An Elaborative Evaluation on Public Interest Litigation its Merits and Demerits

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AN ELABORATIVE EVALUATION ON PUBLIC INTEREST LITIGATION – ITS
MERITS AND DEMERITS
Dissertation submitted to
The Tamil Nadu Dr. Ambedkar Law University,
Chennai – 600 028
in the partial fulfilment of the requirements for the award of the degree of
MASTER OF LAW
In
BRANCH VIII –LABOUR & ADMINISTRATIVE LAW
Dissertation submitted by
N.BHUVANESHWARAN
Register No. PE17002
Under the guidance and supervision of
Prof.Dr.C.Chockalingam. M.A.,M.L., Ph.D,
PRINCIPAL,
Chennai Dr. Ambedkar Govt. Law College, Pattarai Perumbudur,
CHENNAI DR. AMBEDKAR GOVT. LAW COLLEGE
Pattarai Perumbudur-602 001.
APRIL-2019

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PROF. DR.C.CHOCKALINGAM. M.A.,M.L., Ph.D,
PRINCIPAL,
Chennai Dr.Ambedkar Govt. Law College,
Pattarai Perumbudur– 602 001.
CERTIFICATE
This is to certify that the dissertation entitled “AN ELABORATIVE EVALUATION
ON PUBLIC INTEREST LITIGATION - ITS MERITS AND DEMERITS” is a record of
research work done by, Mr. N.BHUVANESHWARAN (PE17002) during the
period 2018-2019, under my guidance and it represents the independent work on
the part of the candidate.
PROF. DR.C.CHOCKALINGAM. M.A.,M.L., Ph.D,
Supervisor and Guide

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DECLARATION
I, N.BHUVANESHWARAN (PE17002), do hereby declare that this
dissertation work titled“AN ELABORATIVE EVALUATION ON PUBLIC
INTEREST LITIGATION - ITS MERITS AND DEMERITS” submitted in
partial fulfilment of the requirements for the award of L.L.M (Labour &
Administrative Law) degree has been carried out by me. I also declare that this
work is original except where assistance from other sources has been taken and
necessary acknowledgements for the same have been made at appropriate places. I
further declare that this work has not been submitted either in whole or in part for
any degree or diploma in any other institution.
Place:PattaraiPerumbudur
Date:13.05.2019
N.BHUVANESHWARAN
(PE17002)

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ACKNOWLEDGEMENT
“To God Be The Glory”
I am deeply indebted to my guide PROF.DR.C.CHOCKALINGAM. M.A.,M.L.,
Ph.D., Principal Chennai Dr. Ambedkar Govt. Law College, Pattarai Perumbudur,
for his unique supervision of work, sustained quality guidance. My sincere thanks
for his inspiration, keen interest on the students, constant encouragement and for
giving m this golden opportunity to be a part of this prestigious institution. He has
been a source of inspiration to complete my dissertation work successfully.
My sincere thanks , U.UDAYA CHANDRA PRASAD M.L., Lecturer, Chennai
Dr. Ambedkar Govt. Law College, Pattarai Perumbudur for advice and necessary
changes recommended for completion of the dissertation.
It gives me immense pleasure to thank all my friends, for their generous co-
operation, valuable suggestions, support and timely help.
I owe my deepest and loving gratitude to my parents and all my family members.
N.BHUVANESHWARAN
(PE17002)

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"Law and order exist for the purpose of establishing justice and
when they fail in this purpose they become the dangerously
structured dams that block the flow of social progress."
- Martin Luther King

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AN ELABORATIVE EVALUATION ON PUBLIC INTEREST LITIGATION – ITS MERITS AND DEMERITS
TABLE OF CONTENTS
S.No CONTENTS PAGE
01. CHAPTER-1- Introduction 11-21
02. CHAPTER-II- Public Interest Litigation –General Perspectives 22-28
03. CHAPTER-III- Public Interest Litigation and its Legal Implications 29-69
04. CHAPTER-IV- Public Interest Litigation and Environmental Protection 70-98
05. CHAPTER-V- Indian Judiciary and Public Interest Litigation 99-136
06. CHAPTER-VI- Public Interest Litigation and Public Administration 137-145
07. CHAPTER-VII- An Comparative Study on Public Interest Litigation 146-186
08. CHAPTER-VIII- PIL its pros and cons 187-193
09. CHAPTER-IX- Conclusions 195-198
10. Bibliography 199-205

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ABBREVIATIONS
PIL - Public Interest Litigations
NALSA- National Legal Service Authority
SLSA- State Legal Service Authority
AIR - All India Reporter
SC - Supreme Court
HC - High Court
CEJIL-Center for Justice and International Law
SERAC- Shelter Rights Initiative and the Social and Economic Action Center
NEKI - Legal Defence Bureau for National and Ethnic Minorities
UDHR - Universal Declaration of Human Rights
SCC - Supreme Court Cases
DPSP - Directive Principles of State Policy
MIC- Methyl Iso Cyanide
Ibid. - Used in previous reference
U.S.A- United State of America
SLP-Special Leave Petition
CPCB- Central Pollution Control Board
CEDAW- UN Convention on the Elimination of All Forms of Discrimination against Women

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LIST OF STATUTE REFERRED
Constitutional Law of India,1950
Environmental Protection Act.1986
The Factories Act, 1948
Indian Penal Code, 1860
Code of Criminal Procedure, 1973
Legal services Authority Act, 1986.
Sexual harassment at workplace act, 2013
The bonded labour system (abolition) Act, 1976
Minimum wages Act, 1948.

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LIST OF CASES
 Hussainara Khatoon vs. Union of India ,AIR 1979 SC 1369
 Bandhua Mukthi Morcha v. Union of India, AIR 1984 SC 802
 Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180 : (1985) 3 SCC 545.
 Maneka Gandhi Vs union of india, AIR 1978 SC 597.
 Francis Corallie v. Union Territory of Delhi, AIR 1978 SC 597.
 People’s Union for Democratic Rights v. Union of India, AIR 1982 SC 1473
 S.P Gupta vs. Union of India AIR 1982 SC 149
 Sheela Barse v. State of Maharashtra(1988) 4 SCC 226.
 A.K. Gopalan v State of Madras, A.I.R. 1950 SC 27 [Gopalan].
 Kharak Singh v U.P A.I.R. 1963 SC 1295
 Kesavananda Bharathi Vs State of Kerela, (1973) 4 S.C.C. 225
 Minerva Mills V. Union of India A.I.R. 1980 SC 1789
 Gaurau Jain V/s. Union of India AIR. 1997. SC. 3021.
 Nakkam Faraghi V/s. State of West Bengal, AIR 1998.SC. 682.
 K. Gopala Krishna of Karnataka
 Mr. Sunil Batra vs. State of Bihar, 1980 AIR 1579
 D.K. Basu Vs. State of West Bengal AIR 1997 SC 3017
 Nilabati Behera Vs.State of Orissa, (1993) 2 scc 746
 Nandini Satpathy Vs.P.L. Danis, 1978 SCR (3) 608
 Kadra Pahadiya Vs .State of Bihar 1981 CriLJ 481,
 Raghuvir Singh Vs. State of Bihar(1989) 1 scc 6
 Rudhal Shah V. State of Bihar (1983) SCR (3) 508
 Ratlam Municipal Council v. Vardhichand AIR 1988 SC 1126
 M.C Mehta v/s Union of India 1982 AIR 1473
 M.C Mehta vs. Union of India and others AIR 2001 SCC 1509
 M.C. Mehta vs. Kamalnath and others AIR 2000 SC1997
 M.C. Mehta vs. Union of India, AIR 1980 SC 1622
 Rural Litigation and Entitlement Centre Dehradun Vs. Uttar Pradesh AIR1985SCC176
 M.C. Mehta vs. Union of India AIR 1992 SCC 137
 Council For Environment Legal Action V. Union Of India AIR (1996)5SCC 281
 Subhash Kumar v. State of Bihar AIR (1991) 1 SCC 598

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 Chhetriya Pardushan Mukti Sangharsh Samiti v. State of U.P. and amp; Others AIR 1990
SC 2060
 Vellore Citizens Welfare Forum v. Union of India and others, AIR 1996 SC 2715
 Managing Director, A.P.S.R.T.C. v. S. P. Satyanarayana AIR 1998 SC 2962
 Indian Council for Enviro-legal Action v. Union of India and Others AIR(1996) 5 SCC
281
 Narmada Bachao Andolan v. Union of India and Ors
 Shriram Food and Fertilizer Industries and others, V. Union of India AIR 1987 SC 1086
 M.C. Mehta and Another v. Union of India and Others AIR 1987 SC 1086
 A. Jagannath v. Union of India, AIR 1987 SC 1086
 Karnataka Industrial Areas Development Board v. Sri C. Kenchappa and Others AIR
2006 SC 2038
 M.C Mehta v Union of India, 1989 SCC (2) 540
 Union Carbide Corporation v Union of India, 1990 AIR 273,
 Fertilizer Corporation Kamgar Union V. Union of India1981 SCR (2)52
 Pritam Singh v. The State 1950 SCR 453
 Vishaka v. State of Rajasthan (1997) 6 SCC 241
 Kalyan Chandra Sarkar v. Rajesh Ranjan, 2004 7 SCC 528
 Sheela Barse v. Union of India (1993)4 SCC 24
 State of Punjab v Devans Modern Breweries Ltd (2004) 11 SCC 26
 S.R. Bommai v Union of India1994 AIR 1918
 Almitra H. Patel Vs. Union of India, (1998) 2 SCC 416
 Asif Hameed vs. The State of J&K, AIR 1989 S.C. 1899
 NALSA vs. Union of India,(2014) 5 SCC 438
 Vineet Narain v. Union of India
 Australian conservation Foundation V/s. Commonwealth. 1980. 146 CLR 493
 Onus V/s. Alcoa of Australia Ltd 1981. 149. CLR. 27.
 Shop Distributive and Allied Employees Association V/s. Minister for Industrial
Affairs.1995. 183. CLR 552.
 British Columbia (Attorney General). R. V/s. Fink. 2002. 3, S.C.R. 209. P. 68.

