Who may approach a court when the harm complained of affects not merely one individual, but an entire community, or indeed society itself? This question which apparently would seem deceptively simple is unfortunately not so. If a wetland of ecological importance is threatened, public resources are allegedly misused, a vulnerable community is unable effectively to vindicate its rights, or governmental action potentially affects the constitutional rights of a large section of society, must someone first demonstrate that they personally have suffered a particular legal injury before a court can examine the matter? For much of Mauritian legal history, the answer has largely been yes. Mauritian law has traditionally adopted a relatively restrictive approach to locus standi, i.e. the legal standing required to bring proceedings before a court. Litigation ordinarily presupposes that the person approaching the court possesses a sufficient personal interest in the dispute. Public Interest Litigation (PIL), by contrast, starts from a different premise: there are circumstances in which the administration of justice requires courts to hear claims brought in defence of a wider public interest, even where the litigant is not asserting a conventional private injury.

Mauritian courts have historically been reluctant to embrace that proposition. In Tengur v Ministry of Education and Scientific Research [2002 SCJ 48], the Supreme Court famously described PIL as "alien to our jurisdiction". The consequence is significant. Civil society organisations (CSOs), public-spirited citizens, and other actors seeking judicial scrutiny of matters affecting the community may confront the preliminary question of standing before the substance of the alleged wrong is ever considered. However, developments in Mauritian environmental jurisprudence suggest that it may be time to revisit this position.

The environmental dilemma

Environmental harm exposes particularly starkly the limitations of a purely individual conception of standing. Who owns an interest in a wetland? Who suffers legally cognisable harm when a lagoon is degraded? Who speaks for biodiversity, ecosystems or future generations? Environmental damage is frequently diffuse. Its consequences may be cumulative, intergenerational, and shared by communities rather than confined to an identifiable individual. Requiring environmental litigants to demonstrate something resembling a conventional private or economic injury can therefore produce a paradox: the greater the public character of the environmental resource, the harder it may be to identify a single person possessing the type of individual interest traditionally associated with litigation.

Mauritius has already confronted this problem. The litigation involving the non-governmental organisation (NGO) Eco-Sud and the Pointe d'Esny development represents an important evolution in Mauritian thinking on standing. Eco-Sud had challenged the granting of an Environmental Impact Assessment (EIA) licence before the Environment and Land Use Appeal Tribunal (ELUAT). The Tribunal initially held that the environmental organisation had failed to establish the standing required to pursue its appeal. That approach was subsequently rejected by the Supreme Court. The dispute ultimately reached the Judicial Committee of the Privy Council. In Eco-Sud and others v Minister of Environment, Solid Waste Management and Climate Change and another [2024] UKPC 19, the Privy Council upheld the Supreme Court's more liberal approach.

The Privy Council recognised that prejudice in an environmental context need not be confined to an economic or conventional private interest. Harm may relate to an interest in the environment itself. It also recognised the relevance of Eco-Sud's longstanding environmental work and its particular involvement in protecting the wetlands and lagoon concerned. Furthermore, it also stressed the vital importance of the environment to every person in Mauritius and the importance of maintaining public confidence in environmental safeguards. This does not mean that the Privy Council introduced a general doctrine of PIL into Mauritian law. The case concerned the interpretation of statutory standing requirements under environmental legislation. But the Eco-Sud decision does something important nonetheless: it demonstrates the inadequacy, in certain public-interest contexts, of understanding legal prejudice exclusively through the lens of private economic or proprietary interests. That should prompt a wider conversation.

Wakashio and the problem of diffuse public harm

The 2020 MV Wakashio disaster provides another illustration of the difficulty. Following the grounding of the vessel and the subsequent oil spill, activist Bruneau Laurette initiated private prosecutions against, amongst others, public officials whom he alleged bore responsibility for failures surrounding the disaster. The Director of Public Prosecutions (DPP) subsequently entered discontinuances of those proceedings. Laurette later sought judicial review of the DPP's decision. Whatever one's assessment of the merits of those proceedings, and private prosecution should not be confused with PIL, the episode illustrates a broader institutional problem. When an alleged wrong concerns an ecological disaster affecting marine ecosystems, coastal communities, livelihoods, and a resource forming part of the country's natural heritage, through what legal mechanism does the public interest obtain an effective voice? Private prosecution, judicial review, constitutional redress, and statutory environmental appeals each perform particular functions. None is necessarily a substitute for a properly developed public-interest jurisdiction. The question therefore goes beyond any particular activist, NGO, environmental controversy or government. It concerns the architecture of access to justice itself. The Wakashio private prosecution process is useful here because it illustrates the difficulty of giving diffuse public harm a public voice.

