Judicial Review in India

In the early Vedic times, there is no specific evidence of any settled judicial
procedure. However, in general, Kings had their own judges to administer justice.
The current administration of justice and laws in India are the outcome of initiatives
taken during the British rule in India. The four law commissions and other
committees were appointed during the years 1834 to 1947 to give proper structure to
then justice system in India.

In India, the judiciary is the guardian of the Indian Constitution, the democratic
atmosphere and individuals‟ fundamental rights. An independent and impartial
judiciary fights against legislative and executive arbitrariness. Indian judiciary is
empowered with power of judicial review. The courts have power to review all
legislative enactments, executive and administrative actions. The Indian Constitution
explicitly provides for judicial review through articles 13, 32, 131-136, 143, 226 and
246. In contrast to the judicial review of legislative action, the courts in India use the
power of Judicial review more against the excesses of administrative action.

Dr. B. R. Ambedkar defended the provisions of judicial review and said that it is
necessary for our legal system. According to Dr. Ambedkar, the provisions for
judicial review, in particular the writ jurisdiction would provide quick relief to the
individuals against the abridgment of fundamental rights.

In [Link] v State of Madras the court held that the Constitution is supreme
and every statute has to be in conformity with the constitutional requirements.
Moreover, it is the binding duty of the courts to decide whether any law or statute is
constitutional or not.

The Supreme Court in State of Madras v Row stated that the Indian Constitution
provides express provisions for judicial review of legislation. The Court further
declared that it is the most important duty of the court to determine the
constitutionality of an impugned statute. Justifying judicial review, in S.S. Bola v B.
D. Sardana Sharma, Justice Ramaswami held that the founding fathers wisely added
the provision of judicial review for maintaining federalism, protecting fundamental
rights, and strengthening the concept of liberty and equality in India.

In Subhash Sharma v Union of India, the court said that judicial review is a basic
feature of the Indian Constitution.. Justice Bhagwati in Sampath Kumar v Union of
India held that Judicial Review cannot be abrogated by the Parliament since it is
essential feature of the Indian Constitution. Without the provision of judicial review,
the enforcement of fundamental rights would be meaningless. In Minerva Mills case,
, Bhagwati, J observed that without power of judicial review there will be no
Government of laws and the rule of law would become an illusion. The Supreme
Court in L. Chandra Kumar v Union of India held that High Court‟s jurisdictional
power under Art. 226/227, and Supreme Court‟s power under Art. 32 are basic
structure of the Indian Constitution. Therefore, the Supreme Court declared clause
2(d) of Art. 323A and clause 3(d) of Art. 323B unconstitutional to the extent they
excluded the jurisdiction of High Court and Supreme Court under Art. 226, 227, and
32 of the Indian Constitution.

Furthermore, the Supreme Court in State of West Bengal v Committee for Protection
of Democratic Rights again reiterated that the power of judicial review of the High
Courts and Supreme Court under Article 226 and Article 32 respectively is the basic
structure of the Indian Constitution and cannot be abolished by an act of Parliament.
The court again viewed that judicial review gives the practical shape to the
objectives of the Indian Constitution. The Court said that the Supreme Court and
High Courts can invalidate a legislative action which violates federal structure of our
nation.

More importantly, in the Golak Nath case Chief Justice Subba Rao upheld the
lawmaking role of the judiciary. He said that Articles 32, 141 and 142 of the Indian
Constitution enable the Supreme Court to formulate legal principles to reach the
ends of justice. Therefore, all such constitutional provisions strengthen the Indian
Judiciary, which in consequence attracts people‟s trust.

Widening the scope of judicial review, the Supreme Court in Gridco Limited v
Sadananda Doloi35 held that power of judicial review under Art. 226 can be
exercised even in those cases where the government is involved in contractual
transactions. The court said that a writ Court is entitled to review the administrative
action on the ground of illegality, unreasonableness, unfairness or irrationality.
However, the writ Court cannot act as an appellate authority while exercising its
power of judicial review. Similarly, the writ court cannot sit as an Administrator to
decide whether a more reasonable decision or course of action could have been
taken in the circumstances.

