Enhancing access to justice through public interest litigation

The only road that successfully leads to the temple of 'Justicia Omnibus' is best described as 'Access To Justice'. The smoother the road is, the easier becomes the reach to the 'sanctum sanctorum' housing the deity of Justice. But when the road is strewn with pebbles and potholes of irrational justice dispensation mechanisms like fanatically religious, socially sickening, politically maneuvering, expensively nerve-breaking institutions like the 'Kangaroo', Silishi, 'Khap Panchyats' and woefully delay-causing secular court-centric judicial institutions cast in Anglo saxon mould, Justicia omnibus elopes into the mirage of mythical existence. Legal fraternity across the country has taken a number of initiatives to rebuild the road of access to justice through alternative dispute resolution mechanisms in the form of 'Nyaya Panchayats' (under village Panchayati Raj System), 'Lok Adalats' and 'Quasi-judicial Arbitration Tribunals' to supplement civil and criminal courts from the lowest to the highest level. To cope up with the ever expanding vagaries of all-pervasive injustice, several countries have started establishing dedicated wings of the government like the 'Department of Access to Justice' and by creating international institutions through international protocols. Despite this, overall picture has remained dull, dark and dreary. Off course, these institutions did produce silver linings for us to walk on the road to justice but the sunlight has come from the innovative legal instrument of 'Public Interest Litigation'(PIL) in India. A number of landmarks have been created by the highest judiciary through cases like Mumbai Kamgar Sabha v. Abdul Thai, Huassianara Khatun v. State of Bihar, Fertilizer Corporation Kamgar Union v. Union of India, S.P Gupta v. Union of India, People's Union for the Democratic Rights v. Union of India. Oleum Gas Leak case, Kamalnath case, Ratlam municipality case, Taj Trapezium case, Ganga Pollution case, Bandhua Mukti Morcha v. Union of India, Murli S. Dogra v. Union of India, Delhi Domestic Women Forum v. Union of India, Vishaka v. State of Rajasthan, Minerva Mills Ltd V. Union of India, TN Godavaraman Thirmulpad v. Union of India, Lalita Kumari v. Govt. of UP etc. Going by such significant leaps, access to justice appears to have become easier and within reach. But if some new legal instrument for speedier, quicker and fuller implementation of the PIL directives is innovated, the commonest

*LL.M. Rajiv Gandhi University of Law, Patiala.

of the common man including the marginalized sections of the society will heave a sigh of relief.

The present paper seeks to examine the access to justice in the light of existing constitutional provisions, their efficacy on the canvass of criminal justice system in the face of various bottlenecks, various steps initiated by legal thinkers to remove the impediments, the role of innovative legal instrument called Public Interest Litigation, and the need for further action to make access to justice speedier, easier and fuller.

Immediately after independence, the first task before us was to rebuild the road for the commonest of the common man to have an easy access to justice. For this, the constituent assembly burnt midnight oil to incorporate a plethora of constitutional provisions for achieving social, economic and political justice for all sections of society. Therefore, as on today the first and the foremost instrument is the preamble of our constitution which encapsulates our vision for seating the deity of Justice on the 'pedestal of Justicia Omnibus'.

It reads as under:-

We, the people of India, having solemnly resolved to constitute India into a sovereign socialist secular democratic republic and to secure to all its citizens: justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity; and to promote among them all fraternity assuring the dignity of the individual and the unity and integrity of the Nation; in our constituent assembly this twenty-sixth day of November, 1949, do hereby adopt, enact and give to ourselves this constitution.

A close look at its various clauses reveals that despite the absence of the definition of the term justice, its equation with the concept of 'equity' and 'fairness' is self-emerging. Social justice means that all sections of society are equal irrespective of caste, creed, colour or gender. Economic justice means that all natural resources of the country are to be equally available to all citizens. Political justice means all citizens have equal political rights such as the right to vote, the right to contest elections and the right to hold office.