Mauritius would not be entering uncharted territory

PIL is particularly associated with India, where the Supreme Court progressively relaxed conventional rules of standing from the late 1970s onwards. The underlying rationale was compelling. Fundamental rights mean little if those most affected by their violation lack the financial resources, knowledge or practical ability to reach a court. Indian PIL consequently permitted public-spirited individuals and organisations, in appropriate cases, to invoke judicial protection for people unable effectively to approach the courts themselves. Its use subsequently extended into environmental protection, governmental accountability, and numerous questions of social justice. The Indian experience is especially relevant to Mauritius, but it should neither be romanticised nor mechanically transplanted. PIL has also generated legitimate concerns regarding judicial overreach, frivolous litigation, politically motivated claims, and courts entering areas more appropriately left to democratically accountable institutions. The lesson from India is therefore that Mauritius should not automatically adopt PIL. The more interesting and useful proposition is that standing rules can evolve when traditional procedural rules prevent courts from responding effectively to public wrongs.

The Indian experience is not an exception. Several African constitutional systems have moved towards broader conceptions of standing. South Africa's constitutional framework expressly permits proceedings by persons acting in the public interest, while its environmental legislation further facilitates proceedings brought in the interests of environmental protection. Kenya's 2010 Constitution similarly transformed standing by permitting proceedings brought in the public interest and has provided fertile ground for public-interest environmental litigation. Different forms of collective and public-interest judicial action have likewise developed across Latin America, including mechanisms directed specifically towards the protection of collective and diffuse interests. Mauritius therefore has a substantial body of comparative experience from which to learn.

Why does this matter now?

Mauritius faces 21st century challenges that do not fit comfortably within 19th and 20th century ideas of purely private litigation. Climate change, coastal development, biodiversity loss, pollution, land-use decisions, unequal access to public services such as healthcare, disability inclusion, poverty, LGBTQ rights, and other forms of social, economic, and ecological disadvantage often affect communities collectively. At the same time, the people most affected by governmental failures or structural inequality may be those least able to undertake complex and expensive litigation. A legal system genuinely committed to access to justice must therefore not merely ask what rights exist but also who can realistically enforce them? PIL is being postulated as one possible answer.

That does not require opening the courthouse doors to anyone wishing to litigate any political disagreement. A Mauritian model could incorporate safeguards requiring a genuine public interest, a serious and justiciable legal question, bona fide litigation, appropriate expertise or connection to the subject matter, and mechanisms allowing courts to dismiss frivolous, vexatious, or politically abusive proceedings at an early stage. At the same time, reform does not need to necessarily take a single form. Interestingly, a spectrum of reform is available. Mauritius could consider legislative reform in defined fields such as environmental protection; broader standing for constitutional proceedings; revised rules governing judicial review; representative standing for qualifying CSOs; or the gradual development of standing through judicial interpretation. The appropriate model deserves careful research and public consultation.

From Tengur to Eco-Sud

More than two decades separate Tengur from Eco-Sud. Mauritian law has not suddenly become a PIL jurisdiction. Traditional rules of standing remain important, and Eco-Sud should not be made to say more than it actually decided. But we cannot deny that something important has changed. The Supreme Court and Privy Council have demonstrated that standing need not invariably be understood through a narrow conception of individual economic or proprietary harm, particularly where environmental protection is concerned. That development creates an opportunity to ask a larger question. If an environmental organisation with genuine expertise and sustained involvement in the protection of an ecosystem may possess a legally sufficient interest in defending it, should comparable principles operate where serious public interests arise in other areas? Who should be able to approach our courts on behalf of people who cannot effectively do so themselves? Who represents interests that are genuinely collective? Of particular relevance in an age of ecological crisis, who speaks for nature? At this stage, we may have moved from a purely legal consideration to a matter of justice in the truest sense of the word.

Mauritius need not reproduce the Indian, South African, Kenyan, or Latin American experience. Its mixed legal system, constitutional architecture, institutional culture, and social realities require a distinctly Mauritian approach. But refusing to consider PIL because it was once regarded as alien to our legal tradition would overlook the evolution that has already begun within that tradition. PIL is not being postulated as a panacea solution. Instead, the more potent examination seems to steer us towards a direction where we question whether our conception of access to justice is capable of evolving to meet the public challenges Mauritius now faces. The conversation which has started needs now be followed by action: such is our humble plea.

Krishnee Adnarain Appadoo is an independent scholar and social and ecological innovator working across climate and environmental law, access to justice, environmental humanities, mental health, and critical and decolonial approaches. Her interdisciplinary work spans academia, the NGO and private sectors, and international and intergovernmental organisations, including the UNFCCC, UNODC and the International Criminal Court, with a focus on cross-sector collaboration and translating research into policy and societal change. She is completing a PhD at the University of Western Australia on climate change loss and damage in Small Island Developing States and is the Founder and Executive Director of two social enterprises: Mind Matters Mauritius and Climate Justice Compact.

Shatyam Issur is a global health professional working at the intersection of public health, human rights, law and community engagement, with a particular focus on HIV, health equity and inclusive research. He contributes to international initiatives promoting equitable healthcare access and the meaningful involvement of communities in research, policy and programmes. He also lectures in the Department of Law and Management at the University of Mauritius. Shatyam holds an MSc from the London School of Hygiene & Tropical Medicine, an LLM and a BA (Hons) from the University of Mauritius, and is an Atlantic Senior Fellow for Health Equity at George Washington University.