Judicial Review of Legislative Action in India

Article 13 lays down the procedure for judicial review in India. It enables the courts
to examine the constitutional validity of laws passed by the Parliament and the state
legislatures. In India, Judicial review of legislative action is being done by using
some basic principles of Constitutional Law i.e. doctrines of Pith and Substance,
Colourable Legislation, Severability, Liberal Interpretation, Limitations of Stare
Decisis, Unconstitutionality and Eclipse, and Waiver. Doctrine of Basic Structure is
one of the most reliable grounds for judicial review. Article 13 deals with statute law
and not with the law declared by the courts, or with the directions or orders made
by the Supreme Court under Art. 142

The Constitution has distributed the legislative powers between the centre and the
states. Both of them have to exercise their powers within their assigned domain.
They cannot interfere with the powers of each other. The courts decide whether a
legislature or an executive has acted beyond its jurisdiction or against the
constitutional requirements or not.

Article 13 provides that „fundamental rights‟ will prevail over all laws in force
before the commencement of the Constitution. It also prohibits the making of any
law, rule, regulation, etc that violates or diminishes the fundamental rights.
However, this provision does not impose restriction on the process of constitutional
amendment. Parliament may amend any Constitutional provision while exercising
of its constituent power in accordance with the procedure mentioned under Article
368 of the Indian Constitution.

In Golaknath v Punjab, the Supreme Court of India categorically held that the
Parliament cannot amend the fundamental rights. The Court held that the procedure
laid down for the constitutional amendments in Article 368 was „law‟ within the
meaning of Article 13.

In this whole confrontation, the Supreme Court of India gave a very revolutionary
pronouncement. In Kesavananda Bharti v State of Kerala the Supreme Court said
that the Parliament is allowed to amend the Constitution but is not authorised to
amend the „basic structure‟ of the Indian Constitution. In this case, the Supreme
Court ruled that the 24th, 25th , and 29th Amendments were unconstitutional to the
extent that they violate the „basic structure‟ of the Constitution. In doing so the
court overruled the majority opinion of Golaknath’s case. Again, in order to prevent
any kind of chaos the Supreme Court applied doctrine of prospective overruling.

However, the nature and character of „basic structure‟ was elaborated in many other
cases. The court in many pronouncements have declared that democracy,
secularism, rule of law, federalism, judicial review, separation of powers, etc. are
basic features of the Indian Constitution.

The Supreme Court for the first time faced the issue of the applicability of the Basic
Structure in Indira Gandhi v Raj [Link] Court decided by a majority that
ordinary laws are not subject to the test of the Basic Structure of the Constitution.
The doctrine of basic structure is applied only to determine the validity of
Constitutional Amendments.

The dispute over the power of judicial review was again discussed in Minerva Mills
Ltd. v. Union of India. The Court was requested to assess the constitutionality of the
Fortysecond Amendment, which provided that no amendment would be challenged
in any court of law on any ground. The Court unanimously held that the provision
was void since it violates the basic structure of the Constitution.

Another interesting case is of State of Rajasthan v Union of India,43 in which scope

of judicial review was discussed. In this case, the Supreme Court held that the
Proclamation of emergency under Article 356(1) does not have any kind of immunity
from judicial review. The Supreme Court or the High Court can strike down the
Proclamation if the court finds that it was decided on mala fide or irrelevant or
extraneous grounds.

The two recent decisions are of utmost importance where basic structure doctrine
and fundamental rights review under Article 13 have been combined. In M. Nagraj v
Union of India four constitutional amendments i.e. the Constitution (Seventy-
Seventh Amendment) Act, 1995, the Constitution (Eighty-First Amendment) Act,
2000, the Constitution (EightySecond Amendment) Act, 2000, and the Constitution
(Eighty-Fifth Amendment) Act, 2001, were challenged. The amendments enlarged
the scope of reservation. It was contended that such amendments were made by the
government in order to override the effect of previous Supreme Court‟s decisions.
However, the court said that the concept of the „catch-up‟ rule and „consequential
seniority‟ are not constitutional principles like secularism, federalism etc. Therefore,
the Supreme Court said that deletion or addition of such concepts do not change the
equality principle embedded under Articles 14, 15 and 16 of the Constitution. It was
concluded that such amendments do not damage the basic structure of the
Constitution.

Second recent decision of the Supreme Court came in the year of 2007. This case was
I.R. Coelho v State of Tamil Nadu and others. 46 The Supreme Court held that all
Constitutional amendments made on or after 24th April, 1973 by which the Ninth
Schedule is amended by inclusion of various laws therein shall have to be tested on
the touchstone of the basic features of the Constitution enshrined under Articles 14,
19 and 21. In order to clarify the situation, the court further declared that even
though an Act is put in the Ninth Schedule by a constitutional amendment, its
provisions would still be tested on the ground that they destroy or damage the basic
structure if the fundamental right or rights taken away or abrogated pertains or
pertain to the basic structure.