In order to actualize social, political and economic justice, our constitution makers incorporated fundamental rights and directive principles in Part III and Part-IV of our constitution. These legislative instruments aim at bringing political democracy to social democracy for achieving the ideal of social justice so that each citizen can have access to justice in a hassle free manner. Lest fundamental rights and directive principles should go awry, the constitution makers also provided for a number of constitutional safeguards also. To begin with, we have the right to constitutional remedy to move directly to the Supreme Court under Article 32¹ and High Court under Article 226² of our constitution. Besides these articles, the constitution of India contains Article 136³ which pertains to the inherent and original jurisdiction of Supreme Court of the India to undo any type of miscarriage of justice

Not with standing above stated constitutional provisions, legal instruments and international protocols, the ground reality in respect of hassle free access to justice remains a distant dream especially in case of vulnerable and marginalized sections of society. This is evident from the following facts:-

Crime graph in respect of women, children, members of the scheduled castes and tribes along with economically backward sections of society is ever on the rise. As per data⁵ released by the National Crime Record Bureau, crime between 1953 and 2013 shows a gigantic increase of 339.8 % in respect of cognizable crimes under The Indian Penal Code, 1860, a big increase of 238.7 % in respect of murder, a whopping increase of 1255.3 % in respect of rape cases and a hefty increase of 1144.3 % in respect of kidnapping and abduction cases. This is despite the fact that India has as many as 22,83,646 police personnel , 14,786 police stations, besides hundreds of police zones, ranges and districts.

The structural, components of our criminal justice system namely the investigative agencies, the prosecution, the courts and the correctional homes have meandered into gorges of professional misconduct.

1. 
   Despite various reports submitted by the National Police Commission⁶, Riberio Committee⁷, Padmanabhaiah Committee⁸, The Police Act Drafting Committee⁹ (PADC), Justice V.S. Malimath Committee¹⁰, Seven Directives of the Supreme Court¹¹, Professor Madhav Menon Committee¹², the police continue to work under colonial Police Act, 1861. Therefore, the police and investigative agencies continue to dance either to the tune of their political masters or work in cahoots with their criminal bosses compelling the Supreme Court of India to describe them as 'caged parrots¹³'. Still further, the dingy and suffocating conditions of the police stations¹⁴, the terrorizing and abusive environment of the police buildings, the naked display of the torture tools, the sickening environment in most of the ‘hawalats’, the herding together of the wrongly accused innocent people with drug addicts, hardened criminals, recidivists, thieves, dacoits, drug peddlers, pick pockets, self-styled goons of the jail, the nerve- breaking custodial interrogation, the non-disclosure of the whereabouts of those picked up by police personnel despite the fear of 'habeas corpus' and above all, the inhuman treatment of those who are in police custody are some of the factors which put working of the police on dock. In his Article¹⁵, Justice S.B. Sinha supports such perceptions as under:
   

So for the role of prosecutors is concerned, there is no denying the fact that at the higher level, pleaders are appointed by the Govt. on political considerations and at the lower level public prosecutors, assistant prosecutors and additional prosecutors are also cadre based govt. employees and therefore are always up on feet to defend the decisions of the govt. even if they are bad in the eyes of law. Corrupt practices are very common in lower courts .Being officers of the court; they are supposed to exhibit exemplary impartial conduct where as in lay man's perception and they appear in the court as dump truck lawyers. In this context Professor Madhav Menon¹⁶ observes as under:-

Rich offenders would have the best counsel to defend them whereas the poor will have mediocre lawyers poorly paid by the legal aid scheme, who sometimes compromise the interests of the client by accepting illegal gratification from the opposite side. Money would decide whether one gets bail or not and whether one can approach the appellate courts as often as needed. If a sizeable section of the people has such a perception of criminal judicial processes today, can it be dismissed as a total myth?

