Hostname: page-component-848d4c4894-pjpqr Total loading time: 0 Render date: 2024-06-20T10:36:19.443Z Has data issue: false hasContentIssue false

Public Interest Litigation and Human Rights Implementation: The Indian and Australian Experience

Published online by Cambridge University Press:  16 April 2015

Christine M. Forster
University of New South Wales
Vedna Jivan
University of Technology, Sydney
Get access


Public interest litigation [‘PIL’], typically defined as proceedings in which the public or the community at large has some pecuniary or legal interest, demonstrates an ability to foster human rights compliance. It does this by enabling broader community or ‘public’ interests to be recognised and enforced through the judicial process, thereby revealing greater potential than private rights litigation in addressing the systemic nature of many human rights violations. This in turn has presented greater opportunities domestically to monitor each state's accountability to international human rights standards.

This paper compares and contrasts the emergence and development of PIL in two jurisdictions - India and Australia. India was chosen for its remarkable and extensive development of PIL unparalleled in Commonwealth jurisdictions to date, and Australia, for its adoption of a much more restrained and traditional trajectory in line with other members of the Commonwealth. Although PIL has developed differently in the two countries, inevitably shaped by differences in culture, economic development, law and politics, both provide illustrations of PIL's potential (and limitations) in facilitating the development of human rights norms in domestic legal systems.

Research Article
Copyright © Faculty of Law, National University of Singapore 2008

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)


1 Mr Jose Ayala Lasso, Further Promotion And Encouragement Of Human Rights And Fundamental Freedoms, Including The Question Of The Programme Of Methods Of Work Of The Commission Follow-Up To The World Conference On Human Rights, UN Economic and Social Council, Commission on Human Rights 52nd Session, 1995, E/CN.4/1996/50/Add.1 at para 9.

2 Conforti, B, International Law and the Role of Domestic Legal Systems (The Hague: Sithoff, 1993) at 7 [Conforti]Google Scholar.

3 See ibid at 7.

4 Agarwal, R, “The Barefoot Lawyers: Prosecuting Child Labour in the Supreme Court of India” (2004) 21 Ariz J Int'l & Comp L 663 at 675 [Agarwal]Google Scholar.

5 Susman, S, “Distant Voices in the Courts of India: Transformation of Standing in Public Interest Litigation” (1994) 13 Wis Int'l L J 57 at 63 [Susman]Google Scholar.

6 See ibid at 77.

7 See Australian Law Reform Commission (ALRC), Beyond the Doorkeeper: Standing to Sue for Public Remedies, ALRC Report No 78) (Canberra: ALRC 1996) at para [3.4] [Beyond the Doorkeeper].

8 See Durbach, A, “Conscientious Participation: Working the Law Back to its Bones” in Hunter, R & Keyes, M, eds, Changing Law: Rights, Regulation and Reconciliation (Sydney: Ashgate, 2005) 155 [Durbach]Google Scholar.

9 See Agarawal, supra note 4 at 675.

10 See Rao, M, Public Interest Litigation (Lucknow: Eastern Book Company, 2002) at 85 Google Scholar.

11 For example, Brown v Board of Education of Topeka (1954) 347 US 483, which is credited with birthing the PIL movement in USA. The landmark case successfully challenged and overturned precedents which had hitherto supported the segregationist policies in education. See also Jain, S, Public Interest Litigation (New Delhi: Deep and Deep, 2002) at 28 [Jain]Google Scholar for a discussion of PIL in USA.

12 See Gomez, M, “In the Public Interest” in Essays on Public Interest Litigation (Colombo: University of Colombo, 1993) 51 at 60 [Gomez]Google Scholar.

13 See Agarwal, supra note 4 at 689.

14 (1976) AIR 1207 (SC).

15 See Susman, supra note 5 at 65.

16 See Susman, supra note 5 at 66.

17 Judicial activism is generally understood as describing situations when judges make law rather than merely interpreting the law. See Sathe, S, “Judicial Activism: The Indian Experience” (2001) 6 Wash U JL & Pol'y 29 Google Scholar for a detailed discussion of judicial activism in the Indian context.