Secularism in India

2.1. History: During the national movement, the Indian National Congress adopted
secularism as they considered it to be the only method of securing the peaceful
coexistence between Hindus and Muslims. The two predominant notions of Indian
Secularism characteristic of the period of nationalism were held by Gandhi and
Nehru. Although the notions are distinct, both articulated the views of the Congress
and played a decisive role in the formulation of the modern notion of Indian
secularism.

Mahatma Gandhi is referred to as the spiritual father of Indian secularism. He

believed in an inherence of religion in Indian lives (“India will never be Godless”).
Alongside adhering strongly to the belief that India was the source of all religions,
he believed in inseparability between politics and religion. He felt people are human
by virtue of their religious capacities and any State which stifles this capacity
degrades and dehumanizes its citizens. The Gandhian notion of secularism never
entailed explicit support to any one religion and developed on the foundations of
sarva dharma sambhava (let all religions prosper), a notion that the Indian
constitution is based on as well. Nehru, on the other hand, disclaimed all ties with
institutional religion and conformed to a rational and modern perspective. Jacob De
Roover proposes a four pronged definition of Nehruvian secularism. Roover says
that, according to Nehru, secularism implied first, the treatment of religion as a
purely personal matter, second, the total separation of the state and religion, third,
complete freedom and tolerance of all religions and lastly, equal opportunities for all
religions which implies no discrimination on the grounds of religion.

2.2. Constitution making in India: In the words of Achin Vanaik, during the
formation of the Indian State, “(s)ecularism was perceived as the unifying principle
mediating between and collating different religious communities in order to forge a
common struggle for national liberation

2.2.1. Constituent Assembly: Within the Constituent Assembly, there was a faction of
representative leaders who were patrons of the “no concern theory”; they believed
that the role of the constitution and Indian polity was to strengthen the idea of the
Indian people as opposed to highlighting communal identities. Members such as
K.T. Shah and Tajammul Hussain suggested that “religion is a private affair between
man and his God. It has no concern with anything else in the world”. Religious
issues must not be dealt with as fundamental rights. Secularism was to eventually
mean the weakening of the bonds of religion and their replacement with
nationalism. 63 Opposing factions relied on a Gandhian understanding of
secularism. K.M. Munshi, L.K. Maitra and K.V. Kamath maintained that India had
deeply religious moorings which could not be disavowed by the State and thus state
recognition of religion is important in order to respect religion. Secularism and
religion pervaded discussions in the Constituent Assembly. A historic peak of the
constituent assembly intercourse on secularism occurred with the amendment
moved by Kamath to institute the word “secular” in the preamble was defeated 68 to
41.

2.2.2. The Constitutional Text: However, religion was not entirely ignored and after
much debate, freedom of religion was made a Fundamental Right and remains so till
date. Under Article 25 of the Indian Constitution, every Indian, irrespective of
religion has the “freedom of conscience and free profession, practice and
propagation of religion”.67 An understanding that this Right cannot infringe upon
the other Fundamental rights and that that it is subject to the requirements of public
order and morality, further bolster the importance given to the notion of secularism
at the time of formation of the nation. Moreover, legislation on matters involving
religion is not completely outside the power of the Indian state. Under the
concurrent list, the legislative wing is empowered to pass laws to regulate trusts and
charities.

2.3. Later developments: Several decisions that interpret the constitution read
secularism and the freedom of conscience lies at the heart of the Indian state. After
the famed “basic structure” doctrine was laid down in Keshavanand Bharati, the
Supreme Court in Indira Gandhi v. Raj Narain proclaimed that “Secularism and the
freedom of conscience” are constitutive elements of the basic structure of the
Constitution. Secularism was included in the Preamble to the Indian Constitution
much later through the 42nd amendment act of 1976. In the celebrated case, S.R.
Bommai v. Union of India, it was stated that the provisions of the constitution
“brought out the dual concept of secularism and democracy, the principles of
accommodation and tolerance as advocated by Gandhiji and other national leaders.”

