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INDEX
Sl. No. CONTENTS Page.No.

I. INTRODUCTION 1-2

II. EVOLUTION OF PIL IN INDIA 2-4

III. PUBLIC INTEREST LITIGATION AND 4-12

CONSTITUTIONAL THEORY IN COMPARATIVE
PERSPECTIVE

IV. IMPLICATIONS 12-15

V. CONCLUSION: 16
 1

I. INTRODUCTION

One of the overarching aims of law and legal systems has been to achieve justice in
the society and public interest litigation (PIL) has proved to be a useful tool in achieving this
objective. For example, PIL—in which the focus is not on vindicating private rights but on
matters of general public
interest—extends the reach of judicial system to disadvantaged sections of society. It
also facilitates an effective realisation of collective, diffused rights for which individual
litigation is neither practicable nor an efficient method. Nevertheless, PIL has generally
received peripheral attention in debates on civil justice reforms around the world.1 This is
not to suggest that the evolution of PIL in various jurisdictions has missed the attention of
scholars. To continue this tradition, this article aims to critically examine the evolution and
development of PIL in India. The main objective of this examination is to highlight the dark
side of PIL so that other jurisdictions could learn useful lessons from the Indian experience.
The choice of India—a democracy of over 1 billion people governed by a common law
system, rule of law and independent judiciary—for learning lessons in the area of PIL is an
obvious one given the contribution of India to the PIL jurisprudence.
I begin this article with a review of the evolution of PIL, which could be traced to
mid-1970s, and the debate about its appropriate label. An attempt is then made to divide the
past PIL cases of more than 30 years into three broad phases to understand better the
transformations that have taken place in the PIL jurisprudence over these years. Finally, I
highlight the major variables which provided impetus to the development of PIL in India.
Although this article aims to highlight the dark side of PIL, it will not be fair if the positive
contributions of PIL are not acknowledged. After all, the dark side could only be discussed
in the backdrop of a bright side. The section on ‘‘Positive contributions’’, therefore, briefly
highlights the positive contributions that the PIL project has made within and outside India.
‘‘The dark side’’ then offers critical insights into various aspects of PIL, which together
constitute its dark side.
Here again, before mapping these facets of the dark side, I will take readers to a
quick tour of some recent PIL cases in India. The conclusion will sum up the discussion and

1
See, for example, the attention that PIL has received in recent civil justice reforms in the UK, India and Hong
Kong.
 2

also throw some light on how other jurisdictions could benefit from the Indian PIL
experience.

II. EVOLUTION OF PIL IN INDIA

It should be noted at outset that PIL, at least as it had developed in India, is different
from class action or group litigation. Whereas the latter is driven primarily by efficiency
considerations, the PIL is concerned at providing access to justice to all societal constituents.
PIL in India has been a part of the constitutional litigation and not civil litigation. Therefore,
in order to appreciate the evolution of PIL in India, it is desirable to have a basic
understanding of the constitutional framework and the Indian judiciary. 2 After gaining
independence from the British rule on August 15, 1947, the people of India adopted a
Constitution in November 1949 with the hope to establish a ‘‘sovereign socialist secular
democratic republic’’.
Among others, the Constitution aims to secure to all its citizens justice (social,
economic and political), liberty (of thought, expression, belief, faith and worship) and
equality (of status and of opportunity).6 These aims were not merely aspirational because
the founding fathers wanted to achieve a social revolution through the Constitution. The
main tools employed to achieve such social change were the provisions on fundamental
rights (FRs) and the directive principles of state policy (DPs), which Austin described as the
‘‘conscience of the Constitution’’.
In order to ensure that FRs did not remain empty declarations, the founding fathers
made various provisions in the Constitution to establish an independent judiciary. As we
will see below, provisions related to FRs, DPs and independent judiciary together provided a
firm constitutional foundation to the evolution of PIL in India. Part III of the Constitution
lays down various FRs and also specifies grounds for limiting these rights. ‘‘As a right
without a remedy does not have much substance’’,the remedy to approach the Supreme
Court directly for the enforcement of any of the Pt III rights has also been made a FR. The
holder of the FRs cannot waive them.11 Nor can the FRs be curtailed by an amendment of
the Constitution if such curtailment is against the basic structure of the Constitution.

