NOTE – THE ERA OF JUDICIAL ACTIVISM 14.6.

2024

CHANGE IN THE TRENDS IN THE CONCEPT OF “PUBLIC INTEREST LITIGATION”

1. Mumbai Kamgar Sabha v. Abdulbhai Faizullabhai, (1976) 3 SCC 832, 2 JJ, V.R
KRISHNA IYER

Facts – The workmen were employed in more than a thousand tiny establishments in
the Nag Devi locality of Bombay producing small hardware items. Only four of the
several establishments had more than 20 workmen. Ex gratia payments of small
amounts were however being paid for several years to such workmen till 1965, when
it stopped.

There was an association of employers and a union of the workers. The matter of
bonus was raised by the union leading to the appointment of Board of Arbitrators.
The arbitral board rejected the demand and such further payments were
discontinued. Matter was ultimately referred to the Industrial Tribunal. The Tribunal
made short shrift of the matter by holding the reference barred by res judicata and
hence untenable. Hence, the appeal by special leave.

Extracts from judgment -

7. Fairness to respondent's Counsel constrains us to consider in limine a flawsome

plea forcibly urged that the union figured as the appellant before us but being no
party to the dispute (which was between the workers on the one hand and the
establishments on the other) had no locus standi. No right of the union qua union
was involved and the real disputants were the workers. Surely, there is
terminological lapse in the cause title because, in fact, the aggrieved appellants are
the workers collectively, not the union. But a bare reading of the petition, the
description of parties, the grounds urged and grievances aired, leave us in no doubt
that the battle is between the workers and employers and the union represents, as a
collective noun, as it were, the numerous humans whose presence is indubitable in
the contest, though formally invisible on the party array. The substance of the matter
is obvious and formal defects, in such circumstances, fade away. We are not dealing
with a civil litigation governed by the Civil Procedure Code but with an industrial
dispute where the process of conflict resolution is informal, rough-and-ready and
invites a liberal approach. Procedural prescriptions are hand-maids, not mistresses,
of justice and failure of fair play is the spirit in which courts must view processual
 deviances. Our adjectival branch of jurisprudence, by and large, deals not with
sophisticated litigants but the rural poor, the urban lay and the weaker societal
segments for whom law will be an added terror if technical misdescriptions and
deficiencies in drafting pleadings and setting out the cause title create a secret
weapon to non-suit a party. Where foul play is absent, and fairness is not faulted,
latitude is a grace of processual justice. Test litigations, representative actions, pro
bono publico and like broadened forms of legal proceedings are in keeping with the
current accent on justice to the common man and a necessary disincentive to those
who wish to bypass the real issues on the merits by suspect reliance on peripheral,
procedural shortcomings. Even Article 226, viewed in wider perspective, may be
amenable to ventilation of collective or common grievances, as distinguished from
assertion of individual rights, although the traditional view, backed by precedents,
has opted for the narrower alternative. Public interest is promoted by a spacious
construction of locus standi in our socio-economic circumstances and
conceptual latitudinarianism permits taking liberties with individualisation of
the right to invoke the higher courts where the remedy is shared by a
considerable number, particularly when they are weaker . Less litigation,
consistent with fair process, is the aim of adjectival law. Therefore, the decisions
cited before us founded on the jurisdiction under Article 226 are inept and
themselves somewhat out of tune with the modern requirements of jurisprudence
calculated to benefit the community. Two rulings of this Court more or less endorse
this general approach: Dabholkar [Bar Council of Maharashtra v. M.V. Dabholkar,
(1975) 2 SCC 702 : (1976) 1 SCR 306] and Newabganj Sugar Mills [Newabganj
Sugar Mills Co. Ltd. v. Union of India, (1976) 1 SCC 120] .