The question of secularism in India was brought into public debate during the
litigation in Mohammed Ahmed Khan v. Shah Bano Begum. The Shah Bano case is a
landmark judgement with respect to the State view of religion and secularism as it
involves interference with personal laws of a minority religious group and because
of the repercussions it had on Indian politics. Shah Bano was given the irrevocable
Muslim form of divorce on 6th of November 1978 as a result of which she filed a
petition against her husband under section 125 of the criminal procedure code
asking for maintenance at the rate of Rs. 500 per month. Her husband contended that
he was under no obligation to pay her the same, as Shah Bano had ceased to be his
wife (as per the Islamic definition) by virtue of the divorce and as, according to
Muslim personal law, a divorced woman is entitled to payment only during the
period of iddat (the three month period in which a divorcee Muslim woman may not
marry). The Indian Judiciary, under Justice Chandrachud, in interpreting Muslim
personal law said that the criminal procedure code overrides all personal laws and
indicated that his judgement sought to make Muslim personal law progressive. It
was suggested that a Uniform Civil Code be instituted. The Congress government
under Rajiv Gandhi was keenly aware of these resentments and felt the pinch to
their popularity. In order to mitigate the situation and thereby caving into
communal pressures, the Muslim Women’s (Protection of Rights on Divorce) Act
was enacted, which explicitly went against the Shah Bano judgement and provided
for the maintenance to be given to a Muslim woman only during the period of iddat.
This too faced violent reactions from society as people expressed concern about the
rights of the Muslim woman being restricted, encouragement of divide and rule and
the relative marginalization of the interests of the Hindu man who was still obliged
to maintain his wife for indefinite periods. The debate was sought to be resolved in
Daniel Latifi where the Supreme Court analysed the constitutionality of the Act. In
an attempt to balance competing interests, it was held that the legislation was valid
but the effect of the legislation was tempered as the court stated that Muslim law did
not preclude a divorced women’s right to maintenance beyond the iddat period and
that providing any protection short of S. 125 protections would be unconstitutional.

Some areas continue to concern scholars interested in Indian secularism:77

 The Constitution of India states that India should strive to establish a uniform civil
code. However, India continues to operate under personal law based on religion.
How can a uniform code be arrived at? What norms will govern all citizens
uniformly?

 The Constitution places public order in the second list of Schedule VII, that is, for
legislation by states. Due to this, the police is often unable to remain objective in the
resolution of religious based violence.

 Concern has been raised about parties that are organized on religious lines, that
might manipulate an otherwise secular constitutional structure.

 State anti-conversion bills still exist in states such as Madhya Pradesh, which
impose reporting requirements on those who wish to convert their religion. The
adverse impact that this has on the freedom of religion is apparent. Constitutional
challenges have been brought to these laws80 but the matter is still under judicial
consideration

Models of Secularism

In the language of constitutional theory, secularism has a slightly different

implication. A secular polity is “a polity where there exists a genuine commitment to
religious freedom that is manifest in the legal and political safeguards put in place to
enforce that commitment”

Gary Jacobson in his book “Wheel of Law”, categorises the relationship between
religion and state (as manifested in different constitutional structures) based on two
categories: (i) the significance of religion in explaining the structural configuration of
the given society (i.e. the importance of religion in given society) and (ii) the official
cognizance that the given state provides to religion (i.e. to what extent the state
identifies with any particular religious group).

From this table, four broad categories of secular constitutional designs can be
discerned that are discussed in depth below:

 Visionary secularism

 Ameliorative secularism

 Assimilative secularism

 Laicite
[Link] Official Cognizance with thin socio-cultural cognizance or “visionary
secularism”: This form constitutional design is clearly predicated on religion.
However, the secular aspirations of the society that lives within the constitutional
structure tempers any theocratic impulse that the constitution might suggest.

1.1.1. Israel: Jacobson suggests that Israel is an example of this constitutional design;
Zionist aspirations underlie the creation of the state but the secular orientation of
Israeli Jews dampens the effect of the constitution. This is called the visionary model
because the constitution in such cases seeks to accommodate the aspirations of a
particular group within its democratic framework. Scholars note that Israel is akin to
states like England, Greece and Iceland, that have a recognized state Church, but
seek to provide equal rights to all citizens.

Academics point out that for several Zionists, Israel was envisioned as a secular
state.7 The Palestinian Mandate of 1922 that was held by Britain (that has been
recognized in the Israeli legal system) provides for the freedom of religion. Article 2
of the document states clearly that “The Mandatory shall be responsible for placing
the country under such political, administrative and economic conditions as will
secure the establishment of the Jewish national home, as laid down in the preamble,
and the development of self-governing institutions, and also for safeguarding the
civil and religious rights of all the inhabitants of Palestine, irrespective of race and
religion.”The Israeli Declaration of Independence terminating the British mandate
guarantees the freedom of religion and conscience too all inhabitants within the state
of Israel. Israel’s law on freedom of religion and secularism is closely tied to
international law on the point. This is clear from various rulings of the Supreme
Court that refer to the principles in the Universal Declaration of Human Rights and
the International Covenant on Civil and Political Rights and import their provisions
regarding freedom of religion to the law of Israel.

