Explain the exceptions to general principals of equality provided under Article 15 and Article 16 of the Constitution

Article 15 prohibits the discrimination on grounds of religion, race, caste, sex or place of birth.

a)    The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

b)   No citizen shall on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any of them, be subject to any disability, liability, restriction or condition with regard to-

1.     access to shops, public restaurants, hotels and places of public entertainment; or

2.    The use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of general public.

The general exceptions for this rule are, 1. Special provision for women and children:- Article 15 clause (3) says that nothing in article 15 shall prevent the state from making any special provision for women and children. The reason is that “women’s physical structure and performance of maternal functions place her at a disadvantage at the struggle for subsistence and her physical well-vigor of the race.

3.    Special provision for advancement of backward class: - Clause (4) of Article 15 constitutes another exception for the general rule laid under Article 15 of the Constitution. Under this clause, the State is empowered to make special provisions for the advancements of any special provisions for the advancements of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes. The provision made in clause (4) of article 15 is only an enabling provision and does not impose any obligation on the State to take any special action under it. It merely confers a discretion to act if necessary by way of making special provision for backward classes.

Article 16 deals with the rule of equality of opportunity in matters of public employment.

1.     (1)There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

2.    (2)No citizen shall, on grounds of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

The following are the exceptions for the general rule;

1.     Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a state or union territory, any requirement as to residence within that state or Union territory (1) prior to such employment or appointment.

2.    Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion with consequential seniority, to any classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the state, are not adequately represented in the services under the state.

What are the Fundamental Duties provided in part IV of the Constitution

Article 51 A of the constitution specifies a code of ten Fundamental Duties for citizens. It was added to the constitution by the 42^nd Amendment act, 1976. Article 51 states that, it is the duty of every citizen of India

a.    To bide by constitution and respect its ideals and institutions, the National Flag and National Anthem;

b.    To cherish and follow the noble ideals which inspired our national struggle for freedom;

c.    To uphold and protect the sovereignty, unity and integrity of India;

d.    To defend the country and render national service when called upon to do so;

e.    To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;

f.     To value and preserve the right heritage of our composite culture;

g.    To protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creature;

h.    To develop the scientific temper, humanism and the spirit of inquiry and reform;

i.     To safeguard public property and abjure violence;

j.     To strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievements

The Fundamental Duties are intended to serve as a constant reminder to every citizen that while the Constitution specifically conferred on them certain Fundamental rights, it also requires citizens to observe certain basic norms of democratic conduct and democratic behavior. However there are contentions that this view is wrong. The performance of one’s duties even in partial disregard of one’s rights and privileges has been traditional in this country.

The duties incorporated in the Constitution by the 42^nd amendment are statutory duties and shall be enforceable by law. Parliament, by law, will provide penalties to be imposed for failure to fulfill those duties and obligations. For the proper enforcement of duties, it is necessary that it should be known to all. This should be done by a systematic and intensive education of the people that is by publicity or by making it a part if the syllabi and curriculum of education.

In M.C. Mehta v. Union of India, the Supreme Court has held that it is the duty of the central government to teach compulsory lessons at least for 1 hour a week on protection and improvement of natural environment in all the educational institutions in the country.

What is the objectives behind the directive principles of state policy?

The Directive Principles of State Policy contained in Part IV of the Constitution set out the aims and objectives to be taken up by the States in the governance of the country. The State must keep in mind these directive principles while formulating laws. They lay down certain social, economic and political principles, suitable to our peculiar conditions prevailing in India.

These principles should be pursued by the various governments in India and these principles thereby imposes certain obligations on the state to take positive action in certain directions in order to promote the welfare of the people and achieve economic democracy.

The main object in enacting the directive principles appear to have been to set standards of achievements before the legislature and the executive, the local and other authorities, by which their success of failure can be judged. It was also hoped that those failing to implement the directives might receive a rude awakening at the polls.

They however does not impose any pattern of economic or social order. They lay down the goals which may be achieved through various means which have to be devised from time to time.

