Author : Parvesh Sharma


1. Introduction 


Public Interest Litigation (PIL) has been one of the most remarkable developments of the Indian jurisprudence on access to justice. PIL is not defined in the Constitution or any statute but evolved through judicial innovation. It fundamentally altered the rule of Locus Standi broadening access to justice, particularly for the poor and marginalized sections of society. Over the years, Constitutional courts of the country (Supreme Court and High Courts) have effectively used this mechanism to scrutinize executive action, corporate excess and institutional failure or inaction.  

 

Parallel to this evolution, there has been rise of independent regulatory institutions, especially in infrastructure sectors like electricity. These bodies were created to address the limitations of bureaucratic governance and traditional judiciary in balancing complex technical, economic and consumer interests in particular sectors.  

 

This paper/article examines whether Electricity Regulatory Commissions (ERCs), conceived as expert, independent and public-interest-oriented bodies, should be allowed to entertain PILs within their sectoral domain. The trigger for this inquiry is the Hon’ble Supreme Court’s recent decision in Torrent Power Ltd. vs UPERC & others1, in which it was held that ERCs cannot entertain petitions solely on the ground of public interest. Though the judgement is sound in its statutory interpretation, this paper argues that the question requires broader examination that considers evolution and object of PILs, rationale and basis for introduction of tribunals and commissions and the practical aspects of regulatory governance.  


2. Power Sector and Emergence of Regulators  


Electricity’s role in economic growth and social welfare does not need any emphasis. It is not merely a commercial commodity but a foundational input for economic development and improvement of overall quality of life of citizens. Recognizing this significance, India introduced several reforms in the electricity sector post economic liberalization in the 1990s.   

To de-politicize tariff determination, bring technical expertise and ensure transparency balancing consumer and industry interests, Electricity Regulatory Commissions (ERCs) were established through the Electricity Regulatory Commissions Act 1998 (“ERC Act”). Their role further evolved and broadened with the enactment of Electricity Act 2003 (“EA 2003” or “Act”) which entrusted the ERCs with wide ranging regulatory, licensing and 

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1. Torrent Power Ltd. v. UPERC & Ors., 2025 INSC 838 

 

adjudicatory functions. The guiding principles for the ERCs, as per the Act are protection of consumer interest, balancing competing interests and promotion of efficiency and competition. This means that the ERCs are required to operate at the intersection of various fields like law, economics, engineering and public policy, a space where conventional adjudicatory models may prove inadequate. 


3. Role of Central and State Electricity Regulatory Commissions 


The Central Electricity Regulatory Commission (CERC) was constituted in 1998 under the ERC Act and continued under section 76 of the EA 2003. It is a statutory body with quasi-judicial powers and regulates matters of inter-state and national importance including generation, transmission, trading and development of market for electricity. State Electricity Regulatory Commissions (SERCs), similarly established under the ERC Act, are provided under section 82 of EA 2003. They enjoy the similar powers but at intra-state level. 

 

Over close to three decades of existence, the ERCs have developed considerable institutional and sectoral expertise. A bare look at some of the orders passed by the ERCs would show that their decisions involve assessments of complex cost components, sale-procurement strategies, technical grid constraints and market behavior – issues that the conventional courts often address only after seeking assistance of sector experts.     

 

For context, key functions of the ERCs may be broadly summarized as follows: 

 

• Determination of tariffs for various parts of electricity supply value chain –generation, transmission, distribution, trading etc. 

• Regulation of power procurement and power trading practices 

• Issuance, monitoring and enforcement of licenses for licensed activities 

• Adjudication of disputes between the sector participants 

• Protection of consumer interests and monitoring service quality 

• Formulation and enforcement of sector-specific regulations 

• Introduction of new concepts/products for advancement of the sector 

 

This functional breadth is essential to mention to appreciate the debate whether ERCs should be permitted to entertain sector specific PILs. 

4. PILs: Object and Evolution  

 

The rise of PIL in India is motivated by the judiciary’s recognition that the traditional rule of locus standi is not equipped to address sweeping injustices and sometimes becomes an impediment in dealing with structural injustices. The Supreme Court in cases like Hussainara Khatoon & Ors. v Home Secretary, Bihar2 recognized the need for  

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2. Hussainara Khatoon & Ors. v Home Secretary, Bihar, 1976 AIR 1455

  

diluting the rule of locus standi where systemic violations prevent access to justice for large sections of society. This allowed public-spirited individuals to espouse the cause of those who are unable to approach the courts themselves.  