[Link] socio-cultural consequence with impartial official cognizance or

“ameliorative secularism”: Within this category, the social order of the state is
strongly driven by religious considerations. However, the Constitution itself is
impartial to religion, thus acting as a democratizing factor. This model is called
“ameliorative secularism” because it seeks to transform deeply religious society into
a unified polity.

1.2.1. Canada: Another similar form of secularism termed “pluralist

accommodation” is seen in Canada, where the state does not actively encourage
specific religious groups but does accommodate their needs in its policies. The
dominion of Canada was created by the British North America Act, 1867. Under
Section 93, it allows for taxpayer support for a separate Roman Catholic and
Protestant schools. With the 1960 enactment of the Bill of Rights, the freedom of
religion was provided quasiconstitutional status, a position cemented by the
Canadian Charter of Rights and Freedoms in Article 2. The said article states: “2.
Everyone has the following fundamental freedoms: (a) freedom of conscience and
religion”. Moreover, Section 15 of the Charter guarantees equal protection under law
for all citizens irrespective of their religion. However, at the same time, the preamble
of the Charter states that Canada is founded on principles that recognize the
supremacy of God. This has been widely criticised as conflicting with the beliefs of
certain religious groups and for undercutting the secular nature of the Canadian
state. The definition of freedom of religion in Canada was closely considered by the
Supreme Court in Sybdicat Northcrest v. Amselem. It was here herein that for a
freedom of religion claim to be sustained before the court, it must be shown that (i)
there is a close connection between the practice protected and the religion and (ii)
the individual is sincere in his or her belief. Several states within Canada further
clarify the scope of the freedom of religion in local legislation. In Manitoba, the
freedom of religion also encompasses making “reasonable accommodation” for the
exercise of rights. This clearly displays the limited support that the Canadian offers
to religion in specified cases. The freedom to manifest religion in public places in
Canada came up before the Supreme Court in Bhinder v. CN, where the facts
involved a challenge to a policy that mandated wearing a hard hat by an individual
whose religion required that he wear a turban. The Court dismissed Bhinder’s plea
holding that the use of a hard hat was a bona fide occupational requirement that was
honestly imposed in the interest of the performance of work. There existed no duty
to accommodate in this particular case because there was no discriminatory practice
that was made out. The concurring opinion held that even if there was a duty to
accommodate, this was only to the point of undue hardship for the employer. The
job based restriction in this case was a genuine one. The ruling in Bhinder was
overturned in 1990 in Central Alberta Dairy Pool, where the court relaxed its stance.
It held that “(a)n employer that has not adopted a policy with respect to
accommodation and cannot otherwise satisfy the trier of fact that individual
accommodation would result in undue hardship will be required to justify his
conduct with respect to the individual complainant. Contemporary debates on
secularism relate to the Quebec Secular Values Charter that amongst other things,
seeks to ban religious expression in public places such as government departments
and schools and thus promote “religious neutrality”. The necessary amendments to
the Quebec Charter on Human Rights will also be made. The proposed Charter has
caused public protests. Overall, it is a common opinion that the position of Canadian
citizens vis-à-vis secularism is complex. One study reveals that while Canadians still
identify with religion, Canada is in the process of “disembedding”, i.e., moving
away from identifying themselves with religion, towards a new self understanding
based on individuality.

1.2.2. India: Jacobson cites India as an example of such constitutional design. While
religion has a thick social presence in India, the objective of the Constitution was to
transform this reality. As the thinker Bankim Chander Chatterji once commented
about the Indian state, “(t)he State is secular…but the people are not.”.24 Secularism
in India is discussed in further detail in Section 3 of this text.

[Link] socio-cultural consequence with impartial official consequence or

“assimilative secularism”: This form of constitutional design is characterised by the
absence of any state support for religious activities of the majority religion or the
minority religion in a country and a corresponding thinness of religion in the social
fabric of the nation. It is termed “assimilative secularism” because political
principles have decisive priority over religious impulses in these constitutions.