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CHAPTER- I

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AN ELABORATIVE EVALUATION ON PUBLIC INTEREST LITIGATION – ITS MERITS AND DEMERITS
CHAPTER I
1. 1. INTRODUCTION
1.2. STATEMENT OF PURPOSE – AIM
1.3. SCOPE OF THE STUDY
1.4. RESEARCH QUESTION
1.5. RESEARCH METHODOLOGY
1.6. HYPOTHESIS
1.7. REVIEW OF LITERATURE
1. 1.INTRODUCTION
The term “Public Interest” in the phrase Public Interest Litigation means the interest of the public
at large, whereas the term “litigation” in the phrase means a legal action. Therefore, the general
meaning of the term PIL can be extracted from its legal sense alone. It is nothing but a legal
action taken, covering the issue of the public at large, for the welfare of the society. The
definition of “Public Interest” can be extracted from Black‟s Law Dictionary. It defines Public
Interest as “Something in which the public, the community at large, has some pecuniary interest,
or some interest by which their legal rights or liabilities are affected. It does not mean anything
so narrow as mere curiosity, or as the interests of the particular localities, which may be affected
by the matters in question. Interest shared by citizens generally in affairs of local, state or
national government”. Therefore, PIL is nothing but litigation filed before the court of law to
serve the welfare to the public at large.

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The concept of PIL came into India in the nineteenth century. It is an improved version of
U.S.A‟s Public Interest Litigation. The purpose of blending this concept with the Indian legal
framework was to safeguard the interest of the lower section of the community, who were poor,
and were not able to safeguard their fundamental rights. The parents of this concept in India are
Justice P.N. Bhagwati and Justice V.R. Krishna Iyer. They were the ones who recognised in
providing justice to the poor people by relaxing the rule of locus standi in 1980‟s. As a result of
it, any citizen or a group can approach the apex court to seek remedy, in which there is an
interest of the Public at large. The very first case, which appeared before the Hon‟ble Supreme
Court of India after the relaxation of the rule of locus standi, was the case of “Hussainara
Khatoon vs. Union of India”.
In this case, an advocate file a PIL based on the news item published in the Indian Express. The
PIL was in relation to the thousands of under trail prisoners, who were suffering in the Bihar Jail.
This PIL resulted in the release of 40,000 under trial prisoners and the right to speedy remedy
emerged as a fundamental rights. Another landmark case which contributed to the development
of PIL at its initial stage was that of “S.P Gupta vs. Union of India.”. In this case, it was held that
any member of the public or social group can file a PIL before the High Court or Supreme Court,
it there is any violation of constitutional or legal rights.
Therefore, the concept of PIL was widely accepted in the Indian legal framework as after the
above two cases, there were umpteen numbers of cases, which have been recorded in the court
for the welfare of the public at large. But, while the scope of PIL kept widening, people started to
misuse this concept and addressed their personal issues and this lead to an immediate need of
setting up of guidelines before entertaining any PIL.
The Indian judiciary, especially at the level of the Supreme Court and the High Courts, has for
long been concerned with the concept and practice of justice. What constitutes justice and for
whom? How do we truly achieve the laudable constitutional precepts that ‘no one is above the
law’ and that ‘all persons are entitled to the equal protection of the law’? How do we cope with
the problem that in principle, ‘all persons are equal under the law’ but in reality, ‘some are more
equal than others’?

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In its infancy, immediately after independence, the Supreme Court of India grappled, not always
successfully, with the problem of striking a balance between the much-needed programmes of
economic and social reform (for example, land reform and land redistribution) on the one hand
and establishing the credibility of the newly-born Indian State in terms of fostering the rule of
law and respecting the rights vested under laws that preceded independence and the very
Constitution itself , on the other. During the first couple of decades when, for all practical
purposes, India was functioning as a de facto one-party political system, the Supreme Court
focused on promoting the values of constitutionalism, separation of powers and checks and
balances over and in each organ of the State. The Supreme Court and the High Courts were ever-
vigilant in their review of executive actions, hence ensuring to the public requisite protection
against excesses of authority or abuses of power. They were equally vigilant in their review of
legislative actions, both in respect of lawmaking as well as in balancing legitimate parliamentary
powers, (necessary for the effective functioning of Parliament) with parliamentary privileges,
notably that of punishing for contempt.
In the decades thereafter, the Supreme Court turned its attention towards the frequency with
which the Parliament was amending the Constitution using the dominance of a single political
party at both the national and state levels to the maximum. The Court elaborated upon the
distinction between the constituent and legislative power. Moreover, as the judiciary and the
Indian political system matured, the Supreme Court firmly established the primacy of the
Constitution through its articulation of the basic structure doctrine, thereby safeguarding those
features that are inherent in the Constitution from being altered through the mere exercise of
legislative power.
It was necessary for this purpose to make procedural innovations that would enable it to meet the
challenges posed by such new roles. In doing so, the judiciary, being alive to its social
responsibility and accountability to the people of the country, sought to liberate itself from the
shackles of western thought-ways. It made innovative use of the power of judicial review to
forge new tools, devise new methods and fashion new strategies for the purpose of bringing
justice to socially and economically disadvantaged groups. Through creative interpretation, the

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courts brought about democratization of remedies to an extent that was unimaginable ten or
fifteen years earlier. The strategy of SAL, evolved by the Supreme Court has brought justice
within the ken and reach of the common man and it has made the judicial process readily
accessible to large segments of the population who were hitherto excluded from claiming justice.
Public Interest Litigation, as it has developed in the recent years, marks a significant
departure of the traditional judicial proceedings. It was not a suddenly emerging concept. It was
an idea, which was in the making for a long time, before it came into existence, resulting in
vigorous growth in India. The Supreme Court takes over the main control of PIL. The court is
considered as an institution which not only provide relief to the citizens, but also as a governing
body which formulated the policy for PILs which the State has to follow. The purpose of Public
Interest Litigation is to make the basic fundamental rights meaningful to the deprived and
vulnerable group of community and to assure them the social, economic and political justice,
which is enshrined in the preamble of the constitution.
It has been remarked in the case of “Bandhu Mukti Morcha vs. Union of India”, that the
number of people who are aware of the legal rights is very large than those who are aware of it.
Therefore, the phenomenon of Public Interest Litigation plays a major role in serving the general
public of India, as it helps them to safeguard their fundamental rights as provides them justice.
The concept and procedure has been kept simpler as the purpose which it serves is of great
importance and much required. The idea of Public Interest Litigation has been widely
appreciated, and has also been successful to the maximum in order to serve its purpose. As the
scope of PIL widened, the misuse of PIL has taken an entry in the frame. The simple procedure
so framed, has started to corrupt now and then. There are number of cases which have been
recorded as a misuse of PIL. Therefore, the Supreme Court, in a landmark case has laid down
various guidelines, which are to be followed by the courts before entertaining a PIL.

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1.2. STATEMENT OF PURPOSE – AIM
1. My Research Project aimed to evaluate the role the pros and cons of Public Interest
Litigation in India.
2. My Research project aimed to study the Public Interest Litigation in Multi dimensional
approach with other branches of Law and other discipline.
3. My Research project aimed to study role of Public Interest Litigation in upgrading the
Socio -economic aspects of people.
4. My Research project aimed to study the role of Public Interest Litigation in
Environmental Pollution and Industrial Pollution issues.
5. My Research Project aimed to study the role of Public Interest Litigation in
Administrative Reforms and Policy Decision Making of the Government.
6. My Research Project aimed to study about the role of Public Interest Litigation in
Custodial Jurisprudence.
7. To Find out whether there is an abuse of the Concept of Public Interest Litigation.
8. To find out whether the Public Interest Litigations really beneficial to the downtrodden
and poor people.
9. To Find out whether Public Interest Litigations plays an vital role in Judicial Review and
extending the Function of Judiciary.
10. To Evaluate the role of Public Interest Litigations in Judicial function of Check and
Balance with other organs of the government.

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11. To examine the Concept of Public Interest Litigation in India with different countries and
comparative analyses.
12. To Study about the Supreme Court and high Court rules regarding Public Interest
Litigations.
1.3. SCOPE OF THE STUDY
1. The Scope of the research project is to evaluate and criticize the Public interest Litigation
through the discussion of its merits and demerits.
2. My Research study helps to examine the how the Public Interest Litigations are
misguided for the unlawful Gaining by the litigants and misused as forum to wreck
vengeance.
3. My Research study helps to address the problem faced by Public Interest Litigants and
Legal Protection given to Public Spirited Persons.
4. To address the role of Public Interest Litigation to upgrade the Socio Economic
Condition of people.
5. My Research study would explain the role of Public Interest Litigation in increase the
efficiency of Judiciary.

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1.4. RESEARCH QUESTION
1. Is the process of Public Interest Litigation are now days used as a tool to wreck the
vengeance on particular person ?
2. Whether the public Interest Litigation plays an vital role in changing the Social Structure
and to promote Social welfare?
3. Whether the Public Interest Litigation plays an important aspect for induce judiciary to
expand its role through Judicial Activism and Judicial Restraint.?
4. Whether Public Interest Litigation plays an major role in directing the Administrative
authority to speedy action?
5. Is there is adequate legal protection given to public spirited litigants who filing several
public Interest Litigations
1.5.RESEARCH METHODOLOGY
In the Legal research methodology basically there are two kinds of Legal Research, namely
1. Doctrinal Legal Research
2. Non Doctrinal Legal Research
In this research project, I had adopted Doctrinal legal research, my entire legal data sources are
collected from primary sources of books referred in different research topic by different authors
and Secondary source from articles and legal journals published by different authors and web
resources.

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1.6.HYPOTHESIS
1. “Public Interest Litigation is the seed for extending the role of judiciary by expanding its
wings to judicial activism and subject its ownself to the judicial restraint”
2. “Litigations in the form of Public Interest now days used as trends to wreck the
vengeance against the individual persons or authority rather than protect the interest of
general public and steps to judicial actions”
3. Whether Public Interest Litigation plays an vital role to mould the Social Structure and to
redress the Socio- Legal problems by the Fundamental rights of the Citizens
1.7 REVIEW OF LITERATURE
In my Research Topic I am going to elaborately discuss about the Public interest Litigation its
merits and demerits in India and its multidimensional in following ways:
Sarkar in his Book “Public Interest Litigations and Public Nuisances” had described the
role of Public Interest Litigation in resolving environmental issues cases and
environmental problems.
Sathe in his book “Judicial Activism in India : Transgressing Borders and Enforcing
Limits” critically describe the role of the high Court and Supreme Court in its expanding
functions in public interest Litigation cases.
Shrama S. S. (Dr.) in his book in “Legal Service Public Interest litigation and para legal
services” had examined the Public Interest Litigation filed by the Legal Services
Authorities and role of Legal services authority in helping the poor Litigants.

