notable illustrations of this pro-development approach. The grounds of challenge in these cases include issues like adverse environmental impacts, safety aspects, loss of ancient monuments, forced displacement, and inadequate resettlement and rehabilitation of people. In the cases of the TBVSS v. Uttar Pradesh and Narmada Bachao Andolan v. Union of India and the Dahanu Taluka Environment Protection Group v. BSES, the respective judges emphasized that the Court couldn’t interfere in those development activities. 

The reason was that it produced scientific and technical issues and policy matters, which were best left to the Executive agencies, thus being complicit in the branch, subordinating the environment to commercial developments. The views expressed in all environmental litigation concerning infrastructure projects have supported the government’s assertion that it must carry out its activities in the national interest.

Conclusion 

Taken together, letters and writ petitions provide an avenue for individuals to raise legal challenges regarding the criminal justice system or other areas of law. While the PIL system has faced great challenges with respect to the failed implementation of court directives, abuse of frivolous PIL petitions for private and political reasons, and increasing limitations by the Supreme Court, it continues to serve as an important conduit for redress through the courts. However, it needs to be appreciated that the efforts of the courts can only achieve marginal success unless there are social, political, and economic changes in the Government and the people towards adhering to environmental pillars for sustainable development.

References


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