18 Sathe, See S, Judicial Activism in India (New Delhi: Oxford, 2002) at 102 [Sathe]Google Scholar.

19 See Agarwal, supra note 4 at 689.

20 Sripati, V, “Human Rights in India-Fifty Years After Independence” (1997) 26 Denv J Int'l L & Pol'y 93 at 97 Google Scholar.

21 Pani, S, Comparative Analysis of Environmental Activism through Constitutional Rights: Two Case Studies: India and Hong Kong (India: National Academy of Legal Studies and Research (NALSAR) (2002)Google Scholar.

22 Attakoya Thangal v Union of India 1990 (1) KLT 580 Google Scholar.

23 See Sarkar, S, Public Interest Litigations and Public Nuisances (New Delhi: Orient, 2003) at 465 Google Scholar.

24 Constitution of India 1949, Article 37.

25 Bhagwati, P, “Judicial Activism and Public Interest Litigation” (1985) 23 Colum J Transnat'l L 561 at 570 Google Scholar.

26 See for example Sachidanand Pandey v State of West Bengal (1987) AIR SC 1109.

27 See Susman, supra note 5 at 67 for an overview of this process.

28 Jain, supra note 11 at 3.

29 See Jain, supra note 11 at 3.

30 People's Union for Democratic Rights v Union of India (1982) 2 SCC 235. 32 SP Gupta v Union of India (1982) AIR SC 149.

32 See Agarwal, supra note 4 at 689.

33 Baxi, U, “Taking Human Suffering Seriously: Social Action Litigation: Before the Supreme Court of India” in Tiruchelvan, N & Coomaraswamy, R, ed, The Role of the Judiciary in Plural Societies (New York: St Martin's Press, 1987)Google Scholar.

34 See L Behrendt, Indigenous Rights and the Australian Constitution: A Litmus Test for Democracy (Conference Papers Constitutions and Human Rights in a Global Age: An Asia Pacific Perspective, 2001), online: <>

35 See Williams, G, Human Rights Under the Australian Constitution (Melbourne: Oxford University Press, 2002) at 26 [Williams]Google Scholar.

36 See ibid at 27. See also La Nauze, J A, The Making of the Australian Constitution (Melbourne: Melbourne University Press, 1972) at 190 Google Scholar and Williams, G, The Australian Constitution and Human Rights: A Centenary View (Conference Papers Constitutions and Human Rights in a Global Age: An Asia Pacific Perspective, 2001), online: <> [Williams]Google Scholar.

37 See Williams, supra note 36.

38 See for example s 41 the right to vote; s 80 the right to trial by a jury; s 116, the right to freedom of religion; s 117 freedom from discrimination on the basis of State residence; and s 51(xxxi) the right to just compensation.

39 See Williams, supra note 36 at 3 who notes that s 80 provides for jury trials only in indictable matters and s 41 applies to state Houses of Parliaments only.

40 Theophanous v Herald and Weekly Times (1994) CLR 104. See also Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 177 CLR 106.

41 See Gomez, supra note 12 at 59.

42 See Agarwal, supra note 4 at 689.

43 The reforms of the 1970s were based on the recommendations of the report of the Kerr Committee which was charged with reassessing the “fragmented and confused state of review of administrative decisions in Australia”. Kerr Committee, Overview of the Commonwealth System of Administrative Review (Canberra: ALRC, 1971).

44 Justice Downes, “Overview of Tribunals Scene in Australia” Speech delivered at the International Tribunal Workshop, Canberra (5 April 2006), online: < April2006.htm>.

45 Creyke, R, “Better Decisions and Federal Tribunals in Australia” (2004) 84 Reform Issue 10 at 14, online: <>Google Scholar.