Discuss the restrictions on freedom of movement

The State may impose reasonable restrictions on freedom of movement on two grounds:

1.     In the interest of general public,

2.    For the protection of the interest of scheduled Tribes.

In State of M.P. v. Baldeo Prasad, the Court held – A law providing for experiment of ‘dangerous character’ from a particular locality cannot be called reasonable if it does not specially define as to what is meant by dangerous character as it gives the administrative authority arbitrary power to determine as to whether a citizen is of dangerous character.

The right of a citizen to move freely may also be restricted for the protection of the interest of “Scheduled Tribes”. As the tribes have their own culture, language, customs and manners, it is necessary to impose restriction upon the entry of outsiders to these areas.

In Rajneeh Kumar v. Union of India, it has been held that the requirement of wearing helmet is not a restriction on freedom of movement of citizen. The paramount objective of wearing helmet is to save his life.

Comment on “EQUAL PAY FOR EQUAL WORK”

In Randhir Singh v. Union of India, it has been held that equal pay for equal work, although not expressly declared to be a fundamental right clearly a constitutional goal under Articles 14,16 and 39(c) of the Constitution and can be enforced by the courts in cases of unequal scales of pay based on irrational classification. This doctrine is equally applicable to temporary or casual employees performing the same duties and functions also.

But this right is not absolute. Although the nature may be the same, the works may differ in degrees of performance, the quantity may be the same but the quality may be different etc. In F.A.I.C. and C.E.S v. Union of India, it was held that different pay scales fixed for stenographers grade 1 of Central Secretariat and those attached to the heads of subordinate offices on the basis of recommendations of the Third Pay Commission was not violative of Articles 14 and 16 of the Constitution.

The duties and responsibilities of stenographer’s grade 1 were of much higher nature than that of the stenographers attached to the subordinate offices. It has also been held that seniority cannot be claimed from the date when the vacancy arises but will be fixed on the basis of date when actual appointment is made.

What are the constitutional provisions to prevent exploitation of children?

Article 24 of the Constitution prohibits employment of children below 14 years of age in factories and hazardous employment. Apart from this provision, Article 39 of the Constitution imposes upon the State an obligation to ensure that the health and strength of workers men and women and the tender age of the children are not abused and that citizens are not forced by economic necessary to enter avocations unsuited to their age and strength.

In People’s Union for Democratic Rights v. Union of India, it was contented that the Employment of children in the construction work of Asiad Projects in Delhi since construction industry was not a process specified in the schedule to the children Act. The Court rejected this contention and held that the construction work is hazardous employment therefore under article 24 no children below the age of 14 years can be employed in the construction work even if construction is not specified in the schedule to the Employment of Children Act, 1938.

In pursuance to the above duty the Employment of Children Act, 1938 and The Child Labour (Prohibition and Regulation) Act, 1986, have been enacted. This article however does not prohibit their employment in any innocent or harmless job or work. In a landmark judgement in M.C. Mehta v. State of Tamil Nadu, the Supreme Court has held that children below the age of 14 years cannot be employed in any hazardous industry, mines or other works and has laid down exhaustive guidelines how the State authorities should protect economic, social and humanitarian rights of millions of children, working illegally in public and private sections.

Whether right to privacy is a fundamental right in India?

The “right to privacy” or the right to be let alone is guaranteed by article 21 of the constitution. The Supreme Court has expressly held this in R. Rajagopal v. State of T.N, popularly known as the “Auto Shanker case”. A citizen has the right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing etc. among other matters.

None can publish anything regarding the above matters without his consent whether truthful or otherwise. The rule is subject to an exception that if any publication of such matters are based on public record including court record, it will be un-objectionable.

Although right to privacy is a fundamental right under Art.21 of the Constitution, it is not an absolute right and restrictions can be imposed on it for the prevention of crime, disorder or protection of rights and freedom of others.

Freedom of speech and expression in India

Freedom for speech and expression is one of the hot topic of debate today, especially in India. Cause of action behind such debate is that, the various State Governments as well as the Central Government is recently imposing lots of restrictions on the use of social media or arresting people on the ground of misusing social media.

In this circumstances, let’s try to understand the concept of freedom of speech and expression in the Indian context.

Article 19(1)(a) of the Indian Constitution guarantees the freedom of speech and expression subject to the reasonable restrictions imposed under the sub-clause 2 of the Article 19 of the Constitution of India.