2
See Sheetal B. Shah, ‘‘Illuminating the Possible in the Developing World: Guaranteeing the Human Right to
Health in India’’ (1999) 32 Vanderbilt Journal of Transnational Law 435, 463.
 3

Some of the FRs are available only to citizens while others are available to citizens
as well as non-citizens,3including juristic persons. Notably, some of the FRs are expressly
conferred on groups of people or community. Not all FRs are guaranteed specifically against
the state and some of them are expressly guaranteed against non-state bodies.Even the
‘‘state’’ is liberally defined in art.12 of the Constitution to include, ‘‘the Government and
Parliament of India and the Government and the legislature of each of the states and all local
or other authorities within the territory of India or under the control of the Government of
India’’.
The expression ‘‘other authorities’’ has been expansively interpreted, and any
agency or instrumentality of the state will fall within its ambit. The DPs find a place in Pt IV
of the Constitution. Although the DPs are not justiciable, they are, ‘‘nevertheless
fundamental in the governance of the country and it shall be the duty of the state to apply
these principles in making laws’’.
After initial deviation, the Supreme Court accepted that FRs are not superior to DPs
on account of the latter being non-justiciable: rather FRs and DPs are complementary and
the former are a means to achieve the goals indicated in the latter.
The issue was put beyond any controversy in Minerva Mills Ltd v Union of India
where the Court held that the, ‘‘harmony and balance between fundamental rights and
directive principles is an essential feature of the basic structure of the Constitution’’.Since
then the judiciary has employed DPs to derive the contents of various FRs.The founding
fathers envisaged ‘‘the judiciary as a bastion of rights and justice’’. An independent
judiciary armed with the power of judicial review was the constitutional device chosen to
achieve this objective. The power to enforce the FRs was conferred on both the Supreme
Court and the High Courts —the courts that have entertained all the PIL cases.
The judiciary can test not only the validity of laws and executive actions but also of
constitutional amendments. It has the final say on the interpretation of the Constitution and
its orders, supported with the power to punish for contempt, can reach everyone throughout
the territory of the country. Since its inception, the Supreme Court has delivered judgments

3
See, for example, Constitution art.14 (right to equality); art.15(1) (right of non-discrimination on grounds
only of religion, race, caste, sex, place of birth or any one of them); art.20 (protection in respect of conviction
of offences); art.21 (protection of life and personal liberty); art.22 (protection against arrest and detention);
art.25 (freedom of conscience and right to profess, practice and propagate religion)
 4

of far-reaching importance involving not only adjudication of disputes but also

determination of public policies and establishment of rule of law and constitutionalism.26

III. PUBLIC INTEREST LITIGATION AND CONSTITUTIONAL THEORY IN

COMPARATIVE PERSPECTIVE

1. Interest Groups, Politics and the Democratic State

Interest groups sometimes represent the interests of their members; at other times,
they claim to be advancing interests which go beyond those of their immediate membership.
I will call the former kind of behavior ‘representative activity’ and the latter ‘surrogate
activity’ (because the group acts as a substitute for people who are unable or unwilling to
represent themselves).4 In either mode, the group may be concerned with individuals’ rights
to property, freedom or welfare benefits (material interests), or the implementation of values
for society as a whole or a section of it (ideological interests).
This is not a hard and fast distinction, as it relates to the reasons why groups are
acting rather than the objects to be attained: if a group advocates free opera for the masses, it
could be because members are opera lovers and the group is representing their material
interest in having their desires satisfied for free; it could be because members who feel no
personal interest in opera are acting as surrogates, representing the interests (which may be
either ideological or material) of poor opera lovers who can neither afford to see opera nor
afford to advance their own interests in the competition for resources; or the members might
be advancing a vision of the good society as one in which opera improves society by helping
to civilize it (an ideological interest, independent of any concern for the material interests of
poor - or rich - opera lovers).
The reason for distinguishing between types of interests and activities is that,
although they overlap to form a matrix of activities and reasons for action, the differences
are often constitutionally significant, and can affect the outcome of litigation by groups or
individuals in support of their, or other people’s, interests. I argue that the differences
between the constitutional ethics of different countries explain the varying scope for
different types of interests to be represented in different ways in public law. To the extent