2.2.3 Snail-paced Courts.

Regarding working of the courts, it is often said that proceedings linger on for years and years. Even legal experts and practitioners stand baffled at the huge pendency of cases not only in lower courts but also in high courts and the apex court. As per the data¹⁷ published by the Supreme Court up to June 30, 2014, 65970 cases were, pending in the Supreme Court, 4479023 cases were pending in the various High Courts and 27360814 cases were pending in the District and the subordinate courts in India. Furthermore, access to justice for a common man is impeded by a number of chinks currently prevalent in the existing court centric justice dispensation system. Those chinks pertain to a large number of vacancies in the High Courts, judge-centric approaches adopted by the judges, grant of frequent adjournments, wilting under political pressures at times (though instances are very few), long pendency of cases spanning over decades, appointments of judges by judges i.e. through collegium system¹⁸, excessive workloads, inadequate system of follow up of directives issued by the highest judiciary ,lackadaisical inspection mechanism in respect of lower courts, slow pacing of the fast track courts, non-existence of immediate availability of technical specialists for providing immediate assistance to courts, location of the high courts at state capitals, the bench-bar spars , standardized data basing of cases across the country and above all cumbersome court craft and proceedings. At the level of lower judiciary, picture is far from satisfactory. The lack of basic facilities both for the pleaders and the litigants, the tendency of officers of the court to prolong the cases, the unethical tricks of the trade played by paralegals as well as some unscrupulous counsels add to the mounting miseries of those who have to confront the courts either as an accused or as a victim. Recently, in the month of May 2015, the law secretary Mr. P.K. Malhotra gave a presentation before the parliamentary panel on law and personnel highlighting the need for reducing the number of cases which have clogged the judicial system. In his presentation, Mr. Malhotra stated that as many as 61 thousand cases are pending in the Supreme Court, 4.1 million cases are pending in the High Courts and 264 million cases are pending in the subordinate courts both on the civil and criminal side. Mr. E.M. Sudarshana Natchippan, head of the parliamentary panel made the confession¹⁹ that:

“There is tendency within the civil services to encourage litigation......to push the other side to go to the court and get a judicial order to insulate themselves from any wrong doing. It is encouraging to note that the government intends to discourage departments from running to speedier courts at the drop of the hat"

2.2.4 Botched Correctional Homes

Finally, the situation is all the more agonizing in respect of correctional homes. Invariably, accusing fingers are raised at the lack of basic respect for prisoners’ dignity, medical and health services, disciplinary action against hardened criminals, preventive steps over custodial deaths and torture, protection of vulnerable groups, access to legal help, required and stipulated inspections by higher authorities, simpler and understandable terminology and human rights training to the jail staff. Besides, the work allotted to the prisoners is also outdated and therefore does not promote skills required in the present times. The common perception goes that the prisoners often become victims of ‘shut and forget’ syndrome. As and when friends or family members come to meet them, the distance between prisoner and the family members poses a big challenge for proper communication. The environment in which the meetings are arranged is very humiliating. The wages of the work put in by the prisoners are very poor. The conditions for female prisoners are all the more horrible, although their number is barely five percent of the inmates. While there is a global consensus over United Nations Standard Minimum Rules For Treatment of Offenders²⁰, popularly known as Mandela Rules, radical reforms have been absent despite numerous exercises. In view of jails being closed institutions, societal interest remains limited in this regard. Therefore implementation of human rights in overcrowded prisons governed by archaic colonial laws remains a formidable challenge in India²¹ .Although, the journey from cribbed and cabined prisons to correctional homes was seen as big leap for making criminal justice system more humane yet the current scenario in respect of so called correctional homes cries for drastic and humane reforms.