As observed by the Privy Council in Channing Arnold v. King Emperor [AIR 1914 PC 116, 117], there was no statutory provisions in the pre-independent India to protect or guarantee the freedom of press. Though the Article 19(1)(a) of the Constitution of India guarantees the freedom of speech and expression, it doesn’t specifically mention the freedom of press.

Honourable Supreme Court in Romesh Thapar v. State of Madras [AIR 1950 SC 124], held that, the freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible.

However, in Maneka Gandhi v. Union of India [AIR 1978 SC 597], it was held by the Honourable Apex Court that the freedom of speech and expression has no geographical limitation and it carries with it the right of a citizen to gather information and to exchange thought with others not only in India but abroad also.

Freedom of speech and expression and Social Media

As observed by the apex court in Indian Express v. Union of India [(1985) 1 SCC 641], the press plays a very significant role in the democratic machinery. Three essential elements of the freedom of press are; freedom of access to all sources of information, freedom of publication, and freedom of circulation. All these are applicable to social media as well.

Thus, in the present scenario we can consider social media also as a kind of press. Hence, we may interpret the freedom of press along with the concept of freedom of speech and expression in Social Media.

Social media has become a vital tool for communication in the modern world, where most of us are having smartphones in our pocket. Social media plays a very vital role in exchange of information very instantly and to connect with people.

Freedom of speech and expression are considered as a fundamental right in whatever medium it is exercised. The same is recognized under Article 19(1)(a) of the Indian Constitution. Further, in the light of the growing importance of the social media like facebook, instagram, whatsapp, twitter, Linkedin etc. as a medium of exercising the freedom of speech and expression, access to social media has also been recognized as a fundamental right under Article 19 of the Universal Declaration of Human Rights(UDHR) as well as Article 19(2) of the International Covenant on Civil andPolitical Rights.

Article 370 and special status of Jammu & Kashmir

Article 370 of the Indian Constitution grants a special status to the State of Jammu & Kashmir. As compared to the other States of Indian Union, the Article 370 gives an autonomous status to the State of Jammu & Kashmir.

Though, the Article was initially drafted temporarily empowering the constituent assembly of the State to recommend the articles of the Indian constitution to be applied to the state or to abrogate the Article 370 altogether.

However, the State constituent assembly dissolved itself without recommending abrogation. As a result, the Article 370 deemed to have become a permanent feature of the Indian Constitution.

However, the High Court of Jammu & Kashmir in Ashok Kumar & Others v. Presidentof India & Others (decided on October 9, 2015) held that, the special status of the State of Jammu & Kashmir conferred under the Article 370 of the Constitution of India cannot be altered by way of abrogation, repeal or amendment.

While delivering the judgment the Court observed that, Jammu and Kashmir while acceding to Dominion of India, retained limited sovereignty and did not merge with Dominion of India, like other Princely States that signed Instrument of Accession with India.

Honourable Court came to such a conclusion based on the rationale that power had been conferred upon the Constituent Assembly of 1957 to recommend the President as to ceasing or modification of operation of the provision. Since, the Constituent Assembly had not made such a recommendation before its dissolution (i.e., on January 25, 1957), provision was rendered permanently irrevocable.

By virtue of Article 370 (1) of the Indian Constitution;

Notwithstanding anything contained in this Constitution –

(a) the provisions of article 238 shall not apply now in relation to the state of Jammu and Kashmir;

(b) the power of Parliament to make laws for the said state shall be limited to—

(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and

(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.

Explanation: For the purpose of this article, the Government of the State means the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat (now Governor) of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office.

(c) the provisions of article 1 and of this article shall apply in relation to that State;

(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify:

Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation with the Government of the State:

Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.

(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or in the second provison to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.

(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:

Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.

Can preamble of the constitution be amended?

The preamble of the Constitution is a part of the basic structure of the Constitution. It represent the aspirations of the people of India. It is the key to open the mind of the makers of the Constitution.

Article 368 of the Indian Constitution grants constituent power to make formal amendments and empowers Parliament to amend the Constitution by way of addition, variation or repeal of any provision according to the procedure laid down therein, which is different from the procedure for ordinary legislation.

Here the question is Can preamble of the constitution be amended? Before that, we needs to understand that, whether Preamble is a part of the Constitution or not? We had already discussed this question in our previous Article. Hence, the question here is; Can preamble of the constitution be amended?

