(a) The concept of Public Interest Litigation is an exception to the rule of 'locus standi'. Elaborate in the light of its…

(a) Under the traditional rule of locus standi, only a person whose own legal right has been infringed may approach the court. Public Interest Litigation (PIL) departs from this rule. It allows any public-spirited person or organisation acting bona fide to move the Supreme Court under Article 32, or a High Court under Article 226, on behalf of persons who cannot do so themselves because of poverty, disability or a socially or economically disadvantaged position.

Evolution through leading cases

• Early signals: Mumbai Kamgar Sabha v. Abdulbhai (1976) and Fertilizer Corporation Kamgar Union v. Union of India (1981) (Krishna Iyer J.) called for liberal standing.
• ***Hussainara Khatoon v. State of Bihar* (1979):** a petition based on newspaper reports secured the release of thousands of undertrials, and speedy trial was read into Article 21.
• ***S.P. Gupta v. Union of India* (1981)** (Bhagwati J.): any member of the public acting bona fide may sue for a legal wrong to a person or class unable to approach the court. This is "representative standing". A public-spirited citizen may also sue for a public injury, which is "citizen standing".
• Epistolary jurisdiction: the Court treated letters as petitions in Sunil Batra (II) (1980) and Sheela Barse v. State of Maharashtra (1983), on custodial violence against women prisoners. Bandhua Mukti Morcha v. Union of India (1984) extended this to bonded labour and allowed the Court to appoint commissioners to find the facts.
• Social and environmental rights: Olga Tellis (1985) recognised the right to livelihood of pavement dwellers. The M.C. Mehta cases (Oleum gas, 1987; Ganga pollution) developed environmental law. Subhash Kumar v. State of Bihar (1991) read the right to pollution-free water and air into Article 21. Vishaka (1997) filled a legislative vacuum on sexual harassment.

Aims and objects

• Access to justice for the voiceless (Article 39A).
• Enforcement of fundamental rights and the rule of law against official lawlessness.
• Accountability of the executive.
• A collaborative, non-adversarial remedy, including continuing mandamus.

Drawbacks

• Misuse for private, political or publicity ends: "private" or "publicity" interest litigation.
• Judicial overreach into policy, for example the river-interlinking and highway liquor-ban orders, which strains the separation of powers.
• Docket congestion that delays ordinary litigants.
• Weak compliance, and courts' limited capacity to monitor administration.
• Facts decided on commission reports without full adversarial testing.

Judicial safeguards

• Janata Dal v. H.S. Chowdhary (1992) warned against busybodies.
• State of Uttaranchal v. Balwant Singh Chaufal (2010) laid down guidelines: verify credentials and bona fides, give priority to genuine public issues, and impose exemplary costs.
• The Supreme Court's PIL Guidelines (1988, revised 2003) restrict the categories of letter-petitions it will entertain.

Conclusion: PIL remains a vital instrument of social justice. Its credibility depends on disciplined use.

(b) A Constitution is the fundamental law that creates the organs of the State, allocates their powers and regulates their relations. Constitutionalism is the political and legal philosophy that government power must be limited by, and exercised under, that fundamental law, so that arbitrary rule is prevented (C.J. Friedrich; K.C. Wheare). A State may have a constitution without constitutionalism, as authoritarian regimes with written constitutions show.

Distinctive features compared

• Nature: a Constitution is a legal document or body of rules, written or unwritten; constitutionalism is an idea or ideology of limited, accountable government.
• Structure of power: a Constitution establishes the legislature, executive and judiciary and distributes power (in India, Parts V, VI and XI and the Seventh Schedule); constitutionalism requires that this power be limited and diffused through separation of powers, federalism and checks and balances.
• Amendment: a Constitution lays down the amending procedure (Article 368); constitutionalism requires that even the amending power has limits, the basic structure (Kesavananda Bharati (1973)).
• Rights: a Constitution may list rights; constitutionalism requires that they be enforceable against the State (Articles 13 and 32).
• Character: a Constitution can be static or even authoritarian; constitutionalism is dynamic and evolves through interpretation, conventions and democratic practice.
• Presence: every State has a constitution; constitutionalism exists only where the rule of law, an independent judiciary, free elections and accountability are present.

Indian practice

• Indira Nehru Gandhi v. Raj Narain (1975) struck down clause 4 of the 39th Amendment, holding free and fair elections to be part of the basic structure.
• Minerva Mills (1980) held that limited amending power and the harmony between fundamental rights and directive principles are part of the basic structure.
• I.R. Coelho (2007) held that Ninth Schedule laws are subject to basic-structure review.
• S.R. Bommai (1994) subjected President's Rule to judicial review.
• The Emergency of 1975–77 showed how a constitution can be used against constitutionalism. The 44th Amendment restored safeguards.

Conclusion: the Constitution is the instrument, and constitutionalism is the spirit that makes it a restraint on power.

(c) India has a parliamentary executive modelled on the Westminster system. The President is the constitutional head in whom executive power is vested (Article 53), while real power lies with the Council of Ministers headed by the Prime Minister.

Constitutional provisions

• Article 74(1): there shall be a Council of Ministers, with the Prime Minister at its head, to aid and advise the President, who "shall act in accordance with such advice". The 42nd Amendment (1976) made the advice expressly binding. The 44th Amendment (1978) added a proviso: the President may once require reconsideration, but must then act on the advice tendered after reconsideration.
• Article 74(2): the courts cannot inquire into whether any advice was tendered, or what it was. However, the material on which the advice is based is not immune from scrutiny (S.R. Bommai v. Union of India (1994)).
• Article 75(1): the President appoints the Prime Minister, and appoints other ministers on the Prime Minister's advice.
• Article 75(2): ministers hold office during the President's pleasure, which in practice means as long as they have the Prime Minister's confidence.
• Article 75(3): the Council is collectively responsible to the Lok Sabha.
• Article 75(5): a non-member may be a minister for up to six months.
• Article 77: business is transacted in the President's name under the Rules of Business.
• Article 78: the Prime Minister must communicate all Cabinet decisions and legislative proposals to the President, and furnish information the President calls for. The President may require a matter decided by a single minister to be considered by the Council. This preserves the Bagehotian rights to be consulted, to encourage and to warn.

Judicial interpretation

• Ram Jawaya Kapur v. State of Punjab (1955): the President is a formal head, and the Cabinet exercises real power.
• U.N.R. Rao v. Indira Gandhi (1971): a Council of Ministers must always exist, even after the Lok Sabha is dissolved, so the President can never act without advice.
• Shamsher Singh v. State of Punjab (1974): the President and Governors act on ministerial advice except in a few well-known situations.

Limited areas of presidential judgment

• Choosing a Prime Minister when no party has a clear majority.
• Dismissing a ministry that has lost its majority but refuses to resign.
• Dissolving the Lok Sabha on the advice of a ministry that has lost the confidence of the House.
• Returning advice once under the proviso to Article 74(1).
• The "pocket veto" on ordinary bills under Article 111.

Conclusion: the relationship rests on the President acting as a constitutional head and the ministry being responsible to Parliament. The President's limited discretion and the right to be informed act as a constitutional safeguard, not a rival power centre.