The Evolving Jurisprudence of Public Interest Litigation: Towards an Indian and Human-Centric Approach

 The Evolving Jurisprudence of Public Interest Litigation: Towards an Indian and Human-Centric Approach

Public interest litigation is said to be the innovation of the Indian judiciary, where the cause of action has been diluted in order to address the grievances of the people who cannot reach before the court on the account of illiteracy or financial weakness. The modern jurisprudence of Public Interest Litigation (PIL) in India is generally traced to the 1979 case of Hussainara Khatoon v. Home Secretary, State of Bihar, reported in (1980). The case brought before the Court, in the larger public interest, the deplorable conditions of undertrial prisoners and issues relating to the right to speedy trial and access to legal aid. Thereafter, S.P. Gupta v. Union of India (1981) further expanded the scope of locus standi in the field of Public Interest Litigation.. In the same manner, the basic structure doctrine of the Constitution of India(Keshavanad Bharati Case(1973 ) is considered worldwide in the legal jurisprudence as one of the most innovative, original, and effective creative tool invented by the judiciary in the modern jurisprudence on the amendibility of the Constitution to the effect that the constitutionality of the enactment has to pass the  twin test of width and identity . These two principles or the doctrines invented by the Indian judiciary have done a great job in order to uphold the values of the Constitution of India, or as the guardian of the Constitution of India.

There comes one more point when we talk about the Indian judiciary, that the Article 21 of the Constitution of India has been given an extended definition in terms of human rights, as well as in terms of the various conventions internationally acknowledged, adopted like right to livelihood  (Olga Tellis 1985 )right to shelter(Chameli Singh 1996) But there comes one issue which needs one more innovative approach, and that depends on a comprehensive, integral approach towards the development, especially having regard to the urban development chronology.

We all know that India is a developing country. India became republic on 26 January 1950. Thereafter, the first line of the people, We the people of India, had a legitimate expectation from the Republic of India that their fundamental rights, which are enshrined in Part III of the Constitution of India, shall be protected. Though they are not absolute, but the reasonable restrictions are governed by  the principle of intelligible differentia and reasonableness as much as procedure established by law  they shall be protected.

The recent directions  of the Supreme Court related to properties situated in Meerut on the  earmarking of all the buildings which are commercial in nature, which are situated in the residential area, is one of the matter of concern and which needs an answer in the development and evolution  of the jurisprudence of PIL. There, there is no encroachment, but the nature of the land use, the nature of the building use has changed. That may  in the teeth of the local laws.The question arises is why this particular land use was changed. It warrants historical and civilization understanding of Indian way of living .If we see the history of India, it is well settled that in Indian civilization, the residents and the commercial activity, they coexist. Commercial in the sense, those activities which answers to our daily needs, like grocery shop, saloon shop, boutique, stationery shop, sweet shop, laundry shop, vegetable shop, fruit shop, juice shop etc . These type of activities have been permitted, accepted by the society, and the reason is very simple because they provide convenience to the residents, like milk, curd, that is the part of our meal every day, and for that any attempt by any individual to introduce, to open or to make available all these items would be really appreciated by the residents of that locality. And there is no problem by the people who are residing there.

But the issue comes when, because of the advent of the science and technology, traffic management has become a problem. That needs to be addressed rather than terming those public interest commercial activities, which are not causing any type of nuisance or which are not hazardous in nature, or which are by no means causing any type of inconvenience to the residents. So the issue is about the traffic, the flow of the traffic, and that can be answered not by way of taking action against the commercial activities, by making the suitable arrangements. Widening of the road is a different topic. We will deal it in the subsequently . Second, the planned development of the city is an exception in any developing country. It's not about only in India. Now, like if you talk about in Rajasthan, it is the UIT or JDA or the Municipal Act. They regulate the municipal areas. So a master plan is envisaged over there that takes care of the planned activity, planned development. But one important segment is often overlooked, that the unplanned development arises on account of the agricultural land not converted into the non-agricultural use of the land, and the cooperative societies selling the land to various stakeholders for a consideration of amount, where no doubt they also make a plan, and accordingly the piece of the land is sold to various people. Now the construction is undertaken by the buyer, and he is following the scheme. He is not violating any of the scheme. He is not violating the widening of the road, and there is no criminal element in that. There is no mens rea in that. There is no negligence. As a matter of fact, he is honest. He is investing his hard-earned money, and he is not a criminal. Even by any stretch of the imagination, he cannot be said to be involved in any petty or henious offense. Yes, there might be some violations in terms of the by-laws of, like setbacks or the model building laws, but that is a different issue altogether to be taken up. Now, in the name of the public interest litigation, those people or those areas which were not covered under the master plan earlier, now they are scrutinized under the master plan or under the new scheme of the development, where all the owners of the land are treated as encroachers as if they have been found guilty under the anti national statutes. Here public interest litigation jurisprudence needs to evolve and better to cater to the issues which renders justice and not miscarriage of justice.

While dealing with the Urban development PIL original thinking is the pressing need of the times .While dealing with the urban development, the Western concept of having one particular dedicated place for the commercial activities is not in consonance with the Indian urban way of living. In Western, there is a segregation of the residential areas and the commercial areas, but in India, the commercial activities of a particular nature, which are neither hazardous nor causing nuisance. to the effect that they cater the basic daily needs of the population in a country where satisfying  daily bread and butter is a challenge. We need to have a proper demarcation in terms of the time where a particular segment of the master plan be made applicable retrospectively and some parts to be prospectively, considering the local needs and the nature of the city, so that the master plan becomes more human in nature and more Indian in nature  considering the transitional period of our country, which is right now under the status of developing nation.

Under the writ jurisdiction of 32 or 226, the strict principles of delay and laches needs highest consideration as laid down in Trilokchand Motichand (1969) reiterated in  Nandlal Jaiswal (1986) both five judge benches  where accrual of third party rights has been duly considered.

Wherever the urban development is found in the teeth of the law ,PIL having been filed by the petitioner need to prove bonafides of atleast 20 years of experience in the public life for advancing the cause . This is not higher expectation from the Public spirited Citizen  of India where republic of India has celebrated more than 75 years of successful democracy. Court must evaluate whether the effect of PIL is leading to depriving political education to the citizens of India .Whether  PIL  has the effect of abdication  of duty by the stakeholders  having regard to  legislation and executive as per the scheme of the constitution of India . Also the responsibility of the executive wing needs to be made more responsive in a institutionalized  manner  rather Courts assuming the role of the statutory bodies which is against the scheme of constitution. The fundamental requirement of constitutional morality is that the exercise of the extraordinary and discretionary writ jurisdiction conferred under Articles 32 and 226 of the Constitution must remain within the bounds of judicial restraint, judicial propriety, and judicial discipline.

Also the issued be viewed can alternate ways be employed like one way traffic on even and odd days on the areas where  there is too much congestion. Hence innovative , original and Indian approach is warranted else I am reminded of the speech of Shri Alladi Krishnaswami Ayyar during onstituent Assembly Debates, Vol. XI, 23 November 1949 he said “While there can be no two opinions on the need of the maintenance of judicial independence, both for safeguarding of individual liberty and the proper working of the Constitution, it is also necessary to keep in view one important principle. The doctrine of independence is not to be raised to the level of a dogma so as to enable the judiciary to function as a kind of super-legislature or super-executive. The judiciary is there to interpret the Constitution or adjudicate upon the rights between the parties concerned. “