46 Criticisms levelled against the FOI, however, include that the system is cost prohibitive, it is confusing and difficult for applicants to use, its exemptions are unclear, it is open to misuse by agencies and the Act undermines efforts towards increased openness. ALRC, “A Review of the Freedom of Information Act 1982 (Cth)” (Canberra: ALRC, 1995) at para [2.12].

47 Note, however, recent moves in India to establish similar mechanisms such as the creation of a Human Rights Commission in 2000. Part XIVA of the Indian Constitution, in particular Articles 323A and B authorise the establishment of tribunals for "administrative and other matters.” Although this provision has not been utilised extensively, tribunals have been set up such as the Income Tax Appellate Tribunal, the Company Law Board, the Sales Tax Appellate Tribunal, the Consumer Forums, the Central and State Administrative Tribunals and the Debt Recovery Tribunal, online: <>. See also the recent enactment of the Freedom of Information Act 2005, online: <>. Note also that despite several attempts an Ombudsman (Lokpal) has not been established at the central government level. However, 17 states have adopted the institution of Lokayukta (the state equivalent of the Ombudsman). Rai, K, Public Interest Lawyering, Legal Aid and Para- Legal Services, 2d ed, (Allahabad: Central Law Publications, 2004) at 327 Google Scholar. The government has also established a range of industry ombudsmen over the last decade in sectors such as banking, insurance and telecommunications.

48 See Allars, MStanding: the Role and Evolution of the Test” (1991) Fed L Rev 83 at 91 Google Scholar; Aronson, M & Dyer, B, Judicial Review of Administrative Action (Sydney: LBC, 2004) at 644 [Aronson]Google Scholar.

49 See Beyond the Doorkeeper, supra note 7 at paras [4.5]-[4.8].

50 Aronson, supra note 48 at 647.

51 Mantziaris, C, “The Federal Division of Public Interest Suits by an Attorney-General” (2004) 25 Adel LR 212 at 213 [Mantziaris]Google Scholar.

52 See ibid at 217.

53 A fiat was granted to the Australian Catholic Bishops Conference in Re MvBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372. However, the High Court was critical of the grant on the basis that the Attorney-General was attempting to circumvent the rules of standing and that the proceedings did not belong to the Bishops Conference but rather remained with the Attorney-General.

54 See Mantziaris, supra note 51 at 218.

55 [1903] 1 Ch 109.

56 (1980) 146 CLR 493.

57 See ibid at para 20 as per Gibbs J.

58 (1981) 149 CLR 27.

59 For example the Administrative Decisions Judicial Review Act 1977 (Cth) (ADJR) ss 3, 5 which state that a person must be aggrieved to the extent that their interests are adversely affected by the decision or conduct being challenged.

60 See Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] 200 CLR 591.

61 See for example North Coast Environment Council Inc v Minister for Resources (1994) 55 FCR 492 Google Scholar where the court's interpretation of the person aggrieved test in the ADJR Act was based on the general law “special interest” test resulting in a finding that the Council had an interest not merely “intellectual or emotional” in the granting of a licence to export woodchips. See Creyke, R & McMillan, J, Control of Government Action. Text, Cases and Commentary (Sydney: Butterworths, 2005) at 857 Google Scholar.

62 (2001) 114 FCR 39.

63 See McGrath, C, “The Flying Fox Case” (2001) 18 (6) Envt'l Planning L J 540 Google Scholar.

64 Ex parte Helens Valley/Boya Assn Inc); State Planning Commission and Beggs (1989) 2 WAR 422.

65 Although this test has been more restrictively applied than other prerogative writs there are examples of more liberal interpretations. See for example Mirror Newspapers Ltd v Waller [1985] 1 NSWLR 1 where a newspaper was given standing to seek a mandamus in relation to a decision of a coroner to prohibit the publication of evidence in a murder investigation.

66 See ACF case, supra note 56 as per Gibbs J at [5.30].

67 See Aronson, supra note 48 at 653-674.

68 However, note that in the ACF case, supra note 56, where according to Davies J the litigants were a “major national conservation organisation” standing was not granted.