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Desai, A. H., & Muralidhar in his book in "Public Interest Litigation: Potential and
Problems," had critically evaluate the problems faced in Public Interest Litigation and
also the potential and highlights and advantages in Public Interest Litigation Cases.
Ely J. H in his book “Democrary and Distruct :A Theory of Judicial Review” had speak
about the development of principles of Judicial review in Public Interest Litigation cases.
Diwan Paras and P. Diwan 1994 in his book “Children and Legal Protection” has
elaborately discussed about the role of Public Interest Litigations in protecting the child
rights
Kapur Jagga in his book “ Supreme Court on Public Interest Litigation, Case and
materials” the debate over original intent in 4 volumes had critically examine the role of
Supreme Court in entertaining the Public interest Litigation cases.
Paranjape (Dr.) in his book in “Public Interest Litigation, Legal Aid and Services Lok
Adalats and Para Legal Services” had elaborately describes the role of PIL in the life of
Public Interest Litigants as practice before Court of Law.
Dhal.R in his book in "Judicial Activism and Public Interest Litigation in India:
Attempting the Impossible?," describe the Public Interest Litigation and Judicial
Activism in india.
Brinks, D.M., & Gauri, V. in his book in "A New Policy Landscape: Legalizing Social
and Economic Rights in the Developing World," describe the role of Public Interest
Litigations in promoting economic and Social Justice,
Dr. Manoj Kumar Sadual in his article in Public Interest Litigation in India: Pros and
Cons describe the merits and demerits of Public Interest Litigation.
Dhavan R. R. Sudarshan and Khurshidin their book “Judges and the Judicial Power.
London” categorically describe the role of Judges in Public interest litigations.
Gonsalves Lina. in his book “Women and the law” describe the role of Public interest
Litigation in development of women.

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Fredman Sandra in his book in “Human Rights Transformed – Positive rights and
positive duties” elaborately describe the role of Public Interest Litigation in human rights
cases.
Wadehara B. L. (Dr.) in his book “Public Interest litigation” describe the Public interest
Litigation its evolution and History in India.
Massey in his Book “Administrative Law” describe the role of Public Interest Litigations
in Administrative actions

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CHAPTER II

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CHAPTER II
PUBLIC INTEREST LITIGATION -GENERAL PERSPECTIVES
2.1 THEORIES OF PUBLIC INTEREST LITIGATION AND ITS ASPECTS
2.2 TYPES OF PUBLIC INTEREST LITIGATION
2.3 PUBLIC INTEREST LITIGATION AND MODERN DEMOCRACY
2.1 THEORIES OF PUBLIC INTEREST LITIGATION AND ITS ASPECTS
The Theory of public interest litigation is in flow from these three theoretical insights.
1. One category of public interest litigation, the so-called "test" case, challenges the legality of
existing laws and regulations or attempts to give new meaning to existing laws. A test case may
be filed on behalf of a single individual, but the effect of stare decisis will give the judgment
precedential effect in other lawsuits filed by other individuals. In addition, government agents or
bureaucracies may feel obliged to conform their programs to a test-case ruling without further
action by a court.
2. A second form of action, the "structural reform suit," challenges deficiencies in the
enforcement of existing laws, and seeks to regulate the defendant's future conduct through the
imposition and monitoring of detailed judicial decrees that spell out in highly specific terms
constitutional or statutory requirements. In practice, the line between the creation of "new" law
and mere enforcement blurs: rights frequently have an indeterminate scope and are given content
and acquire social meaning only through an on-the-ground process of implementation.
3. Finally, both forms of action depend on declaratory relief: the judicial expression of a
constitutional or statutory norm that informs and educates the other branches and the public at
large.1
1
Prashant Bhushan, Supreme Court and PIL: Changing Perspectives under Liberalisation

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2.1.1.ASPECTS OF PUBLIC INTEREST LITIGATION
(a) Remedial in Nature: Remedial nature of PIL departs from traditional locus standi rules. It
indirectly incorporated the principles enshrined in the part IV of the Constitution of India into
part III of the Constitution. By riding the aspirations of part IV into part III of the Constitution
had changed the procedural nature of the Indian law into dynamic welfare one. Bandhu Mukti
Morcha v. Union of India2, Unni krishnan v. State of A.P3, etc were the obvious examples of this
change in nature of judicial activism.
(b) Representative Standing: It can be seen as a creative expansion of the well-accepted standing
exception which allows a third party to file a habeas corpus petition on the ground that the
injured party cannot approach the court himself. And in this regard the Indian concept of PIL is
much broader in relation to the American. PIL is a modified form of class action.
(c) Citizen standing: The doctrine of citizen standing thus marks a significant expansion of the
court’s rule, from protector of individual rights to guardian of the rule of law wherever
threatened by official lawlessness.
(d) Non-adversarial Litigation: In the words of Supreme Court in People’s Union for Democratic
Rights v. Union of India4, “We wish to point out wit hall the emphasis at our command that
public interest litigation...is a totally different kind of litigation from the ordinary traditional
litigation which is essentially of an adversary character where there is a dispute between two
litigating parties, one making claim or seeking relief against the other and that other opposing
such claim or resisting such relief”. Non-adversarial litigation has two aspects:
2
supra
3
(A.I.R. 1993 SC 2178)
4supra

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1. Collaborative litigation: In collaborative litigation the effort is from all the sides. The
claimant, the court and the Government or the public official, all are in collaboration here
to see that basic human rights become meaningful for the large masses of the people. PIL
helps executive to discharge its constitutional obligations. Court assumes three different
functions other than that from traditional determination and issuance of a decree.
(i) Ombudsman- The court receives citizen complaints and brings the most important
ones to the attention of responsible government officials.
(ii) Forum – The court provides a forum or place to discuss the public issues at length and
providing emergency relief through interim orders.
(iii) Mediator – The court comes up with possible compromises.
2. Investigative Litigation: It is doctrine of investigative litigation because it works on the
reports of the Registrar, District Magistrate, comments of experts, newspapers etc.
(e) Crucial Aspects:
To curtail custodial violence, Supreme Court in Sheela Barse v. State of Maharashtra,5 issued
certain guidelines. Supreme Court has broadened the meaning of Right to live with human
dignity available under the Article 21 of the Constitution of India to a greatest extent possible.
(f) Relaxation of strict rule of Locus Standi: The strict rule of locus standi has been relaxed by
way of:
(a) Representative standing, and
(b) Citizen standing.
5
(1988) 4 SCC 226.

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The rule of locus standi have been relaxed and a person acting bona fide and having sufficient
interest in the proceeding of Public Interest Litigation will alone have a locus standi and can
approach the court to wipe out violation of fundamental rights and genuine infraction of statutory
provisions, but not for personal gain or private profit or political motive or any oblique
consideration.
(g) Epistolary Jurisdiction: The judicial activism gets its highest bonus when its orders wipe
some tears from some eyes. This jurisdiction is somehow different from collective action.
Number of PIL cells was open all over India for providing the footing or at least platform to the
needy class of the society.6
2.2 TYPES OF PUBLIC INTEREST LITIGATION
The following are the Types which may be litigated under the head of Public Interest Litigation:
Subjects of Public Interest Litigation: Public Interest Litigation is meant for enforcement of
fundamental and other legal rights of the people who are poor, weak, ignorant of legal redressal
system or otherwise in a disadvantageous position, due to their social or economic background.
Such litigation can be initiated only for redressal of a public injury, enforcement of a public duty
or vindicating interest of public nature. It is necessary that the petition is not filed for personal
gain or private motive or for other extraneous consideration and is filed bona fide in public
interest.
(1) The matters of public interest: Generally they include
• Bonded labour matters
• Matters of neglected children
• Exploitation of casual labourers and non- payment of wages to them (except in
individual cases)
6
Deshpande, Public Interest Litigation, Facts, Vol.2, 1983, p.11 at p. 12.

27. Page | 27
• Matters of harassment or torture of persons belonging to Scheduled Castes, Scheduled
Tribes and Economically Backward Classes, either by co-villagers or by police.
• Matters relating to environmental pollution, disturbance of ecological balance, drugs,
food adulteration, maintenance of heritage and culture, antiques, forests and wild life.
• Petitions from riot victims and
• Other matters of public importance.
(II) The matters of private nature: They include
(i) threat to or harassment of the petitioner by private persons,
(ii) seeking enquiry by an agency other than local police,
(iii) seeking police protection,
(iv) landlord tenant dispute
(v) service matters,
(vi) admission to medical or engineering colleges,
(vii) early hearing of matters pending in High Court and subordinate courts and are not
considered matters of public interest.
(III) Letter Petitions:
Petitions received by post even though not in public interest can be treated as writ petitions if so
directed by the Hon’ble Judge nominated for this purpose. Individual petitions complaining
harassment or torture or death in jail or by police, complaints of atrocities on women such as
harassment for dowry, bride burning, rape, murder and kidnapping, complaints relating to family
pensions and complaints of refusal by police to register the case can be registered as writ
petitions, if so approved by the concerned Hon’ble Judge.7
7
UpendraBaxi, Taking Suffering Seriously: Social Action Litigation in the Supreme Court of
India, 4 Third World Legal Studies 107, 108-11 (1985)

28. Page | 28
2.3 PUBLIC INTEREST LITIGATION AND MODERN DEMOCRACY
Public interest litigation is not for individual but it is for democracy and it is echoed throughout
this dissertation by one middle class to upper class activist and intellectual after another. The
above statements would highlight the contribution of social Action Litigation to democracy. In
liberal democratic societies democracy has been conceptualized around political rights, voting
rights, civil rights and freedom of speech. Social Action litigation is a crucial way and The
Supreme Court in a liberal democracy makes a difference. This dissertation purpose here is also
to determine what the judiciary is actually through Social Action Litigation. Public interest
litigation is judiciary’s great solution to all ills suffered by the disadvantaged groups in our
country. This dissertation is a study also of how more open access increased to the Supreme
Court for people who have been disadvantaged in Indian society helps to create change.
However the main attention is focused on social Action Litigation, which bringing cases to the
Supreme Court on behalf of disadvantaged people in our country. Now days, The Supreme Court
is a place where cases are being also heard concerning poor, illiterate enslaved and down trodden
groups, but before 1970s this was not the case. At that time only those have money and time
could deal with a lengthy expensive litigation process could have had their cases heard in the
highest courts. Through a strong activist, liberal judiciary a constitution that enumerates
socioeconomic development as a fundamental right, and concerned citizens who operate as
volunteer representative, this extraordinary form of social action has been made possible in
liberal democracy.8
8
NUJS LAW REVIEW 5 NUJSL. Rev. 171 (2012)

