The Dual Edges of Public Interest Litigation: Promises and Perils

Public Interest Litigation (PIL) is one of the most distinctive contributions of the Indian judiciary to the global legal landscape. Born out of the post-Emergency era in the late 1970s, it was designed with a clear mandate: to give a voice to those who had none. Pioneered by Justice P.N. Bhagwati and Justice V.R. Krishna Iyer, PIL dismantled the traditional rule of locus standi – the requirement that only the aggrieved party could approach a court – and allowed any public-spirited individual to seek judicial redress on behalf of the marginalized. Over the decades, PIL has delivered transformative judgments, protected fundamental rights, and held the state accountable. But it has also attracted sharp criticism for judicial overreach, rampant misuse, and a gradual drift away from its original purpose. The story of PIL is, therefore, a story of both remarkable promise and real peril.

The revolutionary promise of PIL 🔗

Before PIL, India’s courts were largely inaccessible to the poor. Legal proceedings were expensive, procedurally rigid, and demanded direct personal injury as a precondition for filing a case. PIL changed this fundamentally. Under Articles 32 and 226 of the Constitution, courts began accepting petitions – sometimes even letters and postcards – from individuals acting on behalf of those who could not represent themselves.

The results were significant. In Hussainara Khatoon v. State of Bihar (1979), a journalist’s PIL brought to light thousands of undertrial prisoners languishing in jails without trial, leading to their release and firmly establishing the right to a speedy trial. In Bandhua Mukti Morcha v. Union of India (1984), the Supreme Court issued sweeping guidelines to eliminate bonded labour after an NGO filed a PIL on behalf of workers in stone quarries. These early cases demonstrated what PIL was built for – reaching those at the very bottom who had no other access to justice.

PIL also dramatically expanded the scope of Article 21’s right to life, which courts began interpreting to include the right to clean environment, healthcare, education, food, and shelter. In Vishaka v. State of Rajasthan (1997), the Supreme Court stepped in to protect working women from sexual harassment when Parliament had not yet legislated on the issue, issuing the now-famous Vishaka Guidelines that served as binding law until the enactment of the POSH Act in 2013. M.C. Mehta’s environmental PILs over decades resulted in the relocation of polluting industries from Delhi, protections around the Ganga and the Taj Mahal, and the conversion of Delhi’s public transport fleet to CNG – all court-driven policy changes that the executive had failed to deliver.

PIL has also served as a tool for democratic accountability. Judicial interventions in the 2G spectrum scam and coal block allocation cases reinforced that even those in positions of state power are not above constitutional scrutiny.

The growing perils: when promise becomes peril 🔗

Yet, as PIL’s reach expanded, so did its complications. What began as a lifeline for the dispossessed has, in several ways, evolved into a mechanism that raises difficult questions about institutional boundaries, fairness, and access.

Judicial overreach and the separation of powers 🔗

The most persistent criticism of PIL is that it has enabled courts to cross into territory that constitutionally belongs to the legislature and the executive. Critics argue that when courts issue detailed policy directives – ordering fuel standards, managing urban planning, or supervising administrative schemes – they venture beyond adjudication into governance. The CNG order mandating the conversion of Delhi’s bus fleet is frequently cited as an example where the judiciary effectively made a policy decision that should have been the executive’s prerogative.

Former Supreme Court Justice A.K. Mathur cautioned that judicial activism should not become “judicial adventurism.” A World Bank policy research paper on PIL noted that concerns about judicial encroachment on legislative and executive functions go back to the early days of the Indian Republic, well before PIL itself existed. When judges prescribe policy outcomes rather than declaring legal principles, questions arise about democratic legitimacy – particularly because judges are unelected and largely unaccountable to the public they govern.

Some critics have gone further. Justice Katju, in a widely noted remark, described PIL as having developed into an “uncontrollable Frankenstein.” While that characterisation may be extreme, it reflects a genuine anxiety among legal scholars and sitting judges about courts accumulating unchecked power under the broad umbrella of “public interest.”

From poor litigants to “publicity interest litigation” 🔗

One of the most troubling transformations in PIL jurisprudence has been its capture by interests far removed from the marginalized communities it was meant to serve. Scholars have documented a well-defined shift in PIL priorities – from poverty and labour rights in the 1980s, to environmental concerns in the 1990s, to governance and urban beautification issues in more recent decades. Increasingly, PILs address issues like heritage conservation, traffic inconvenience, or the conduct of political protests – matters that disproportionately reflect middle and upper-class anxieties.

This shift has given rise to what critics call “Publicity Interest Litigation” – petitions filed not for the benefit of the voiceless, but for personal aggrandisement, political motives, or media attention. In State of Uttaranchal v. Balwant Singh Chaufal (2010), the Supreme Court itself acknowledged the problem and issued guidelines directing High Courts to verify petitioner credentials, check the authenticity of claims, and screen out petitions driven by oblique motives. Former Chief Justice S.H. Kapadia announced that substantial fines would be imposed on frivolous PIL filers – a move widely welcomed in legal circles.