4
This terminology is adapted from Richard B. Stewart, ‘The reformation of American administrative law’
 5

that visions of people’s roles in society and relationships with the state are socially
determined, opportunities for interest group litigation are specific to and constrained by
particular social and constitutional cultures. Any campaign by a group which is formed with
the object of advancing its members’ interests may have a political and constitutional impact
at different levels, either by achieving their concrete goals or by precipitating a change in the
constitutional culture.
An environmental group such as Greenpeace does not always achieve its immediate
goal of stopping a particular whaling ship from operating or of preventing a particular
nuclear test, but the attempt may help to persuade people to reassess the importance of
various interests and the way in which their political system responds to them. Interest
groups act as advocates rather than decision-makers. They represent the perceived interests
of their members, or of those for whom they are acting as surrogates (their ‘constituencies’),
in the debate on the correct balance between different interest the object of which is to reach
an authoritative conclusion about where the public interest lies at a particular time on a
specific issue. They are seeking acceptance of their position on the issue by others acting in
a decision-making capacity (governors, legislators or judges). Implicit in any public interest
activity by private citizens is a claim that it is proper for citizens to participate in politics in
this way. Interest groups may therefore be political in two distinct ways: first, in seeking to
advance a particular interest through the political process; second, as exemplars of a
participatory model of politics.

2.Public Interests, Standing to Sue and Constitutional Procedures

This section shows how rules governing public interest litigation reflect a society’s
conception of the public, political role and expectations of citizens. Differences over
questions of standing reflect diverging opinions about the role of public law, about the
distinction between public and private interests, and about whether individuals have a
legitimate role in asserting public interests. The Gouriet case”5 provides an English example:
in restricting standing to obtain injunctions and declarations in respect of public rights to
people protecting special interests, the House of Lords restricted the role of private citizens

5
Courier v Union of Post Ofice Workers 119781 AC 435.
 6

in litigation to advancing their own interests. Securing general public interests, such as that
in the observance of the law was, henceforth, to be the exclusive responsibility of the
Attorney-General, representing the state’s monopoly of legitimate concern with such
interests. This decision was followed in Australia, where the High Court refused to allow an
incorporated association to claim to represent the public interest in nature conservation in
litigation against the Commonwealth. Of course this can change, and arguably by the late
1970s many countries were already becoming more receptive to the intervention of citizens
in public interest matters. Law reform bodies recommended departing from the Gouriet
approach.’ English law developed the application for judicial review as a specialised public
law procedure.
In Canada, the Supreme Court had already relaxed the standing requirements for
obtaining injunctions in constitutional litigation.6 One effect of this was to divert attention
from the interest of the applicant to the interest in lawful administration, which a private
citizen could now properly assert. This has been developed enthusiastically in New Zealand,
where the courts have exploited the relaxed standing test to allow them to review
environmental and sporting matters. The extension of standing beyond the traditional ranks
of those with a direct personal interest in the result of the case is consistent with a
communitarian view of the responsibilities of individual,Despite a tendency for standing to
get mixed up with the merits of a case, it was accepted in England that, in suitable cases,
groups like the National Federation of Self-Employed and Small Businesses and the Child
Poverty Action Group have standing to represent the interests of their members or clients.
Yet there are now signs of a reaction in England, with a return to the idea that standing rules
should be used to restrict litigants to asserting personal interests.
This is in tune with (even if not directly connected to) a resurgence of liberal
individualism in British society during the Thatcher years. In a political constitution,
constitutional values are necessarily likely to reflect changing political ones.

6
Thorson v Aft Gen of Canada (1974) 43 DLR (3d) I; Johnson, ‘Locus standi in constitutional cases after
Thorson’ [I9751 PL 137.
 7

3. Four Constitutional Features

Section 2 examined the effect of constitutional culture on locus standi in public
interest matters. This section looks at the reverse effect. It examines the way that four
particularly important features of constitutions affect the feasibility of public interest
litigation. The features are: (1) the availability of legal challenges to legislation, and the
relationship between such challenges and conceptions of democracy; (2) the structure of the
state, federal or otherwise; (3) the presence or absence of policy directives in the
constitutional document; and (4) the approach to human rights under the constitution.