29. Page | 29
CHAPTER III

30. Page | 30
CHAPTER III
PUBLIC INTEREST LITIGATION AND ITS LEGAL IMPLICATIONS
3.1 PUBLIC INTEREST LITIGATION AND CONSTITUTIONAL LAW
3.2. PUBLIC INTEREST LITIGATION AND HUMAN RIGHTS
3.3. PUBLIC INTEREST LITIGATION AND CRIMINAL JURISPRUDENCE
3.4. PIL IN RELATIONS TO INTERNATIONAL CONVENTIONS
3.1 PUBLIC INTEREST LITIGATION AND CONSTITUTIONAL LAW
Social Justice is main aspect of Indian Constitution. Social Justice, political Justice and
economical justice is clearly laid down in the preamble as the guiding principal of the
Constitution of India. The makers of constitution had taken most care to provide social,
economical and political justice to all sector of society. Therefore, justice is most positive aspect
of social and political philosophy.
According to the Aristotelian “Common good” as the basis of social order based on the principal
of justice could not applied in India. Due to the Indian social, political, and economic problems
it is difficult to take social reform. The Constitution of India is the most important factors
allowing social reform. Because of the Indian constitution one must pursue the goals of social
development.
The constitution was written with consciousness that there should not be inequalities in the
goals of social, economical and political development. Post independence Indian democracy has
created a most important role for the state that is, on whole strongly developmental. There exists
a powerful commitment to the achievement of social democracy using state power to walk in the
interest of social equality. A special feature of Indian constitution practice is the growing
importance of the Judiciary. The Judiciary is helpful to society’s most disadvantaged groups.
Indian society has long been blessed with variety but cursed with conflict. Many of Indians

31. Page | 31
social problems have continued due to cast, class, religion and gender. Central government and
state government have devoted a great deal of effort to try to find the remedy for the situation of
inequality. Government of state and central provided opportunities to lower casts in terms of
reservations for position in education and Jobs. Therefore, services such as health care,
schooling and food subsidies made available to the economically disadvantaged people. Indian
public policy has long been closely linked with development policy, and the main interests of
policy have been in the improvement of quality of life.9
3.1.1.Writ Jurisdiction under Articles 32 and 226 of the Constitution of India, 1950
The Writ Jurisdiction of Supreme Court can be invoked under Article 32 of the Constitution for
the violation of fundamental rights guaranteed under Part - III of the Constitution. Any provision
in any Constitution for Fundamental Rights is meaningless unless there are adequate safeguards
to ensure enforcement of such provisions. Since the reality of such rights is tested only through
the judiciary, the safeguards assume even more importance. In addition, enforcement also
depends upon the degree of independence of the Judiciary and the availability of relevant
instruments with the executive authority. Indian Constitution, like most of Western
Constitutions, lays down certain provisions to ensure the enforcement of Fundamental Rights.
These are as under:
(a) The Fundamental Rights provided in the Indian Constitution are guaranteed against any
executive and legislative actions. Any executive or legislative action, which infringes upon the
Fundamental Rights of any person or any group of persons, can be declared as void by the
Courts under Article 13 of the Constitution.
(b) In addition, the Judiciary has the power to issue the prerogative writs. These are the extra-
ordinary remedies provided to the citizens to get their rights enforced against any authority in the
State. These writs are - Habeas corpus, Mandamus, Prohibition, Certiorari and Quo-warranto.
Both, High Courts as well as the Supreme Court may issue the writs
9
Wadehara B. L. (Dr.) 2009 Public Interest litigation. A. Hand Book. New Delhi : Universal Law Publishing co.

32. Page | 32
(c) The Fundamental Rights provided to the citizens by the Constitution cannot be suspended by
the State, except during the period of emergency, as laid down in Article 359 of the Constitution.
A Fundamental Right may also be enforced by way of normal legal procedures including a
declaratory suit or by way of defence to legal proceedings.10
However, Article 32 is referred to as the Constitutional Remedy for enforcement of Fundamental
Rights. This provision itself has been included in the Fundamental Rights and hence it cannot be
denied to any person. Dr. B.R.Ambedkar described Article 32 as the most important one,
without which the Constitution would be reduced to nullity. It is also referred to as the heart and
soul of the Constitution. By including Article 32 in the Fundamental Rights, the Supreme Court
has been made the protector and guarantor of these Rights. An application made under Article 32
of the Constitution before the Supreme Court, cannot be refused on technical grounds. In
addition to the prescribed five types of writs, the Supreme Court may pass any other appropriate
order. Moreover, only the questions pertaining to the Fundamental Rights can be determined in
proceedings against Article 32. Under Article 32, the Supreme Court may issue a Writ against
any person or government within the territory of India. Where the infringement of a
Fundamental Right has been established, the Supreme Court cannot refuse relief on the ground
that the aggrieved person may have remedy before some other court or under the ordinary law.
The relief can also not be denied on the ground that the disputed facts have to be investigated or
some evidence has to be collected. Even if an aggrieved person has not asked for a particular
Writ, the Supreme Court, after considering the facts and circumstances, may grant the
appropriate Writ and may even modify it to suit the exigencies of the case. Normally, only the
aggrieved person is allowed to move the Court. But it has been held by the Supreme Court that
in social or public interest matters, any one may move the Court. A Public Interest Litigation can
be filed before the Supreme Court under Article 32 of the Constitution or before the High Court
of a State under Article 226 of the Constitution under their respective Writ Jurisdictions. There
12. Public Interest Litigation and ConstitutionalTheory in Comparative Perspective David Feldman The Modern Law Review
Vol. 55, No. 1 (Jan., 1992), pp. 44-72

33. Page | 33
are mainly five types of Writs - (i) Writ of Habeaus Corpus, (ii) Writ of Mandamus, (iii) Writ of
Quo-Warranto, (iv) Writ of Prohibition, and (v) Writ of Certiorari.
(I) Writ of Habeas Corpus:
It is the most valuable writ for personal liberty. Habeas Corpus means, Let us have the body. A
person, when arrested, can move the Court for the issue of Habeas Corpus. It is an order by a
Court to the detaining authority to produce the arrested person before it so that it may examine
whether the person has been detained lawfully or otherwise. If the Court is convinced that the
person is illegally detained, it can issue orders for his release
(II) The Writ of Mandamus:
Mandamus is a Latin word, which means We Command. Mandamus is an order from a superior
court to a lower court or tribunal or public authority to perform an act, which falls within its
duty. It is issued to secure the performance of public duties and to enforce private rights
withheld by the public authorities. Simply, it is a writ issued to a public official to do a thing
which is a part of his official duty, but, which, he has failed to do, so far. This writ cannot be
claimed as a matter of right. It is the discretionary power of a court to issue such writs.
(III) The Writ of Quo-Warranto:
The word Quo-Warranto literally means by what warrants? It is a writ issued with a view to
restraining a person from acting in a public office to which he is not entitled. The Writ of quo-
warranto is used to prevent illegal assumption of any public office or usurpation of any public
office by anybody. For example, a person of 62 years has been appointed to fill a public office
whereas the retirement age is 60 years. Now, the appropriate High Court has a right to issue a
Writ of quo-warranto against the person and declare the office vacant.

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(IV) The Writ of Prohibition:
Writ of prohibition means to forbid or to stop and it is popularly known as 'Stay Order'. This
Writ is issued when a lower court or a body tries to transgress the limits or powers vested in it. It
is a Writ issued by a superior court to lower court or a tribunal forbidding it to perform an act
outside its jurisdiction. After the issue of this Writ proceedings in the lower court etc. come to a
stop. The Writ of prohibition is issued by any High Court or the Supreme Court to any inferior
court, prohibiting the latter to continue proceedings in a particular case, where it has no legal
jurisdiction of trial. While the Writ of mandamus commands doing of particular thing, the Writ
of prohibition is essentially addressed to a subordinate court commanding inactivity. Writ of
prohibition is, thus, not available against a public officer not vested with judicial or quasi-
judicial powers. The Supreme Court can issue this Writ only where a fundamental right is
affected.
(V) The Writ of Certiorari:
Literally, Certiorari means to be certified. The Writ of Certiorari is issued by the Supreme Court
to some inferior court or tribunal to transfer the matter to it or to some other superior authority
for proper consideration. The Writ of Certiorari can be issued by the Supreme Court or any High
Court for quashing the order already passed by an inferior court. In other words, while the
prohibition is available at the earlier stage, Certiorari is available on similar grounds at a later
stage. It can also be said that the Writ of prohibition is available during the tendency of
proceedings before a sub-ordinate court, Certiorari can be resorted to only after the order or
decision has been announced.
There are several conditions necessary for the issue of Writ of Certiorari, which are as under:
(a) There should be court, tribunal or an officer having legal authority to determine the
question of deciding fundamental rights with a duty to act judicially.

