What is Public Interest Litigation (PIL)?
NB this is illustrative only and text has since been amended.
What are the characteristics of all litigation?
What is Public Interest Litigation (PIL)?
How is PIL different to other litigation?
What are the downsides to PIL?
What is litigation?
Litigation is the process by which a legal complaint is initiated before the court, by a person who believes they have suffered, or are suffering, harm.
For the litigation to be successful that person must demonstrate to the satisfaction of a court that he/she has been legally wronged (i.e that person’s legal rights have been breached).
What are the characteristics of litigation?
The following features characterise all types of litigation, including PIL:
a. there are two sides (called the parties), to any litigation – the party which believes it is suffering harm and has a legal cause for complaint (for the purposes of this site we call that party the “Claimant” but it can also be known in other circumstances as the complainant, plaintiff, applicant or appellant) and the party which is defending the legal complaint or claim brought against it (for the purposes of this site the “Defendant” but also known in other circumstances as the defender or respondent);
b. both parties use arguments based in law (whether that is legislation or case law) which require evidence to support them;
c. both parties use these arguments and their version of the facts in an attempt to persuade a court of judicial officers (whether that be a regional or customary court, national, constitutional or supreme court or an international court), that their complaint, or defence is correct.
d. a court will consider the arguments and decide which side it believes is correct under the law. The court will then make a decision (judgment), supported by an order. This will then allow the claimant to enforce this order of the court against the other side.
Obtaining a court order may also be useful in a wider context, and might in time lead to law reform through precedent or judicial/constitutional review. For more on this see (LINK).
What can litigation achieve?
The claimant will ask the court for a particular solution to their problem, and this is called the ‘remedy’.
The remedy requested will vary from case to case, and court to court
The court can decide to grant or refuse the remedy requested (usually based on whether or not the Claimant wins the litigation), or in some cases grant a remedy different to the one requested but which it believes is correct and just.
INSERT A LINK HERE TO 'REMEDIES' ON PIL CHECKLIST
What is Public Interest Litigation (PIL)?
PIL is a type of litigation (legal action / law suit) which can also be called ‘human rights litigation’, ‘impact litigation’, ‘test case litigation’ or ‘strategic litigation’.
It has been used to address many different issues around the world, from woman’s rights, equality rights, national security, access to information and freedom of expression. Click here to see a list of potential areas which PIL may be useful.
How is PIL different to other litigation?
PIL has many features which are the same as ordinary litigation, but it is different in one crucial aspect.
Other types of litigation are usually brought in order to protect an individual’s own interests- However, the intention of PIL is protect the interests of a section of the public at large.
PIL is brought with the aim of vindicating the interests of the public, or at the very least the interests of persons beyond those named as bringing or defending the litigation. It is similar therefore to a group action.
When is PIL commonly used?
PIL is commonly used as a mechanism for political, social or legal change.
People bring PIL when they feel that the legal rights of a certain group (often whole communities or social/cultural groupings) are threatened. It is often impractical or impossible to label or categorise that group in such a way that it can be a party to a case, so a party is nominated as a representative who will bring the groups’ legal complaint to court on behalf of that group.
Defending litigation in the name of a public interest is a slightly different process, as often the party bringing the claim that threatens that group names a specific person. However it may still be possible to use such cases to set precedents or reform the law and as such protect a wider group of people than those named as Defendants.
In any event, those who use PIL seek to defend an encroachment of what they perceive to be their legal rights by another party, usually a company or a government institution.
What can PIL achieve?
PIL can give short term relief for an impending or current legal wrong, but can also be used to seek long term, systemic change through legal reform.
Since PIL’s main function is to actively promote change, it is usually part of a wider plan and as such PIL cases are chosen carefully as part the overall campaign for change, which may also include methods such as lobbying and demonstrations. However, whilst PIL is commonly implemented at a time calculated to have maximum impact on a wider campaign, it can also be used as a ‘last resort’ in desperate situations where a community or group has been wronged and nothing else is working.
What are the goals of PIL and what remedies can be sought
1. Although PIL is often used as part of a wider campaign the primary intention of PIL, as with any litigation, is to secure a concrete solution or remedy for a perceived breach of law.
