Public Interest Litigation and Writ Petitions

The preamble of our Constitution is nothing but declaration made by the legislature with the objective for the passing of the statute and is helpful in the interpretation of any of the statute.

The proper and expected function is to explain the meaning of some words and recite certain facts which are necessary to be explained. The preamble may be used for other reasons, such as, to limit the scope of certain expression or to explain facts or introduce definitions. It is the basic structure of our Constitution.

The fundamental rights as stated in Chapter III of the Constitution and those are mostly based on -

Laws which are inconsistent with or in derogation of the fundamental rights, would be struck down and declared as ultra-virus.

There is Right to Equality - Equality before law, Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, Equality of opportunity in matters of public employment, Abolition of Untouchability, Abolition of titles.

Right to Freedom - Protection of certain rights regarding freedom of speech, etc., Protection in respect of conviction for offences, Protection of life and personal liberty, Right to education, Protection against arrest and detention in certain cases

Right against Exploitation - Prohibition of traffic in human beings and forced labour, Prohibition of employment of children in factories, etc.

Right to Freedom of Religion - Freedom of conscience and free profession, practice and propagation of religion, Freedom to manage religious affairs, Freedom as to payment of taxes for promotion of any particular religion, Freedom as to attendance at religious instruction or religious worship in certain educational institutions.

Cultural and Educational Rights - Protection of interests of minorities, Right of minorities to establish and administer educational institutions,

Saving of Certain Laws - Saving of Laws providing for acquisition of estates, etc., Validation of certain Acts and Regulations, Saving of laws giving effect to certain directive principles.

Right to Constitutional Remedies - Remedies for enforcement of rights conferred by this Part, Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc., Restriction on rights conferred by this Part while martial law is in force in any area, Legislation to give effect to the provisions of this Part.

Directive Principles of State Policy, wherein the following issues are discussed -

Application of the principles contained in this Part

State to secure a social order for the promotion of welfare of the people

Certain principles of policy to be followed by the State

Equal justice and free legal aid

Organisation of village panchayats

Right to work, to education and to public assistance in certain cases

Provision for just and humane conditions of work and maternity relief.

Living wage, etc., for workers

Participation of workers in management of industries

Promotion of co-operative societies.

Uniform civil code for the citizens

Provision for early childhood care and education to children below the age of six years

Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections

Duty of the State to raise the level of nutrition and the standard of living and to improve public health

Organisation of agriculture and animal husbandry

Protection and improvement of environment and safeguarding of forests and wild life

Protection of monuments and places and objects of national importance

Separation of judiciary from executive

Promotion of international peace and security.

Fundamental Duties of the citizen are stated in the Constitution, which are expected to be performed by them.

The other relevant provisions as are to be kept in mind are -

a. Power of High Courts to issue certain writs (Art. 226)

b. Taxes not to be imposed save by authority of law (Art. 265)

c. Persons not to be deprived of property save by authority of law (Art. 300A) – Right to Property

d. Freedom of trade, commerce and intercourse (Art. 301)

e. Recruitment and conditions of service of persons serving the Union of the State (Art. 309)

f. Claims for Scheduled Castes and Scheduled Tribes to service and posts (Art. 335)

g. Socially and educationally back-ward classes (Art. 342A)

There is no any codified law for the Public Interest Litigation but there are rules regarding its maintainability, which is known as Maintainability of Public Interest Litigation Rules, 2010, in light of the judgment by Supreme Court. Thereafter different high courts in India framed rules, as per the directions.

There is every possibility that for our personal gain, one may approach the court under the garb of public interest. To avoid all these possible hurdles, the next and further question is about the locus standi to file PIL, who can file PIL. It is broadly, minutely and elaborately discussed in several judgments by interpreting the locus standi about PIL sothat it should be protected from the possibility of misusing its strength which is awarded by our legal and judicial system by our social approach of public interest.

The Supreme Court has also a very wide appellate jurisdiction over all Courts and Tribunals in India in as much as it may, in its discretion, grant special leave to appeal under Article 136 of the Constitution from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court or Tribunal in the territory of India. The High Court stands at the head of a State's judicial administration.

This is narrated under Art. 21 of The Constitution of India as – Protection of life and Personal Liberty "No person shall be deprived of his life or personal liberty except according to procedure established by law".

The right to life is valuable and important life of surviving. This right is available not only to citizen of India but also to all, who may not be citizen.

It can be called as the first, important right in the society, which is following the democratic principles as most of all the rights can be covered under this head, therefore it is to be safeguarded forever and there shall be provision in the legislation as that is recognized, sothat everyone can take this weapon for protection of this right against anybody, including State or any act, which is violating this right would be called, the violation of this right by State. These rights are natural rights of human and cannot be aid to be creation of any statute but is recognized by it.