35. Page | 35
(b) Such a court, tribunal or officer must have passed an order acting without jurisdiction
or in excess of the judicial authority vested by law in such court, tribunal or law. The
order could also be against the principle of natural justice or it could contain an error of
judgment in appreciating the facts of the case.11
3.1.2 PIL Creating A Rights Jurisprudence to Enhance Freedoms12
In my view, the Supreme Court’s rights jurisprudence in PIL cases have asserted freedoms for
Indian citizens that enhance development as Sen conceives it. According to Sen, the gap between
an exclusive concentration on economic wealth and a broader focus on the capability to live a
good life was a major issue in conceptualizing development. The maximization of income or
wealth could not be treated as an end in itself. Development had to be concerned with enhancing
the lives people led and the freedoms they enjoyed. Sen categorizes five types of freedoms,
including political freedoms, economic freedoms and social opportunities, which, according to
him, helped to advance the general capability of a person and also served to complement each
other. If the success of a society in achieving development is to be evaluated primarily by the
substantive freedoms that members of that society enjoy, as Sen argues, then the Supreme
Court’s PIL decisions has helped to guarantee such freedoms in the Indian legal system.
Such jurisprudence has developed principally through an expanded interpretation of the
language of Article 21 of the Indian constitution. Initially, the court adopted a very restricted
approach and in Gopalan13 held that in Article 21 the words “personal liberty” meant only
freedom from arbitrary arrest and “procedure established by law” meant procedure prescribed by
any statute. The court further held that Article 19 (describing various political liberties) and
Article 21 were mutually exclusive. However, in Kharak Singh v U.P.14, the court gave a wider
meaning to the words “personal liberty” in Article 21 and included within it the right to privacy.
The majority held that the words “personal liberty” could not be confined to its negative
11
Introduction to theConstitution of India by Durga Das Basu,2015
12
Public Interest Litigation in India: Implications for Law and Development by SarbaniSen, 2012
13
A.K. Gopalan v State of Madras, A.I.R. 1950 SC 27 [Gopalan].
14
A.I.R. 1963 SC 1295

36. Page | 36
meaning of being mere protection from arbitrary arrest but could extend to all aspects of liberty
outside the ambit of the freedoms specified in Article 19.
But Maneka Gandhi15 was the breakthrough judgment for an open, textured and expansive
concept of “personal liberty.” The judgment also incorporated the ‘due process of law’ doctrine
within the words “procedure established by law” in Article 21. Justice Bhagwati, speaking for
the majority, enunciated two primary principles. The first was that the expression “personal
liberty” in Article 21 was of the wisest amplitude and covered a variety of rights which
constituted the personal liberty of man. Some of them had been raised to the status of distinct
fundamental rights and given additional protection under Article 19, but Article 21 could now
include rights not specifically covered under Article 19. The second principle was that a law
depriving a person of personal liberty and prescribing a procedure for that purpose within the
meaning of Article 21 had to stand the test of one or more of the fundamental rights conferred
under Article 19; it also had to be tested with reference to Article 14. The significance of the test
of Article 14 was that “the principle of reasonableness which legally as well as philosophically is
an essential element of equality or non arbitrariness pervades Art. 14 like a brooding
omnipresence and the procedure contemplated by Art. 21 must answer the test of reasonableness
in order to be in conformity with Art. 14”. Consequently, statutory procedure for depriving an
individual of personal liberty had to be “right and just and fair,” and not arbitrary, fanciful or
oppressive, otherwise it would be no procedure at all and the requirement of Article 21 would
not be satisfied. Thus in Maneka, both the scope of “personal liberty” and the ambit of judicial
protection of such liberties was greatly widened. Maneka established the seminal principle of
interpretation that constitutional clauses can be open, textured and courts could judicially
develop their nuances in a changing social and economic context. The principle was further
elaborated by Justice Bhagwati in Francis Coralie Mullin. He held, “This principle of
interpretation which requires that a constitutional provision must be constructed, not in a narrow
and constricted sense, but in a wide and liberal manner so as to anticipate and take account of
changing conditions and purposes so that the constitutional provision does not get atrophied or
fossilized but remains flexible enough to meet the newly emerging problems and challenges,
applies with greater force in relation to a fundamental right enacted by the constitution.
15
Maneka Gandhi v Union of India, A.I.R. 1978 SC 597 [Maneka].

37. Page | 37
Along with the expanded judicial approach to the language of Article 21, another set of decisions
contributed towards the expansion of fundamental freedoms. Elaborating on the “basic structure”
doctrine of Kesavananda16, the court, in Minerva Mills17, found that Parts III and IV of the
constitution (relating to political and civil liberties and non enforceable social and economic
rights respectively) had to be read together. To destroy the guarantees given by Part III (negative
liberties) in order to achieve the goals of Part IV (positive social and economic rights) was
plainly to subvert the constitution by destroying its basic structure. The Indian constitution was
founded on a bedrock of a balance between political and civil liberties and social and economic
rights. But it was the court’s interpretative approach towards the right to life and personal liberty
in Article 21 that formed the basis of PIL judgments. In Francis Coralie Mullin18, the court said
“the fundamental right to life which is the most precious human right and which forms the arc of
all other rights must therefore be interpreted in a broad and expansive spirit so as to invest it with
significance and vitality which may endure for years to come and enhance the dignity of the
individual and the worth of the human person.” Thus, the Supreme Court has found Article 21 to
incorporate the substantive freedoms that Sen conceives of and can also serve as a means to
remove major sources of un freedom such as poverty, poor economic opportunities as well as
systematic social deprivation, neglect of public facilities, as well as the intolerance of repressive
governments. I now focus on certain PIL judgments that provide evidence of such an approach.
Reading A ‘Capabilities’ Approach into Article 21 It was in Francis Coralie Mullin that the court
also established that the right to life meant something more than just physical survival. Every
limb or faculty through which life is enjoyed is protected by Article 21, including the faculties of
thinking and feeling. Any act which damaged, injured, or interfered with the use of any limb or
faculty of a person, either permanently or even temporarily, would be within the inhibition of
Article 21. The court said, “…the question which arises is whether the right to life is limited
only to protection of limb or faculty or does it go further and embrace something more. We think
that the right to life includes the right to live with human dignity and all that goes along with it,
namely, the bare necessaries of life such as adequate nutrition, clothing and shelter…and
facilities for reading, writing and expressing one self in diverse forms, freely moving about and
mixing and commingling with fellow human beings.”
16
,(1973) 4 S.C.C. 225.
17
A.I.R. 1980 SC 1789
18
Francis Coralie Mullin v Administrator, Union Territory of Delhi, (1981) 1 SCC 608 [Francis Coralie Mullin].

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The magnitude and content of the components of the right would depend upon the extent of the
economic development of the country, but in any view of the matter, it had to include the right to
the basic necessities of life and also the right to carry on such functions and activities that
constituted the bare minimum expression of the human self. Every act which offended against or
impaired human dignity would constitute deprivation pro tanto of this right to live and it would
have to be in accordance with reasonable, fair and just procedure established by law. Any form
of torture or cruel, inhuman or degrading treatment would be offensive to human dignity and
constitute an inroad into the right to live and would be prohibited by Article 21. Guarantees of
economic opportunities and protection against social deprivations were established in various
decisions.
(i) Right to Livelihood
In Olga Tellis,19 the issue was whether pavement and slum-dwellers could be evicted without
being offered alternative accommodation. The contention of the litigants was that they had a
right to live which could not be exercised without a means to livelihood, and there was no option
for them but to come to major metropolises and live on pavements/slums nearest to their places
of work. The court held that if such pavement-dwellers were evicted from their dwellings, it
would be tantamount to deprivation of their life and hence unconstitutional. An important facet
of the right to life was the right to livelihood because no person could live without the means of
living. To deprive him of his means of livelihood would be to denude life of its effective
content/meaningfulness and as such, any deprivation of the right would have to be in accordance
with procedure established by law.
19
A.I.R. 1986 SC 180

39. Page | 39
(ii) Right to Live with Human Dignity
In PUDR v Union of India,20there was a complaint of a violation of Article 24 of the constitution
(which prohibits employing children below the age of 14 years in hazardous employment) on
behalf of child labourers employed in construction work in Delhi. The court held that the
complaint also related to a violation of Art. 21. Referring to earlier precedents it held that the
right to life included within its scope and ambit the right to live with basic human dignity, and
the state could not deprive anyone of this right because no procedure by which such deprivation
may be effected could ever be regarded as reasonable, fair and just. The rights and benefits
conferred on the workmen employed by a contractor under the Contract Labour (Regulation and
Abolition) Act, 1970 and the Inter State Migrant Workmen (Regulation of Employment and
Conditions of Service) Act, 1979, were clearly intended to ensure basic human dignity to the
workmen and depriving workmen of any of the rights and benefits to which they are entitled
under these pieces of social welfare legislation would be a violation of Article 21.
(iii) Right to Minimum Wages
Another constitutive element of ‘the right to life’ had to be the right to receive minimum wages
under Article 23. In the court’s opinion, Article 23 (which was available against the state and
also private individuals) was an attempt by the Indian founders to change the socio-economic
structure of the country and bring about social justice for the poor. Yet, despite such founding
intentions, society had degenerated into a status-oriented hierarchical society with little respect
for the dignity of the individual. The political revolution was completed, but freedom could not
be an end in itself but a means to the end of raising the people to a higher level of achievement
and bringing about their advancement and welfare. Political freedom would have no meaning if
it was not accompanied by creating egalitarian social and economic conditions in which
everyone would be able to enjoy basic human rights and participate in the fruits of freedom and
liberty. The existence of bonded/forced labour in large parts of the country (without minimum
wages) was considered by the constitution drafters as being incompatible with a new egalitarian
social order and a denial of basic human dignity. Article 23 embodied this goal and abolished
20
PUDR v Union of India, A.I.R. 1982 SC 1473 [PUDR].

40. Page | 40
every form of forced labour. The court defined the concept of forced labour broadly. Under this
definition, it offended against human dignity to compel a person to provide labour/service to
another if he did not wish to do so even if it was a breach of contract. In India, because of
poverty and unemployment, there was no equality of bargaining power. Therefore, while a
contract of service could appear on its face to be voluntary, it could in reality be involuntary
since the employee could be forced by economic circumstances to enter into an exploitative
contractual arrangement. Since the Directive Principles were not enforceable, it may not be
possible through the judicial process to ensure the basic essentials which go to make up a life of
human dignity.
But where legislation is already enacted providing these basic requirements to workmen, and
thus investing their right to live with human dignity with concrete reality and content, the state
can certainly be obligated to ensure observance of such legislation for inaction on the part of the
state in securing implementation of such legislation would amount to a denial of the right to live
with human dignity under Article 21. This is more so in the context of Article 256, which
provides that the executive power of the state should be so exercised as to ensure compliance
with the laws made by Parliament.
The Asiad Construction Workers case21 had established that the state is under a constitutional
obligation to see that there was no violation of the fundamental right of any person, particularly
when he belonged to the weaker sections. It was bound to ensure observance of various social
welfare and labour laws enacted for the purpose of securing to the workmen a life of basic
human dignity as guaranteed by the constitution.
3.1.3. Public Interest Litigation and Directive Principles of State Policy
Public Interest Litigation is playing a significant role in the implementation of the 'Directive
Principles of State Policy'. It has facilitated enforcement and implementation of many directives
and enabled the court to formulate various guidelines so as to do and ensure full justice to an
aggrieved person, to recognize class or group rights, to protect freedom and to implement or to
21
A.I.R. 1982 SC 1473.

