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 Home » Constitution Design » Questions for constitution makers in Nepal » Legal System » Access to Justice

Public Interest Litigation


Public interest litigation is the name given to a development in the Indian courts, especially the Supreme Court, since the early 1980s. It is mostly used for the protection of human rights - and the Indian courts have very much widened and elaborated the scope of human rights in recent years. The main features of this movement can be summarized:
  • Expanding the range of people who can bring actions (so that if marginalised groups cannot bring cases to court other people or organisations can do so on their behalf)
  • A pr-active approach by the courts - to the extent of sometimes starting cases on the basis of simple letters or even newspaper reports
  • The courts taking a role in investigating the facts - by setting up commission of inquiry and appointing experts
  • The courts monitoring the implementation - by asking government to report back on progress
  • Creative remedies for breaches of human rights.
This development has brought many important cases before the courts of India. Many of the cases have involved environmental issues. Some of the famous early cases were those involving prisoners who had been blinded by prison staff in a jail in Bihar. There were cases about people who had been awaiting trial for many years.

The development has been controversial. And it has depended to some extent upon the personality of individual judges. In recent years there has been some feeling that in some areas of life there have been too many such cases, and that the courts have stood in the way, through PIL, of perfectly valid development projects.

You can read more about this topic: Muralidhar Public Interest Litigation: Potential and Problems (on the website of the International Environmental Law Research Centre) and there will be an account of the views of Dr Rajeev Dhavan at the CASU conference on the Justice System and the Constitution when the report of that conference is published later in 2007.

You can also read: Reproductive Rights Organisation, Litigating Reproductive Rights: Using Public Interest Litigation and International Law to Promote Gender Justice in India

There have been PIL cases in Nepal also: The organisation pro-public has used PIL in a number of cases - you can see a list of some of the issues on their website.

Constitutions and PIL

The Constitution of Nepal 1990 had a provision designed to help the development of PIL in Nepal (see Article 88).

The Constitution of South Africa included some more specific provisions intended to encourage the use of the courts to resolve human rights disputes, by making it easier that it is not only the person immediately affected who may bring a case to court:

Enforcement of rights

38. Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are
  1. anyone acting in their own interest;
  2. anyone acting on behalf of another person who cannot act in their own name;
  3. anyone acting as a member of, or in the interest of, a group or class of persons;
  4. anyone acting in the public interest; and
  5. an association acting in the interest of its members.
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