i. Democracy, Ethics and Legal Challenges to Legislation

For a system to allow legal challenges to legislation, the constitution must allocate
limited powers to the legislature and the limitations must be justiciable. The two need not go
hand in hand. Where constitutional limitations on legislative power are treated as being
justiciable, this may flow from a unilateral assertion by the courts of a review power, as in
the United States' and the Australian Commonwealth,7 or a constitutional provision as
interpreted by the courts, as in Canada, or the creation of a supra-national legal framework,
as in the duty of English courts to disregard domestic legislation which conflicts with
directly effective European Community law.
The enforcing body need not be the ordinary judiciary. In France, for example, the
limits are enforceable only before enactment, through the conseil constitutionnel; no
ordinary court can hold primary legislation, once enacted, to be ineffective by reason of
unconstitutionality. At the other extreme, in a purely Diceyan constitution, judicial review
would be excluded as being in conflict with the political theory on which the constitution is
based. Inconsistencies between constitutional values may restrict judicial review of
legislation. For example, the ethics of constitutionalism and the rule of law may conflict
with a model of democracy, a conceptualisation of, and level of commitment to, the

7
Brian Galligan, The Politics of the High Court (St Lucia. Qld: University of Queensland Press, 1987) ch 2; G.
Lindell, 'Duty to exercise judicial review' in Leslie Zines (ed), Commentaries on the Australian Constitution
(Sydney: Butterworths, 1977) pp 150- 190
 8

separation of powers, federalism, responsible government or human rights. The Australian

Commonwealth Constitution is committed to responsible government (ie governmental
responsibility to an elected Parliament). As a form of accountability, this goes hand in hand
with representative democracy.
Yet the Constitution limits the capacity of the representatives to act. Again,
Australian federalism theoretically requires protection for the interests of the states against
the federal authorities, through states’ representation in the Senate. Yet the doctrine of
responsible government may make the government accountable to the lower chamber of
elected representatives of the voters. A clash of values of this sort between federalism and
representative democracy poses serious questions about the respective powers of the two
chambers, for example in regulating supply and in making and breaking governments. In
Australia, it was responsible for the constitutional crisis which surrounded Governor-
General Kerr’s decision to dismiss the Prime Minister, Gough Whitlam, when the Senate
blocked supply in 1975.8

ii. Federalism

A federal constitution must allocate powers between the federal and state authorities.
Implicit in a federal structure is a constitutional commitment to a higher level of citizen
participation, especially in local politics, than is apparent in a centralized unitary sates. A
federal allocation of powers makes it feasible, subject to other factors such as standing rules,
to challenge the activity of the legislature or the government of either state or federation for
unconstitutionality, on the ground that it trespasses on the powers of the other.68 The
challenge may be launched on behalf of an individual or interest group, but the rights and
duties of the federation and states respectively will have to be worked out in the litigation,
and it will almost always lead to the states and federal government being joined as parties.
Australia provides a good example of this happening.
The constitutions of the Australian states are based closely on the orthodox
Westminster model, but the Federal Constitution is an uncomfortable mixture of
‘responsible government’ on the Westminster model and Parliamentary arrangements to

8
Geoffrey Sawer, Federation Under Strain (Melbourne: Melbourne University Press, 1977); C.J. Stampford,
‘Responsible government and the logic of federalism: an Australian paradox?’ [ 19901 PL 90-115
 9

protect states’ rights on the USA model. The powers of the state Parliaments are in principle
plenary, subject only to the terms of the Commonwealth Constitution and the Australia Acts
1986 (UK and Cth). The powers of the Commonwealth Parliament and government are
restricted under the Commonwealth Constitution and may be exercised only for defined
purposes: the Parliament’s powers are defined in section , and the executive’s powers
extend, under section , to ‘the execution and maintenance of this Constitution, and of the
laws of the Commonwealth.’ However, the necessity for central planning in a variety of
fields has led Commonwealth Labour governments to try to extend their powers to
intervene in the States’ control over matters not expressly within the Commonwealth’s
constitutional legislative powers.
Recently, the High Court has been accommodating towards such attempts, tending to
give an expansive reading to the terms of section and adopting an interpretation of the
‘incidental power’ allowing the executive to take powers under section of the Constitution
to the extent necessary to give effect to national objectives. This was wide enough to allow
the Commonwealth to introduce a national welfare assistance programme and to regulate the
country’s bicentenary celebrations by In some cases, this has been challenged
(unsuccessfully) by the States. In others, the resulting legislation has so closely affected
individuals that they have challenged the legislation by claiming that the Commonwealth
has overstepped its powers vis-u-vis the states, and that the legislation is accordingly
void.The challenges have so far met with little success, because the High Court favours
democratic centralism over state that could change at any time.