41. Page | 41
enforce the Directive Principles, which is not difficult for an individual to receive through
ordinary litigation. The judiciary is seen to have taken upon itself the task of infusing into the
constitutional provisions the spirit of social justice.
Maneka Gandhi vs. Union of India22 is an illustration in point. The Case was filed following the
refusal by the government to grant a passport to the petitioner, which thus denied her liberty to
travel. The case was heard and the court proceeded to explain the scope and content of the right
to life and liberty. The court took a broader view of the scope and content of the fundamental
right to life and liberty. Article 21 which deals with the right to life was interpreted to include a
bundle of other incidental and integral rights.
On the basis of a PIL , filed by National Legal Services Authority23urging the Supreme Court to
give separate identity to transgenders by recognizing them as a third category of gender and
directed the government to ensure that they would get job , reservations, and facilities, including
voter card , driving license and passport. “The apex court said, the group would be considered as
socially and economically backward classes and as entitled to reservations in jobs . The centers
and the states also directed to take steps for bringing the community into the mainstream by
providing adequate health care, education and employment.”. “Recognition of transgender as a
third gender is not merely a social or medical issue but a human right issue.”
The decision in Maneka Gandhi vs. union of India24where it was held a person could be deprived
of his right to life only by a law which was just , fair and reasonable and in Bandhua Mukti
Morchavs Union of India25 case the S.C. conferred a verdict against the bonded labour system.
The court observed that members of transgender “are also citizens of India. It is the right of
every human being to choose their gender. The spirit of the Constitution is to provide equal
opportunity to every citizens to grow and attain their potential, irrespective of caste, religion or
gender.
22
supra
23
WRIT PETITION (CIVIL) NO.400 OF 2012
24 Supra
25
supra

42. Page | 42
3.2. PUBLIC INTEREST LITIGATION AND HUMAN RIGHTS
Public Interest Litigation (PIL) is a legal action which is taken in a court of law for legal right of
the community. The phrase “Public Interest Litigation” refers to particular human claim made in
a politically organized society or political institution. The concept of human rights has assumed
importance globally during the past few decades ever since the announcement of the Universal
Declaration of Human Rights. Human rights are the important element of philosophical, social
and political debates of the twentieth century. Number of people around the world suffers from
their basic needs. They are also refrained from the enjoyment of the basic economic, social,
cultural, civil as well as political rights. This challenge is the basic issue not only concern with
the one country but also universal and global.
The idea of the term “human rights” is older and not the invention of the twentieth century. The
genesis of human rights is the utopian concept of natural rights traceable from the days of the
Greek or even earlier. The period of renaissance witnessed the basic changes in the belief of
society. People thought that an idea of human right is to be a general, social need and reality. The
real foundation of human rights was truly laid when resistance to religious intolerance and
political economic bondage began. The Magna Carta (1215), The petition of Rights (1628), and
the English Bill of Right (1689) were proof of the human rights. The scientific and intellectual
achievement of liberal thinkers Galileo, Newtion, Francis Bacon, John Lock, Montesquieu,
Voltair and Rosseau had a profound influence on the western world of the late 18th and early
19th centuries. Similarly, the French Declaration of the Rights of Man (1789), emphasized that
“men are born and remain free and equal in rights” which are “liberty, property, safety, and
resistance to oppression.” It defined “liberty” so as to include the right to religious freedom,
freedom of association, right to free speech, and freedom from arbitrary arrest and
confinement.26
26
Fredman Sandra. 2008 Human Rights Transformed – Positiverights and positiveduties. New Delhi : Oxford University Press.

43. Page | 43
The most common issues in public interest litigation have with the right to life, and equal
protection under the law. Right to life has now been interpreted, for instance, as the right to life
with human dignity, right to livelihood and the right to the basic necessities to life, and so on.
The Supreme Court has declared many of its decision on various issue concerned with uplift
society and the profound rhetoric of socialism translated into practice. Those justices who have
been involved in public interest litigation cases are extremely proud of social justice for the poor
and downtrodden. The Supreme Court proceedings are conducted in English and all documents
submitted of various states in local language translated into English. The constitution provided
that English be used in both the High courts and the Supreme Court, however several states have
been allowed the use of local languages in lower courts. Agarwal observed : Local languages are
also often used in subordinate courts.
Some of the Supreme Court benches have issued orders for certain Non Governmental
organization (NGOs) to investigate matters which the court have given and to help in the
implementation according to court’s direction in public interest litigation cases. NGOs job is
excellent and also reporting back on court orders. NGOs are utilized by the Supreme court
especially in public interest litigation cases particularly women’s issue. 27
a) Role of the Supreme Court and Neglected children.
The Supreme Court delivered important judgment at the instance of public interest litigation and
the court has issued several direction in the following case:
In Gaurau Jain V/s. Union of India28.For rescue and rehabilitation of child prostitutes and
children of fallen women. It is duty of the state and all voluntary non government organization
and public spirited person to come into their aid to rescue such woman from prostitution and
rehabilitate them with a helping hand to lead a life with dignity of person. Self employment
through provisions of education, financial support, developed marketing facilities as some of
major avenues in this behalf. According to the Supreme Court, the rescue and rehabilitation of
27
Sarkar, Lotika, 1988. National Specialised Agencies and Women’s Equality : Law commission of India. New Delhi :
Centre for women’s Development Studies.
28
AIR. 1997. Sc. 3021.

44. Page | 44
the child prostitutes and children should be kept under the nodal department for their future,
namely Department of women and child Development. This Department is under the Ministry of
welfare and Human Resources. After that it is duty of Government of India which would devise
suitable scheme for proper and effective implementation. The Government should take adequate
steps to provide the juvenile homes for prostitutes, child prostitutes and neglected juvenile. The
Supreme Court said that Article 32 is having power to adopt such procedure with matter
appropriately given fact and situation.
In the case a limited for the school’s children of the fallen women, but the court did not agree as
it would mean to segregate such children from main stream of the society. The juvenile homes
should be used for a short stay, not long stay or forever, to relief the child prostitutes and
neglected children. They would have suffered in their life; they need to be rehabilitated in
appropriate manner. The Supreme Court had given directions to take adequate steps should be
taken to rescue the prostitutes, child prostitutes and neglected children to the central government,
state government and union Territory Administrators. They should take care to provide them
adequate safety, protection and rehabilitation in juvenile homes or homes runs by NGOs with
financial assistance given by central or state government. A committee with NGOs, women
organizations and women members should be involved in the management to take care of them.
The scheme would be implemented effectively and fruitfully with helps of funds and timely
payments.
The court directed improvement of life the prostitutes and child prostitutes and neglected to form
a committee. The committee is consisting the chairperson is the secretary Department of women
and child Development, and for secretaries from concerned state government to be nominated by
the Minister of welfare. They should study the problems of prostitutes, child prostitutes and
neglected children and for improvement they make appropriate schemes. The committee is
required to finalize the report and submitted to all state government and concerned Ministries for
their examination. The Ministry of welfare, government of India, Home Ministry, Human
Resources Ministry, and the concerned Ministers and their Secretaries discuss the problem and

45. Page | 45
take appropriate decisions. There after the report should be finalized and then direction would
be given to the state governments for effective implementation of the scheme. The Secretary of
the committee for reviewing the progress of the implementation on annual basis and to take such
other steps as may be expedient in the effective implementation of the schemes.
b) Role of The Supreme Court and Bonded Labours
Indian workers are living in terrible poverty, bonded labors and child labours are poorest
workers in our country and they are not having any source to approach the court of law. India
was under British rule, as the factory system was established in India therefore the first Factories
Act was in 1881. A few decades later, the British working class had won its long struggle for the
right to trade union, Indian workers were also given the same benefit via legislation in 1926.
Thereafter India’s independence from the British rule in 1947, legislation passed various laws for
regulation of recruitment as well as trading. Moreover, the central and state adopted welfare
scheme for workers that included health insurance, provident funds and other such benefits to
workers. RadhaIyer D’Souza noted that :
“All of these actions were taken the government at times during which “labour unrest
was at its lowest ebb and the trade union maintained and industrial trucee with
employers.”29
Indian labours were given a great deal of state and industrial support without a strong trade
union movement. Bonded labourers are working under contract system for the repayment of
loans, which they had borrowed from landlords. Most of the time labour working in agricultural
farm borrows money from the owner of agricultural land, which he cannot repay. Bonded
labours unable to earn enough money and save money, they do not have any other source to earn
money except labour work. It is impossible for them to repay money to the landlords. Adults
worker also bonded labour, Indian constitution prohibited bonded labour system, however the
practice of bonded labours still not ended. The bonded labours were not aware about the law and
29
D’Souza RadhaIyer. 1999. Industriallzation. Labour Policies, and thelabour Movement. In class Formation and Political
Transformation in post colonial India. Edited by T.V. Sathyamurthy. New Delhi. Oxford University Press.P. 106.

46. Page | 46
fact that the practice of engaging bonded labour is illegal activity. That is why public interest
litigation is most important for bonded labours.
Several non governmental organizations and social activist filed have filed public interest
litigation petitions thereby bring the notice of court regarding the bonded labour practice.
Furthermore several states have been complied with the court’s direction for identification of
bonded labourers and rehabilitation of them. One of the difficulties for agencies and states in
identifying bonded labour. Many bonded labourers are ashamed of their situation so they are not
coming forward. In addition, the employers or landlords are not going to come forward, therefore
identifying bonded labour is too difficult.
M. C. Mehta social activist is assisting the court in matter bonded labourers and mine workers.
Swami Agnivesh is a religious leader who is living in New Delhi from the Hindu group Arya
Samaj. He is very high profile social activist like Mehata, who has spent more than twenty years
fighting on behalf of bonded labourers through public interest litigation petition. He is president
of the Rastriya Khan Mazdoor union who identify workers and who are waiting payment of
wages. However, labour’s condition is very less improvement nowadays.
c) Non Payment of minimum wages to workers.
Early in India’s process of industrialization, the central government of India introduced labour
welfare measures for improvement condition of labourers and adopted protective policies
towards labour. There was a combination of state and private industry led action that was
responsible for many of these improvement. India’s labour movement history is that much of it
rests on assumption that improvements in labour condition or wages have been the direct result
of working class struggle.

