The Genesis and the Proliferation of Public Interest Litigation in India
This article is written by Mr. Vikranta Pradeep Barsay, a student of National Law University and Judicial Academy, Assam. This article deals with the Genesis and the Proliferation of Public Interest Litigation in India.
What is Locus Standi?
The maxim of locus standi is the legal right and capacity of either an individual or a firm to appear before a court of law and present its suit or cause of action for some damage or injury suffered by the said aggrieved party.
The primordial definition of locus standi was enunciated by Lord Justice James L. J. in the case of Ex parte Sidebotham (1880) 14 Ch D 458, wherein the Lord Justice exclaimed that only a ‘person aggrieved’ was entitled to maintain an appeal with the court of law. He defined ‘person aggrieved’ as a man who has suffered a legal grievance even if the grievance stems from the decision of a lower court, which has either deprived him of a right or barred him from something entirely.
Although the Lord Justice maintained the definition of ‘person aggrieved’ in the context of the locus standi of an appellant’s right to appeal against the verdict of a lower court, the definition was widened by Lord Justice Esher M. R.. He held that only a person who has suffered a specific and concrete legal harm due to the violation of his legal right or a legally protected interest, wherein the violation may be either an actual one or in nature of a threat, is allowed to seek judicial intervention for redressal of the harm.
A four-judge full bench (Justice R. S. Sarkaria, Ex-Chief Justice of India Justice A. N. Ray, Justice M. H. Beg, and Justice P. N. Shinghal) of the Supreme Court of India in the case of Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed & Ors (1976) 3 SCC 58 elucidated the following tests to decide the locus standi of a plaintiff in either a suit or a cause of action in a court of law:
- Is the plaintiff the same party whose legal right has been injured or harmed?
- Is there a direct relationship between the legal harm of the plaintiff and the act or series of acts that were performed or omitted by the defendant? Can the harm be traced to the action or omission of the defendant?
- Is the source of the plaintiff’s legal harm or injury a decision that was pronounced in another court of law, such that the decision either deprives the plaintiff of something or bars the plaintiff from something?
- Is the grievance suffered by the plaintiff more than or comparable to a grievance suffered by the rest of the public under similar circumstances?
- Was the plaintiff dismissed from expressly (vocally) objecting to the action or omission by the defendant? If so, was the plaintiff wrongly affected by the objection?
- When the plaintiff files a suit or cause of action against the defendant, the plaintiff does so under certain statutes or legislatures. What is the nature of the legal right (public or private) of the plaintiff, which is upheld in the aforementioned statute or legislature?
The tests of locus standi can be summarized as the competency of a plaintiff to file a suit or cause of action; the competency is under two headings: a) The plaintiff is directly injured (a specific legal injury or harm) by the act or omission of the defendant and b) The plaintiff is in his/ her legal capacity and competency to seek the intervention of the court of law, wherein the court can provide a non-speculative relief to the plaintiff.
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What is a Public Interest Litigation?
In the simplest wording, a Public Interest Litigation (PIL) is an application filed by either an individual or an institution in any court of law to protect the interests of a large public group. According to Professor Abram Chayes, a PIL greatly differs from a conventional suit or cause of action in the following ways:
- The litigation is not limited to the historic breaches in a contractual agreement or the incumbent event of a personal injury, it’s scope is volatile, which is shaped by judicial interpretations.
- A Public Interest Litigation draws away from the individualistic approach of locus standi, wherein the litigation can be filed only by the aggrieved individual or firm (plaintiff). A Public Interest Litigation can be filed by any individual or firm (petitioner) that seeks to protect the constitutional and legal interests of the public at large, wherein the petitioner could fall in one of two categories:
- The petitioner is directly affected by the action or omission of an act or series of acts of the defendant; however, the petitioner has no possessive or fiducial interest in the matter of the suit or cause of action.
- The petitioner is not directly affected by the action or omissions of an act or series of acts of the defendant; however, the petitioner has a significant interest in public welfare in the matter of the suit or cause of action.