The problem of over crowding , corruption, drug trade, prison riots, torture and ill-treatment, neglect of health and hygiene, insufficient food and clothing, all types of prison vices, mismanagement of prisons, high handedness of hardened criminals, etc often lead to unsavory situations in jails. Of late, the biggest problem which cries for immediate attention is the problem of ever increasing number of under trials who have to languish in jails either without facing trial or beyond the period of punishments had they been they been convicted after trial. In April 2015, the Government of India told the Supreme Court that as many as two lakh and sixty eight thousand prisoners or a little over two thirds of the total number of incarcerated people in the jails are under trials. Most of those under trials are too poor to afford bail bonds and unfortunately the cases in which they were involved were compoundable. This is despite the fact that The Code of Criminal Procedure, 1973 was amended in 2005 for introducing section 436(A) to reduce over crowding in prisons. In January 2013, the Union Home Ministry had also said out an advisory to states and Union Territories to start the process of releasing under trials who have undergone half of their likely jail terms in prison. In 2014, the Supreme Court had asked the sessions judges and judicial magistrates to start visiting prisons in their jurisdictional districts from October 1, 2014 to identify and release such prisoners. On September 4, 2014, the Supreme Court bench²² comprising Justice Kurian Joseph, R.F. Nariman and Chief Justice R.M. Lodha directed all the states and union territories to release, under trials in prison who have spent more than half of the sentence period had they been convicted, within a period of two months. The proportion of under trials to convicts is very high . Also ,if we include the percentage of under trials detained for 6 months but less than a year, we find that over 80 percent of the under trials spent less than one year in prison during the years under consideration. If we look into their social, economic or religious status, it has been found that the illiterate lower castes and members of religious minorities are over represented in under trial populations²³. It is in this larger context that in on May 17, 2015, a social justice bench of Justice Madan B. Lokur and U.U. Lalit has given one month to the Government to ensure the functioning of under trial review committee in every district of the country. Perturbed over the figures supplied by Home Ministry, the bench noted in its recent order, “We find there are a large number of prisoners who are continuing in the custody only because of their poverty. This is certainly not the spirit of the law and poverty cannot be a ground for incarcerating a person²⁴”

Besides, there is no denying the fact that the jail staff is neither adequately equipped with weapons nor suitably trained to understand the psychological urges of innocent inmates who have fallen prey to vengeance, vendetta or allurements of planted mafia men in jails. It has also been highlighted that muscle wielding hardened criminals create their own empire within an empire and even hold their durbars in the jail precincts. The weaklings who fall in line with the ‘diktats’ of the jail monsters, suffer silently while those who refuse to toe their line are either beaten mercilessly or eliminated mysteriously or made to commit suicides. All this happens in the face of the self speaking provisions contained in the jail manuals which are supposed to protect the rights of the prisoners.

Legal fraternity across the country has taken a number of initiatives to rebuild the road of access to justice through alternative dispute resolution mechanisms in the form of 'Nyaya Panchayats' (under village Panchayati Raj System), 'Lok Adalats' and 'Quasi-judicial Arbitration Tribunals' to supplement civil and criminal courts from the lowest to the highest level. To cope up with the ever expanding vagaries of all-pervasive injustice, several countries have started establishing dedicated wings of the government like the 'Department of Access to Justice' and by creating international institutions through international protocols. There is no such department in India which is tasked with the sole responsibility of addressing various impediments on the road to access to justice. Even Lok Adalats are paper exercises only. Therefore, in the absence of effective alternative dispute resolution mechanisms, overall picture remains dull, dark and dreary. Never the less, these institutions do produce silver linings at times for us to walk on the road to justice yet the increasing harnessing of the innovative legal instrument called 'Public Interest Litigation'(PIL) by apex judiciary in India has started producing abundant sunlight.

The term ‘Public Interest’ relates to all those issues which revolve around general welfare of the masses. The word ‘Litigation’ means ‘a legal action including all proceedings therein, initiated in a court of law with the purpose of enforcing a right or seeking a remedy.’ Thus, the expression ‘Public Interest Litigation’ means ‘any litigation conducted for the benefit of public or for removal of some public grievance.’ Now, the court permits public interest litigation at the instance of the ‘Public-Spirited Citizens’ for the enforcement of Constitutional and Legal rights. Now, any public spirited citizen can move the court for the public cause (in the interests of the public or public welfare) by filing a petition in the Supreme Court under Article 32 and in the High Court under Article 226 of the Constitution of India as also in the Court of Magistrate under Section 133 of the Code of Criminal procedure, 1973

