How far does the Public Interest Litigation help to get Access to Justice?

Introduction:

Access to justice id the primary right of people. They want safety, security, and get true justice,from the judiciary. It is not happening around the world. People who are under previlized are deprive of all basic needs. The people living under poverty have not enough money and knowledge to bear the cost of litigation and file acase. People of our sub- continent and many part of the world are suffering from deprivation. Public interest litigation open up new horizon for them. A public sprited people or any group can file a case on behalf of aggrived person thouh he / she is not directly injured by the wrong done of government or local authority or any public or private entity.Except this, any organization who are working on public litigation can work in different arena such as , environmental protection, freedom of espression or any field which is directly connected with the betterment of masses. Public Interest Litigation pave the way for the poor people to get access to justice

1. 1.      Definition of PIL

Public interest litigation today has great significance and drew great attention from people of all walks of life. Public interest litigation is the way of using legal action to protect fundamental right of poor, ignorant, or socially/economically disadvantaged people from any part of society. This is different from ordinary litigation. In PIL, any person or group other than aggrieved party can file a case on behalf injured party.PIL is right given to the socially conscious person, or a public spirited NGO to espouse a public cause by seeking judicial redressed of public injury. This injury may arise from breach of public duty pr due to the violation of the provision of constitution. A judge in Australia identifies it by public character to which the litigation relates evidenced by properly brining proceedings to advance a public interest; that proceedings contribute to the proper understanding of the law in question; and have involved no private gain.[1]

As Lord Diplock said in the English House of Lords; There would be great lacuna in our system of public law if a pressure group, like the federation, of even a single public spirited tax payer, were prevented by outdated technical rules of locus-standi from brining the matter to the attention of the court to vindicate the rule of law and get unlawful conduct support[2]

Senator Jose W Diokno of Philippines identified the characteristics of  Public Interest Litigation by saying that , development require different type legal aid…concentrating on public rather than private issues, intent on changing instead of merely upholding existing law and social structures, particularly distributing power within society.[3] In most of the cases , PIL seeks to trigger a soial changes pr protect the interest of disadvantage sections of society[4]

1. 2.      PIL and the expansion of LOCUS STANDI debate

The crucial question with writ petition is who has requitelocus standi  to file ? The traditional practice is whwre common law  practice is that only aggrieved person.An aggrieved person whose rights are infringed, has satnding to approach to court.But over the years ,there has been a liberalization of the syanding rules with the evolution of PIL. In the cae of India, Where activist judjes such as Justice P,N.Bhagwati and Justice V.R. Krishna Iyer interpreted nin enforcrable constitutional directives principal to constitute norms of social justice that lgegitimate the implementation of a broader locus standi in the public interest .[5], In Bangladesh the sole hurdle for implementing The movement of public interest litigation had been the question of interpretation of the constitutional provision on locus standi.Article 102 ,clause 1 and 2 (a)of the constitution of Bangladesh refer to the ‘aggreived prson”test in order to determine whwther apetitioner either a person or group has locus standi in public imterest litigatiin , in 9174 the issue of locus sytandi is partly liberized in Bangladesh.In the case of Kazi Mukhlesur Rahman v.Bangladesh ( The Berubari case),In this case the applicant challenged the international treaty on the ground of freedom of movement , residence, and settlement,and franchisewere tthreathen as the treaty involved cession of Bangladesh territory without lawful authority of executive head of Banghldash government.though the perso is not directly harm but he has granted locus standi on the basis of the merit case. In the words of Syem CJ It appears that the question of locus satndi does not involvr the court’s jurisdication to hear a person but of the competency of the colaim .to calim hearing , so the question is of discretion which the court exercise upon due consideration of the facts nad circumstances of each cases.[6]…..we heard him in view of constitutional issue of grave importance raised in the instatnt case involving an international treaty affecting the territory of Bangladesh and his compliant as to an impending threathto his certain fundamental rightgarueented by the constitution,[7]….Evudently these rights attatched to the citizen are not local , tey are pervade nad extent ot every inch of the territory of Bangladesh stretching ot the continental shelf.[8]

