Questions and Answers ForPUBLIC INTEREST LAWYERING

Questions and AnswersPUBLIC INTEREST LAWYERING

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Define the concept of Public Interest Lawyering

A: Public Interest Litigation or “PIL” was an innovation initiated in India in the late seventies and early eighties to enable the most marginalized communities to gain access to the higher courts. This was an innovation by lawyers, activists, judges of the Supreme Court that was made possible by expanding the traditional rules of standing in constitutional litigation so that any public spirited individual or organization could approach the courts on behalf of those who had no access or the means to access the courts for relief.

Public interest litigation is a litigation undertaken for the purpose of redressing public injury, enforcing public duty, protecting social, collective and diffused rights, interests or vindicating public interest. It is Legal action initiated in a court of law for the enforcement of public or general interest in which the public or the class of the community has pecuniary interest, or has some interest because it will affect their legal rights.

By virtue of Universal Declaration of Human Rights,1948, International covenants on civil & political rights , 1966 and on economic, social & cultural rights, 1966, all human beings are conferred some basic rights, fundamental rights and statutory rights. Similarly, the codification of rights also implied several duties on human beings to fellow citizens including global citizens and the global environment at large. Post second world war, international organizations such as the United Nations and its organs including the Security council, economic and social council and its subsidiary organs, international court of justice etc have observed gross violation of human rights on several occasions, need for recognition of new types of rights and a growing necessity for ensuring duties for the global environment protection. Such concern is also reflected in the Indian constitution in Parts III (dealing with fundamental rights), IV (directive Principles of state policy) and IV A(Fundamental duties). Since 1960’s the world has witnessed a rights –explosion for groups. For example, in the US, Black people’s movement started getting prominence. Simultaneously, several social activists, law professors, law practitioners, judges etc had also started identifying the age old violations of women’s rights, violation of the rights of socially and economically backward classes and children.

These stake holders felt it necessary to approach courts for the cause of these classes of people who may due to their socio-economic situations, could not approach the courts individually for ensuring their rights, or for seeking remedy for violation of their rights or for seeking compensation from the State for failure to ensure their rights or protect them from State atrocities, corrupted State practices etc. This in turn the concept of locus-standi of filing cases in the court got enlarged. Locus standi actually signifies the right to file case for some sorts of legal injury, violation of rights, victimization etc. The stake holders, i.e. the social activists, lawyers, law professors, judges etc who helped to broaden this ideology of locus standi and stood for rights of people at large are also known as social cause lawyers. Such types of litigation which is taken over by social cause lawyers for public interest in general in the courts of law l is known as public interest litigation. This is entirely different from litigations preferred for private interest in the courts of law.

A formal definition Public interest litigation therefore could be as follows: Public interest litigation is a litigation undertaken for the purpose of redressing public injury, enforcing public duty, protecting social, collective and diffused rights, interests or vindicating public interest. It is Legal action initiated in a court of law for the enforcement of public or general interest in which the public or the class of the community has pecuniary interest, or has some interest because it will affect their legal rights.

While this is an abstract term for the concept of public interest litigation, according to some, “public interest lawyering is the act of Public interest lawyering which is a process of legal empowerment aimed at capacity building of everyday people towards using the law and institutions to bring about social change. In public interest lawyering, the community takes the lead in an active process while working hand in hand with lawyers”. As this definition suggests, public interest lawyering is different from private interest lawyering where the lawyer is paid by the litigator and the interest for defending is concentrated on one particular client for specific reasons like for example, some wrongs caused to him. The concept of public interest lawyering may be made clear with the example of few landmark cases:

  • Independent Thought Vs. Union of India, 2013 , which was filed by an NGO for criminalizing sexual intercourse with child brides. The Supreme court in this landmark case, which is in the nature of public interest litigation, decided that even though S.376 IPC exempts sexual intercourse with brides above 16 years of age from the concept of rape, the same must be considered as criminal offence because POCSO Act extends the scope of the law to any sort of sexual intercourse done with children who are under 18 years of age. Here the petitioner is not a particular child-bride under the age of 18 but above the age of 15 who has been victimized of marital rape . But the petitioner is an NGO who are cause lawyers or social cause lawyers who filed the case for the cause of children’s right against sexual violence. Thus social cause lawyers need not be actual lawyers always. They can be any individual who wish to fight for the causes of socially oppressed, minority groups or for some specific environmental cause which may affect the human society as a whole.
  • In Public interest lawyering and litigations, Judicial activism plays an important role. Judicial activism is a form of legal pragmatism and in such cases of public interest litigations, Court performs “interventionist role” for systematic enforcement of court orders. Juristic activism is used to provide distributive justice which is one of the many goals of Public interest litigations.

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Shipra DhankerTopper for Delhi Judicial Services 2019