The seeds of the concept of public interest litigation were initially sown in India by Krishna Iyer J., in 1976 in Mumbai Kamgar Sabha vs. Abdul Thai²⁵ and was initiated in Hussainara Khatoon v. State of Bihar²⁶, where in the PIL was filed by an advocate on the basis of a news item published in the Indian Express, highlighting the plight of thousands of under trial prisoners languishing in various jails in Bihar. These proceedings led to the release of more than 40, 000 under trial prisoners. Right to speedy justice emerged as a basic fundamental right, which had been denied to these prisoners. The same set pattern was adopted in subsequent cases. Krishna lyer J., enunciated the reasons for liberalization of the rule of Locus Standi in Fertilizer Corporation Kamgar Union v. Union of India²⁷ by observing as under: .

1. Exercise of State power to eradicate corruption may result in unrelated interference with individuals’ rights;

2. Social justice warrants liberal judicial review of administrative action;

3. Restrictive rules of standing are antithesis to a healthy system of administrative action;

4. Activism is essential for participative public justice.

Furthermore, in 1981 Justice P. N. Bhagwati in S. P. Gupta v. Union of India²⁸, articulated the concept of PIL as follows;

“Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons by reasons of poverty, helplessness or disability or socially or economically disadvantaged position unable to approach the court for relief, any member of public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case any breach of fundamental rights of such persons or determinate class of persons, in this court under Article 32 seeking judicial redress for the legal wrong or legal injury caused to such person or determinate class of persons.”

The PIL or Social Action Litigation was put on a firm foundation by Justice Bhagwati in the case of People's Union for the Democratic Rights v. Union of India²⁹, wherein he stated;

“It would not be right or fair to expect a person acting probonus public to incur expenditure out of his bag for going to a lawyer and preparing a regular Writ petition. In such a case a letter addressed by him can legitimately be regarded as an appropriate proceeding”

The Supreme Court has played a crucial role in formulating several principles in public interest litigation cases over diverse subjects of law. For instance, the principle of ‘Absolute Liability’ was propounded in the Oleum Gas Leak case³⁰, ‘Public Trust Doctrine’ in Kamalnath Case³¹ etc., wherein MC Mehta was the main proponent of these petitions. Further, the Supreme Court gave variety of guidelines in various cases of public interest litigation. E.g. Ratlam Municipality Case³², Taj Trapezium Case³³, Ganga Pollution Case³⁴ etc. on the subject of Environmental Law,

Similarly, the Supreme Court in Bandhua Mukti Morcha v. Union of India³⁵, ordered for the release of bonded labourers; in Murli S. Dogra v. Union of India³⁶, banned smoking in public places; in the landmark judgement of Delhi Domestic Working Women’s Forum v. Union of India³⁷, issued guidelines for rehabilitation and compensation for the rape on working women; in Vishaka v. State of Rajasthan³⁸ laid down exhaustive guidelines for preventing sexual harassment of working women in place of their work and in Minerva Mills Ltd v Union of India³⁹ the Court held that the; ‘‘harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution.’’ Since then the judiciary has employed Directive Principles to derive the contents of various Fundamental Rights⁴⁰. In TN Godavaraman Thirmulpad v. Union of India⁴¹, the court examined the issue that where a litigant filing the PIL lacks bonafide, then the court has to decline its examination at the behest of a person who, in fact is not a public interest litigant and whose bonafides and credentials are in doubt. Besides the abovementioned decisions In a recent judgement of the constitution bench in Lalita Kumari v. Govt. of UP⁴², the Chief Justice of India, P. Sathasivam, while dealing with a writ petition regarding FIR and anticipatory bail held as under;

“The underpinnings of compulsory registration of FIR is not only to ensure transparency in the criminal justice delivery system by also ensure ‘judicial oversight’. Section 157(1)deploys the word ‘forthwith’. Thus any information received under Section 154(1) or otherwise has to duly informed in the form of a report to the magistrate. Thus, the commission of a cognizable offence is not only brought to the knowledge of the investigating agency but also to the subordinate judiciary… While registration of FIR is mandatory, arrest of the accused immediately on registration of FIR is not at all mandatory. In fact, registration of FIR and arrest of an accused person are two entirely different concepts under the law, and there are several safeguards available against arrest. Moreover, it is also pertinent to mention that an accused person also has a right to apply for ‘anticipatory bail’ under the provisions of Section 438 of the Code if the conditions mentioned therein are satisfied. Thus, in appropriate cases, he can avoid the arrest under that provision by obtaining an order from the court.”