But after the subsequent case Bangladesh Retires Government Emplyee Welfare V Bangladesh court give the based on thr locus standi. But in the case of Mohiuddin Farooque v Bangladesh[9] “ person aggrieved” transcended bryond traditional pendantic interpretation to encompass a more liberize approach in the determination of standing in PIL cases , separate exposition by the learned judjes of the Appleate Division of the Supreme court of Bangladesh in FAP20[10]  ‘

ATM Afzal  CJ  stated, Any person other than the officious or the wayfarer without any interest or concern beyond what belongs  to ayny of 120 million people of the country or a person with an oblique motive, having sufficient interest in the matter in diospute is qualified to be a person aggrieved and can maintain an action for judicial redrees of public injury arising from breach of public duty or or violation of some provision of the constitution or law and seek enforcement of sych public duty and of such constitution or legal provission[11]

Latifur Rahman CJ  I hold that a person approaching the court for redress of a public wrong or ublic injury has sufficient interest ( not personal interest) in proceedings is acting bonafide and not for his personal gain or privetae profit, without any political motivation or oblique consideration , has locus standi to move high court Division under Article 102 of the constitution of Bangladesh[12]

In the word of B.B. roy Chowdhury

The “person agrgreived” meansnot only any person who is personaly aggrieved but also one whose heart bleeds for his less fortunate fellow beings for awrong sone by the government , local authorityis not fulfilling its constitutional or statotury obligations[13]An analysis of above exposition revel that the court will allow standing the matter involves public interest some wrong, or injury or invasionof constitutional or legal rights and the petitionaer has sufficient interest and bonafida intension.

1. 3.      Implications of Public litigation Interest In Bangladesh, India and Pakistan

The trend is PIL for the poor in Bangladesh, Pakistan.,India seemingly revolves anroynd certain key issues that include “inte aila’ slum evection, indiscriminate use of security law, arbitrary areest by law enforcining agency, toture in the police remand, clearing the backlog of massive pending case . IN India judges are started to expanding the fundamentals rights. They interpreted thsat right to life as to right to live with dignity, i.e, that a person was entitled to get all basic needs and facilitiessuch as food, shelter, protection ,health service etc. There is inclusion of right to information by expanding the right to freedom of expression. It can be said that litigation is the expeditious dispensation of justice for the poor.public Litigation emerges to change the socio-economic condition of poor. It can be considered as the means of achiving a social welfare state.

• PIL protect the right to women: womens issue recurrently form the basis for PIL. Where inherent inequlities that prejudice women cannot adequetly addresses by the legislative sections aloe courts have time stroice to protect the rights of women in PILcase brought before them. In case of Editor,The Daily Banglabazar Patrika v District Majistrate Noagoan[14] . The court acted sou muto in respect of hillamarriage imposed on a women.Invoking article 28,31-35 (5) of the constitution section 494,498,508-509 of the penal code ,1908 and the rule of the muslim family Laws ordinance1961, the court declared that the pronouncement pf the fatwa directing the women to undergo hilla marriegewas unlawful. In Pakistan, Anwar Begum case ensure the protection of inheritance right of women was oderded.[15]

• Ensuring rights of children: Children are constitute one of the most vulnareable group whose interest have time and again beign focus in PIL . In Master Issa N. Farooq v Bangladesh and others[16].Bela challenged the government under articles 11,27 ,28(4),31-34 of the constitution for its filure to restrict the practice child trafficking in U.A.E. for employment as camel jockeys. An immedieat result of litigation was the modification of the procedure regarding issuance of passport. In Blast and others v Bangladesh and others, a writ challenged the sudden clouser of a non–government school primary school without any notice or citing any ground.The court issued a rule nisi asking the government to showcause as to why their action should not be termed unconstitutional . it is receiving all government beneft.the case is pending.  In Pakistan. Supreme Court give the verdict for improvement of the situation for those 200000 primary schools  ehich are in shambles.[17]

• Ensuring the rights of disabled : PIL cases have initiated on behalf of disabled individuals who were denied their right to participate in public life under theconstitution .In Iqbal Hossain v Bangladesh and others[18].Bela moved to court under Article 15,19,20,21,28(1) and 29 of the constitution questioning the validity of the rule restriction blind person fro appearing from the competitive examination held by Bangladesh Civil Service. In Abu Naser ,Mohsin Hossain and others v. Bangladesh and others[19].a writ invoking Artcle 27 and 31 of constitution National Forest Policy; Bangladesh Civil Service Age, Qualification and Examination for Direct Recruitment Rules 1982; Public Service Commission Ordinance, 1977.