iii. Ideological Interests and the Political Community

Some constitutions impose policy directives, requiring that state bodies exercise their
powers with a view to particular objectives. Those objectives enjoy a privileged place in
political dialogue, since they must always be taken into account in decision-making. They
may be expressed in very general terms, but the less specific they are, the less enforceable
they will be. For example, the constitutions of Canada, the Australian Commonwealth and
all the states except Victoria empower the legislatures to act for the ‘peace, welfare and
good government’ or ‘peace, order and good government’ of the state but, far from being
effective words of limitation, these words have been held to confer plenary power.
 10

More concretely, a constitution may entrench the objectives of socialism, as in the

USSR constitution, or exhort state organs to respect the dignity of man, as does Article 1 of
the Grundgeserz of the German Federal Republic. However, the extent and effects of
constitutional policy directives depend, first, on circumstances in which the constitution was
adopted, including the political theory on which the constitution is based and, second, on the
ease with which the constitution can be amended. For example, the Australian state
constitutions were intended to be flexible, and were based on the Westminster model which,
as theorized by Dicey, placed great weight on the democratic freedom of elected
representatives in Parliament.
It is, therefore, not surprising that ‘peace, order and good government’ clauses have
been held to impose no limitations on legislative competence. At the time of the framing of
the constitutions, the legislatures were subject to control by the Imperial Parliament, but any
other limitations would have been inconsistent with the theory of the legislative supremacy
of a representative assembly which provides the basis for Westminster-style constitution.9

iv. Human Rights

Under some constitutional cultures, the constitution embodies group rights as well
as individual rights. For example, Canada guarantees language rights for the French
minority, which has led to the striking down of all Manitoba legislation.Iw Although usually
a constitutional Bill of Rights will need to be enshrined in a constitutional document to be
effective, this need not be the case. The New Zealand courts have recognised the Maori
people’s rights under the Treaty of Waitangi as constituting a fundamental basis of the
constitution.’
In Australia, federal legislation to implement human rights treaties has been held to
be within the Commonwealth Parliament’s external affairs power. However, in Australia
and the UK, the legislatures have rejected proposals to introduce constitutional Bills of
Rights. In New Zealand, which finally enacted a Bill of Rights Act in 1990 (albeit almost
entirely without teeth), the judges had earlier responded to rejections of similar Bills by

9
See the Colonial Laws Validity Act 1865 (UK), s 5. The states are now free of UK Parliament control: Australia
Act 1986 (UK), s 2; Australia Act 1986 (Cth), s 2. On the legal status of the state Constitution Acts, see
MrCawley v R [I9201 AC 691, PC, especially at pp 704-706.
 11

hinting at the possibility of judicial action to entrench certain rights against statutory
violation, independently of the Treaty of Waitangi. These rights were said by Sir Robin
Cooke P to be so deeply entrenched in the common law that it would be impossible to
remove them without seriously damaging the structure of law itself.
In Australia, the High Court has at least left open the possibility that rights
necessary to maintain a democracy might be protected by common law and judicial action
against legislative infringement.Io7 If it ever became necessary to do this, it would
presumably be justified by references to the basic value of representativeness in the
Commonwealth and state constitutions. Is it proper for the judges to introduce special
protections for certain rights where the elected legislature has not done so? This depends on
the relative importance of rights and deference to the legislature or executive in a country’s
constitutional theory.
Sometimes the appropriate weighting will be disputed, and legal argument on the
matter mirrors a political discourse or dialectic between competing values. This is happening
in the UK, where courts have, in the twentieth century, regarded the legislature as having
primary responsibility for protecting human rights. Recently, they have been challenged to
revise their views in the light of a growing commitment to human rights in international law
and a sense of the inadequacy of the domestic political process to safeguard rights. Io4 A
recent case illustrates the effect this has had on judges’ reasoning. In Brind v Secretary of
State for the Home Departure the Secretary of State had issued directives to the IBA and the
BBC prohibiting them from broadcasting the sound of statements by representatives of
proscribed organizations in Northern Ireland. Journalists challenged the directives, arguing
that the directives were ultra vires, and that the Home Secretary had acted perversely and
disproportionately and had violated the right to freedom of expression under Article 10 of
the European Convention on Human Rights.
The Court of Appeal held that Parliament, in rejecting several proposals to
incorporate the European Convention, had shown that it intended that the Convention should
not be used by British judges. (Scottish judges have taken the same view.) On appeal to the
House of Lords, only Lords Ackner and Lowry took the same line as the Court of Appeal,
going so far as to hold that it would not be unreasonable for a Home Secretary to refuse even
to consider the Convention’s requirements. Lord Ackner concluded that requiring the Home
 12