These are but a few decisions portraying the role of the Supreme Court acting as a guardian of justice and providing relief to all those who have been deprived of the same. Besides the above mentioned decisions, the Supreme Court has evolved certain principles with respect to Public Interest Litigation.

In a lecture⁴³, Honorable Justice F.M. Ibrahim Kalifulla of Supreme Court of India has identified the principles of public interest litigation as under:

• 
  The court in exercise of powers under Arts. 32 and 226 of the Constitution of India can entertain a petition filed by any interested person on the welfare of the people who is in a disadvantaged position and thus, not in a position to knock at the doors of the court. The court is constitutionally bound to protect the fundamental rights of such disadvantaged people so as to direct the state to fulfill its constitutional promises.
  
• 
  Issues of public importance, enforcement of fundamental rights of large number of public vis a vis the constitutional duties and functions of the state, if raised, the court can treat a letter or a telegram as a public interest litigation upon relaxing procedural laws as also the law relating to pleadings.
  
• 
  Whenever injustice is meted out to a large number of people, the court will not hesitate in stepping in. Articles 14 and 21 of the Constitution of India, as well as the International Conventions on Human Rights provide for reasonable and fair trial.
  
• 
  The common rule of locus standi is relaxed so as to enable the court to look into the grievances and complaints on behalf of the poor, deprived, illiterate and the disabled who cannot vindicate the legal wrong or legal injury caused to them for any violation of any constitutional or legal right.
  
• 
  When the court is prima facie satisfied about violation of any constitutional right of a group of people belonging to the disadvantaged category, it may not allow the state or the government from raising the question as to the maintainability of the petition.
  
• 
  Although procedural laws apply on PIL cases but the question as to whether the principles of 'res judicata' or principles analogous there to would apply depending on the nature of the petition as also the facts and circumstances of the case. The dispute between two warring groups purely in the realm of private law would not be allowed to be agitated as public interest litigation.
  
• 
  However, in an appropriate case, although the petitioner might have moved a court in his private interest and for redressal of the personal grievances, the court in furtherance of the public interest may treat it necessary to enquire into the state of the subject of litigation in the interest of justice.
  
• 
  The court in special situations may appoint Commission, or other bodies for the purpose of investigating into the allegations and finding out the facts. It may also direct management of public institution taken over by such committee. The court will not ordinarily transgress into a policy. It shall also take utmost care not to transgress its jurisdiction while purporting to protect the rights of the people being involved.
  
• 
  The court would ordinarily not step out of the known areas of judicial review. The high court although may pass an order for doing complete justice to the parties; it does not have a power akin to Article 142 of the Constitution of India.
  
• 
  Ordinarily, the high court should not entertain a writ petition by way of public interest litigation questioning the constitutionality or validity of a statute or statutory rule.
  

No doubt, the legal instrument of public interest litigation has turned out to be a very potent weapon for class or mass upliftment yet it is an open secret that executive machinery invariably falls short of immediate and effective implementation of the judicial directives issued by way of public interest rulings. While Vishakha guidelines took more than fifteen years to be enacted as The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, Model Police Act is yet to see the light of the day. Although it will be too much to expect from the judiciary for day to day monitoring of the implementation of judicial directives yet some agency like 'Judicial Directives Implementation Authority' can be of immense help. When faced with situation of parliamentary inertia, the apex judiciary can rise to the occasion by issuing 'Suo motu' directive for establishment of such an authority. This directive will work wonders for bringing access to justice from courts to court yards.