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Published online by Cambridge University Press: 16 April 2015
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.
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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.
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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: <http://www.aat.gov.au/SpeechesPapersAndResearch/speeches/downes/OverviewTribunalsScene April2006.htm>.
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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: <http://www.llrx.com/features/indian.htm>. See also the recent enactment of the Freedom of Information Act 2005, online: <http://www.privacyinternational.org/countries/india/india-v-adr-foia-502.pdf.>. 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.
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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.
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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.
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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.
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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:<http://www.piac.asn.au/about/>.
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91 See Susman, supra note 5 at 89.
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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).
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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.
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107 Laxmi Kant Pandey v Union of India (1984) AIR SC 469.
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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 http://www.escr-net.org/resources_more/resources_more_show.htm?doc_id=425803
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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 http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#recom19
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