69 See for example North Coast Environment Council Inc v Minister for Resources, supra note 61, where standing was granted in an action requesting reasons for the granting of a licence to export woodchips with significant reliance on the fact that the Council was the “peak environmental group” in the region, had been recognised by the Commonwealth since 1977 as a significant and responsible environmental organisation and given regular grants, has been on advisory committees, and have coordinated projects and conferences on environmental issues.

70 See Charanjit Lal v Union of India AIR (1951) SC 41 where it was held that no one except those whose rights were directly affected by a law could initiate proceedings.

71 Bakshi, P, Public Interest Litigation (New Delhi: Ashoka Law House, 2004) at 49 Google Scholar.

72 Sunil Batra v Delhi Administration et al (1978) AIR SC 1675. The petitioner, a convict under a death sentence, through a letter to one of the Judges of the Supreme Court alleged that torture was practised upon another prisoner by a jail warder, to extract money from the victim through his visiting relations. The letter was converted into a habeas corpus proceeding.

73 (1982) AIR SC 149.

74 (1982) AIR SC 149.

75 SP Gupta v President of India (1982) AIR SC 149 [Gupta].

76 Raunaq International Ltd v IVR Construction Ltd (1999) 1 SCC 492.

77 See Gupta, supra note 75.

78 The judges have always excluded petitions which are motivated by personal grudges like Chhetriya Pradhushan Mukti Sangharsh Samiti v State of UP AIR 1990 SC 2060 and Subhash Kumar v State of Bihar AIR 1991 SC 420.

79 (1987) AIR SC 579, SC.

80 (1996) AIR SC 929 [Common Cause].

81 Meera Massy v SR Malhotra (1998) AIR SC 1153.

82 Dr B L Wadhera v Union of India (1996) 2 SCC 594 Google Scholar.

83 Dr B L Wadhera v Union of India (1998) HC CWP 4447(unreported).

84 Dr B L Wadhera v Union of India (1999) HC CWP 3813 (unreported).

85 Dr B L Wadhera v Union of India (1999) HC CMA No 9710 (unreported).

86 See for example, Public Interest Advocacy Centre, homepage:<>.

87 See Wadhera, B, Public Interest Litigation. A Handbook, (Delhi: Universal Law Publishing, 2003) at 61 [Wadhera]Google Scholar.

88 See Susman, supra note 5.

89 See Wadhera, supra note 87 at 63.

90 (1978) AIR 1765 (SC).

91 See Susman, supra note 5 at 89.

92 Bandhua Mukti Morcha v India (1984) AIR SC 802.

93 Ibid at 815; Rao, M, Public Interest Litigation. Legal Aid and Lok Adalats (Lucknow: Eastern Book Company, 2004) at 28 [Rao]Google Scholar.

94 See Sathe, supra note 18 at 206.

95 Vines, P, Law and Justice in Australia: Foundations of the Legal System (Melbourne: Oxford University Press, 2005) at 241 Google Scholar.

96 See Re McBain [2002] HCA 16; 209 CLR 37 where the court allowed an amicus curiae representing the Roman Catholic Church to appear and argue for the validity of the Infertility Treatment Act 1995 (Vic).

97 PU DR v India (1982) AIR 1473 SC as per Bhagwati J at 1477. See Rao, supra note 93 at 13.

98 See Sathe, supra note 18 at 207.

99 See Susman, supra note 5 at 88.

100 Bandhua Mukti Morcha v India (1984) AIR (SC) 802 at 811.

101 [2006] FCA 116 (Full Court).