This question was initially raised in the Berubari Case, where the Supreme Court of India held that, the preamble of the Constitution is not a part of the Constitution, and therefore it is not amendable.

The question was subsequently raised in the famous Kesavananda Bharati Case, where the Supreme Court of India reversed the decision in the Berubari Case, and held that, preamble of the Constitution is a part of the Constitution, and therefore the Parliament can amend the same under the provisions of Article 368.

However, it may be noted that, such an amendment under Article 368 of the Indian Constitution shall not affect the basic structure of the Constitution.

Can an incorporated company be regarded as a citizen of India?

Part II of the Indian Constitution under Article 5, deals with the concept of Indian Citizenship. It defines various categories of Indian Citizenship at the commencement of Indian Constitution. Can an incorporated company be regarded as a citizen of India under the provisions of Part II of the Indian Constitution?

Read more: Who is an Indian Citizen and what are the advantages of Indian Citizenship?

Honourable Supreme Court of India in State Trading Corporation v. CTO, AIR 1963 SC 1811 held that, the corporation was not a citizen and it opined that, the Part II of the Indian Constitution deals only with the citizenship of natural persons and clearly excludes a company, association or a body of individuals.

However, in RC Cooper v. Union of India, AIR 1970 SC 564 Honourable Supreme Court of India diluted its previous rigorous attitude towards the corporations and companies and held that, the petition of the incorporation challenging the violation of fundamental right is maintainable.

Subsequently, in Bennet, Column & Co v. Union of India, AIR 1977 SC 106 Honourable Supreme Court of India held that, the fundamental rights of the readers, newspaper editors, and shareholders were badly affected by the Newsprint Control Order, 1972. Said Order badly affected the fundamental rights of the newspaper companies, whose aim was freedom of speech.

In the light of above mentioned cases decided by Honourable Supreme Court of India, it is now settled that, even an incorporated company can be regarded as a citizen of India.

Attempt to suicide no more an offence in India

Section 309 of the Indian Penal Code, says that, whoever attempts to commit suicide and does any act towards the commission of such offence, shall he punished with simple imprisonment for a term which may extend to one year. However, upon considering the recommendations of the Law Commission, Government of India introduced Mental Healthcare Bill and the same was passed in the Rajya Sabha on August 8, 2016.

Bill seeks to provide a better health care facilities for those people who are suffering from mental illnesses. Bill also seeks to decriminalize the offence of Attempt to Suicide. By virtue of Section 124 of the Mental Healthcare Bill, notwithstanding anything contained in section 309 of the Indian Penal Code, any person who attempts to commit suicide shall be presumed, unless proved otherwise, to be suffering from mental illness at the time of attempting suicide and shall not be liable to punishment under the said section.

Section 124 further provides that, the appropriate Government shall have a duty to provide care, treatment and rehabilitation to a person, having mental illness and who attempted to commit suicide, to reduce the risk of recurrence of attempt to commit suicide.

In P. Rathinam v. Union of India, (1994 AIR 1844, 1994 SCC (3) 394) Honourable Supreme Court held that, an act of suicide cannot be said to be against religion, morality or public policy, and an act of attempted suicide has no baneful effect on society. Further, suicide or attempt to commit it causes no harm to others, because of which State's interference with the personal liberty of the persons concerned is not called for.

Thus, the Section 309 of the Indian Penal Code violates the Article 21 of the Indian Constitution. Hence, it was held that, Section 309 of the Indian Penal Code deserves to be effaced from the statute book to humanize our penal laws.

However, in Smt. Gian Kaur v. The State of Punjab, (1996 AIR 946, 1996 SCC (2) 648) Supreme Court of India held that, Section 309 of the Indian Penal Code is not violative of either Article 14 or Article 21 of the Indian Constitution. In other words, the apex court held that, Section 309 of IPC is constitutionally valid.

Further, in 210^th Law Commission Report on Humanization and Decriminalization of Attempt to Suicide, it is felt that attempt to suicide may be regarded more as a manifestation of a diseased condition of mind deserving treatment and care rather than an offence to be visited with punishment.