• Protecting the rights of landless  PIL to protects the rights entitlements of landkless also the features prominatly in some of the cases. In Khusi Kabir (Nijera Kori) v. Bangladesh and others[20]. A writ was filed  under the 15,19,31,32 of the constitution challenging the leasing out of Khas land [21]for shrimp cultivation to the detrimental of specific landless group rsiding in areas within Noakhali and Sunderban. The court called halt to the evictions of landless from the concerned land the case is pending.[22]

1. 4.      PIL is not for all ills

Despite the appreant success in in public interest litigation for all these reasons PIL should not be considered a panacea for ebsuring the respect of all fundamental right. A significant number of negative repercussions must also be taken into account. According to

 Gloppen,Siri  While it is important to understand the potential that social rights litigation can represent under various conditions it is ( nonetheless) important to over emphasise the importance of litigation oncompared to other ways of shaping social policy, its direct effect or instrumentality as a means of social mobilizations. In some contexts its seems to have been great significance , but more often effects on the ground are limited[23]’

• Most PIL matter have not resulted in final verdict
• PIL often not first choice of poor
• Delivered  judgement may not enforced
• Financial risk
• Ignorance of principies of natural justice
• Formal Law an Customary Law

• Most PIL matter have not resulted in final verdict:  Judgement are often held by the justice and take long time to come. Sometimes orders are given but elaborations of reasons delayed. Indeed,  political disputes fashioned as matters of fundamentals rights and brought before the court have rasied serious concern about the politicization of courts.[24]

• PIL often not first choice of poor:  IT is true that poor people neither have the capacity nor the skill to marshal and produce material before the court in support of their claim, So, ublic spirited person relied on the relevant information and present it to the court. While well organized group have competence and resources to establish a case on behalf of the poor, the number of good social group is very lmited.If the courtdecline to entertain a case for lack of sufficient information and material the interest of poor would suffer immesurebly.

• Delivered judgement may not enforce:      Delivery of judgement does not itself guareented the enforcement of judgement.Lack of sufficient numbers nd resources of law enforcement officials cmbined with lack of will along with them certain government ministries ,corporations, and individuals to submit to court verdics, hinder carring out judgement and render the progress of PIL frustratiting.[25]

• Financial Risk:   The right to litigate ( or to intervene ) is an illusory one without financial support to conduct the necessary research and development work , to fund represent and to provide inter party cost protection[26].Despite the public interest litigationhelp to get access to justice it is unfortunate that financial risk prevent imterested organization to take the cases . theuy often rely on lawyers acting without charges. And if they faiked then thay have to pay off for better opponent .It is possible to do ‘no-cost’ agreement but it is rare and are effectively controlled by financially solvent party.

• Ignorance of principles of natural justice: Judges may ignore the principles of natual justice. For instance, in India, Jamuna Pushta slum case judge up hold the right to clean environment by  giving  order to evict the 40000 slum where nearly 200000 people live ,near by Jamuna river as it is contaminate the river which ignored the principles of natural justice,did not give any notice or hearing to the slum dwellers and ignored their right to shelter.[27]

• Litigation and limitation of Formal law:  The nature of formal law within a particular national context may itself is impediment to the implementation of litigation as tools of advancing human rights.it is specifically releted to right of women, minorities, and the poor. The association of formal law with the structures of potential power that, “ may be economically privilezed, male-controlled, amd gepgraphically inaccessible to larze segment of population” present obstacle both are real and perceived to attempts at achiving meaningful social change through human rights litigation.[28]

1. 5.      Conclusion

Despite the criticism, PIL stands for remarkable example of the capacity of a commited judiciary to law into force fopr change. Disenchantment also followed the realization that the massive socio-economic problems of the third world societies needed more than progressive declaration and innovatives remedis in PIL suites . PIL  shows how there can be remarkab;e mobilization of judicial resources on behalf of the people.there fore concerned party must take necessary steeps to remove its lakings and implement it for the sake of poor.