That can be narrated in brief as -

All citizens shall have the right—

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions or co-operative societies;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; and

(g) to practise any profession, or to carry on any occupation, trade or business

What is mean by ‘Right of Privacy’, can be narrated as ‘The right to be let alone’. The right of privacy is under Law of Torts and also under Constitution of US. This right under Law of Torts is subject to limitations of public policy, which would entitle the victim to recover damages, relief of injunction from the wrongdoer.

This right of privacy is having different aspects, such as – Political Privacy, Medical Privacy, Genetic Privacy, Internet Privacy, Privacy during online hob search, Privacy from Corporations, Privacy from Government interference etc. Right of Privacy means the right to be allowed to enjoy one’s life with minimum interference of others right. Right regarding telephone tapping, is serious violation of right to privacy but that is also restricted under certain exceptions, such as – the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, for preventing incitement to the commission of an offence.

This is related to right to life as for livelihood of anybody, one has to something for his earnings, that may be business, profession, trade and should offer his services sothat he may earn as consultant or being employee of any employer. He has every right enjoy the right of trade and business, by following norms and guidelines in the light of the rules, legislations enacted by State. He would also enjoy the right of being employee or employer following rules, regulations enacted by State. That right is available with certain restrictions and that is not absolute right.

This right is made available as per the amendment made in 2002 in Constitution as – The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.

The separate enactment was passed as The Right of Children to Free and Compulsory Education Act, 2009, which is central law. There are different and several provisions made therein for the betterment of children and their education.

The rights of minorities are discussed under Art. 29 of our Constitution that is about ‘Protection of Interests of minorities, specifying the ‘distinct language, script or culture of its own’, when Art. 30 is about ‘Right of minorities to establish and administer educational institutions’ that speaks about two types of minorities that is religious and linguistic.

There is discussion about the rights of minorities under Art. 350A about the facilities for instructions at primary stage, and shall be the endeavour of every State and of every local authority within the State to provide adequate facilities for education in their mother-tongue Art. 350B is about appointment by President as special officer for linguistic minorities to investigate all matters to the safeguards provided for linguistic minorities under this Constitution and report to the President from time to time, which are to be placed before each house of Parliament and to be sent to the States concerned.

But there is no any proper definition of this word ‘minorities’ in our Constitution.

The relevant legislation is enacted for the minorities as The National Commission for Minority Educational Institutions Act, 2004.

This right is available Subject to public order, morality and health and to other provisions of this Part, all persons are equally entitled to freedom of conscience and right freely to profess, practice and propagate religion. It is recognized under Art. 25 of the Constitution but that is subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. Nothing in the relevant provision, shall affect the operation of any existing law or prevent the State from making any law, which may defeat the peace of society, law and order.

Abandonment of service, in that case grant of back-wages and re-instatement would not be proper. Continuous service for considerable time may create right of absorption in service. Deputationist has no right to be absorbed to the post, in which he was deputed. A person who is not performing additional duty, would not be entitled for additional remuneration. The person who is appointed on temporary basis, has no right to be continued till the regular selection. The post which are requiring special skills, for that criteria would be only on merit.

That is also expressed in our Constitution as - there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

It is the duty of Government not to allow unlawful agitations, bund, rally etc. in order to protect the public life, liberty and property. Evil of alcoholism and constitutional remedies for social justice.

That is expressed under the Constitution as - the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.

This is an important right as in the present facts and circumstances, with expectation that person should not take disadvantage of his dominant position and situation against the person, who is under threat of surviving. The Minimum Wages Act, is applicable sothat every worker shall get the minimum wages, for his working, which is declared by the competent authority for the prescribed area from time to time, as what would be the minimum wages for that area. Equitable wages must be paid to the labour of prisoners.

Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.

No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.

There is enact by our parliament, as The Protection of Human Rights Act, 1993, wherein it is clarified.

The definition of human rights could be extended to include right to property also. The complaint to Human Rights Commission disclosing sexual harassment against high intellectuals. There are incidents about the living persons, as declared to be dead hence revenue record was prepared, fabricated by land mafiya in collusion with government officials, hence poor agriculturists were deprived from cultivating the land.

The fundamental rights available to the citizens cannot be denied in the name of discipline but the reasonable restriction can be imposed on that. The restrictions as referred under Art. 33 of Constitution.

That is stated in our Constitution as - Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to,—

(a) the members of the Armed Forces; or

(b) the members of the Forces charged with the maintenance of public order; or

(c) persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence; or

(d) person employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.]