- The sequence of investigation in conventional litigation follows the examination of past events that lead to the subsequent breach in contract or personal injury; however, in a PIL, the nature of inquiry additionally focuses on the current contemporary issues that impede the constitutional or legal rights of the public.
- The remedy in a PIL is not limited to liquidated or unliquidated damages. A point to note is that the verdict of a PIL has a remedial effect on the parties that are not only excluded from the litigation but also share congruent legal injuries as the plaintiff. The compensatory nature of litigation is transformed into a radical one.
- In the case of Vishaka & Ors v. State of Rajasthan & Ors (1997) 6 SCC 241, Bhanwari Devi (a social-worker) was gang-raped by Ram Sukh Gujjar, Gyarsa Gujjar, Ram Karan Gujjar, Badri Gujjar, and Shravan Sharma after she tried to persuade the family of Ram Sukh Gujjar against marrying-off his one-year-old daughter. The Trial Court acquitted the accused. A Public Interest Litigation filed by a women’s rights group Vishaka was judged by a three-judge full bench (ex-Chief Justice of India J. S. Verma, Justice Sujata V. Manohar, and Justice B. N. Kirpal) of the Supreme Court of India.
- The verdict of the court not only reversed the verdict of the Trial Court by upholding sexual harassment as a cognizable criminal offense  but also declared the Vishaka Guidelines as a law to prevent sexual harassment at a place of work. The verdict provided a legal framework to prevent similar cases of sexual harassment of women across the country. The guidelines provided a radical backbone to the development of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
- The subject of a PIL is not a private one, rather the subject of a PIL encompasses certain gaps in public policy and existing statutes.
- In the aforementioned case, the three-judge full bench relied on Section 354 of the Indian Penal Code, 1860; however, the said section talks about the cognizable, non-bailable offence of Assault to a woman with the intention to outrage the woman’s modesty. The bench realized the lack of legislature in the Indian Penal Code, 1860 about sexual harassment of a woman. The bench took it upon itself to fill the supposed gap in the existing legislature.
- The verdict in a Public Interest Litigation does not cut the involvement of the judiciary from future legislative-judicial functions, i.e. a PIL endeavors to fill gaps in the existing legislature with guidelines, wherein either a judge or a bench in the present or the future plays an active role in strengthening the guidelines with adjunct judicial interpretations.
The Vishaka Guidelines were upheld to be binding and enforceable by Justice S. Muralidhar in the case of Dr. Punita K. Sodhi v. Union of India &Ors,(2010) W.P. (C) 367/2009 & CMS 828, 11426/2009. Courts across India worked within the framework of the Vishaka Guidelines until a proper legislature addressing sexual harassment was enacted by the parliament; it became the active duty of any judge in any court in India to strengthen the uniform adherence of the said guidelines.
The Criminal Law (Amendment) Act, 2013 introduced Section 354, Clause A in the Indian Penal Code, 1860, wherein sexual harassment was explicitly recognized as a cognizable, bailable offense (three years imprisonment or a fine or both). The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 laid down a legal framework to prevent sexual harassment of women by providing protocols for redressal mechanisms to be followed by workplaces across India.
In a nutshell, a Public Interest Litigation is any litigation for the benefit and welfare of the public at large that addresses a common grievance and underlying cause, it may or may not be filled by a party who has a direct interest in the subject of the PIL. A PIL can be filed with any court of law in India. In the case of S. P. Gupta v. President of India &Ors (1982) 2 SCC 365, Justice E. Venkataramiah pointed out ‘Justiciability’ as an additional condition of locus standi for a PIL.
If the subject of a PIL is beyond the scope of judicial review (ex: international relations, national security, etcetera) of a court due to the judicial limitation in the Doctrine of the Separation of Powers, then the petitioner lacks the locus standi to file the PIL and the court rejects the petition.
In India, a petition under a Public Interest Litigation can be filed in the Supreme Court (Article 32 of the Constitution of India), High Court (Article 226 of the Constitution of India) and Magistrate’s Court (Section 133 of the Criminal Procedure Code, 1973). A PIL can be filed against the state, which is defined under Article 12 of the Constitution of India to include the central government (and the Parliament of India) and state government (and the State Legislative Assembly).