In Aruna Ramchandra Shanbaug v. Union of India & Ors., [(2011) 4 SCC 454] Supreme Court of India opined that, although Section 309 of IPC has been held to be constitutionally valid in Gian Kaur's case, the time has come when it should be deleted by Parliament as it has become anachronistic. A person attempts suicide in a depression, and hence he needs help, rather than punishment. We therefore recommend to Parliament to consider the feasibility of deleting Section 309 from the Indian Penal Code.

Preamble, a part of the Constitution or not

Preamble is nothing but an introduction to any statute. Same as the case in Constitution. Preamble is useful in the understanding of the policy and intention of the legislature. In other words, we can say that, Preamble is the key to the Constitution.

Preamble sets out the main objectives which the legislature seeks to secure for the people of the nation. It is the legitimate aid in construction of the provisions of the Constitution. Preamble contains the ideals and aspirations which the framers of the Constitution wanted for general purpose of the people in their best interest.

Preamble usually throws useful lights as to what a statute intends to teach. In other words, it lays down the objectives of the statutes which the legislature intends to achieve. However, the Preamble of an Act is not generally recognized as a part of the Act, because, the same is not enacted OR adopted by the enacting body in the same way as that of enacting provisions.Thus the question is;

Whether, the Preamble is a part of the Constitution or not?

In Berubari Case, the Honourable Supreme Court of India expressed the opinion that, a Preamble was not a part of the Constitution. However, in Kesavananda Bharathi case, Honourable Supreme Court of India changed its opinion and held that, Preamble is apart of the Constitution and relates to its basic structure and should be read and interpreted in the light of grand and noble vision expressed in the preamble.

Can Parliament give its territory to a foreign country?

Can Parliament give its territory to a foreign country? This question was answered by the Honourable Supreme Court of India in Berubari Case. Berubari was a small area of 9 square miles and population of 12000 in the State of West Bengal. There was an agreement between India and Pakistan that, Berubari shall be transferred to Pakistan.

This was objected by certain citizens of Berubari, challenging the Government of India’s act of giving away Berubari to Pakistan, contenting that, said act is against the principles of Indian Constitution. Honourable President of India sought advice from the Honourable Supreme Court in this regard.

Accordingly, Honourable Supreme Court gave its opinion that;

By virtue of Article 3 of the Constitution of India, Parliament can only adjust the internal territory. Article 3 does not empower the Parliament to cede its territory to a foreign country. Thus the agreement between India and Pakistan, transferring the territory of Berubari was void.

The Constitution Bench unanimously answered the reference with the opinion that legislative action was necessary for implementation of the agreement, and a Constitutional Amendment would be required to implement the provisions relating to both the Berubari Union as well as the exchange of enclaves.

In other words, if the Parliament wants to transfer any part of Indian Territory to a foreign country, it could do so by bringing an amendment to the constitution. Subsequently, Parliament passed the Constitution (9th Amendment) Act, in the year 1960, amending the First Schedule and paving the way for the implementation of the agreement entered between India and Pakistan to transfer Berubari.

However, it could not be implemented, and as a result Article 3 of the Constitution of India remained unamended. A comprehensive agreement between India and Bangladesh for settling the boundary disputes was entered in the year 1974 soon after the liberation of Bangladesh from East Pakistan, which in turn demanded the Indian Parliament to pass an amendment to the First Schedule to implement the provisions of 1974 agreement.

Who is an Indian Citizen and what are the advantages of Indian Citizenship?

Part II of the Indian Constitution under Article 5, deals with the concept of Indian Citizenship. It defines various categories of Indian Citizenship at the commencement of Indian Constitution. By virtue of Article 5 of the Constitution of India;

Indian Citizenship is classified under three categories viz.

Citizenship by domicile

At the commencement of this Constitution every person who has his domicile in the territory of India and (a) who was born in the territory of India; or (b) either of whose parents was born in the territory of India; or (c) who has been ordinarily resident in the territory of India for not less than five years preceding such commencement, shall be a citizen of India.