2. Hussainara Khatoon (V) v. Home Secy., State of Bihar, (1980) 1 SCC 108, 3 JJ, P.N
BHAGWATI

“2. We are informed that amongst the undertrial prisoners there are some who are
lunatics or persons of unsound mind. It is difficult to understand how such
persons could possibly be kept in the same jail along with other undertrial
prisoners. We should like to know from the State Government, in an affidavit to be
filed before the next hearing of the writ petition, as to what are the circumstances in
which these persons have been kept as undertrial prisoners in the ordinary jails and
what the State Government proposes to do in regard to them…….
 “3……When an undertrial prisoner is produced before a Magistrate and he has
been in detention for 90 days or 60 days, as the case may be, the Magistrate
must, before making an order of further remand to judicial custody, point out
to the undertrial prisoner that he is entitled to be released on bail. The State
Government must also provide at its own cost a lawyer to the undertrial prisoner with
a view to enabling him to apply for bail in exercise of his right under proviso (a) to
sub-section (2) of Section 167 and the Magistrate must take care to see that the right
of the undertrial prisoner to the assistance of a lawyer provided at State cost is
secured to him and he must deal with the application for bail in accordance with the
guidelines laid down by us in our Order dated February 12, 1979.”

“6. We may point out that according to the law as laid down by us in our judgment
dated March 9, 1979, it is the constitutional right of every accused person who
is unable to engage a lawyer and secure legal services on account of reasons
such as poverty, indigence or incommunicado situation, to have free legal
services provided to him by the State and the State is under a constitutional
mandate to provide a lawyer to such accused person if the needs of justice so
require.

3. Fertilizer Corpn. Kamgar Union v. Union of India, (1981) 1 SCC 568, 5 JJ, Y.V
CHANDRACHUD

FACTS - By this petition under Article 32 of the Constitution, the petitioners challenge
the legality of the sale of certain plants and equipment of the Sindri Fertilizer Factory,

whereby the highest tender submitted by Respondent 4 in the sum of Rs 4.25 crores was

accepted on May 30, 1980. The relief sought by the petitioners is that the respondents

should be directed not to sell away the plant and equipment, that they should be asked

to withdraw their decision to sell the same and that the said decision should be quashed

as being illegal and unconstitutional.

RELEVANT EXTRACTS FROM THE JUDGMENT

“37. We have no doubt that in a competition between courts and streets as dispenser of
justice, the rule of law must win the aggrieved person for the law court and wean him
from the lawless street. In simple terms, locus standi must be liberalised to meet the
challenges of the times. Ubi jus ibi remedium must be enlarged to embrace all interests
of public-minded citizens or organisations with serious concern for conservation of
public resources and the direction and correction of public power so as to promote
justice in its triune facets. Lord Scarman's warning in his Hamlyn Lectures lend strength
to our view:
“I shall endeavour to show that there are in the contemporary world challenges,
social, political and economic, which, if the system cannot meet them, will destroy
it. These challenges are not created by lawyers; they certainly cannot be
suppressed by lawyers: they have to be met either by discarding or by adjusting the
legal system. Which is to be? [ English Law—The New Dimension—The Hamlyn
Lectures by Sir Leslie Scarman, (1974, Stevens), p 1] ”

38. Lest there should be misapprehension, we wish to keep the distinction clear
between the fundamental right to enforce fundamental rights and the interest sufficient
to claim relief under Article 226 and even under other jurisdictions. The learned
Attorney-General almost agreed, under pressure of compelling trends in the
contemporary law of procedure, that Article 226 may probably enable the petitioner to
seek relief if the facts suggested by the court hypothetically existed. Shri A.K. Sen also
took up a similar position. I will put aside Article 32 for a moment and scan the right
under Article 226. There is nothing in the provision (unlike under Article 32) to define
“person aggrieved”, “standing” or “interest” that gives access to the court to seek
redress.

40. Law, as I conceive it, is a social auditor and this audit function can be put into action
only when some one with real public interest ignites the jurisdiction. We cannot be
scared by the fear that all and sundry will be litigation-happy and waste their time and
money and the time of the court through false and frivolous cases. In a society where
freedoms suffer from atrophy and activism is essential for participative public justice,
some risks have to be taken and more opportunities opened for the public-minded
citizens to rely on the legal process and not be repelled from it by narrow pendantry now
surrounding locus standi.

