Public interest litigation (hereinafter 'PIL') was the innovation of not the Legislature but the Judiciary. The origin of the concept (in 1970s and early 80s [1] ) is not based on economic considerations of efficiency but on ground of "access to justice" for the downtrodden who did not have access to the Courts nor were fully aware of their rights and even if they were, they did not possess the means to get them enforced. [2]
Since it was not the invention of the legislature, perhaps this might be one of the reasons why there does not exist any statutory definition of PIL. However, recently, High Court at Calcutta has provided a broad inclusive definition of PIL in Section 56 of the Original Side Rules of the High Court at Calcutta, 1914 stating that:
"Definition of Public Interest Litigation: public interest litigation shall include a litigation, the subject matter of which is a legal wrong or a legal injury caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden 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 is, by reason of poverty. helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief, and for redressal of which any member of the public not having any personal interest in the subject matter presents an application for an appropriate direction, order or writ in this Court under Article 226.
Notwithstanding anything contained above, in any appropriate case, though the petitioner might have moved a Court in his private interest and for redressal of personal grievances, the Court in furtherance of the public interest involved therein may treat the subject of litigation in the interest of justice as Ii public interest litigation." [3]
This definition has a very broad connotation and innovative judges, who consider the interest of public at large, have interpreted law to overcome the inadequacy of the formal court system and private litigation to solve conflicts at macro level. Although, the main focus of such litigation is only 'Public Interest' there are various other areas where a PIL can be filed e.g. violation of basic human rights of the poor, content or conduct of government policy or compel municipal authorities to perform a public duty, Constitutional vires of legal provisions/ statutes, etc. [4]
Public Interest Litigation is only an extension of the writ jurisdiction, the difference being that the court itself can initiate action in public interest if the concerned judge comes to know of any violations and the locus standi is relaxed so that any public spirited citizen can move the court. [5]
It is also important to state that it would be a mistake if the court considers high profile cases as equivalent to issues of wide public importance. Issues which are of interest to the public are not necessarily in the public interest. [6]
Locus standi principle
Locus standi is an admissibility condition that acts as a 'gate-keeper for the filing of cases.' [7] In private law, traditional economic arguments against the relaxation of locus standi rule were that this would lead to too many and inefficient procedures, to an inefficient use of the court system and potentially to over-deterrence. Thus in case of private law, having a strict locus standi rule makes sense. [8]
However, in the context of public law, courts have a primary duty to undertake judicial review of all governmental actions. Therefore, it would not be appropriate for Courts to refuse to determine such issues because of absence of locus standi. [9]
One of the basic characteristic features of PIL is the relaxation of the locus standi rule for the petitioner wherein any public spirited person can on behalf of certain sections of society file a suit against the wrongdoer (generally an industry) and the State machinery (in order so that the Court can direct the State for implementation of the order).
Economic Analysis of the relaxation of Locus standi Rule
It has been seen the poor and the under-privileged are unwilling to assert their rights because of poverty, ignorance or the fear of social or economic retaliations from the dominant sections of the society, lack of information, high transaction costs, etc. These disabilities are considerably reduced if the law allows a concerned citizen to sue on behalf of the poor in a court of law. [10]
In India, where the government enforcement machinery is said to be lax, court involvement is indispensable in ensuring due action is taken. The Legislature determines ambient quality standards which are the desired standards of pollution control. Based on this the emission limit values are derived and set. Now how do we enforce this among the polluters?
The cheapest solution is to use private law remedies like nuisance, tort or, in rare environmental cases, contract law. Shavell [11] however, gives many reasons why private enforcement of these standards may not work: the damage may be too widespread as a result of which the individual damage for every victim is too low. They will therefore show, in the words of Schafer, a 'rational apathy'. [12] Therefore no individual victim would want to litigate (Rational Choice Theory).
Moreover, especially in the environmental case, there can be causation problems and the time laps between the emission and the actual occurrence of harm can be long (the so-called latency problem) as a result of which a private law suit may never be brought. [13] In addition insolvency problems can arise; polluters can sometimes not be identified etc. [14] For all of these reasons there is, in principle, a strong case for public enforcement of environmental standards.
The relaxation of the locus standi rule will help in coping with the problem of rational apathy. Here any spirited individual may come in the interest of public at large. Though the litigant may still have other considerations such as gaining a positive name and repute in the society or there could be several other reasons such as genuine concern for the society, eagerness to learn the judicial process along with helping the society, etc.
