THE DEVELOPMENT OF PUBLIC INTETREST LITIGATION IN
INDIA
Since the early 1980s, the Supreme Court of India and its state High
Courts have wielded an enormous amount of power in the area of human rights.
Public interest litigation (PIL) claims have been used to defend the rights of the
poor, illiterate, disadvantaged, and impoverished people of India. This section
explores the development of this transformative type of litigation and its impact on
Indias legal system. It begins by defining public interest litigation, generally and
specifically in the Indian context. This section also examines some of the concerns
that commentators have about the rise of PIL.A. Defining Public Interest Litigation
Defining PIL in the Indian context is not an easy task. Generally, public
interest litigation is described as something in which the public, the community at
large, has some pecuniary interest or some interest by which their legal rights or
liabilities are affected.154 In many ways, public interest litigation, or public law
litigation as it is sometimes called in the United States, represents a revolt against
the traditional model for adjudication.155
Professor Abram Chayes identifies four characteristics of public law
litigation in the United States. These characteristics are common to PIL actions in
154. BLACKS LAW DICTIONARY 1229 (7th ed. 1990). See also Russell v. Wheeler, 439
P.2d 43, 46 (Colo. 1968).
155. See Abram Chayes, The Role of the Judge in Public Law Litigation, 89 HARV
L.REV. 1281 (1976).
India. First, the joinder of parties has been liberalized.156 Today, all parties with an
interest in the controversy can join the litigation.157 Though interest has been
defined narrowly sometimes to preserve efficiency concerns, the courts have
responded by allowing class-action claims that are more flexible with regards to
the parties.158
Second, the courts have given increasing importance to equitable relief.159
Professor Chayes focuses on injunctive relief as an example of this procedural
development.160 He argues that injunctions are a much greater constraint on a
partys future actions than the risk of future liability.161 Further, the injunction is
continuing and a party may seek a further order from the court to change or modify
the injunction if the circumstances so require.162 Finally, through an injunction,
the court takes public responsibility for any consequences of its decree that may
adversely affect strangers to the action.163 This type of equitable relief is more
concerned with balancing the interests of the parties than the traditional form of
monetary relief.
Third, public law litigation, unlike traditional forms of litigation, is
concerned not only about past instances or occurrences but also about protecting
against acts that are ongoing or that may occur in the future.164 Professor Chayes
describes this model of fact-finding as fact evaluation.165 Public law litigation
concerns not only the parties, representing two sides of a disagreement, but also
the public interest. As such, the court must play a role in finding and evaluating
those facts that might have an impact on the outcome of the suit.
Finally, the decree must be different in public law litigation. The court is
seeking to modify future instances or conduct; therefore, its decision cannot be
logically deduced from the nature of the legal harm suffered.166 Professor
Chayes suggests a model for developing this type of decree.167 He argues that the
court should act as a mediator between the parties, in part to guarantee their
ongoing compliance.168 Further, the court should develop its own expertise and
156. Id. at 1289.
157. See e.g., HANDBOOK OF THE LAW OF CODE PLEADING §57 (1947); and CODE
REMEDIES §113 (1929).
158. Chayes. supra note 155, at 1289-90.
159. Id. at 1292.
160. See Abram Chayes, Developments in the LawInjunctions (1965).
161. Chayes, supra note 155, at 1292.
162. Id.