Additionally, a PIL can be filed against any local municipal authorities that are under the control of the Government of India (within the territory of the Union of India).
The Genesis of Public Interest Litigation in India
The earliest origin of Public Interest Litigation lies in the establishment of a German Legal Aid Society in New York in 1976 under the presidency of Edward Solomon. The society provided free legal advice, drafting and subsequent representation to German immigrants in the city of New York.
The Constitution of India was adopted on November 26, 1949, after eleven sessions of the Constituent Assembly with the vision of turning independent India into a sovereign and democratic republic. The Constitution of India provides justice (legal, social, political and economic), liberty (thought, expression, speech, belief, faith, worship and privacy), freedom (movement, assembly, association, residence, profession and life) and equality (choice, opportunity, education, work and legal representation) to all citizens of India.
Granville Austin believed that the Fundamental Rights and the Directive Principles of State Policy were the ‘conscience’ of the Indian Constitution, wherein both provisions were aimed at providing justice, liberty, freedom and equality to the citizens. Part 3 of the Indian Constitution outlines Fundamental Rights, which can be neither waived off by the citizen of India nor curtailed by any statute, legislature or amendment by the central Parliament of India.
Fundamental Rights not only uphold the constitutional liberties of the citizen of India against any invasion by the state but also enshrine the overall development of the citizen.
The controversial split decision (seven: six) of the thirteen-judge constitutional bench headed by ex-Chief Justice of India S. M. Sikri in the case of Kesavananda Bharati v. State of Kerala & Anr (1973) 4 SCC 225 protected the basic structure of the Constitution (including the Fundamental Rights and Article 13 of the Indian Constitution) against the amending authority (Article 368 of the Indian Constitution) of the Parliament of India. Additionally, the constituent assembly made provisions for an independent and powerful judiciary to protect and enforce the Fundamental Rights of its citizens.
Judicial Review is implied within Article 13 of the Indian Constitution to protect the fundamental rights and liberties of its citizens against the harm of legislative/ judicial/ administrative action. Judicial Review voids any law/ ordinance/ order/ bye-law/ notification/ rule/ regulation made by the legislative or any other competent authority within the union territory of India that either deprives or abridges the rights (within Part three of the Indian Constitution) of the citizen.
The 42nd Constitutional Amendment of 1976 exacerbated the transgressions of the former prime minister Indira Gandhi’s government by amending sections four and five of Article 368 of the Indian Constitution. The amendment pilfered Judicial Review by annulling the authority of the court of law to hear any petition, whose subject matter deals with any amendment made to the Constitution of India.
The amendment was held to be ultra vires in the Minerva Mills case, wherein the ex-Chief Justice of India Y. V. Chandrachud included Judicial Review within the Doctrine of Basic Structure of the Constitution.
In the years surrounding the internal constitutional emergency of 1975-77, the autonomy of the judiciary across India was compromised, wherein not only the pro-citizen verdicts were nullified by various constitutional amendments by the central parliament but also pro-constitution judges were rampantly transferred. The failure of the Supreme Court to protect against the violations of Fundamental Rights, particularly the Right to Life and Right to Personal Liberty (Article 21) by upholding the nullification of Judicial Review (writ petition of Habeas Corpus under Article 32 for Supreme Court of India and Article 226 for the High Court) during the emergency fortified the existing negative image of the judiciary.
The period of emergency ended in 1977 while the judiciary realized its narrow interpretation of Article 21 in the cases of ADM, Jabalpur v. Shivkant Shukla (1976) 2 SCC 521 (the provisions of Article 21 are suspended under the proclamation of emergency and the Judicial Review of Habeas Corpus has no locus standi under Article 359) and A. K. Gopalan v. State of Madras & Anr (1950) SCC 88 (the phrase ‘personal liberty’ within Article 21 refers to the freedom from arbitrary arrests under the statutory procedure of law).