Citizenship by migration

Notwithstanding anything in Article 5, a person who has migrated to the territory of India from the territory now included in Pakistan shall be deemed to be a citizen of India at the commencement of this Constitution if;

1. he or either of his parents or any of his grandparents was born in India as defined in the Government of India Act, 1935; and
2. in the case where such person has so migrated before July 19, 1948 , he has been ordinarily resident in the territory of India since the date of his migration, or
3. in the case where such person has so migrated on or after July 19, 1948 , he has been registered as a citizen of India by an officer appointed in that behalf by the Government of the Dominion of India on an application made by him therefor to such officer before the commencement of this Constitution in the form and manner prescribed by that Government:

Provided that no person shall be so registered unless he has been resident in the territory of India or at least six months immediately preceding the date of his application.

Notwithstanding anything in Articles 5 and 6, a person who has after March 1, 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India: Provided that nothing in this article shall apply to a person who, after having so migrated to the territory now included in Pakistan, has returned to the territory of India under a permit for resettlement or permanent return issued by or under the authority of any law and every such person shall for the purposes of clause (b) of Article 6 be deemed to have migrated to the territory of India after July 19, 1948.

Citizenship by registration

Those overseas persons of Indian Origin who were not domiciled in India at the commencement of the Indian Constitution as required under Article 5 of the Constitution of India, if;

1. Such a person or either of his parents or grandparents were born in India; and
2. He had registered himself as a Citizen of India with the Indian Consular OR Diplomatic Mission at the overseas country where he was at that time.

Advantages of Indian Citizenship

Indian Citizens alone have the right to hold certain high offices such as President of India, Vice-President of India, Governor of Indian States and Union Territories, Judges of Supreme Court of India and High Courts of various States, Attorney General and Advocate General.

The right to vote and elect members to the Union (Lok Sabha) and State Legislatures are researched only to the Citizens. Similarly, only an Indian Citizen can become a member of Union (Both Lok Sabha and Rajya Sabha) or State Legislature (Both Legislative Assembly and Vidhan Sabha).

Nature and Importance of Public Interest Litigation

Nature of Public Interest Litigation

The term Public Interest Litigation (hereinafter referred as “PIL”) is not defined in any statutes or legislations. In general terms PILmeansa legal action initiated in the court of law for the protection of Public Interest. It includes the various public nuisances viz. Pollution, failure of Safety measures like Road Safety, constructional hazard, terrorism etc.

It may be a legal action initiated either by;

1. the Court itself (Suo moto action), OR
2. the aggrieved party, OR
3. any third party

In case of Public Interest Litigation, it is not necessary that, the aggrieved party shall initiate the legal proceedings all the time. There may be occasions where the victim or the aggrieved party may not have proper guidance or resources to initiate or proceed with legal action to seek appropriate remedy.Considering these aspects, the concept of Public Interest Litigation was introduced. It is the power given to the general public by the courts through judicial activism.

In India, Article 32 of the Indian Constitution guarantees a right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by the Part III of the Indian Constitution. Though only the victims has the right to approach the court seeking remedy under Article 32, Justice PN Bhagwati, in his judgement S. P. Gupta v. Union of India, 1981 (Supp) SCC 87, articulated the concept of Public Interest Litigation 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.

Public Interest Litigation is not in the nature of adversary litigation but it is a challenge and an opportunity to the Government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social and economic justice which is the significant tune of our Constitution.

Importance of Public Interest Litigation

1. Public Interest Litigation paved way to a new regime of human rights by giving a wider interpretation to the right to equality, life and personal liberty guaranteed under Part III of the Indian Constitution. Some of the human rights emerged as a result of Public Interest Litigation are;Right to education, Right to live with dignity, Right to Clean environment, right to free legal aid and speedy trial, protection against sexual harassment at workplace etc.
2. Introduction of Public Interest Litigation democratize the access of justice to common man. This was made by liberalizing the traditional rule of locus standi that, only aggrieved party can approach the court for seeking remedy. Now any public spirited person can seek remedy on behalf of the oppressed class by initiating a Public Interest Litigation.
3. Public Interest Litigation has introduced new kinds of remedies OR reliefs under Writ Jurisdiction, such as interim compensation to the victim. Further, it may be noted that, initiating a Public Interest Litigation does not bar the aggrieved party from seeking any remedy under civil suit.
4. Public Interest Litigation also functions as a tool for social change. In a developing country like India, PIL functions as an effective tool for the social welfare. It also functions as a monitoring tool to combat the atrocities existing in the society.