How a public interest litigation reaches the Supreme Court
A prisoner named Sunil Batra once wrote a letter to a Judge of the Supreme Court. He complained that a Head Warder had brutally assaulted another prisoner, Prem Chand. It was a letter, not a formal petition. The Court converted it into a habeas corpus proceeding. Justice Krishna Iyer wrote that forms were forsaken since freedom was at stake.
That case, Sunil Batra v. Delhi Administration, decided on 20 December 1979, is one of the moments in which public interest litigation took shape in India. The text of Articles 32 and 226 of the Constitution does not use the phrase. The courts built it, and they have also fenced it.
The two doors in the Constitution
Two articles make it possible. Article 32 guarantees the right to move the Supreme Court for the enforcement of the fundamental rights in Part III, and it sits in Part III itself, so the remedy is a fundamental right too. The Court can issue directions, orders or writs, including habeas corpus, mandamus, prohibition, quo warranto and certiorari.
Article 226 gives every High Court a similar power within its territory, and a wider one. A High Court can issue writs for the enforcement of fundamental rights "and for any other purpose". A public interest petition does not have to begin in the Supreme Court. Often the High Court is the right place to start.
Who is allowed to knock
For a long time the rule was strict: only a person who had suffered a specific legal injury could go to court. That rule shut out exactly the people least able to go, such as bonded labourers, undertrial prisoners and children.
In S.P. Gupta v. President of India, decided on 30 December 1981, Justice P.N. Bhagwati relaxed it. He wrote that any member of the public with sufficient interest, who is not a mere busybody or meddlesome interloper, has standing. Where a person or class cannot approach the court because of poverty, helplessness, disability or a socially or economically disadvantaged position, any member of the public can move the High Court under Article 226, or the Supreme Court under Article 32 for the breach of a fundamental right. The Court, he wrote, will readily respond even to a letter from someone acting for the public good.
This does not mean anyone may file about anything. The person must have sufficient interest and must not be a mere busybody or meddlesome interloper.
When a newspaper report became a case
The same years produced Hussainara Khatoon v. Home Secretary, State of Bihar. A habeas corpus petition told the Court that a large number of men, women and children had been in jail for years awaiting trial, for offences that would have earned only a few months' punishment even if proved. The petition relied on reports in the Indian Express of 8 and 9 January 1979.
The Court noted that some of the named undertrials had been in jail for 5, 7 or 9 years, and a few for more than 10 years, without their trials having begun. In its judgment of 12 February 1979 it held that speedy trial is implicit in Article 21, and it directed that those named be released on personal bonds with no monetary obligation.
What the Court will look at today
Letters still reach the Supreme Court, but not every letter becomes a case. The Court's own guidelines, from a full Court decision of 1 December 1988 and later modifications, say that no individual or personal matter is entertained as public interest litigation except as the guidelines indicate.
The categories they ordinarily accept include bonded labour, neglected children, minimum wages and the exploitation of casual workers, petitions from jails about harassment, release and speedy trial, police refusal to register cases, harassment by police and custodial death, atrocities on women, harassment of Scheduled Caste, Scheduled Tribe and economically backward villagers, the environment, food adulteration, heritage, forests and wildlife, riot victims, and family pension.
Letters are first screened in the Court's PIL Cell. Only those that fall within the guidelines go before a Judge nominated by the Chief Justice of India. Landlord and tenant disputes, service and pension matters, admission to educational institutions and requests for early hearing are not entertained as public interest litigation.
The Court guards the door
A tool this open can be misused, for publicity, for a private quarrel or to stall a rival. In State of Uttaranchal v. Balwant Singh Chaufal, decided on 18 January 2010, the Supreme Court set out how courts should respond.
Courts must encourage genuine and bona fide public interest litigation and discourage petitions filed for extraneous considerations. Each High Court should frame its own rules. Before entertaining a petition, a court should check the petitioner's credentials and the correctness of what the petition says, satisfy itself that substantial public interest is involved, and make sure there is no personal gain or oblique motive behind it. Petitions by busybodies should be discouraged by imposing exemplary costs or by similar methods. Costs are not imposed on every petition. They are the answer to abuse.
What this means for a citizen
If you see a wrong done to people who cannot go to court themselves, the law gives you a route. Be clear about whose rights are being violated and which right it is. Gather what can be verified, as the Hussainara petition did with published reports. Ask whether the High Court of your state is the right first door, since Article 226 is wider than Article 32.
And be honest about your motive, because the Court will ask. Two early public interest cases grew out of a prisoner's letter and a newspaper report. Public interest litigation has lasted because the Court insists that the interest be public.