Generally also, each party is differentially affected with pollution (some more and some less). The pollutant may identify potential litigants and compensate them separately, thus leaving others at an economically disadvantageous position. This will only partially internalize the externalities. Empirical data [15] has indicated that class action suits were often not initiated in the specific case of India more particularly because of the high transaction costs for the group to get organized and thus leading the players in holding out resulting in the free-rider problem. [16]
One of the major deterrent factors for a person filing PIL is the cost of filing the suit (which includes cost of filing, drafting, appearance charges of attorneys, etc.). This has been considerably reduced as even letters to Chief Justices can act as a petition. A person may appear in person in the Court. The procedure for adjudication of PIL is not stringent as in the case of civil suits. Even if a lawyer is necessary, the Court would provide the attorney at the State's expense. Therefore, such measure reduces the deterrent factor of cost of filing the PIL to a great extent.
Another deterrent factor for PIL is filing of frivolous PILs or PILs for furthering private or vested interests. This also results in hindering the due process of Court systems. A useful way of tackling this could be to offer economic disincentives in the form of penalties to those who are found to use PIL for vested purposes. Supreme Court of India has been cautious and has now become very strict in dealing with vexatious PILs and has started imposing exemplary costs on litigants coming to serve private interests. [19]
Courts in Hong Kong have held that public interest litigations are 'costs incidental to good administration' and hence they should be adequately incentivised and protected. [20] So long as it can be seen that the PIL is not totally frivolous and there was indeed a chance of success, Courts refrain from imposing penalty. Protected cost orders [21] also help in incentivising pro-bono publico suits. [22]
PILs give birth to laws relating to constitutional importance in almost all of the cases. This helps in curbing legal lacunas. It also helps in the establishment of constitutional principles of broad public importance. Thus it helps in covering areas of no information and thus reduces transaction costs for the future (of course unless a particular case is to be challenged or rendered ineffective by new law). This also helps the government in fixing areas with no law. In any case, a particular legislation cannot take care of all the possible contingencies (and if it tries to, it'll result in huge transaction costs).
It has been argued that PILs can be economically efficient method of redressal if certain conditions are fulfilled viz. insufficient incentive for private litigation, regulatory failures and the inability of class action to counter harm due to high transaction costs. [23]
However, in order to assess whether PILs are an efficient alternative, it must first be proved that the other forms of legal actions are either too expensive or that there is a lack of substantive law to correct the harmful activity or that there are failures in regulation that have been in place that make the PIL alternative more efficient. Secondly, it must also be assessed whether PIL would be misused as a strategy to further private ends and open up a floodgate of litigation.
We have already seen how there is a problem in private litigation due to economic theories such as Rational Choice theory, free-rider problem, etc. Even if private litigation is to happen, then it may only partially internalize the externality if fewer litigants file a suit. This leaves the economy still in a sub-optimal position where the socially damaging activity is over - supplied. On the other hand the
It has also been seen that even though there are enough regulations in paper, there still seems to be high pollution. This implies that the problem does not lie in absence of laws but in lack of implementing the laws properly. This has been largely ineffective due to large scale corruption in the country and interest groups lobbying. [24]
Class action suits are another option of redressal as the cost of litigation is divided amongst the victims. However, class action suits have a high transaction cost in terms of collecting affidavits and co-ordination. The more the number of victims, the more would be the transaction cost in class action suits. Even empirical data in India has shown that class action suits have not been resorted to frequently even though it is allowed under the Civil Procedure Code, 1908. [25] Even here, PIL may be said to be effective since there will be no such involvement of all the victims and the cost of adjudication is also kept low due to lesser formalities, etc.
The Delhi CNG Case is a perfect example where there is convincing empirical evidence that the public interest litigation in environmental cases is effective, at least in some cases. There is also some empirical evidence which suggests that the orders by the Indian Supreme Court have led to a substantial reduction of pollution levels. [26]
Thus it may be said that even though there are fears of over-burdening of the judiciary and cases being filed with vested interests in the garb of PIL, overall it is still an economically viable mode of redressal. Also if certain conditions are fulfilled as discussed in the previous section, then it may be said to be an optimal mode of redressal mechanism.