1.3.1. The United States of America: Jacobson cites the United States as an example of
this form of constitutional design. In the early stages of constitution building in
America, circa 1800, Jefferson proposed the metaphorical wall of separation between
religion and state.25 There are two “religion clauses” in the American Constitution
within the First Amendment (or the Bill of Rights). The American Bill of Rights states
categorically that “Congress shall make no law respecting an establishment of a
religion…”; this clause is called the Establishment Clause. It later states “…or
prohibiting the free exercise thereof”; this is known as the Free Exercise Clause.
These clauses drew inspiration from the Virginia Statute for Religious Freedom,
1777.28 The first case to closely analyse the religion clauses was Reynolds v. United
States which analysed the legality of anti-polygamy laws that limited the freedom of
religion of the Mormon community.29 Making reference to Jefferson’s powerful
metaphor, the law was sustained.

The history of the judicial interpretation of the religion clauses is interesting. The
early approach of the Supreme Court was rigid. Under the Schebert test (laid down
in Scherbert v. Verner30), any law that burdened the free exercise of religion would
not be legally sustainable. The US Supreme Court maintained that the state must
demonstrate compelling interest in Free Exercise cases, thus establishing that the
strict scrutiny standard should be applied in all free exercise cases. This position was
reversed in Employment Division v. Smith.31 In Smith the court considered a state
prohibition on peyote which was a drug used in certain religious rituals. The court
upheld the ban, reasoning that laws that are “neutral laws of general applicability”
do not violate the Establishment Clause. In response to this, the 1993 Religious
Freedom Restoration Act was passed, which necessitated that the law meet a strict
scrutiny standard regardless of whether the law was of general applicability. The
legislation was later read down by the Supreme Court on the basis that defining the
scope of rights carved out from the Fourteenth Amendment.33

The question of secularism has also come before the Supreme Court in a series of
decisions on the use of religious symbols. In County of Allegheny v. ACLU,34 the
Supreme Court held that a secular state is one that neither promotes atheism nor has
an official religion. The Establishment Clause extracted above was construed as
prohibiting the government from taking an official stand on religion. A similar
stance was taken by the court in Abington v. Schemmp.

It is important to note the criticism of American secularism. Michael Sandel,

amongst others, has pointed out that under the liberal conception of the individual,
the state must be obliged to protect individual religious freedom. Hence, construing
the American system as advocating a complete separation of the state from any form
of intervention in religion would be problematic. Shouldn’t even a secular state be
ready to protect religion to the extent that it constitutes the identity is citizens?

[Link]: A final, extreme form of separation of Church and State is seen in the
laicite model, which is considered as being the most “aggressively secular”. Herein,
unlike the American model or the Indian framework, the state is actively hostile to
religion. This model comes closest to the complete separation of religion and state.

1.4.1. France: Laicite originated in France, in the 1905 French law on the Separation
of the Churches and the State which ended the system of state recognised religions.
Over time, laicite in France has developed into a restrictive understanding of the role
of the State in religion. Article 1of the French Constitution stipulates that France is a
secular state while the Constitution also guarantees the freedom of religion.39 On 15
March 2004, under Jacques Chirac, French Law prohibited the use of religious
symbols in public primary and secondary schools. Although this ban is on all
religious symbols, it is prominent for placing restrictions on women wearing
headscarves. The policy as protested by religious leaders, segments of the French
population as well as human rights organizations such as Human Rights Watch. In
2008, a communication was even brought before the Human Rights Committee by a
young boy who was prohibited from wearing a turban in a public school. The
Committee noted that this action was in violation of Article 18 the International
Covenant on Civil and Political Rights which guarantees the freedom of religion. In
September 2013, to clarify its policy of laicite, the French government outlined 15
principles that govern secularism in schools. Citing the need for a strict separation
between the public and the private sphere, the Charter guarantees the freedom of
religion while requiring “strict neutrality” from teachers. The French Supreme Court
ruled recently that private enterprises may fire employees who express their
religion.

Public Interest Litigation

Public Interest Litigation means litigation filed for safeguarding the interest of the
public at large. It may be taken to mean a legal action initiated in a court of law for
the enforcement of the Public interest or general interest in which the public or a
class or community has pecuniary interest or have some interest because it will affect
their legal right or liabilities.

Definition

Public Interest Litigation has been defined in the Black's Law Dictionary (6th
Edition) as under: “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. It does not mean anything so narrow as mere curiosity, or as the interests of
the particular localities, which may be affected by the matters in question. Interest
shared by citizens generally in affairs of local, state or national government....”

