Since early 1980s the Supreme Court of India has developed a procedure which enables any public-spirited citizen or a social activist to mobilize favorable judicial concern on behalf of the oppressed classes. The medium through which the access to justice has been democratized is called ‘Public Interest Litigation’ (PIL). Indian PIL is home grown and is the product of distinct social, historical and political forces and has nothing in common with the American Public Interest Litigation. Professor Upendra Baxi, one of India’s foremost legal scholars, preferred to describe the new legal phenomenon as ‘Social Action Litigation’ (SAL) which was designed to be used only as an instrument of social change genuinely on behalf of the victimized and oppressed classes. American PIL, according to Baxi, was not so much concerned with state repression or governmental lawlessness or with the problems of the rural poor, as with ‘civic participation in governmental decision-making’ and with consumerism or environment.
By changing the nomenclature, Baxi wanted to avoid run-away extension of new legal strategy for focusing on any conceivable public interest issues. Baxi’s anxieties proved to be true because over the years PIL has overwhelmingly been appropriated for corporate, political and personal gains. Today PIL matters focus predominantly on issues concerning environment, consumerism, governmental accountability and political governance. It is no more limited to the problems of the poor and the disadvantaged.
The first reported case of PIL in 1979 focused on the inhuman conditions of prisons and undertrial prisoners. In Hussainara Khatoon v. Home Secy, State of Bihar, the PIL was filed by an advocate on the basis of a news report highlighting the plight of thousands of undertrial prisoners languishing in various jails in Bihar. This litigation exposed the failure of the criminal justice system and led to a chain of proceedings resulting in the release of over 40,000 undertrial prisoners. Right to speedy justice emerged as a basic fundamental right which had been denied to these prisoners. This litigation also generated public debate on prison reforms.
In 1981 the case of Anil Yadav v. State of Bihar exposed horrific police brutalities. A news report revealed that about suspected criminals were blinded by police in Bihar by putting acid into their eyes. In response to a PIL, the Supreme Court deputed its Registrar to visit Bhagalpur and investigate the truth Through interim orders the court quashed the trial of blinded persons, condemned the police for their cruel act and directed the State government to bring the blinded men to Delhi for medical treatment. It also ordered speedy prosecution of the guilty policemen. The court read right to free legal aid as a fundamental right of every accused. Sessions judges throughout the country were directed to inform each accused about his fundamental right to legal aid. Anil Yadav signaled the growth of social activism and investigative litigation. High publicity given to the achievement of PIL in this case encouraged more and more PILs on prisons. A social activist moved the Supreme Court on behalf of four tribal boys who had been languishing in jail as undertrials for more than ten years and immediately got them released. The prison cases gave rise to many new rights. In Citizen for Democracy v. State of Assam the Supreme Court declared that handcuffs and other fetters shall not be forced upon a prisoner while lodged in jail or while in transport or transit from one jail to another or to the court or back.
In this case, a letter was sent to one of the judges of the Supreme Court by a journalist stating that in a hospital in Gauhati, Assam, TADA detenus were kept in one room handcuffed to the bed and tied with a long rope to restrict their movement, in spite of the door being locked from outside and armed policemen guarding them.
The news reports and magazine articles pertaining to children put in jails, employment of child and bonded labour, custodial gang rape, fake encounter deaths, and so on began to form the basis of early PIL.