47. Page | 47
In order to prevent any mal practice with labors, two independent organizations was established
by central government. The role of the said organization is to keep an eye on non-payment of
minimum wages to labours and workers. One of the said organizations is Indian Social Institute
and the other one is People’s Institute for development and 156 training. The representatives of
two institutes should observe labour’s work, their conditions on working place and submit its
report to the Central Government Ministry and Labour Commissioner.
And if the said representatives of said Institute finds any violation of norms, that the strict action
will be taken against the parties concerned. The reports show that violation had with wages and
facilities of workers. Further upon conviction of any person for violation of said norms, there is
only a provision for imposing a fine and that too of fewer amounts and therefore the said
problem continues in society.
The violation of labour laws with great indifference and unconcern as if they are trifling offences
undeserving of judicial severity. They seem to over look the fact that labour laws are enacted for
improving conditions of workers. The magistrates should impose severe punishment in such
cases, so that it should have the deterrent effect in society so as to prevent such kind of mal
practice. The role of judiciary is important on this aspect and there is also need for amendments
in relevant acts for providing severe punishment like imprisonment other the amount of fine.
Non payment of minimum wages is the violation of Article 23 of Indian Constitution. The social
workers and NGOs should come forward and should file public interest litigation in the Supreme
Court under Article 32 for the effective implantation of Minimum Wages Act and Equal
Remuneration Act.
The final report shows that there was Prima Facie evidence of several labour law violation by the
central government and its contractors. The workers were given at least a minimum wage, and
sometime proper overtime pay, and subsidized meals in a canteen. This case shows that a prime
example of public interest litigation that had gone to the Supreme court and effectively made
improvements in the lives of those who could not have addressed the court themselves..

48. Page | 48
d) Role of the Supreme Court on Women :
The role of Supreme Court in public interest litigation concerning the problems of women in our
country is important as it creates the awareness amongst the women about their rights conferred
by the constitution. It also held the state and central government to frame 160 policies for the
benefit of women. For the protection of rights and interest of women, the Supreme Court has
directed to establish the National Commission for women.
In the case Nakkam Faraghi V/s. State of West Bengal30 which relates to burning death the mere
fact that the case was registered under Section 306, IPC. But after examination of 9 witnesses an
alternative charge under the same section was framed. There was ample evidence u/s. 302 of
IPC. The supportive evidence is that the sister and four other witnesses stated that it was the
accused, who had set her on fire. This is the evidence given by these witnesses before the court.
The court had taken note of the fact that this statement is based on the police statements.
They have their basis in these document and in so far as the version contradicts Laxmi’s own
recorded version at the earliest point of time when she reached the hospital and dying declaration
where recorded. The court need to take note of two other circumstances, the first the accused had
in fact gone for the picture on the evening with her brother. This would support the view that the
accused was not present in the house when the incident took place. Secondly, there are
references to the effect that he ran away after the incident.
The court finds it difficult to accept this version because the incident one of extreme serious
where a young woman was set on fire and the court pointed out: In a careful scrutiny of the facts
of this case, it is considered view that is one of the cases which falls in the latter category and
that, therefore, the conviction and sentence awarded to the appellant are unsustainable. Incidents
of rape are extremely high among women. The Supreme court generally sided with the rights of
women in such cases.
30
AIR 1998.Sc. 682.

49. Page | 49
In another case K.Gopala Krishna of Karnataka31 state regarding burning his wife. The
respondent husband was alleged to have strangulated his wife and thereafter set on fire along
with very young child. He demanded money from wife’s mother and he also ill treated always.
There was proof of existence of motive demand of money. Large number of witness was
examined to prove that respondent used to pressurize deceased wife to get money from her
mother. There was no consistency as to exact amount demanded by respondent. The accused
husband at different times was not rejecting evidence of such ground.
However, the effect of role of Supreme Court is such cases like rape, burning and ill treaded
through the public interest litigation The Supreme Court in its judgment has set aside the
acquittal of the accused by considering the evidence on record that the wife was ill-treated by the
respondent accused from time to time. Thus, one would argue the Supreme Court has put
differing monetary values on the dignity of women of different social classes and standing.
e) Role of The Supreme Court and The Scheduled cast and scheduled tribe :
The person belonging to backward classes have remained neglected socially, culturally
economically and educationally for centuries. They have been ruthlessly exploited by the society.
The makers of the Indian constitution incorported Article 15, 16, and 17 for the upliftment of
backward classes. They are given reservation in education, jobs and also promotion in the
government and semi government undertaking. The parliament passed prevention of Atrocities
Act 1989 for schedule cast and schedule tribes provide their adequate protection against
exploitation by persons belonging to upper class of society.
In the matter of Ram Kishan Balothia32 the Supreme Court observed : The main object of
schedule cast and schedule tribes (Prevention of Atrocities) Act 1989 is to prevent their
exploitation by 165 the upper castes and enable them to live a life of honor and dignity. The
offence committed under section 3(1) the Act are non bailable and therefore, not granting of bail
31
WRIT APPEALNO. 177 OF 2016 (GM-POLICE), KarnatakaHigh Court
32
AIR 1994 MP 143,

50. Page | 50
for those offences would not be unconstitutional. However, as the working of the Act for over
two decade shows that it has failed to achieve its basic objective because evident shows that the
number of acquittals under the Act. Our Indian constitution provides the reservation to backward
class persons due to their living conditions.
The modern society is of the view that achievement of any persons requires the equal
opportunity. The reservation is based on the living conditions of particular class of persons. The
state government in Maharashtra under the leadership of Chief Minister Shri Prathviraj Chavan
has provided reservation to Maratha community. Maratha Community in Maharashtra is
supposed to be the strong community in respect of living conditions and economic conditions.
As a result, the PIL came to be filed in the High Court, Bombay, wherein the High court has set
aside the decision of state government as it has not followed the proper procedure required under
the law for giving the reservation to the Maratha Community. After all, injustice any whereis
threat to justice everywhere
f) Role of the Public Interest Litigation and Riot :
The events took place in Delhi between 31st October and 3rd November 1984 are such shock the
conscious of the court, therefore the court in public interest, should protect the victims from the
action and inaction of the respondents. Indeed, a number of cases before the Supreme Court
involving public interest litigation. All those cases were against government because the
government had acted in violation of the rights of the people. The court all cases was directed to
state to implement the laws. In the case of Sampalal justice Bhagwati observed : It must be
remembered that the fundamental rights are constitutional guarantees given to people of India
and are not merely paper hopes or flecting promises and so long as they find a place in
constitution, they should not be allowed be emasculated in their application by a narrow and
constricted judicial interpretation. To maintain the law and order is the Primary function of the
state and under our constitution it is a state subject and tops the state list. Article 38 of the
constitution enjoins on the state to strive to promote the welfare of the people be securing and

51. Page | 51
protecting, as effectively as it may, a social order in which justice, social, economic and political,
shall 167 inform all the institutions of the national life. Article 19(a) and (9) of the constitution,
any citizen is entitled to reside and settle in any part of our country and to practice any
profession or to carry on any occupation, trade or business.
g) Role of The Supreme Court and Family Pension:
The public interest litigation has proved in solving the problems of family pensioners. The
number of family pensioner’s cases remained pending in government or semi government offices
because of negligence and inaction of concerned officials. Again the number cases remain
pending for on reason or another due to rigid and bureaucratic approach of the government
officials. All family pension cases were the widows of the deceased government employees. The
case of Major Sukhben Sing highlight the point. Major Sukhben Sing who was the husband of
Smt. Chiranjeet Kaur. He was posted in Leh in June 1978.
Unfortunately he succumbed to serious burn injuries in Leh on 24th June, 1978 in mysterious
circumstance. His wife and children were living in Meerut, they reached Leh immediately on
hearing about Sukhben Sing hospitalization. She saw that there was no life saving equipment’s
and facilities in Leh Army Hospital. She requested the Army authorities to shift her husband to
Srinagar or Ambala for proper treatment. However, the army authorities 168 agreed to shift
Major Sukhben Singh to Ambala. They informed his wife to reach there by that time. Smt.
Chirnjeet Kaur and her children reached there but she was told that her husband’s condition was
worse, so he was not shifted.
Again she came back to Leh and saw her husband’s dead body with 98% burn injuries on his
body. The Army officials had no satisfactory answer the cause of burns. They told her that her
husband refused to board the plane. According to the post mortem report of Army Hospital Leh,
the cause of death was burn injuries. In view of these peculiar circumstance of the case, The
Supreme Court held :

52. Page | 52
“Came to an irresistible conclusion that Major Sukhben Singh’s death was caused in very
mysterious circumstance for which Army authorities were wholly responsible Six Lakh rupees as
compensation to be paid by Government to the petitioner beside her usual family pension.”33
Another example was Freedom Fighter’s pension and state Advisory Committee’s
decision non of the application were eligible for grant of pension under Freedom Fighter
Scheme. The committee had taken decision on based available material. All the applicant had
submitted material based on Jail’s record, the jail was now in Bangladesh. But all applicant’s
material forwarded to state government for their consideration. The record of the applicant
District Collector considered it and granted freedom fighters pension, the certificate was not
essential.
3.3.PUBLIC INTEREST LITIGATION AND CRIMINAL JURISPRUDENCE
3.3.1.CUSTODIAL JURISPRUDENCE
a) Role of The Public Interest Litigation and Prison
The public interest litigations filed in the Supreme Court under Article 32 had made a substantial
contribution for improvement of conditions of prisoners. Persons who are convicted by the court
for some offence and they sent to jail because the under trial prisoners against whom criminal
proceeding are pending before the court. For improvement of prison condition number of person
raised their voice against the prison authorities. Therefore, the journalists, social workers and
even judges raised their voice against mismanagement in prison institutions and also
exploitation, but prison problem still remain unsolved.
In a famous case of Mr. Sunil Batra,34 a prisoner in Delhi at Tihar Jail. Said Sunil Batra has
written a letter to the Chief Justice of Supreme court regarding the torture by jail warden to the
prisoners convicted for life term in Tihar Jail. The Supreme Court converted the said letter into
suo-moto public interest litigation and issued several directions to the Ministry of Home Affairs
33
1994 AIR 1491,
34
1980 AIR 1579

