In PIL, the litigation must involve some clearly ascertainable public interest which is given due recognition and conscious preference with an aim to ensure collective justice. Apparently, three stages are involved in ideal cases:
- Public interest is given priority over special interests, private interests, group interests and vested interests. In other words, in a free competition of interests of different kinds, the interest of the public prevails;
- It is the judge who decides what public interest is by exercising his discretion. This thus is predominantly a matter of fact and is decided in a case to case basis;
- The discretion of the judge is exercised judiciously and not arbitrarily or whimsically. It may appear that ‘public interest’ is a vague and fluid concept, the meaning of which changes from time to time depending on the problem at hand. Accusations of vagueness, however, may be countered in several ways—-
Firstly, in most cases, we instantly know whether a matter involves public interest or not when we encounter it. Nobody needs special legal training to I appreciate that unhindered importation and distribution of radio-active milk is against public interest. In other words, in a good case, it is almost automatic that the element of public interest is recognized and appreciated.
Secondly, there is a whole body of PIL case laws already accumulated in India and Pakistan. We must also add the growing number of Bangladeshi cases to the list. We now have a considerable number of decided cases which the judges can follow in determining public interest elements in similar situations.
Thirdly, evidence of public awareness and reaction, especially through popular protests and newspaper reports, is a good indication for the judge that the matter at hand is one of public interest. However, a matter would not be a case of public interest merely because the public are interested in it.
Fourthly, the court may also lay down its own guidelines for entertaining PL cases. In India, the High Courts constituted PIL cells back in the 1980s to deal with PIL by distinguishing the good cases from the bad ones before the process of admission. In fact, rigidly specifying acts and issues as public interest matters would actually hamper the interest of the public, stifling the future growth of PL Public interest can be properly served only if there is a level of elasticity in the concept so that it can change its shape to meet the demands of time and social changes without rigors.
Although, the main and only focus of such litigation is only “Public Interest” there are various areas where a PIL can be filed. For e.g. Violation of basic human rights of the poor Content or conduct of government policy Compel municipal authorities to perform a public duty. Violation of religious rights or other basic fundamental rights. PIL may be distinguished from ordinary litigation in the following way. First, PIL is for the benefit of the people as a whole or a segment of the society. It aims to enhance social and collective justice and there must be a public cause involved as opposed to a private cause. This includes several situations:
- Where the matter in question affects the entire public or the entire community, e.g. illegal appointment of an unfit person as a government servant;
- Where the issue involves a vulnerable segment of the society, e.g. eviction of slum-dwellers with out any alternative arrangement.
Where the matter affects one or more individuals but the nature of the act is so gross or serious that it shocks the conscience of the whole community, e.g. rape of a minor girl in police custody.
Second, in the situations mentioned above, any individual or organization may approach the court. In other words, Pit involves liberalization of the rules of standing. This includes cases initiated suo motu; because the judge himself is a concerned citizen in such a case.
Third, the court adopts a non-adversarial approach as opposed to an adversarial system of litigation. This induces procedural aspects as well as the aspects of granting relief. As a result, the court may treat letters as writ petitions, appoint commissioners, award compensation or supervise and monitor the enforcement of its orders. In Bangladesh the use of legal mechanism as a tool produced various means and ends in addressing environmental injuries. The agenda of PIL was mainly based on strategic issues to generate awareness amongst the common people and all the actors for development of a realistic regulatory framework and parochial environmental jurisprudence. Following a BELA case in 1996, the concept of PIL was recognized by the judiciary that has allowed the millions of voiceless an access to the formal justice system. Meanwhile, BELA has instituted more than 40 cases on environmental issues. The cases involve wide range of issues including river pollution, industrial pollution, vehicular pollution, labor welfare, compensation for losses inflicted by development projects, encroachment of important wetland, and relocation of industry and so on. The issues are both national and local in nature. The major achievements of BELA in the filed of Public Interest Environmental Litigation (PIEL) include recognition of ‘right to environment’ as part of constitutional ‘right to life’; directive judgments with regard to against industrial pollution, vehicular pollution; payment of environmental compensation in development projects; river encroachment; unlawful filling of flood plain zones and so on. Why public interest litigation Public interest litigation is important because of several factors. Important among these are:
In most developing countries, the legal regime of environmental laws is weak and the laws are difficult to enforce and sometimes ambiguous. Public interest litigation has helped bridge this gap. Public interest litigation is important where the government is not willing to promote protect the environment. The government may not be willing to prosecute those who violate environmental laws and at times the government is a violator of environmental laws. In some jurisdictions an injunction can be brought to compel or stop the government from degrading the environment. In most developing countries Governments lack resources to prosecute and investigate all the criminal cases that take place within its jurisdiction. Public interest litigation enables individuals to bring action on behalf of the community, a role the government may not play. Where criminal remedies are not enough, e.g. a fine may be too small compared to the amount of environmental degradation. A civil suit is well suited for orders such as restitution and compensation which may not be provided for by criminal laws of a country.
Where criminal remedies are not enforceable, e.g. where a crime is committed by a company and yet the punishment for the crime is imprisonment, it becomes hard to punish the company. Litigation on behalf of the public can be brought as a tort under negligence, nuisance and the rule of strict liability in Ryland’s Vs Fletcher.