2. As such, one goal of PIL and that which is most closely aligned to the goals or ordinary litigation is the seeking by a party of a judicial declaration which protects that party’s position. Such declarations rely on existing law being capable of judicial interpretation in such a manner that gives rise to a legal right which that declaration is based on. Such declarations can take various forms and can be used in the following ways:
a. to lend legal force to a group’s argument or complaint;
b. to secure a legal order that means a certain action must be take;
c. to prevent or stop an event or series of events from happening; or
d. to obtain financial compensation for a group of people who have been legally wronged.
3. The importance of a formal finding that a legal wrong has been done should not be underestimated. In such circumstances the court has a fact-finding role and that it officially endorses one party’s version of the facts and disregards another’s can have long-reaching consequences and allows some form of personal vindication for the successful party. As outlined at (b) and (c) it can also lead to positive or preventative action being taken by the court in order to offer protection to the group whose legal rights are threatened.
4. Whilst financial compensation may not seem an appropriate solution to some complaints, its suitability or symbolic value in certain situations should be accepted by those parties who facilitate or encourage PIL. An offer of compensation may, in some cases, satisfy a group who believe they have been wronged and in the eyes of that group, be a suitable and complete remedy for their complaint. For more serious or systemic issues such as murder, rape or gender inequality compensation is limited in its ability to deliver a just solution.
5. Such limitations provide a good example of where traditional litigation remedies begin to fail the longer term objectives of some PIL. If the goal of a PIL is to protect or secure the legal rights of a certain group in the long term where those rights are not already sufficiently protected, then law reform, a second goal of PIL, is necessary.
6. A party may seek a decision which would create a binding or persuasive precedent with that party’s national legal framework. This precedent must then be followed in the future, with the hopeful consequence that the wrong that the Claimant has suffered will not be suffered again by another individual or group. Often rulings by constitutional or supreme courts are legally binding and as such as political consequences for law making in the future. In some systems and in certain courts legal rulings may necessitate parliamentary action.
7. Finally, PIL be used as a mechanism to pursue broader objectives outside of simply winning or defending a case. These objectives may not necessarily require success in bare terms in the courtroom. The very process of bringing or defending a case concerning a particularly sensitive or unjust issue may raise public awareness of that issue and foster public support for the promotion of it. In such a manner PIL may stimulate other methods of change like lobbying, political activism or demonstrations.
Often, the very nature of framing an argument in legal terms by stressing the legal rights of certain groups and highlighting the legal
of others may transform an issue from one of historical cultural bias, prejudice and tension into one of legal norms which a national legal system has, or should have a duty to uphold and protect. Regardless of the result of the litigation, the effectiveness of PIL as a trigger point should not be undervalued.
Is PIL right for me?
When considering whether the use PIL a group must ascertain their objective for doing so. Careful thought about whether PIL is the correct method by which to achieve the desired objective, and if so which solution or remedy is desired is a necessary pre-requisite to the bringing of any PIL to court.
What are the potential downsides to PIL?
PIL can be hugely successful, both in terms of securing immediate protection for community or cultural groups whose rights are threatened and in directly causing, or triggering long lasting legal change. However, despite its potentially powerful impact litigation is not a process to be undertaken lightly. It is time-consuming, expensive and adversarial. If an issue is particularly sensitive or if a group is facing a powerful organisation than, in addition to the administrative demands of the litigation, the group may have to be prepared to face political or public pressure, tolerate intimidatory behaviour and protect themselves from physical danger.
PIL Checklist
We have put together a checklist of issues to consider before undertaking PIL. This is intended to be a practical guide and to offer practical steps you can take. Consider the PIL checklist here.
HOW COULD PUBLIC INTEREST LITIGATION HELP ME...?
Click here to access the PIL Checklist which covers:
What is PIL?
How could PIL help me?
What is my goal (remedies)?
When can I take action?
Who can take action?
Who can I take action against?
Where can I take action?
How can I gather information / evidence?
How can I finance my action?
How do I deal with community security issues?
How do I enforce a court order?
Alternatives to PIL?
Where can I get further information?