53. Page | 53
apart from taking strict action against the concerned warden. The Supreme Court has issued the
writ of habeas corpus to produce the concern prisoner before the court. In the said matter of Sunil
Batra, the Supreme Court held:
“What the right of a prisoner either under the constitution or under other law are violated,
the writ power of the court can and should run to his rescue. There is a warrant for his
vigil. The court processes cast the convict into the prison system and the deprivation of
his freedom is not blind penitentiary affliction but a blighted institution allegation guard
to social good. The court has a continuing responsibility to ensure that the constitutional
purpose of the deprivation is not defeated by prison administration.”
In addition, The prisoner who was awarded the capital punishment for committed the offence of
murder, and the court held that it was not discipline of prison but on the ground that the prisoner
was under sentence of death, A prisoner who was under trials who highlighted who were in jail
for a period longer than the maximum sentence that could be imposed on conviction, so there
should be speed trial.
Many prisoners were kept behind bars without trial for a term more than the maximum sentence
imposed for the concerned offence, which is injustice to him and unfair on the part of state.
Justice Bhagwati observed that, the right to speedy trial is not specifically mentioned as a
Fundamental Right it is implicit in the broad sweep and content of Article 21.
A person who was educated and social workers and he involved in “dharna” for public cause but
he was arrested and put into the jail and also refused to bail. Social workers who had taken part
in “dharna” or raised any slogan inside or outside of the court, that would not be sufficient to
handcuff them, there was no reason for handcuffing them while taking them to court from jail. It
is the duty of the court to keep an eye on the violation of fundamental rights and human rights of
the prisoners and to keep them away from the torture within the four walls of police station and
jail and further to take strengthen action against the state for custodial death due to torture by jail
authorities and police officers

54. Page | 54
b) Role of The Public Interest Litigation and arrest
The Supreme Court initiated the development of "Custodial Jurisprudence" in D.K. Basu Vs.
State of West Bengal35.The case came up before the Court through a writ petition under Article
32 of the Constitution by an NGO. In this case the Chief Justice of India's notice was drawn to a
news published in the Telegraph regarding deaths in police lock-ups and in jail in the State of
West Bengal. It was requested in this petition to examine in depth and to develop custodial
jurisprudence. In this case the Court outlined the following requirements which should be
followed in all cases of arrest or detention as preventive measures:
l. The police personnel carrying out the arrest and handling the interrogation of the arrestee
should bear accurate, visible and clear identification and name tags with their designation the
police personnel carrying out the arrest and handling the interrogation of the arrestee should bear
accurate ,visible and clear identification and name tags with their designations. The particulars of
all such police personnel who handle interrogation of the arrestee must be recorded in a register.
2.The police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the
time of arrest and such memo shall be attested by at least one witness, who may be either a
member of the family of the arrestee or a respectable person of the locality from where the arrest
is made. It shall also be countersigned by the arrestee and shall contain the time and date of
arrest.
3.A person who has been arrested or detained and is being held in custody in a police station or
interrogation centre or other lock-up, shall be entitled to have one friend or relative or other
person known to him or having interest in his welfare being informed, as soon as practicable, that
he has been arrested and is being detained at the particular place, unless the arresting witness of
the memo of the arrest is himself such a friend or relative of the arrestee.
35
AIR 1997 SC 3017

55. Page | 55
4.The time, place of arrest and venue of custody of an arrestee must be notified by the police
where the next friend or relative of the arrestee lives outside the district or town through the
Legal Aid Organisation in the District and the Police station of the area concerned
telegraphically within a period of 8 to 12hours after the arrest.
5.The person arrested must be made aware of his right to have one informed of his arrest or
detention as soon as he is put under arrest or is detained.
6. An entry must be made in the diary at the place of detention regarding the arrest of the person
which shall also disclose the name of the next friend of arrestee and the name and particulars of
the police officials in whose custody the arrestee is.
7.The arrestee should, where he so requests, be also examine date the time of his arrest and major
and minor injuries, if any present on his/her body, must be recorded at that time. The Inspection
Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy
provided to the arrestee.
8.The arrestee should be subjected to medical examination by a trained doctor every 48 hours
during his detention in custody by a doctor on the panel of approved doctors appointed by
Director, Health Services of the concerned State or Union Territory. Director, Health Services
should prepare such a panel for all Tahsils and Districts as well.
9.Copies of all the documents including the memo of arrest, referred to above, should be sent to
the Magistrate for his record.
1O.The arrestee may be permitted to meet his lawyer during interrogation, though not throughout
the interrogation.
11.A police control room should be provided to all district and State Headquarters, where
information regarding the arrest and place off custody of the arrestee shall be communicated by
the officer causing the arrest. Within 12 hours of effecting the arrest and at the police control

56. Page | 56
room it should be displayed on a conspicuous board. The Court observed that the requirements,
referred to above flow from Articles 21 and 22(1) of the Constitution and need to be strictly
followed.
c) Role of The Public Interest Litigation and Compensatory Jurisprudence
In Nilabati Behera Vs.State of Orissa36,the Supreme Court observed that prisoners and detainees
are not denuded of their fundamental rights under Article 21 and that it is only such restrictions
as are permitted by law, which can be imposed on the enjoyment of the fundamental rights of the
arrestees and detainees. It was further observed" ... there is a great responsibility on the police or
prison authorities to ensure that the citizen in its custody is not deprived of his right to life. His
liberty is in the very nature of things circumscribed by the fact of his confinement and therefore
his interest in the limited liberty left to him is rather precious. The duty of care on the part of the
State is strict and admits of no exceptions. The wrongdoer is accountable and the State is
responsible if the person in custody of the police is deprived of his life except according to
procedure established by law ... " In this case Court awarded a sum of Rs. 1.5 lakhs to the mother
as her son had died in police custody. The Court's judgment also referred to Article 9(5) of the
International Covenant on Civil and Political Rights, which indicates that an enforceable right to
compensation is not alien to the concept of enforcement of a guaranteed right. Anyone who has
been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
In Case of Nandini Satpathy Vs. P.L. Danis37,is the classic example in this context, wherein the
Supreme Court held that Section 161of Cr.P.C. enables the police to examine the accused during
investigation. The prohibitive sweep of Article 20(3) goes back to the stage of police
interrogation-not, as contended, commencing in Court only. In our judgment, the provisions of
article 20(3) and Section 161(1) substantially covers the same area, so far as police investigations
are concerned. The ban on self-accusation and the right to silence, while one investigation or trial
is under way, goes beyond that case and protects the accused in regard to other offences pending
36
(1993) 2 sec 746
37
1978 SCR (3) 608

57. Page | 57
or imminent, which may deter him from voluntary disclosure of criminatory matter. We are
disposed to read compelled testimony' as evidence procured not merely by physical threats or
violence but psychic torture, atmospheric pressure, environmental coercion, tiring interrogative
prolixity, overbearing and intimidatory methods and the like - not legal penalty for violation. So,
the legal perils following upon refusal to answer, or answer truthfully, cannot be regarded as
compulsion within the meaning of Article 20(3).The prospect of prosecution may lead to legal
tension in the exercise of a constitutional right, but then, a stance of silence is running a
calculated risk. On the other hand, if there is any mode of pressure, subtle or crude, mental or
physical, direct or indirect, but sufficiently substantial, applied by the policemen for obtaining
information from an accused strongly suggestive of guilt, it becomes' compelled testimony',
violative of Article 20(3).Legal penalty for refusing to answer or answer truthfully may by itself
not amount to duress. It cannot be regarded as compulsion under Article 20(3). But frequent
threats of prosecution if there is failure to answer may take on the complexion of undue pressure
violating Article 20(3). The manner of mentioning it to the victim of interrogation may introduce
an element of tension and tone of command perilously hovering near compulsion. Lawyer's
presence is a constitutional claim in some circumstances in our country also ,and, in the context
of Article 20(3), is an assurance of awareness and observance of the right to silence. The
Miranda decision has insisted that if a med accused person asks for a lawyer's assistance, at the
stage of interrogation, it shall be granted before commencing or continuing with the questioning.
We think that Article 20(3) and Article 22(1) may, in a way, betel escaped by making it prudent
for the police to permit the advocate of the accused, if there be one, to be present at the time he is
examined. Overreaching Article 20(3) and Section161 (2) will be obviated by this requirement.
In the same case it was categorically stated that if an accused person expresses the wish to have
his lawyer by his side when his examination goes on, this facility shall not be denied, without
being exposed to the serious reproof that involuntary self-incrimination secured in secrecy and
by coercing the will. The police need not wait more than for a reasonable while for an advocate's
arrival. But they must invariably warn-and record that fact-about the right to silence against self-
incrimination; and where the accused is literate take his written acknowledgement.
The symbiotic need to preserve the immunity without stifling legitimate investigation persuaded
the court to indicate that after an examination of the accused, where lawyer of his choice is not

58. Page | 58
available, the police official must take him to a magistrate ,doctor or other willing and
responsible non-partisan official or non-official and allow a secluded audience where he may
unburden himself beyond the view of the police and tell whether he has suffered duress, which
should be followed by judicial or some other custody for him where the police cannot reach him.
That collocutor may briefly record the relevant conversation an communicate it- not to the
police-but to the nearest magistrate. Pilot projects on this pattern to guide the practical processes
of implementing Article 20(3) were strongly suggested in the case.
It was further observed that: above all, long run recipes must be innovated whereby fists are
replaced by wits, ignorance by awareness, 'third degree' by civilised tools and technology.
Special training, special legal courses, technological and other detective updating are important.
An aware policemen is the best social asset towards crimelessness. The consciousness of the
official as much as of the community is the healing hope for a crime-ridden society. Judge-
centered remedies don't work in the absence of community- centered rights. Investigatory
personnel must be separated from the general mass and given in-service specialization on a
scientific basis. The policeman must be released from addiction to coercion and sensitized to
constitutional values.
In Hussainara Khaioon Vs.State of Bihar38(Bhagawati) J., while effectively raising the inherent
weaknesses of monetary bond said: "the bail system, as we see it administered in the criminal
courts today, is extremely unsatisfactory and needs drastic change. In the first place it is virtually
impossible to translate risk of non-appearance by the accused into precise monetary terms and
even its basic premise that risk of financial loss is necessary to prevent the accused from fleeing
is of doubtful validity. There are several considerations which deter an accused from running
away from justice and risk of financial loss is only one of them and that too not a major one. The
experience of enlightened projects in the United States such as Manhattan Bail Project and D.C.
Bail Project shows that even without monetary bail it has been possible to secure the presence of
the accused at the trial inquite a large number of cases. Moreover, the bail system causes
discrimination against the poor would not be able to furnish bail on account of their poverty
while the weather persons otherwise in similar situation would be able to secure their freedom
38
1979 SCR (3) 532