Public Interest Litigation

PUBLIC INTEREST LITIGATION PUBLIC INTEREST LITIGATION By Prof. Syed Mushtaq Hussain, M.A. (Eng), M.A. (Pol.Sc.), LL.B., Advocate Supreme Court, Karachi Public interest litigation is a new concept in the administration of justice and is essentially related to the question of locus standi of the person starting litigation. The traditional rule that the person seeking a legal remedy should have a legally‑protected interest which the defendant has in some way invaded has been relaxed in cases where issues of public interest are raised for adjudication. This innovation in the traditional mode of litigation had its origin in the United States of America. In cases of this nature any citizen of the United States can competently apply to the Court for an appropriate writ. In Great Britain the credit for development of public interest litigation largely goes to Lord Denning. However, the scope and purpose of this development is the same as followed. by the Courts in the United States. In regard to competency to file an action in an Engilsh Court the strict rule that the plaintiff should be an aggrieved party has been modified to this extent that in a case involving enforcement of a public duty against a statutory corporation or a public authority it is enough that the plaintiff is a member of the public having sufficient interest in the subject‑matter of litigation. The question of locus standi was considered by Lord Denning in Attorney‑General v. Independent Broadcasting Authority (1973) All England Law Reports, Vol. I, page 689 in the context of the statutory duties placed by the British Parliament on Government Departments and public authorities. The rule of England Law settled as early as the year 1535 required that to bring an action for damages against a Government Department or a public authority for breach of a public duty the aggrieved person should have suffered special damage over and above every one else. This rule was based on public policy to avoid multiplicity of actions which would have resulted had each sufferer been allowed to file a suit. In Lord Denning's view this rule could not prevent a member of the public from seeking a declaration or on injunction which are discretionary remedies to which no one has a right but which the Court can grant if it thinks fit. Subject to certain procedural limitations which could be dispensed with in appropriate cases a member of the public who in common with thousands of other citizens is offended or injured by transgressions of law by public authorities can come to Court and seek to have the law enforced. In a later case namely Raymond v. Greater London Council (1976) 3 All England Law Reports, page 184 Lord Denning referred to the case of Attorney‑General v. Independent Braodcasting Authority and reiterated the rule laid down therein in these memorable words, "I regard it as a matter of high Constitutional principle that, if there is a good ground for supposing that a Government Department or a public authority is transgressing the law, or is about to transgress it, in a way which offends or injures thousands of her Majesty's subjects, then any one of those offended or injured can draw it to the attention of Courts of law and seek to have the law enforced, and the Courts in their discretion can grant whatever remedy is appropriate". The principle enshrined in the words quoted is a landmark in the judicial history of a nation which is known as extremely conservative in outlook and an ardent lover of old values. This is a phenomenal change in the concept of traditional litigation based on adversary system in which the legal contest is between two contending parties, one pressing its claim and the other opposing it. In India the concept of public interest litigation is of recent origin. It seems that the question of locus standi in a matter of public interest was for the first time considered in S.P. Gupta v. Union of India AIR 1982, SC 149. In that case the Union Ministry of Law issued a circular letter in March, 1981, requiring an undertaking to be obtained from the Additional Judges of the State High Courts that they could be transferred from one High Court to another High Court. Some lawyers practising in the High Courts of various states moved the Supreme Court on the ground that the circular interfered with the independence of judiciary. The question of locus standi of the petitioning Advocates came up for consideration. It was held that the action had been competently filed as it related to public interest. No doubt the circular letter did not cause any specific legal injury to any individual or any determinate class or group but it did cause public injury by prejudicially affecting the independence of judiciary. The lawyers as a class were concerned with the administration of justice and had a vital interest in maintaining the independence of judiciary. They were held to have sufficient interest to challenge the constitutionality of the offending letter by a writ petition coming within the domain of public interest litigation. With regard to public interest litigation the Supreme Court of India has evolved certain rules the object of which is to make available the