The Supreme Court of India made efforts to recapture its authority while its unpopularity was growing in the eyes of the general public. The Supreme Court liberalized its interpretation of the Fundamental Rights of the public, especially of the disadvantaged sections of the community. Additionally, the court widened its tests for locus standi to better secure the civil rights and liberties of the people.
In the case of Sunil Batra v. Delhi Administration & Ors (1979) 1 SCC 392, a scribbled letter written by the petitioner who was an inmate at the Tihar Central Jail about the gruff sexual torture of his fellow inmate, Prem Chand by the Head Warden Maggar Singh, was enough for the court to take suo motu cognisance of the subject matter and issue a notice to the respective state officials.
The Supreme Court upheld its right under Article 32 to intervene and secure the fundamental rights of the petitioner in the face of torture and inhuman acts committed against the petitioner. The case instituted the spirit of public litigation.
The Proliferation of Public Interest Litigation in India
Public Interest Litigation in India can be traced to an association of workers filing a writ petition to seek Judicial Review in the case of Mumbai Kamgar Sabha, Mumbai v. M/S Abdulbhai Faizullabhai & Ors (1976) 3 SCC 591, wherein the two-judge divisional bench (Justice Krishnaiyer V. R. & Untwalia N. L.) confirmed its aspiration to litigate not only the sophisticated and educated parties but also the poor and weaker sections of the society. Justice Krishnaiyer V. R. pointed out that the latter lacks the technical and legal know-how to draft and file a suit or cause of action; this illiteracy, ignorance and poverty benefit the former group.
The bench opened the court’s doors to wider forms of litigations, wherein pro bono publico can be used to ascertain justice to the common public by employing Judicial Review. The court held that the concept of locus standi can be expanded to promote public interest from certain socio-economic communities. The bench provided the first primordial motivation of a PIL, i.e. a Public Interest Litigation is motivated in cases where the legal remedy is shared by multiple individuals or firms.
The first official PIL was filed by Advocate Pushpa Kapila Hingorani as a writ petition of Habeas Corpus to represent the under-trial prisoners across the state of Bihar. The PIL was filed on behalf of the prisoners, including a female prisoner named Hussainara. The PIL highlighted the wrongful predicament of the prisoners in the Patna Central Jail, the Muzaffarpur Central Jail and the Ranchi Central Jail, wherein the advocate pleaded that the majority of the under-trial prisoners were held for a period longer than the maximum punishment (jail time) that they would receive if found guilty by the court of law.
The verdict in the landmark case of Hussainara Khatoon & Ors v. Home Secretary, State of Bihar (1979) 3 SCC 532 directed the jails to release the prisoners of the Public Interest Litigation whose continued imprisonment (beyond the maximum punishable term) is a violation of Article 21 (Right to Personal Liberty). Additionally, the two-judge divisional bench (Justice N. Bhagwati and Justice A. Desai) directed the government of Bihar to provide a lawyer for free to the under-trial prisoners under Article 39, Clause A, which guarantees every citizen of India, irrespective of economic, social and financial disabilities with free legal aid by the state to guarantee the pursuance of justice.
The case not only widened the once narrow interpretation of Article 21 but also released about 40,000 under-trail prisoners across the country. The true proliferation of Public Interest Litigation in India begins with this case, and hence, Advocate Pushpa Kapila Hingorani is hailed as the ‘Mother of Public Interest Litigation.’
The spirit of PIL was hindered by the limited interpretation of locus standi. The case of Fertilizer Corporation Kamgar v. Union of India & Ors (1981) 2 SCC 52 expounded on the motivation of the court to liberalize locus standi; wherein Justice Krishnaiyer V. R. enlisted the following motivations to widen the legal maxim:
- The exercise of State power and authority may directly or indirectly interfere with the rights and liberties of its citizens.
- Social Justice without the Judicial Review of administrative action is not possible.
- The restrictive approach to locus standi impedes the healthy judicial system.
- Public Interest Litigation is the bedrock of Participative Public Justice.
The court uses the phrase ‘public-minded citizen’ to highlight any individual who rightfully moves to the court of law to seek legal intervention to provide justice to the public; the court adds that it shouldn’t discourage such public-minded citizens even if the public-minded citizen has no locus standi in the subject matter.