The enactment was passed as Army Act, 1950 in pursuance to the provisions of Art. 33 of the Constitution, and as per Section 21 of that Act, the provisions about ‘Power to modify certain fundamental rights in application to persons subject to this Act’ is stated.

The environmental law is an instrument to protect and improve the environment and to control or prevent any act, omission polluting or likely to pollute it. Environment protection comes under the basic human rights. There is provision as Art. 48A in Constitution. But it being directive principles under Art. 37, it cannot be enforced but the duty is casted under Art. 51A on the citizens. Court must balance development and preservation of ecology.

There was United Nations Conference on Human Environment at Stockholm in 1972. The provisions of Environment Protection Act, 1986 are also important.

Art. 23 of our Constitution is prohibition of traffic in human beings and forced labour. is regarding right against exploitation. Art. 24 is about prohibition of employment of children in factory. This issue is tried to be solved by making different provisions in Constitution, as is the international commitment by our country, there are different provisions in different statutes, i.e. Section 67 of Factories Act, 1948, Section 24 of Plantation Labour Act, 1951, Section 109 of Merchant Shipping Act, 1951, Section 45 of Mines Act, 1952, Section 21 of Motor Transport Workers Act, 1651, Section 3 of Apprentices Act, 1961, Section 24 of Beedi and Cigar Workers (Conditions of Employment) Act, 1966, The Child (Labour Prohibition and Regulation) Act, 1986, Shops and Commercial Establishment Act in different states. The rights against exploitation and the present right are from the same and similar source.

The Child Labour (Prohibition and Regulation) Act, 1986, was enacted for restriction on use of child labour below 14 years of age.

Earlier there was bonded labour system, which is against interest of society hence that was abolished by enacting legislation as The Bonded Labour System (Abolition) Act, 1976.

The United Nations declared basic principles of Justice for Victims of Crime and Abuse of Power, which was adopted by General Assembly resolution 40/34 of 29.11.1985.

It has become now necessary, to think on this issue cautiously as, we are rather unable to control the mind of criminals and their crime. We may certainly say, that these riots may be indirectly supported by the politically influenced people, hence there would not be any expectation from Government that it may take effective steps against the wrongdoer hence court has to play effective, active role in this serious issue of violation of rights.

It may happen sometime, that in spite of the order of court, that is not followed, complied as is disobedience of the order, which shall not be tolerated for maintaining law and order of society. Therefore, there are different provisions in different relevant legislations, for implementation of that order and in addition to this, separate and special enactment is as, The Contempt of Courts Act, 1971.

There is every possibility that the right to approach court, is fundamental right, that can be misused even by filing PIL, hence to avoid vexatious litigation, precaution is taken by us. When there is compromise between the parties by impersonation, by replacing the contesting respondents, it is nothing but fraud and the act is criminal contempt of court. The action of contempt is personal in nature and abates along with death of contemnor.

There is reasonable restriction on this right also, which is under Art. 19 of Constitution.

The documents furnished with Press Council are public documents. It can be said that press as social scientist, that does public advocacy for social justice through newspaper, media. That shall be done scientifically by the media, newspaper, is the reasonable expectation from it and not for any ulterior motive.

There are several offences against women, those may be atrocity, bride burning, murder, kidnapping etc., for which there should be special provision for them, as may be – Section 375 to 377 of IPC, burning deaths, cruelty and harassment, discrimination and violence against women, gender discrimination – reservation of seats for women under Art. 15(3).

It can be shortlisted as – dowry death, adultery, bigamy, cheating and dowry demand, fraudulent marriage, immoral traffic, kidnapping and abduction, suicide and sati, outrage of modesty, mental illness, obscene and obscenity, slavery etc.

There are different legislations to achieve the said object, those may be as - The Protection of Civil Rights Act.

Declaration on the Elimination of Violence against Women Proclaimed by General Assembly resolution 48/104 of 20 December 1993.

The Commission of Sati (Prevention) Act, 1987

The incidents were at the places where the women used to work, girls are studying. Sexual harassment of women at place of work results in violation of fundamental rights.

Each incident of sexual harassment, at the place of work, results in violation of the Fundamental Right to Gender Equality and the Right to Life and Liberty, the two most precious Fundamental Rights guaranteed by the Constitution of India. That sexual harassment of a female at the place of work is incompatible with the dignity and honour of a female and needs to be eliminated and that there can be no compromise with such violations, admits of no debate.

The nation cannot march forward if the women are left behind. The relevant legislations may be as –

The Workmen’s Compensation Act,

The Employees State Insurance Act,

The Minimum Wages Act, The Maternity Benefit Act,

The Payment of Bonus Act,

The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act,

Media provides better interface between Government and common man with aid of Right to Information Act.