Secretary to have proper regard to the Convention ‘inevitably would result in incorporating
the convention into English law by the back door.10

The other Law Lords gave more weight to rights. Lord Bridge accepted the relevance
of the Convention in preventing abuse of apparently unlimited discretions. He concluded
that Article 10 required a balancing of interests. The primary duty to strike a balance lay on
the Home Secretary, but the courts had a secondary, reviewing, duty to decide whether the
balance struck was reasonable. On the facts, it could not be said that the directives had
struck a balance unreasonably unfavorable to the right to freedom of expression. Lord
Templeman, whose speech was not entirely unambiguous, nevertheless applied the
Convention’s principles, allowed the Home Secretary the ‘margin of appreciation’
prescribed under the case-law of the European Court of Human Rights, and concluded that
the Home Secretary had not abused his powers.
The approach of the majority allows scope for rights based reasoning in settling
standards for a carefully limited review of executive action and secondary legislation. By
comparison with this cautious, gradualist approach, the hints falling from some antipodean
courts that they might be prepared to protect human rights against abridgment by the
legislature suggest that they have constructed a model of the constitution, for the purposes of
their work, which gives far more weight to rights, and invests less trust in the workings of
Parliament as a guarantor of the conditions necessary for representative democracy , than
that of English judges. This reflects a substantial variation in the interpretation of political
practice and the underlying political theory between different Westminster-style
constitutions.

IV. IMPLICATIONS

The extent to which public law systems accommodate litigation in support of public
rights and interests is an indication of underlying notions of citizenship, particularly the
relationship set between public and private interests and the public rights and capacities of
individuals. Under a Diceyan constitution, based on the power of a representative legislature
and a responsible government, most decisions will be left in the hands of the government,

10
[I9911 1 All ER at pp 734-735 (Lord Ackner), 736 (Lord Lowry)
 13

subject to Parliamentary scrutiny. Where the prevailing ethic is individualist, judicial review
will be limited to enabling individuals to assert and protect their own (rather than the
public’s) interests in dealings with the state.
On the other hand, in a civic republican tradition in which citizens are expected or
permitted to achieve self-fulfillment by participating in political decision-making, displaying
Aristotelian civic virtues, there is good reason to adopt relaxed standing rules for
constitutional and public interest litigation, and to develop constitutional theories which will
allow citizens to act to secure public interests such as observance of the rule of law and
containment of governmental abuse of power.
As long as judges resist the temptation to act as a surrogate legislature, public
interest litigation by citizens can contribute to both participatory democracy and public
scrutiny of government. This is most marked where one purpose of review is to advance the
capacity of citizens to participate effectively in political dialogue, as under Ely ’s
representation-reinforcement model of constitutional law. Public interest litigation may,
therefore, operate as part of the political process, encouraging dialogue and communication
between groups in the search for a consensus. Michael Perry has suggested that, in the
search for a decision as to the public interest, legislative coercion and constitutional
litigation should be used only when political discourse has collapsed. This, however,
assumes that politics is a search for consensus - itself a controversial claim - and that
legislation or litigation is an admission of failure to establish consensus. This is not
necessarily the case. In its representation-reinforcing guise, litigation can lead to, even if it
does not itself offer, favorable conditions for rational political argument. Judges and
commentators work out their approaches to the nature and purposes of public interest
litigation by producing a model of the constitution which should reflect both the facts of
political and social life as they see it and a theory of the morally proper objects of the
political process. This combines normative and descriptive-empirical elements.
Any model can be evaluated on either basis. But even supra-constitutional
normative argument, which takes place at the level of political philosophy, is rooted in the
needs and aspirations of particular societies, while the notion of need itself combines factual
and normative elements. Local conditions will limit the range of constitutional theories
which can be adopted for practical purposes, because one of the most fundamental
 14

normative requirements of a constitutional theory is that it should be capable of generating