102 See Common Cause, supra note 80.

103 Sodam Singh v New Delhi Municipal Corporation (1998) 2 SCC 727.

104 Azad Rickshaw Pullers Union v State of Punjab (1981) AIR SC 14.

105 Gaur av Jain v Union of India (1997) AIR SC 3021.

106 Bandhua Mukti Morcha v Union of India (1997) 10 SC 549.

107 Laxmi Kant Pandey v Union of India (1984) AIR SC 469.

108 Delhi Domestic Working Women's Forum v Union of India (1995) 1 SCC 14.

109 See L Tortell, Monetary Remedies for Breaches of Human Rights: A Comparative Study (Oxford: Hart Publishing, 2006) at 81-82.

110 See Sathe, supra note 18 at 235.

111 (1997) AIR SC 3011.

112 Laxmi Kant Pandey v India (1987) AIR 232.

113 Gopi Aqua Farms v India (1997) AIR SC 811.

114 See the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, Maastricht, 1997 at para 6, online

115 See Conforti, supra note 3 at 7.

116 Hershkoff, H & Hollander, D, “Rights into Action. Public Interest Litigation in the United States” in Many Roads to Justice (Ford Foundation, 2000) 95 at 102 Google Scholar.

117 Palmer, S, “Critical Perspectives on Women's Rights: The European Convention on Human Rights and Fundamental Freedoms” in Bottomley, A, ed, Feminist Perspectives on the Foundational Subjects of Law (London: Cavendish, 1996) 223 at 225 Google Scholar.

118 Systemic human rights violations in Australia range from historic and continuing breaches against its indigenous peoples to more recent violations against refugees. See Human Rights Consultation Committee, Rights, Responsibilities and Respect: The Report of the Human Rights Consultation Committee (Melbourne: HRCC 2005) at 69 Google Scholar. Armstrong, K, Baldry, E & Chartand, E, “Human Rights Abuses and Discrimination against Women in the Criminal Justice System in New South Wales” (2007) 12(2) Austl J H R 203 Google Scholar. In India, systemic human rights violations have been recorded against groups such as prisoners, street dwellers and women, to name a few. See Forsyth, C, “Human Rights in India: Historical, Social and Political Perspectives” (2002) 61(2) Cambridge L J 480 Google Scholar.

119 See Easteal, P, ed, Balancing the Scales. Rape, Law Reform and Australian Culture (Sydney: Federation Press, 1998) at 204 Google Scholar.

120 Smith, R, International Human Rights (Oxford: Oxford University press, 2003) at 311 Google Scholar.

121 Allars, M, Introduction to Australian Administration Law (Sydney: Butterworths, 1990) at 308 [Allars]Google Scholar.

122 See Re McBain supra note 96.

123 See Blay, S & Bubna-Litic, K, “The Interplay of International Law and Domestic Law: The Case of Australia's Efforts to Protect Whales” (2006) 23 Envtl Planning L J 465 Google Scholar; Norton, C, “Special Interest No Longer? Public Interest Standing in Australia Takes a New Turn” (2001) 6(2) Asia Pac J Envtl L 183 CrossRefGoogle Scholar.

124 See Gupta, supra note 75 at 192.

125 See Cotterell, J, “Third Generation Rights and Social Action Litigation” in Adelman, S & Paliwala, A, eds, Law and Crisis in the Third World (London: H Zell, 1993) at 120 Google Scholar.

126 See Sathe, supra note 18 at 211.

127 (2001) 5 SCC 577.

128 Forum for Fact Finding Documentation and Advocacy v Union of India and others (2003).

129 See Krishnan, J, “Public Interest Litigation in a Comparative Context” (2003) 20 Buff Pub Int L J 19 at 19 Google Scholar.

130 See Susman, supra note 5 at 87.

131 See Susman, supra note 5 at 87.

132 Fisher, E & Kirk, J, “Still Standing: An Argument for Open Standing in Australia and England” (1997) 71 Austl L J 370 Google Scholar; Cane, P, “Open Standing and the Role of Courts in a Democratic Society” (1999) 20 Sing L Rev 23 Google Scholar.