 

PIL thus became a vehicle to equalize access to justice, ensuring that matters affecting large sections of society were addressed even without individualized or actual harm. It is important to note that PIL is not defined in the Indian Constitution or any statute, rather it is an innovation of Indian jurisprudence resulting from judicial activism.  

 

5. PILs connection with ERCs 

There is a conceptual connection between object of PILs and ERCs which is usually overlooked. PIL expands access to justice by relaxing procedural barriers and ERCs expand State’s capacity to regulate complex sectors through specialised institutions. Like PILs, the underlying objective behind establishment of ERCs was also furtherance of public interest, though in a specific technical field. The idea was to institute an authority with expertise, efficiency, and responsiveness in a field where techno economic regulation was critical. So, ERCs were created as expert quasi-judicial bodies for a specialized sector to protect interest of consumers, end-users or general public. 

 

Seen together, PILs and regulatory commissions are complementary innovations – both seek to broaden justice delivery beyond the confines of conventional litigation, one through broadened standing and the other through specialized adjudication. Allowing PILs before commissions, therefore, represents a natural synergy – merging the principle of access to justice with the institutional competence of regulators who are subject matter experts. 

6. The Torrent case 

 

The Apex Court’s decision in Torrent case3 stemmed from a petition filed before the Uttar Pradesh Electricity Regulatory Commission (UPERC) by an individual who was not a consumer of the distribution licensee (“discom”). His petition challenged a Distribution Franchisee Agreement (DFA) entered into between Torrent Power Ltd. and Dakshinanchal Vidyut Vitran Nigam Ltd. (DVVNL) praying for investigation in the transaction questioning its legality, validity and propriety. DFA gave rights of electricity distribution to Torrent at a fee to be paid to DVVNL. UPERC allowed the petition on the ground of public interest. In appeal by Torrent, Appellate Tribunal for Electricity (APTEL) though held that ERCs can’t entertain PILs, but it said that the case was not a PIL and therefore maintainable as ERCs can exercise regulatory oversight over discoms. 

 

The Supreme Court held that while section 128 of the Act permits “any person” to bring information to the Commission for initiating investigation, this does not give the ERCs general power to entertain PILs. The Court emphasized that ERCs and APTEL are  

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3. Torrent Power Ltd. v. UPERC & Ors., 2025 INSC 838 

 

creation of a statute and therefore their powers cannot be extended beyond the scope expressly conferred upon them by the statute. Thus, it set aside the orders of UPERC and APTEL clarifying that public interest cannot be the sole ground for ERCs to entertain a petition.  

 

It is important to point out here that the dispute in Torrent case did not involve challenge to validity of any regulation or policy. Rather, it was about a commercial contract entered into between a discom and a distribution franchisee and the regulatory oversight ought to be exercised by the appropriate commission (UPERC in this case). these issues squarely lie within the supervisory jurisdiction exercised by the ERCs.  

7. Should PILs be allowed before ERCs? 

 

The Supreme Court’s reasoning in not allowing PILs before ERCs is plausible as it is based on precedents and interpretation of statutes. However, there are several grounds of allowing ERCs to entertain PILs in appropriate circumstances. Apart from the conceptual affinity between PILs and ERCs rooted in their respective objects, following factors also support this point: 

 

a. Constitutional Roots: The reasoning of the Supreme Court in denying PIL jurisdiction to ERCs is the principle that statutory bodies cannot traverse beyond their enabling legislation. However, this reasoning overlooks the constitutional backdrop against which modern regulatory bodies and tribunals were conceived. The 42nd Constitutional amendment through articles 323A and 323B envisaged specialised tribunals to reduce the burden on constitutional courts, ensure speedy and expert adjudication and create forums that are more accessible to citizens in technical and administrative fields.4 Although ERCs are established under a statute, their adjudicatory character and institutional design closely align with this constitutional vision of tribunalisation. When articles 323A and 323B, which have survived the test of judicial scrutiny, recognize need for alternate adjudicatory forums with specialized expertise, their jurisdiction should not be narrowly confined to boundaries of their parent statutes.5 A purposive and harmonious interpretation would therefore support permitting ERCs to entertain public interest matters within their sectoral domain, without being constrained by rigid rules of locus standi. 