The provisions of Cl. (2) of Art.194 indicate that the freedom of speech referred to in cl. (1) is different from the freedom of speech and expression guaranteed under Art. l9 (1) (a) and cannot be cut down in any way by any law contemplated by cl. (2) of Art. 19. It is true that a law made by Parliament in pursuance of the earlier part of Art, 105 (3) or by the State Legislature in pursuance of the earlier part of Art. 194 (3) will not be a law made in exercise of constituent power but will be one made in exercise of its ordinary legislative powers under Art. 246 read with the entries and consequently if such a law takes away or abridges any of the fundamental rights it will contravene the peremptory provisions of Art.13 (2) and will be void to the extent of such contravention and it may well be that that is precisely the reason why our Parliament and the State Legislatures have not made any law defining the powers, privileges and immunities.

There are provisions made under different legislations about child marriage, divorce and maintenance. The Prohibition of Child Marriage Act, 2006 and other legislation those may considering their respective religions.

The issue about the compensation and damages is become rather important, where the law is rspected.

When there is wrong, there is remedy available against the wrongdoer, though there may or may not be any specific statutory provision. The accidental death of bad condition of road, the liability would be casted on concerned authority, when burden to prove it, is on the complainant. The assessment of compensation would be based on the evidence adduced by complaint / plaintiff. When there is breach of contract, for reasons not supported and contract is withdrawn, then contractor, in whose favour the work was allotted, would be entitled for compensation, though nominal. The goods, chemical adhesive was sold, but precaution notice was not displayed hence accident took place, that is negligent part from the side of seller.

The right about the medical treatment and reasonable facilities by State is also considered in our Constitution. Right of abortion is a part of women’s right.

Medical profession deals with life of human beings. There has to be balancing of human rights with commercial gains. It is obligation of Government to provide life-saving drugs to have-nots at affordable prices so as to save their lives, which is part of Art. 21. It is equally obligation of State to devise such measures that have-nots are not deprived of very treatment itself. Administering medicines is also part of medical therapy. Thus, medical profession owes constitutional duty to treat have-nots. They cannot refuse to treat person who is in dire need of treatment by particular medicine or by particular expert merely on ground that he is not in position to afford fee payable for such opinion/treatment.

There are different types of pension and are granted considering the right of eligible person, e.g. disability pension, freedom-fighter’s pension, family pension,

Although the doctrine of 'equal pay for equal work' does not come within Art. 14 as an abstract doctrine, but if any classification is made relating to the pay scales and such classification is unreasonable and/or if unequal pay is based on no classification, then Art. 14 will at once be attracted and such classification should be set at naught and equal pay may be directed to be given for equal work.

In other words, where unequal pay has brought about a discrimination within the meaning of Art. 14 it will be a case of 'equal pay for equal work', as envisaged by Art. 14.

In the Public Interest Litigation, the interest of the public should be upper-most in the mind of the Court though although vacant ground would be put to use by making construction. Road blockage amount to breach of public order and violation of fundamental right to move freely.

Every activity of Government has a public element in it and it must therefore, be informed with reason and guided by public interest. If the Government awards a contract or leases out or otherwise deals with its property or grants any other largesse, it would be liable to be tested for its validity on the touchstone of reasonableness and public interest and if it fails to satisfy either test, it would be unconstitutional and invalid.

It is well-settled principle that legal injury is caused to person or to determinate class of persons by reason of violation of any constitutional or legal provision or without any authority of law or any such legal wrong of injury or illegal burden is threatened and such person or determinate class of persons by reasonable poverty.

Vacancies are to be reserved in Poverty Alleviation Scheme for the benefits of person with disabilities.

The principle of res-judicata is based on easy understanding, that there shall not be any repetition of litigation as there shall be end to the litigation, when the rights of parties are finally adjudicated and decided, wherein the issues for adjudication are the same of earlier litigation and subsequent litigation. Earlier decree, earlier proceeding which attained finality, would operate res-judicata in subsequent suit. That is for saving valuable time of court, and also to save from contradictory findings on the same, similar issues by different courts, having the same strength, which is part of judicial discipline.

This aspect is specifically expressed in Section 11 of the Code of Civil Procedure, 1908

There are different kinds of res-judicata as – constructive res-judicata

The President and his agent, Governor are having the important jurisdiction under Constitution - as

About the President of India, that is stated under Art. 72 of the Constituion -

The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence—

(a) in all cases where the punishment or sentence is by a Court Martial;

(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;

(c) in all cases where the sentence is a sentence of death.

About the agent of President, who is Governor, that is stated under Art. 161 of the Constitution that is as -

The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.