No other case has reaffirmed the future of Public Interest Litigation in India than the case of S. P. Gupta v. President of India (1982) 2 SCC 365, wherein Justice P. N. Bhagwati included the essence of a PIL within the realm of Judicial Review. The central government decided against the extension of the term of a High Court Judge and the transfer of another Judge.
The petitioners (including one of the aforementioned judges) questioned the order of the Central Government via various writs that called for the disclosure of communication between the Ministry of Law and Justice, Chief Justice of Delhi High Court and Chief Justice of India. The ministry argued that the communication is privileged under Article 74, Section 2 of the Indian Constitution (no communication between any member of the Council of Ministers and the President shall not be discussed in any court of law).
Although the case deals primarily with the independence of the Judiciary, Justice P. N. Bhagwati used the opportunity to highlight the importance of a PIL. The petitioners are advocates in the High Court, wherein their interest in the subject matter of independence of the High Court against the harmful action of the state was upheld by the court.
Justice P. N. Bhagwati observed that a Public Interest Litigation stems in areas where the action or omission of either the state or any competent, public authority under the control of the state leads to a legal wrong or injury to the public that violates the provisions of either the Constitution of India or any statute, legislature; however, the public-minded citizen must act in bona fide while having sufficient interest in the subject matter of the legal wrong or injury.
Justice P. N. Bhagwati championed the validity of a PIL to protect and secure the rights and interests of the public while enforcing the duties of the public; additionally, the petitioner (public-minded citizen) of a PIL may not always have his/ her rights curtailed by the wrongful action or omission.
Justice P. N. Bhagwati is often regarded as a ‘pioneer’ of Judicial Activism. He not only laid down the foundation of Public Interest Litigation in India but also strengthened the role of the judiciary in Public Interest Litigations. Within the same year of the S. P. Gupta case.
Justice P. N. Bhagwati gave another milestone verdict in the case of People’s Union for Democratic Rights & Ors v. Union of India & Ors (1982) AIR 1473, wherein the petitioner filed a Public Interest Litigation to protect the interests of the laborers on the ASIAD-82 sites (no minimum wage, extremely long working-hours, despicable living conditions, absence of basic facilities).
The court held that access to justice cannot be restricted by socio-economic constraints and the lack of technical knowledge. Justice P. N. Bhagwati upheld the democratization of Judicial Remedies by promoting Public Interest Litigations to protect the socio-economic rights and liberties that even the deprived and exploited sections of the society are constitutionally entitled to.
Additionally, Justice P. N. Bhagwati liberalized the interpretation of Article 21 even more; wherein the ‘bonded labour’ and ‘forced labour’ under Article 23 was observed to violate the Right to Life with Dignity (Article 21) of the labourers on the ASIAD-82 sites.
In the case of Bandhua Mukti Morcha v. Union of India (1984) 2 SCC 67, the petitioner wrote a letter to Justice P. N. Bhagwati. The letter listed the names of stone quarries in the Faridabad area of the state of Haryana where a large number of reinforced and fortified labourers worked in ‘brutal’ and ‘insufferable’ conditions. Justice P. N. Bhagwati treated the letter as a writ petition under Article 32 and took suo motu cognisance of the subject matter even though no fundamental right of any labourer was infringed upon.
Justice P. N. Bhagwati made two observations while pronouncing the verdict in favour of the petitioner, the two observations are paraphrased as follows :
- Even though the writ petition of the Public Interest Litigation was made through a letter, it cannot be dismissed by the court of law. It is possible that the petitioner who represents the socio-economically disadvantaged members of the society may not possess the means to finance an advocate to prepare a proper writ application as per the procedure of the court, thus, a letter from such petitioners must be upheld by the court of law under the phrase of ‘appropriate proceedings’ of Article 32. The constitution does not lay down any specific procedure under Article 32; hence, the court must decide whether the procedure (the letter) is appropriate to warrant a writ jurisdiction.