 

b. Subject Matter Expertise: ERCs are staffed with technical and economic experts who understand complex electricity markets, tariff structures, grid stability, procurement practices and consumer welfare metrics – areas where generalist courts often require external briefing or expert inputs. This reality 

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4. Constitution (Forty-Second Amendment) Act 1976; see also Law Commission of India, Fourteenth Report on Reform of Judicial Administration (1958); S P Sampath Kumar v Union of India (1987) 1 SCC 124. 5L Chandra Kumar v Union of India (1997) 3 SCC 261; Union of India v R Gandhi, President, Madras Bar Association (2010) 11 SCC 1. 

 

raises a legitimate question – if the regulators possess the requisite expertise as well as quasi-judicial status and the constitutional courts anyways require services of experts, should the ERCs not be allowed to address public interest concerns at the first instance? Their expertise of the subject matter positions ERCs to assess systemic grievances more effectively and swiftly. 

 

c. Easy access to justice: For consumers, whistle-blowers, and civil society organisations, approaching a regulator is often less intimidating than  approaching a High Court or the Supreme Court. Allowing PILs before ERCs lowers psychological barriers for citizens, consumer groups and civil society organisations to bring systemic issues to regulatory attention without waiting for harm to individual complainants to crystallise. This aligns with the purpose of PILs and enhances regulatory accountability. 

 

d. Efficiency and timelines: Regulatory proceedings are usually faster, less formal, more accessible and more flexible than constitutional litigation. Moreover, regulators have the capacity to undertake sector-wide investigations, issue interim directions, and monitor compliance on a continuing basis – features that are particularly valuable in public interest matters.   

 

8. Managing conflict of interest 

 

A legitimate concern in allowing PILs before ERCs is the risk of conflict of interest given that the regulators’ frame regulations, enforce compliance and adjudicate disputes. The concern is grounded in the principle of separation of powers and argues that allowing PILs in ERCs may blur institutional boundaries as same body will be responsible for prescribing and enforcing policy/regulations as well as adjudication on the same.

  

However, the appropriate response to this concern is not to exclude PILs altogether but to follow a calibrated approach. PILs challenging validity of regulations or policy frameworks should remain within the exclusive domain of constitutional courts as these are exercises of judicial review. In contrast, PILs alleging regulatory non compliance, misconduct by any sector participant (s), allegations of collusion against public interest etc. can be taken up by the ERCs.  

Additionally, few more safeguards may be adopted to mitigate the risk of conflict of interest: 

 

a. Administrative separation: Regulatory and adjudicatory functions may be separated and handled by different teams. 

b. Mandatory recusal: Members involved in approving contested transactions should recuse themselves from adjudicating disputes in those transactions. 

c. Cooling-off periods: Officials involved in enforcement of rule-making may be barred for a fixed time period from participating in adjudication of same issues. 

d. Enhanced transparency: Public hearings, public consultations and reasoned orders to reduce perception of bias. 

e. Appellate oversight: Power of review/revision by APTEL and Constitutional courts preserves judicial oversight and safeguards against regulatory overreach.  Using above measures, regulators can exercise PIL jurisdiction without compromising institutional fairness.  

 

9. Conclusion 


The Supreme Court’s decision in the Torrent Power case reaffirms the principle of statutory interpretation that statutory bodies cannot assume powers beyond their enabling legislation. However, statutory interpretation should not be done in a silo, it must consider constitutional values, institutional design and practical governance realities.  

 

PILs and regulatory commissions share a foundational connection – they both are a tool to make governance more accountable, accessible and aligned with public interest. Not allowing the ERCs to entertain litigations in public interest will lead to underutilization of institutions which were specifically designed to cater to complex sector-specific issues with public interest as the central theme. Given their constitutional backing, sectoral expertise, easy access and mandate to protect consumers, ERCs are well-placed to adjudicate PILs concerning regulatory compliance, corporate conduct, collusions to harm consumers etc.  

 

Allowing PIL jurisdiction to ERCs with some safeguards – excluding challenges to regulations and policy frameworks but permitting scrutiny of corporate and licensee conduct – offers a principled middle path taking care of concern related to conflict of interest. Such an approach respects constitutional boundaries while recognising the expertise and institutional strengths of regulatory commissions. In an era where governance challenges are increasingly technical and systemic, empowering expert regulators to engage meaningfully with public interest concerns is not only desirable but necessary.  




(These are the personal views of the author. They do not necessarily reflect the opinion of OP Jindal Global University or its affiliated institutions)