Justice P.N. Bhagwati in S.P. Gupta v. Union of India3 , explained PIL as “Where a
legal wrong or a legal injury is caused to a person or to a determinate class of persons by
reason of violation of any constitutional or legal right or any burden is imposed in
contravention of any constitutional or legal provision or without authority of law or any
such legal wrong or legal injury or illegal burden is threatened and such person or
determinate class of persons by reasons of poverty, helplessness or disability or socially or
economically disadvantaged position unable to approach the court for relief, any member of
public can maintain an application for an appropriate direction, order or writ in the High
Court under Article 226 and in case any breach of fundamental rights of such persons or
determinate class of persons, in this court under Article 32 seeking judicial redress for the
legal wrong or legal injury caused to such person or determinate class of persons.”

To sum up, it can be said that the expression ‘Public Interest’ is an ‘Elusive
Abstraction’ meaning general social welfare or regard for social good. The
expression ‘predicates interest of the general public in matters where a regard for
social good is of the first moment’. The expression in common parlance means an act
beneficial to the general public

Nature and Scope

The nature of Public Interest Litigation has been very extensively explained by P.N
Bhagwati J. in the case of People's Union for Democratic Rights and Ors. v. Union of
India and Ors , popularly known as Asiad Labour Case as:

Public interest litigation which is strategic arm of the legal aid movement and which
is intended to bring justice within the reach of the poor masses, who constitute the
low visibility area of humanity, is a totally different kind of litigation from the
ordinary traditional litigation which is essentially of an adversary character where
there is a dispute between two litigating parties, one making claim or seeking relief
against the other and that other opposing such claim or resisting such relief. Public
interest litigation is brought before the court not for the purpose of enforcing the
right of one individual against another as happens in the case of ordinary litigation,
but it is intended to promote and indicate public interest which demands that
violations of constitutional or legal rights of large number of people who are poor,
ignorant or in a socially or economically disadvantaged position should not go
unnoticed and un redressed.

Public Interest Litigation is essentially a cooperative or collaborative effort on the

part of the petitioner, the State or public authority and the Court to secure
observance of the constitutional or legal rights, benefits and privileges conferred
upon the vulnerable sections of the community and to reach social justice to them.
The State or public authority against whom public interest litigation is brought
should be as much interested in ensuring basic human rights, constitutional as well
as legal, to those who are in a socially and economically disadvantaged position, as
the petitioner who brings the public interest litigation before the court . The State or
public authority which is arrayed as a respondent in public interest litigation should,
in fact, welcome it, as it would give it an opportunity to right a wrong or to redress
an injustice done to the poor and weaker sections of the community whose welfare is
and must be the prime concern of the State or the public authority.

By analysing the above case the nature of Public interest Litigation can be stated as:

 It is a strategic arm of the Legal Aid Movement

 Intended to bring justice within the reach of poor masses.

 Public Interest Litigation is a different kind of litigation from traditional litigations

 It is brought before the court not for the purpose of enforcing rights of one
individual against other.

 Public Interest Litigation is a cooperative or collaborative effort of the state and the
court to make social justice available to vulnerable sections of community.

Evolution of Public Interest Litigation in India

The seeds of the concept of public interest litigation were initially sown in India by
Krishna Iyer J., in 1976 in Mumbai Kamgar Sabha v. Abdul Bhai and was initiated in
Akhil Bharatiya Shoshit Karmachari Sangh (Railway) v. Union of India, wherein an
unregistered association of workers was permitted to institute a writ petition under
Art.32 of the Constitution for the redressal of common grievances. Krishna lyer J.,
enunciated the reasons for liberalization of the rule of Locus Standi in Fertilizer
Corporation Kamgar Union v. Union of India and the idea of 'Public Interest
Litigation' blossomed in S.P. Gupta and others vs. Union of India .

The PIL discourse in India could be divided into three broad phases, which are as
follows:

i. Creative
 ii. Lawmaking
iii. Super-Executive

One will notice that these three phases differ from each other in terms of at least the
following four variables: who initiated PIL cases; what was the subject matter/focus
of PIL; against whom the relief was sought; and how judiciary responded to PIL
cases.

Important Case

In Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar, Patna P. N.

Bhagwati, J. has observed that the poor in their contact with the legal system have
always been on the wrong side of the line. They have always come across 'law for
the poor" rather than law of the poor'. The result is that the legal system has lost its
credibility for the weaker section of the community.