The irony is sharp: a mechanism designed to democratise justice has, in part, become a tool for those who already have access to it.

The problem of prioritising competing rights 🔗

PIL frequently forces courts to adjudicate between rights that are both constitutionally valid but point in opposite directions. Environmental PILs that shut down polluting factories protect one community’s right to a clean environment while destroying another community’s right to livelihood. Urban development PILs that clear encroachments can improve civic infrastructure while rendering informal settlers homeless. These are polycentric disputes – where a court’s decision ripples across the rights and lives of many parties who are not represented in the proceedings at all.

As noted in the International Journal of Constitutional Law, PIL courts often decide such multi-dimensional disputes without adequate hearing of all affected stakeholders. In matters concerning stubble burning in Delhi, for instance, directions were reportedly issued to stop the practice without substantive hearing of the farmers whose livelihoods depended on it. The adversarial court procedure, with its limited fact-finding capability, may simply not be equipped to resolve the layered trade-offs that such cases demand.

Defiance of court orders and enforcement failures 🔗

Even when PIL produces a landmark judgment, implementation is another matter entirely. Government agencies regularly delay, dilute, or ignore court directions without facing meaningful consequences. Enforcement challenges are particularly acute in cases involving structural or systemic changes – whether it is prison reform, bonded labour elimination, or environmental rehabilitation. When court orders remain on paper, the communities that PIL was meant to protect are left no better off than before. This pattern of non-compliance also chips away at judicial credibility and raises a fundamental question: if the court cannot enforce its own directions, what is the actual value of a PIL victory?

The contempt mechanism exists in theory, but using it against state organs is politically fraught and practically slow. The gap between a landmark order and its on-the-ground impact is often enormous, and it is the most vulnerable who bear the cost of that gap.

The dilution of PIL’s original mandate 🔗

As legal commentators have observed, the original promise of PIL – based on social justice and access for the dispossessed – has, over five decades, given way to a more confused jurisprudence. The Supreme Court’s approach to PIL has swung between expansive generosity in the 1980s and suspicious gatekeeping from the 2000s onward. A PIL petitioner today may face demanding scrutiny, potential monetary penalties, and public censure – while those with resources and connections continue to file PIL petitions without equivalent accountability.

This inconsistency undermines the very foundation of PIL. If the burden of proving bona fides falls harder on genuinely poor petitioners than on well-connected ones, PIL is not equalising access to justice; it is replicating the inequalities it was meant to address.

PIL as an instrument of social justice – the path forward 🔗

None of these criticisms negate the fact that PIL has been, and continues to be, indispensable to India’s constitutional project. PIL remains constitutionally rooted in Articles 32 and 226 and continues to be the only realistic avenue of redress for millions who cannot otherwise access the courts. Its track record in expanding fundamental rights, checking state excess, and forcing governance accountability is substantial and real.

What PIL needs is not abandonment but calibration. Clearer criteria for case admission, stronger enforcement mechanisms for orders, and consistent application of screening guidelines would help recenter PIL on its original purpose. Genuinely public-interest petitions – those addressing fundamental rights violations of the disadvantaged – must receive priority, while petitions serving elite or frivolous interests should face swift, consistent rejection.

PIL reflects the dynamic interplay between law, society, and justice in a country where the state has historically failed large sections of its population. Its vitality lies in its capacity to evolve – but that evolution must be anchored in the democratic and constitutional values that gave rise to it in the first place.

What do you think? Has PIL in India lived up to its original promise of giving voice to the most marginalised, or has it been gradually appropriated by those who already have access to power and resources? And if courts can issue transformative orders but struggle to enforce them, what does that tell us about the true limits of judicial power in driving social change?

References

1. https://en.wikipedia.org/wiki/Public_interest_litigation_in_India
2. https://www.nextias.com/blog/public-interest-litigation/
3. https://www.legalserviceindia.com/article/l273-Public-Interest-Litigation.html
4. https://drishtijudiciary.com/blog/understanding-pils-impact-on-society-and-judicial-overreach
5. https://openknowledge.worldbank.org/server/api/core/bitstreams/2d298c9b-dcdf-54fe-9003-2cad29f156a7/content
6. https://academic.oup.com/icon/article/16/2/710/5036475
7. https://www.thelawadvice.com/articles/public-interest-litigation-pil-in-india-a-legal-revolution
8. https://www.scobserver.in/75-years-of-sc/what-a-jagged-little-pil-the-peoples-court-at-75/
9. https://ijlsss.com/public-interest-litigation-in-india-a-judicial-pathway-to-social-justice/
10. https://byjus.com/free-ias-prep/public-interest-litigation-pil/