benefit. of the legal process to those individuals, classes or groups who by reason of poverty, social disadvantages, ignorance or other similar causes, cannot approach the Courts for redress of a legal wrong or a legal injury caused to them by violation of any Constitutional or legal right or the imposition of a burden in violation of any Constitutional or legal provision or without authority of law. In cases like this any member of the public having a genuine motive to espouse the cause of such helpless and downtrodden persons and to seek judicial remedy for them may move the High Court for an appropriate direction, order or writ under Article 226 and in the case of a breach of any fundamental right, the Supreme Court under Article 32 of the Constitution of India without having to comply with the technical rules of procedure prescribed for filing writ petitions in the High Courts and the Supreme Court. The machinery of law can be set in motion even by a letter addressed to the Chief Justice of a High Court or the Chief Justice of the Supreme Court and such letter would be treated and processed as a writ petition. In India, however, the appellation "Public Interest Litigation" has been replaced by the more indigenous label "Social Action Litigation". In the view of Indian Jurists the Public Interest Litigation in the United States emerged as a distinctive phase of socio‑legal development for which there is no corresponding phenomenon in India. The incidences of its birth and growth were also peculiar to American socio‑economic order. It was closely related to resource investment by Government and private agencies and was sponsored by specialised public interest law firms. The process of judicial review in terms of Public Interest Litigation in the United States does not concern itself so much with the repressive or coercive measures of the executive Government as with the public participation in Government decision‑making in the interest of the economic life of the Americans in an advanced industrialised capitalistic society. If in the American experience public interest litigation activism became integrated with preservation of group interests, then in reality it tended to provide added legality to the process already existing in the form of retrograde rules of status quo. The objectives of this innovative legal process in India and Pakistan are quite different. Therefore, there is much justification in change of nomenclature as has been done in India. In Pakistan the theme of public interest litigation was briefly touched upon in the Supreme Court judgment in Miss Benazir Bhutto's case, PLD 1988 SC 416. A petition under Article 184(3) of the Constitution had been filed by Benazir Bhutto as Co‑Chairperson of the Pakistan People's Party to challenge certain amendments made in the Political Parties Act, 1962, on the ground that those amendments violated the fundamental rights of freedom of association and equality before law and equal protection of law. A preliminary objection regarding maintainability of the petition was taken by the Attorney‑General representing the Federation of Pakistan. It was contended that no prejudicial action under the impugned legislation had been taken against the petitioner and, therefore, she was not an aggrieved person and as such she was not entitled to file the petition. This objection raised the question of locus standi of the petitioner in an action filed in the Supreme Court, under Article 184(3) of the Constitution. The conclusion reached by the Court was that there was no legal bar to a person acting bona fide to activise a Court for the enforcement of the fundamental rights of a group or class of persons who are unable to seek relief from the Court for several reasons. This is what the public interest litigation/class action seeks to achieve as it goes further to relax the rule on locus standi so as to include a person who bona fide makes an application for the violation of any Constitutional right of a determined class of persons whose grievances go unnoticed and unredressed. The initiation of the proceedings in this manner will be in aid of the meaningful protection of the rule of law given to the citizens by Article 4 of the Constitution that is to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen wherever he may be and of every other person for the time being within Pakistan. The next case in which some aspects of public interest litigation were considered is Darshan Masih v. State PLD 1990 SC 513. A telegram was received by the honourable Chief Justice of Pakistan from brick kiln labourers alleging bonded labour and illegal detention by their employers. As prima facie this was a case of forced labour involving infraction of a fundamental right the matter was treated as a case falling in the category of public interest litigation and cognizance was taken by the Supreme Court under Article 184 of the Constitution. This being the first case of its nature Supreme Court thought it necessary to clarify certain procedural and other aspects of the matter which undoubtedly are related to the concept of public interest litigation which is developing in Pakistan. It was noted that question of procedural nature