Public interest litigation is said to be an innovation of the Indian judiciary, in which the rule of locus standi has been relaxed to address the grievances of people who cannot approach the courts on account of illiteracy or financial weakness. The modern jurisprudence of Public Interest Litigation (PIL) in India is generally traced to the 1979 case of Hussainara Khatoon v. Home Secretary, State of Bihar, reported in (1980) 1 SCC 81. The case brought before the Court, in the larger public interest, the deplorable conditions of undertrial prisoners and issues relating to the right to a speedy trial and access to legal aid. Thereafter, S.P. Gupta v. Union of India (AIR 1982 SC 149) further expanded the scope of locus standi in the field of Public Interest Litigation. In the same manner, the basic structure doctrine of the Constitution of India (Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225) is regarded worldwide in legal jurisprudence as one of the most innovative, original, and effective tools developed by the judiciary in modern jurisprudence on constitutional amendment. Under this doctrine, the constitutionality of an enactment amending the Constitution has to pass the twin tests of width and identity, later propounded in M. Nagaraj v. Union of India, (2006) 8 SCC 212. These two principles or doctrines developed by the Indian judiciary have done much to uphold the values of the Constitution of India and its role as the guardian of the Constitution.
Another point that arises when we discuss the Indian judiciary is that Article 21 of the Constitution of India has been given an extended interpretation in terms of human rights, as well as in terms of various internationally acknowledged and adopted conventions. This includes the right to livelihood (Olga Tellis, (1985) 3 SCC 545) and the right to shelter (Chameli Singh, (1996) 2 SCC 549). However, there is one issue that needs another innovative approach, and that depends on a comprehensive, integral approach towards development, especially having regard to the chronology of urban development.
We all know that India is a developing country. India became a republic on 26 January 1950. Thereafter, the people of India, as expressed in the opening words “We, the People of India,” had a legitimate expectation that their fundamental rights, enshrined in Part III of the Constitution of India, would be protected. Although these rights are not absolute, they are subject to reasonable restrictions governed by the principles of intelligible differentia and reasonableness, as well as the requirement of procedure established by law.
The directions of the Supreme Court in the matter of Rajendra Kumar Barjatya & Anr. v. U.P. Avas Evam Vikas Parishad & Ors. Civil Appeal No. 14604 of 2024 (2024 INSC 990), relating to properties situated in Meerut, concerning the identification of all buildings of a commercial nature situated in residential areas, raise an important concern that needs to be addressed in the development and evolution of PIL jurisprudence. In these cases, there is no encroachment, but the nature of the land use and the use of the building have changed. This may be contrary to local laws. The question that arises is why this particular land use changed. It warrants a historical and civilizational understanding of the Indian way of life. If we look at the history of India, it is well established that, in Indian civilization, residential and commercial activities coexist. Commercial activities, in this context, are those that meet our daily needs, such as grocery shops, salons, boutiques, stationery shops, sweet shops, laundries, vegetable shops, fruit shops, juice shops, etc. These types of activities have been permitted and accepted by society for a very simple reason: they provide convenience to residents. Items such as milk and curd are part of our daily meals, and any individual’s attempt to introduce, open, or make these items available would be appreciated by the residents of that locality. Residents generally have no objection to such activities.
The issue arises when, with the advent of science and technology, traffic management becomes a problem. That issue needs to be addressed rather than labelling as problematic those commercial activities that serve the public interest and do not cause any nuisance, are not hazardous in nature, and do not cause inconvenience to residents. The issue, therefore, concerns traffic flow, which can be addressed not by taking action against these commercial activities, but by making suitable arrangements. Road widening is a separate topic, which will be dealt with subsequently. Planned development of cities is a challenge in every developing country; it is not unique to India. In Rajasthan, for example, UITs, the JDA, and municipal laws regulate municipal areas. A master plan is envisaged to provide for planned activity and development. However, one important segment is often overlooked: unplanned development may arise when agricultural land is not converted to non-agricultural use and cooperative societies sell land to various stakeholders for consideration. These societies may also prepare a plan, according to which plots are sold to different people. Construction is then undertaken by the buyer in accordance with the scheme. The buyer is not violating the scheme or the proposed road widening, and there is no criminal element in such conduct. There is no mens rea and no negligence. As a matter of fact, the buyer may be acting honestly and investing hard-earned money; the buyer is not a criminal. Even by any stretch of the imagination, the buyer cannot be said to have committed a petty or heinous offence. There may, of course, be violations of by-laws, such as those relating to setbacks or model building laws, but that is a different issue to be dealt with separately. Now, in the name of public interest litigation, people or areas that were not previously covered by a master plan are scrutinised under the master plan or a new development scheme, and all landowners are treated as encroachers, as if they had been found guilty under anti-national statutes. PIL jurisprudence needs to evolve to address these issues in a manner that renders justice rather than results in a miscarriage of justice.
When dealing with PILs concerning urban development, original thinking is the pressing need of the times. The Western concept of having one dedicated place for commercial activities is not in consonance with the Indian urban way of life. In the West, residential and commercial areas are segregated. In India, however, commercial activities of a particular nature—those that are neither hazardous nor a source of nuisance and that cater to the basic daily needs of the population—have a place in a society where earning one’s daily bread and butter remains a challenge. We need to demarcate the periods from which particular parts of a master plan are to apply retrospectively and prospectively, taking into account local needs and the nature of the city. This would make the master plan more humane and more Indian in character, having regard to the transitional phase of our country, which is currently a developing nation.
Under the writ jurisdiction conferred by Articles 32 and 226, the principles of delay and laches require the highest consideration, as laid down by a five-judge bench in Tilokchand Motichand v. H.B. Munshi, (1969) 1 SCC 110, and reiterated in State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566, in which the accrual of third-party rights was duly considered.
Wherever urban development is found to be contrary to law, a petitioner filing a PIL should be required to establish bona fides, including at least 20 years of experience in public life, in advancing the cause. This is not an excessive expectation of a public-spirited citizen of India, particularly when the Republic of India has celebrated more than 75 years of successful democracy. The Court must evaluate whether the effect of a PIL is to deprive citizens of political education and whether the PIL results in an abdication of duty by stakeholders, having regard to the respective roles of the legislature and the executive under the scheme of the Constitution of India. The responsibility of the executive wing also needs to be made more responsive in an institutionalised manner, rather than having courts assume the role of statutory bodies, which is contrary to the constitutional scheme. The fundamental requirement of constitutional morality is that the exercise of the extraordinary and discretionary writ jurisdiction conferred under Articles 32 and 226 of the Constitution must remain within the bounds of judicial restraint, judicial propriety, and judicial discipline.
The issue may also be viewed from alternative perspectives. Measures such as one-way traffic on alternate even and odd days could be employed in areas where congestion is excessive. Hence, an innovative, original, and Indian approach is warranted. Otherwise, I am reminded of the speech of Shri Alladi Krishnaswami Ayyar during the Constituent Assembly Debates, Vol. XI, on 23 November 1949, in which he said:
“While there can be no two opinions on the need of the maintenance of judicial independence, both for safeguarding of individual liberty and the proper working of the Constitution, it is also necessary to keep in view one important principle. The doctrine of independence is not to be raised to the level of a dogma so as to enable the judiciary to function as a kind of super-legislature or super-executive. The judiciary is there to interpret the Constitution or adjudicate upon the rights between the parties concerned.”
The author is an advocate practising before the Rajasthan High Court, Jaipur. Views expressed are personal.
