“Public Interest Litigations hold public bodies to account by ensuring that they make appropriate decisions, act fairly and transparently”

‘Being a taxpayer by itself does not mean that a person has a sufficient interest to challenge an administrative decision unless the person invokes a particular breach of the Constitution’

QS & AS

It has often been decried by media, some law practitioners and certainly the general public that laws enacted by parliamentary majorities or regulations made by public bodies, cannot be taken up by our high court through the latter’s restricted view of locus standi. Judicial reviews concern a private interest but public interest litigation with proper safeguards has been pioneered by the Indian Supreme Court, opening the doors of judicial redress to those who feel genuinely aggrieved by unwise use of the government’s numerical might. Lex shares his legal views on those questions.

Public Interest Litigation. Pic – Vajiram IAS

By LEX

* Is it possible in the Mauritian context for an aggrieved citizen/taxpayer to contest an administrative decision of a government agency or of the Cabinet itself which in his view would go against the public interest or his own individual interest?

In the judgment of Akil Bissessur against Sir Anerood Jugnauth in 2018, former Chief Justice Matadeen ruled that being a citizen of Mauritius and a taxpayer does not constitute sufficient interest for the purposes of an application for judicial review.

* In simple terms, public interest could imply that government decisions are supposed to act in the best interest of the public, but it seems that it is not so easy to obtain agreement as to what exactly represents public interest as applied to public administration. Why is that so?

Public interest is a vague and wide expression. What amounts to public interest depends on a series of facts and circumstances. Fundamental rights, for example, are protected but are not absolute. There may be derogations from them in the public interest, that is for the general welfare of people.

* Since it’s the legal responsibility of governmentto redistribute wealth equitably with the objective of ensuring social justice through the instrument offair taxes, isn’t that sufficient justification for a legal challenge by an aggrieved taxpayer?

No. Being a taxpayer by itself does not mean that a person has a sufficient interest to challenge an administrative decision unless the person invokes a particular breach of the Constitution. Even then it will not be easy to establish or win a case.

* Besides custom duty and VAT, there are several contributions (Covid-19 Solidarity Fund, etc.,) that are factored in the retail prices of petrol and diesel, which have recently been raised. Consumer groups and concerned citizens have suggested that the taxes and contributions could have been either reduced or withheld to cushion the impact of higher fuel prices. That sounds reasonable, but can it be forced on the Government through a legal challenge if it were to decide otherwise?

Unless the challenger has a personal interest, he will not be able to challenge the decision. Like him there are many persons who are aggrieved.

* It appears that there is broader scope for aggrieved citizens/groups in the Indian context to contest the government’s decisions and advance human rights and equality, or raise issues of broad public concern through the mechanism of Public Interest Litigation (PIL). PIL is also growing at a significant pace in Kenya, Tanzania, and Uganda since it’s seen to offer a “serious and sustainable antidote to the three countries’ experiences of authoritarian rule, judicial lethargy, and community marginalization”. What is PIL about and are there limits to its application?

According to one definition, Public Interest Litigation is a petition that an individual or a non-government organisation or citizen groups, can file in court with a view of seeking justice on an issue that has a larger public interest. It aims at giving common people an access to the judiciary to obtain legal redress for a greater cause.

PIL is not defined in any legislation. It is the result of judicial activism initiated by the Supreme Court of India, and refers to litigation undertaken to secure public interest and demonstrates the availability of justice to socially-disadvantaged parties. Introduced by Justice P. N. Bhagwati, it’s a relaxation on the traditional rule of locus standi.

* There is however the view that PIL may open the floodgate of all manner of litigations even vexatious and irrelevant ones, and hamper the proper functioning of the government. What’s your take on that?

There is that risk and it is for judges to control any floodgate. Since PIL is the use of the law to advance human rights and equality, or raise issues of broad public concern, it will be open to a judge to determine whether these criteria are met without however adopting the ultra-conservative approach our Supreme Court has taken in matters of locus standi.

* At the end of the day, if it’s true that an unbridled PIL could also pose the risk of the Court overstepping its boundaries and crossing the limit by exercising powers permitted only to Parliament, shouldn’t there be a mechanism available for parties that feel aggrieved by certain decisions which are blatantly against the public interest to contest the legality of such decisions?

Yes, some thought on introducing that concept may be given in Mauritius as this will constitute the only way of circumventing the conservative approach of the Supreme Court that has always rejected applications for judicial review on the ground that the applicant has no interest in the matter.

In India any Indian citizen can file a PIL, the only condition being that it should not be filed with a private interest, but in a larger public interest. A judicial review is filed by individuals or institutions for their own benefit and not for public interest, whereas PILs are filed in issue that have a larger public interest. PILs hold public bodies to account by ensuring that they make appropriate decisions, act fairly and transparently and within the remit of their powers.

On PIL it has been observed in India that the “judiciary, being the sentinel of constitutional statutory rights of citizens has a special role to play in the constitutional scheme. It can review legislation and administrative actions or decisions on the anvil of constitutional law. For the enforcement of fundamental rights, one has to move the Supreme Court or the High Courts directly by invoking the Writ Jurisdiction of these courts. But the high cost and complicated procedure involved in litigation, however, makes equal access to jurisdiction a mere slogan in respect of millions of destitute and underprivileged masses stricken by poverty, illiteracy and ignorance. The Supreme Court of India, pioneered the Public Interest Litigation (PIL) thereby throwing open the portals of courts to the common man.”

* Published in print edition on 4 March 2022