133 See Beyond the Doorkeeper, supra note 7 at [4.37].

134 See Allars, supra note 121 at 307.

135 See Cassells, J, “Judicial Activism and Public Interest Litigation in India: Attempting the Impossible” (1989) 37 Am J Comp L 495 at 501 CrossRefGoogle Scholar.

136 See ibid at 495.

137 See Wadhera, supra note 87 at 23.

138 See Beyond the Doorkeeper, supra note 7 at [4.28].

139 See Creyke, R & McMillan, J, Control of Government Action (Sydney: Butterworth, 2007 at 847 Google Scholar.

140 SP Gupta v President of India (1982) AIR SC 149.

141 See Susman, supra note 5 at 84.

142 See Ashton, K, “Public Interest Litigation: Realising the Potential” (2001) Legal Action Group Policy 1 at 2 Google Scholar.

143 See Wadhera, supra note 87 at 33.

144 See Allars, supra note 121 at 308.

145 McAuslan, P, “Public Law and Public Choice” (1988) 6(51) ModL Review 681 at 687 Google Scholar.

146 Ogus, A, “Regulatory Law. Some Lessons From the Past” (1999) 12(1) L S 1 Google Scholar.

147 Dhronamraju Satyanarayan v T Tao (1988) AIR AP 144.

148 Sachidanand Pandey v State of West Bengal (1987)1 SCC 492.

149 M Gomez, supra note 12.

150 (1987) 71 ALR 41.

151 Ogle v Strickland (1987) 71 ALR 41.

152 Right to Life Association Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50 Google Scholar.

153 Bridgetown/Greenbushes Friends of the Forest Inc v Executive Director of Conservation and Land Management (1997) 18 WAR 126 at 130 Google Scholar.

154 See Wadhera, supra note 87 at 35.

155 See Wadhera, supra note 87 at 35.

156 See Bandhua Mukti Morcha, supra note 100 at 840.

157 See Wadhera, supra note 87 at 35.

158 See General Recommendation 19 to the Convention on the Elimination of All Forms of Discrimination against Women 1979, CEDAW Committee, 11th Session, 1992. online

159 Field, L, “Along the Spectrum of Women's Rights Advocacy. A Cross-Cultural Comparison of Sexual Harassment in the United States and India” (2002) 25(5) Fordham Intl L J at 1205 Google Scholar.

160 See Susman, supra note 5 at 82.

161 See Susman, supra note 5 at 82.

162 For example in Vishaka supra note 110.

163 Wik Peoples v Queensland (1996) 187 CLR 1 Google Scholar. See Marks, G, “Australia, Indigenous Rights and International Law” (2006) 6(22) Indigenous L Bull 20 Google Scholar.

164 PIL cases provide the judiciary with opportunities to apply interpretive aids such as the Bangalore Principles. The Bangalore Principles, adopted at a judicial colloquium in 1988 and widely accepted and cited in many jurisdictions, guide judges towards decision-making that is in line with human rights norms. In India, in public interest cases such as Chairman, Railway Board and others v Mrs Chandrima Das and others (2000) AIR SC 988 the Principles were used by the courts to develop liberal interpretations of constitutional standards, thus enabling more effective protection of human rights.

165 See Hershkoff, H & McCutcheon, A, “Public Interest Litigation. An International Perspective” in Many Roads to Justice (USA: Ford Foundation, 2000) at 285 Google Scholar.

166 Williams v The Minister Aboriginal Land Rights Act 1983 and The State of New South Wales [2000] NSW SC 255 Google Scholar; Cubillo v Commonwealth of Australia [2001] FCA 1213.

167 See Durbach, supra note 8 at 160.

168 See Lobel, Jules, “Courts as Forums for Protest” (2004) 52 U C Davies L Rev 477 Google Scholar.

169 J Freeman Defining Family in Mossop v DSS: The Challenge of Anti Essentialism and Interactive Discrimination for Human Rights Litigation’ (1994) 44 University of Toronto Law Journal 41 at 60 Google Scholar.

170 See Rao, supra note 93 at 33.