Hussainara Khatoon case is not only very early in the history of the public interest
litigation but it displays in a most dramatic and compelling way so many of the key
features of Indian Public Interest Litigation. On January 11, 1979, Kapila Hingorani
filed a habeas corpus petition in the SC on behalf of nineteen undertrial prisoners
mentioned in the two articles by R.F. Rustamji, a member of National Police
Commission. The first named petitioner was Hussainara Khatoon, a young woman
who had fled with her family from Bangladesh some time in 1975. She was arrested
and held in protective custody in jail for four years, even though Indian Government
had issued instructions that all those arrested under the Foreigners Act coming from
Bangladesh should be released on bond.

From this moment of inception, the Hussainara Khatoon case helped establish the
most important features: A petition need not be filed by a person whose own legal
rights are at issue; can be brought by any public spirited citizen; need not be based
on personal knowledge but can be supported by material like newspaper articles;
both important legal principles and substantial relief can be created at preliminary
stage and scope of litigation can be expanded beyond the initial petition.

M.C. Mehta and Anr. v. Union of India and Ors.43. The court in this case has clearly
laid down that an enterprise which is engaged in a hazardous or inherently
dangerous industry which poses a potential threat to the health and safety of the
persons working in the factory and residing in the surrounding area owes an
absolute and non- delegable duty to the community to ensure that no such harm
results to anyone on account of hazardous or inherently dangerous nature of the
activity which it has undertaken. The court directed that the enterprise must adopt
highest standards of safety and if any harm results on account of such activity, the
enterprise must be absolutely liable to compensate for such harm and it should be no
answer to the enterprise to say that it had taken all reasonable care and that the harm
occurred without any negligence on its part.
Origin of PIL in USA

The concept of Public

Interest Litigation
originated in the
United
States of America in
late Nineteenth
century. The famous
Gideon’s
case of U.S.A.v
formed the basis for
the concept of Public
Interest
Litigation. The facts of
the case were that
Clearance Larl Gideon
sent
a scrawl letter to the
Supreme Court of
United States pleading
before
the Court that he was a
pauper and the Florida
Trial Court had
denied his request to
appoint counsel for his
defense contrary to the
American Constitution.
The concept of Public
Interest Litigation
originated in the
United
States of America in
late Nineteenth
century. The famous
Gideon’s
case of U.S.A.v
formed the basis for
the concept of Public
Interest
Litigation. The facts of
the case were that
Clearance Larl Gideon
sent
a scrawl letter to the
Supreme Court of
United States pleading
before
the Court that he was a
pauper and the Florida
Trial Court had
denied his request to
appoint counsel for his
defense contrary to the
American Constitution.
The concept of Public Interest Litigation originated in the United States of America
in late Nineteenth century. The famous Gideon’s case of U.S.A.v formed the basis for
the concept of Public Interest Litigation. The facts of the case were that Clearance
Larl Gideon sent a scrawl letter to the Supreme Court of United States pleading
beforethe Court that he was a pauper and the Florida Trial Court had denied his
request to appoint counsel for his defense contrary to the American Constitution.

The 9 judges of the Supreme Court treated the letter as petition and allowed his plea
by relaxing the procedural law which created [Link] case led to recognition of
the first Legal Aid Office in New York City established in 1876 as a primary
defender in criminal matters. In1960s, United States of America witnessed a period
of social unrest during which many changes were made to the many institutions as
well as significant reforms were introduced and practiced. One such significant
institutional reform was evolution of Public Interest Litigation. In the United States
of America, this branch of law is included under the term ‘Public Interest Law.

In 1976, the phrase ‘public law litigation’ was first prominently used by American
Professor Abram Chayes to describe the practice of lawyers or public-spirited
individuals who seek to bring about social change through court-ordered decrees
that reform legal rules, enforce existing laws and articulate public norms. Public
Interest law includes all efforts made to provide legal representation to the
unrepresented groups and interests. Such efforts have been undertaken as the
existing legal services system failed to protect the interest of significant section of the
population and significant interest groups. These unrepresented or
underrepresented interest groups include not only the poor and the disadvantaged
but also ordinary citizens who cannot afford lawyers to represent them when their
interests are affected by any action. Thus, the legal aid laid the foundation for
building the edifice of Public Interest Litigation in the world. The concept of Public
Interest Litigation in the United States of America has undergone many changes
with the passage of time. It has passed through various changes and modifications in
their common law-based systems.