The court has laid down proper rules to be followed while filing a petition under Article 32 (Order XXXV of the Supreme Court Rules) and even though the court must insist the petitioner to follow the procedure, the court cannot always conform itself to the rules. There are cases where the court must deviate from its conformity to better protect the fundamental rights and liberties of the citizens of India. If the court of law is satisfied with the documents placed before itself in the form of a letter or otherwise, then the court may choose to intervene in the subject matter.
Akin to the bonded laborers in the present case, the plaintiff/s may not be able to conform to the rules of the court while filling a writ petition. In a nutshell, the court of law may not always conform itself to the rules of the court while reviewing PIL applications.
- The plaintiffs (laborers) in the present case do not suffer from any violation of fundamental rights; however, special circumstances may indirectly infringe upon the fundamental rights of the plaintiff. Certain rights created for the disadvantaged sections of the society in legislatures and statutes need to be secured and enforced with the same ferocity as the fundamental rights.
It is worth noting that unlike the PIL filed under Article 32, which limits a writ petition to the enforcement of fundamental rights and liberties, a PIL filed under Article 226 with the High Court can seek Judicial Review for not only fundamental rights and liberties but also legal rights enshrined within any legislature or statute.
In the case of Kalyaneshwari v. Union of India (2011) 3 SCC 287, a final provision in a Public Interest Litigation was enforced. A three-judge full bench (Justice S. H. Kapadia, Justice K. S. Panicker Radhakrishnan and Justice S. Kumar) nullified the PIL due to its prima facie misuse. The court held that the Public Interest Litigation was a proxy litigation between two business rivals to achieve material gains in business that was neither bona fide nor in the interest of the public.
It can be held that Public Interest Litigation evolved through three distinct phases. The first phase began around the time of the constitutional internal emergency of the late 1970s, wherein the Supreme Court of India liberalized the tests of locus standi to accept petitions from public-spirited individuals (activists, advocates, etcetera).
The judiciary helmed the social revolution in the post-emergency era. PILs were used to secure and enforce the fundamental rights and liberties of the depressed sections of the society in the face of administrative and executive actions.
After the preliminary nuances of Public Litigation was established by pioneers, Justice P. N. Bhagwati and Justice Krishnaiyer V. R., Public Interest Litigations took an institutional approach in its second phase, wherein not only public-spirited citizens but also public-spirited firms and institutions (ex: NGOs) filed a PIL petition.
The subject matter of PILs in the second phase widened to include environmental litigations, corruption allegations, accountability of the legislative and the executive, sexual harassment. The phase between the late 1980s and the late 1990s saw the judiciary giving bolder verdicts to protect the rule of law. The court gave directives to the legislative and the executive wherein any non-compliance with the guidelines was punished by the court.
The misuse of PILs for personal benefit began with the dawn of the new millennium in the third phase. The judiciary held itself back in issuing stringent directives to the legislative and the executive while relaxing its approach in protecting the fundamental rights and liberties of all sections of the Indian Society.
Public Interest Litigation began in the United States of America with the establishment of a German Legal Aid Society in New York in 1876 under the presidency of Edward Solomon to provide free legal assistance and representation to low-income immigrants from Germany.
After the PIL movement gained traction in the early 1960s, wherein public-spirited individuals filed petitions to protect and secure the rights of the weaker sections of the society, the nuances and motivation of the movement inspired the judiciary at a time when encroachment on judicial independence due to legislative actions grew rampant.
The PIL movement in India evolved through three phases under the pioneering guidance of Justice Krishnaiyer V. R. and Justice P. N. Bhagwati. Although the Public Interest Litigation movement started with an intention of protecting the fundamental rights and liberties against the actions of the legislative and the executive, multiple cases and petitions transformed the PIL movement by liberalizing not only locus standi but also the judicial interpretation of Article 21 of the Indian Constitution.
Public Interest Litigation continues to be a torchbearer of social transformation in the country, wherein the activities of the state are kept in check against any violation of fundamental rights within Part three of the Indian Constitution.
Edited By Mr. Ayush Jain
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