relating to the entertainment of proceedings and cognizance of a case under Article 184 (3) had been dealt with in Miss Benazir Bhutto's case PLD 1988 SC 416. By extending the principles laid down therein an informal way of invoking jurisdiction of Supreme Court under Article 184(3) of the Constitution as by a telegram or a letter addressed to the honourable Chief Justice would be accepted as valid. As to the nature of the order which could be passed in such cases, the provisions of Article 184(3) and Clause "C" of sub‑Article (1) of Article 199 of the Constitution were considered and it was held that any conceivable just and proper order can be passed in a case like that of the labourers of brick kiln industry. It will thus be seen that the process of public interest litigation in Pakistan is yet in a very early stage of evolution. The formulation of principles in the case of brick kiln bonded labour are in fact interpretations of Article 184(3) of the Constitution and the Court's power to give relief is confined to the enforcement of fundamental rights and is further limited by the provision that the action brought before the Court must involve a question of public importance. Essentially the principles laid down in the said case are procedural in nature and may be taken to be some aspects of public interest litigation. The question is whether it is possible to enlarge the sphere of public interest litigation beyond the scope of Article 184(3) of the Constitution so that it may be possible to redress grievance of a determinate class or group arising from disregard of statutory duty, misuse of power. or any other legal wrong committed by a Government Department, a public officer, a statutory corporation or a local body and the nature of the wrong is such that the provisions of Article 184(3) are not attracted. The observations of Mr. Justice Dr. Nasim Hasan Shah, President SAARCI.AW Pakistan in his Lordship's article captioned "Public Interest Litigation As a Means of Social Justice" (P.31 Journal section, PLD March, 1993 Part and continued at p.33 of April Part) can be of much help in fixing the direction for the future development of the judicial initiative in the field of Public Interest Litigation beyond the narrow mandate of Article 184(3) of the Constitution. His Lordship has cited ten examples of human rights cases in which the Supreme Court has passed remedial orders. A careful study of the subjects cited would disclose the significant fact that the cases considered by the Court did not involve violations of fundamental rights as contained in Chapter 1 of Part II of the Constitution but, as rightly observed by his Lordship, were matters related to human rights. Thus the jurisdiction exercised by the Supreme Court in the cited cases was not essentially confined to the enforcement of fundamental rights within the meaning of Article 184(3) of the Constitution but was a much wider exercise of judicial discretion to provide social jutice to the citizens. The objectives which the new technique of judicial activism seeks to achieve are succinctly stated by his Lordship in the following words: "The fact is that the old individual rights have now assumed, a secondary place and instead social rights have come to the fore. These rights may be equated to "Civil Justice". To enforce these new social rights, the State is required to play a more active role. By so doing the individual is enabled not only to get his classical rights but can also get these new social rights or Civic Justice. These social rights include freedom from indigence, freedom from ignorance and discrimination, a right to healthy environment, protection from massive corporate frauds and governmental oppression. The judiciary has to play its full part to assist the citizens to obtain these rights. The legal technique employed to secure these rights has become possible in Pakistan through Public Interest Litigation. Indeed Public Interest Litigation is one of the most significant developments which have come about in traditional civil procedure. A proper utilisation of the Public Interest Litigation technique can greatly contribute to the protection of Human Rights and for securing Social Justice. Happily, this technique is being resorted to in Pakistan quite extensively. We have, however, still to think of ways and means to craft the strategy to use the Court system to advance social rights and procure civic justice. The results gained, even during this short period, in the use of this technique have been quite encouraging, but the full potential of this powerful technique has still to be realised. We are fully confident that the summit judiciary of our State will soon devise ways and means to extend the power of judicial review beyond the confines of Article 184(3) of the Constitution to perfect the technique of Public Interest Litigation and make it an effective instrument of advancing social rights and procuring civic justice as his Lordship has visualised. After all the new technique of dispensing justice is judge‑oriented and therefore, the apex judiciary of our State will soon develop ways and means to extend the scope of the innovation to secure the maximum result promised by it.