42. India is an a fortiori case, especially as it suffers from the pathology of mid-Victorian
concepts about cause of action. The Australian Law Reform Commission in its
discussion of Paper No. 4 has considered the pros and cons and strongly supported the
wider basis for access to justice. Class-actions will activise the legal process where
individuals cannot approach the court for many reasons. I quote from the Discussion
Paper No. 4: [ The Law Reform Commission, Discussion Paper No 4—Access to the
Court—1, Standing : Public Interest Suits, p 4]
“Widened standing rules may assist consumers in attaining relevant injunctive or
declaratory relief but they do not assist in recovering losses inflicted by illegal
trading practices, nor do they threaten the illegal trader where he is most hurt, his
pocket-book. The most potent legal instrument in that regard so far devised is the
modern class action, to some an ‘engine of destruction’, to others a mighty force for
good. Consider the New York Commissioner of Consumer Affairs giving evidence
before a United States Senate Committee in 1970: [ Evidence of Mrs Bess
Myerson, Commr of Consumer Affairs of the City of New York, before the
Consumer Sub-Committee of the US Senate Committee on Commerce, No 91, pp
48, 172]
A federal class action law will have more impact on the market places of the
nation than all the myriads of laws and ordinances against fraud and deception
which are hidden away, in the statute books of the 50 States and their various
sub-divisions, put together. All these laws make fraud illegal. But they have not
made fraud unprofitable. Many of these laws can only be invoked by
administrative agencies, which long ago lost their concern for the consumer and
their appetite for action.
A federal class action law . . . will put the power to seek justice in court where it
belongs — beyond the reach of campaign contributors, industry lobbyists, or
Washington lawyers — and it will put power in the hands of the consumers
themselves and in the hands of their own lawyers, retained by them to represent
their interests alone.”

43. Public interest litigation is part of the process of participate justice and ‘standing’ in
civil litigation of that pattern must have liberal reception at the judicial doorsteps. The
floodgates argument has been nailed by the Australian Law Reforms Commission:
“The idle and whimsical plaintiff, a dilettante who litigates for a lark, is a specter
which haunts the legal literature, not the courtroom. [ Prof. KE Scott : Standing in
the Supreme Court : A Functional Analysis (1973), p 86]
A major expressed reason for limiting standing rights is fear of a spate of actions
brought by busy bodies which will unduly extend the resources of the courts. No
argument is easier put, none more difficult to rebut. Even if the fear be justified it
does not follow that present restrictions should remain. If proper claims exist it may
 be necessary to provide resources for their determination. However, the issue must
be considered.
... Over recent years successive decisions of the United States Supreme Court
have liberalised standing so as to afford a hearing to any person with a real interest
in the relevant controversy. Surveying the result in 1973 Professor Scott
commented: [ Ibid p. 673]
‘When the floodgates of litigation are opened to some new class of controversy by a
decision it is notable how rarely one can discern the flood that the dissentors
feared.
Professor Scott went on to point out that the liberalised standing rules had caused
no significant increase in the number of actions brought, arguing that parties will not
litigate at considerable personal cost unless they have a real interest in a matter.’ ”
We agree with the conclusion of the Commission:
“The moral, perhaps, applies; if the courts cannot, or will not, give relief to people
who are in fact concerned about a matter then they will resort to self-held, with
grave results for other persons and the rule of law. Some may reply that if there is
no evidence of a great increase in numbers there is no evidence of need for
enlarged standing rights. The reply would overlook two considerations. One case
may have a dramatic effect on behaviour in hundreds of others; this is the whole
notion of the legal ‘test case’, Secondly, the mere exposure to possible action is
likely to effect the behaviour of persons who presently feel themselves immune
from legal control.”