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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 239
May 27, 2006

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Public interest litigation: An outline

Zahidul Islam

A public interest litigation, PIL, is a term very frequently uttered, heard or written nowadays when there comes the question of implementation of common people's rights. But it is still not a clear idea for many people. Hence, this write-up especially for those who have no legal background but want to have an idea about it. Admittedly, it will prove to little service the any practicing lawyer.

PIL, in simple words, means a litigation filed in a court of law for the protection of 'public interest'. It has been interpreted by judges to consider the intent of public at large. Although the main and only focus of such litigation is 'public interest' there are various areas where a PIL can be filed. For example, violation of basic human rights of the poor, content or conduct of government policy, compel municipal authorities to perform a public duty, violation of religious rights or other basic fundamental rights etc.

When a PIL can be filed
A PIL can be filed only in a case where 'public interest' at large is affected. Because merely one person affected by state inaction not a ground for a PIL. Following are some of the possible areas where a PIL can be filed.

I. Where a factory or industrial unit is causing air pollution, and people nearby are getting affected.
II. Where, in an area or street there are no streetlights, causing inconvenience to commuters.
III. Where there is regular loud 'miking' in a residential area causing noise pollution.
IV. Where some construction company is cutting down trees, causing environmental pollution.
V. Where poor people are affected because of government's arbitrary decision to impose heavy 'tax'.
VI. For directing the police/jail authorities to take appropriate decisions in regards to jail reforms, such as segregation of convicts, delay in trial, production of under trial persons before the court on remand dates.
VII. For abolishing child labour, and bonded labour.
VIII. Where rights of working women are affected by sexual harassment.
IX. For keeping a check on corruption and crime involving holders of high political office.
X. For maintaining roads, sewer etc in good condition.
XI. For removal of big hoarding and signboard from the busy road to avoid traffic problem.

Who can file a PIL
Earlier it was only a person whose interest was directly affected along with others, whereby his fundamental right is affected, that used to file such litigation. Now, the trend has changed, and any public-spirited person can file a PIL on behalf of a group of persons whose rights are affected. Hence, it is not necessary that the person filing a case should have a direct interest in that PIL.

For example, a person in Dhaka can file a PIL for that a cracker factory in Rajshahi is running on child labour; or a citizen can file a PIL challenging government's arbitrary decision to impose heavy 'tax' that is affecting the poor people, though the citizen filing the PIL may not be personally so much affected by that; similarly a lawyer can file a PIL for release of some under trial in a jail, who has spent more number of years in jail than the period prescribed as punishment for persons the offence they are being tried for.

Hence, it is clear that any person can file a PIL on behalf of a group of affected people. However whether a PIL should be allowed or not will depend on the facts of each.

Against whom a PIL can be filed
A PIL can be filed only against the State, in some cases against municipal authorities, but not against any private party. However a 'private party' can be included in a PIL as a 'Respondent' only after making the state authority or authorities concerned a party or parties.

For example, a tannery factory in Hazaribagh of Dhaka is causing pollution, then people living nearly, or any other person can file a PIL against (a) the government, (b) the Ministry of Forest and Environment, and also against (c) that particular factory.

However, it is to be mentioned that a PIL is filed in the same manner as a writ petition is filed. Proceedings in a PIL commence and carried on in the same manner, as in a writ petition. However, in between the proceedings if the judge feels he may appoint a commissioner to inspect allegations of anti-public interest activities etc. After filing of replies by opposite party, and rejoinder by the petitioner, final hearing takes place, and the judge gives his final decision.

A letter to Chief Justice may be treated as a PIL
There have been instances where judges have treated a post card containing facts as a PIL. There are also examples that a letter alleging the illegal limestone quarrying that devastated the fragile environment, or a letter complaining that the national coastline was being sullied by unplanned development that violated the government directive was treated as PIL.

However, in the past, many people have tried to misuse the privilege of PIL and thus now the court generally requires a detailed narration of facts and complaint, and then decides whether to issue notice/s and call the opposite party.

The fact is that so far there is no statute laying down rules and regulations for a PIL, still the court can treat a letter as a PIL. However the letter should bring the true and clear facts, and if the matter is really an urgent one, the court can treat it as a PIL. But still it depends upon facts and circumstances, and the court has the sole discretion.

Relief available by PIL
There are many kinds of remedies, which can be given in a PIL, to secure the public interest. First comes the interim measure. The court can afford an early interim measure to protect the public interest till the final order, for example:

(a) Release of under trial on personal bonds ordering release of all under trial persons who have been imprisoned for longer time than the punishment period, free legal aid to the prisoners, imposing an affirmative duty on magistrates to inform under trial prisoners of their right to bail and legal aid. Or

(b) Closure of Industrial plant emitting poisonous gas, setting up victim compensation scheme, ordering the plant reopening subject to extensive directions etc. Or

(c) Prohibiting cutting of trees or making provisions for discharge of sewage, till the disposal of final petition.

In fact, relief in most of the PIL is obtained through interim orders. Moreover, the court may appoint a committee or commissioner to look into the matter, and submit its report. Such a committee or commissioner may also be given power to take cognisance of grievances and settle it right in the public intent. And finally comes final order by way of direction to comply within a stipulated time.

When a writ petition may be treated as a PIL
A writ petition filed by the aggrieved person, whether on behalf of group or together with group can be treated as a PIL. However, the writ petition should involve a question, which affects public at large or group of people, and not a single individual. And there should be a specific prayer, asking the court to direct the state authorities to take note of the complaint /allegation. Also, according to some lawyers, the 'representative suit' instituted under Code of Civil Procedure 1908 can also be treated as PIL when it represents the interest of a large faction of people.

PIL in Bangladesh
Attempts to introduce PIL in Bangladesh started in 1992. Hence, it seems that advancement of PIL coincided with the restoration of democracy in the country in 1991. However, it was not easy to convince the judges giving relief through PIL, as it was a new phenomenon in our legal system. But, the legal and social activists were relentless in their efforts and finally enabled the progressive minded judges to interpret the Constitution in line with the public intent. And it was 1996, when the Supreme Court discovered that our Constitution not only validates but also mandates a PIL approach. As a consequence, a good number of PIL have been filed over the last few years. These PILs include cases involving illegal arrest and detention, police atrocities, environmental and consumers matters, poverty and health related problems, rights of children and women, rights of minority and indigenous people etc.

These PILs have brought about a great change of thought in public mind regarding people's rights, government responsibilities, rules and governance. But actually how much the PILs have contributed in safeguarding public interest is still a point to be debated. As a matter of fact, PIL just shows the ways and directions to secure public interest, and so, nothing can be achieved if the ways and directions are not complied with.

The author is a legal researcher currently working for the PIL and Advocacy Cell of Bangladesh Legal Aid and Services Trust (BLAST).


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