realisable constitutional arrangements. The importance of local conditions to constitutional
values means that where there is no consensus, or the constitution is an amalgam of rules
and interpretations drawn from different periods, there is no reason to expect a constitution
to be based on a consistent set of values.
This point is ignored by some commentators from a Critical Legal Studies
standpoint. Mark Tushnet, for example, regards it as a test of a constitutional theory that it
should be internally coherent, by which he means that all parts of the system should be
explicable by reference to a single politico-legal theory. It seems to be his view that this is a
condition which positivist legal science imposes on itself, and that a failure contributes to
making legal rules insufficiently determinate.
But a mature constitution is a rich amalgam of rules and values reflecting different
stages of its development and various interests, and a constitution like the United
Kingdom’s, which grew organically rather than being created at an identifiable moment,
most obviously reflects its history. As new challenges are presented, and the values of the
citizenry change, citizens, especially constitutional lawyers and politicians, must reinterpret
or reshape the constitution to cope with the needs of the moment. It is, therefore, unlikely
that any one political theory will suffice to justify, explain or legitimise all the constitutional
provisions relating to different functions of the state.
A synthesis will be needed, based not on political theory alone, but also on an
interpretation of constitutional history. Constitutional adjudication should therefore be seen
as part of a dialectical process in which values and ideas coming from different periods and
groups confront one another. Judges must decide on the weight to be given to different
values, including fairness, consistency and loyalty to tradition; their views on these matters
are constitutive of their picture of the judicial role11 New constitutions necessitate new
theories and new approaches to judicial review and public interest litigation,lI6 as in Canada
under the Constitution Act 1982 with its Charter of Rights and Freedoms.I” A constitution,
then, is a framework for a debate about values. The framework imposes some limits on the
debate, but the outcomes will still vary with time and place. In the context of the debate,
public interest litigation performs three functions. First, the litigation process itself is an

11
See Alan Paterson, 7he Luw Lords (London: Macmillan, 1982) ch 6.
 15

opportunity to air ideas and contribute to political discourse. Second, and less
controversially, litigation can lead to the reinforcement of procedures which guarantee that
political debate will be properly conducted and decisions taken in the light of it.
Third, for legal and political commentators, attitudes to public interest litigation in a
given jurisdiction provide an indicator of the relevant success of different models of politics
and constitutional theories in shaping state and social institutions. While the theories can
compete within the constitutional system, there is a fair chance of avoiding over-rigidity of
constitutional design and tyranny. Some degree of theoretical incoherence between
principles may be a necessary price to be paid. By tolerating and facilitating interest group
challenges to constitutional orthodoxies, politicians and judges display sensitivity to the
competing demands of constitutional development through debate and reasonable
predictability of outcomes.
 16

V. CONCLUSION

PIL has an important role to play in the civil justice system in that it affords a ladder
to justice to disadvantaged sections of society, some of which might not even be well-
informed about their rights. Furthermore, it provides an avenue to enforce diffused rights for
which either it is difficult to identify an aggrieved person or where aggrieved persons have
no incentives to knock at the doors of the courts. PIL could also contribute to good
governance by keeping the government accountable.
Last but not least, PIL enables civil society to play an active role in spreading social
awareness about human rights, in providing voice to the marginalised sections of society,
and in allowing their participation in government decision making. As I have tried to show,
with reference to the Indian experience, that PIL could achieve all or many of these
important policy objectives. However, the Indian PIL experience also shows us that it is
critical to ensure that PIL does not become a back-door to enter the temple of justice to fulfil
private interests, settle political scores or simply to gain easy publicity. Courts should also
not use PIL as a device to run the country on a day-to-day basis or enter the legitimate
domain of the executive and legislature.
The way forward, therefore, for India as well as for other jurisdictions is to strike a
balance in allowing legitimate PIL cases and discouraging frivolous ones. One way to
achieve this objective could be to confine PIL primarily to those cases where access to
justice is undermined by some kind of disability. The other useful device could be to offer
economic disincentives to those who are found to employ PIL for ulterior purposes. At the
same time, it is worth considering if some kind of economic incentives—e.g. protected cost
order, legal aid, pro bono litigation, funding for PIL civil society, and amicus curie briefs—
should be offered for not discouraging legitimate PIL cases. This is important because given
the original underlying rationale for PIL, it is likely that potential plaintiffs would not
always be resourceful.
 17

An analysis of the Concept of PIL and Its

Scope of Constitution