Public Interest Litigation in Electricity Regulatory Commissions

Electricity Regulatory Commissions (ERCs) in India came into existence through the Electricity Regulatory Commissions Act 1998. The primary purpose, at that time, was to distance the government from tariff determination and lay down transparent subsidy policies. However, after the enactment of Electricity Act 2003 (“EA2003” or “Act”), the role of ERCs have significantly evolved and broadened. They have been entrusted with both Regulatory and Adjudicatory functions and powers of a civil court for inquiry and proceedings under the Act. The guiding factor for the Commissions in discharging their responsibilities is ‘public interest’. But should the ERCs entertain litigation solely on the ground of public interest i.e. PILs? Does the Act give them such power or should they be allowed to traverse beyond their powers in the name of public interest?

Hon’ble Supreme Court had the occasion to look at this aspect in the recent case of Torrent Power Ltd. vs UPERC C others1 and clarified that ERCs cannot entertain petitions or complaints solely on the ground of public interest. The Court reasoned that the jurisdiction of bodies born out of a statute like the ERCs cannot extend beyond the powers expressly conferred under that statute. It held that while ‘any person’ may approach an ERC to request an investigation u/s 128 of the Act, the statutory framework of the Act does not empower ERCs to adjudicate on Public Interest Litigations (PILs).

While the reasoning given by the Apex Court may be doctrinally sound as far as statutory interpretation is concerned, but the judgement and the question of allowing PILs in ERCs needs to be examined in light of the object and evolution of PILs and regulatory governance in the country.

Object and evolution

The object of PIL in India, as developed since Hussainara Khatoon C Ors. V. Home Secretary, Bihar2, was to dilute the traditional rule of locus standi and permit any person acting bona fide to espouse the cause of those unable to approach courts. PIL thus became a vehicle for 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.

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

·       Torrent Power Ltd. v. UPERC C Ors., 2025 INSC 838

·       Hussainara Khatoon C Ors. v. Home Secretary, Bihar, 1976 AIR 1455

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.

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, the foundation of regulatory commissions and tribunals in the country was laid down by the 42nd amendment to the Indian Constitution through articles 343A and 343B (though limited to tribunals envisaged till then). This was aimed at reducing the burden of Constitutional courts especially High Courts, providing speedy and expert adjudication and establishing judicial forums closer and approachable to common citizen.

Therefore, commissions and tribunals, though are established under various statutes, their genesis and legitimacy can be traced back to the Constitution itself. 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. This would undermine the constitutional purpose and mandate of creating tribunals (and commissions). A harmonious and purposive interpretation would suggest that ERCs and tribunals should be allowed the liberty to adjudicate upon matters of public interest without strict rules of locus standi.

Subject Matter Expertise

As the Regulators deal with matters in a specific domain, they are staffed with domain experts and best equipped to assess technical or economic matters than general courts. They are well placed to address systemic concerns as they have acquired deep understanding of their sector over 2-3 decades of operations. When constitutional courts are seized of technical matters (e.g. of power sector), they also seek advice from sector bodies or experts, which adds multiple steps to the process and cause delays. Thus, it is better that in matters of public interest, parties may be allowed to approach commissions/tribunals – the expert bodies, directly.

Another advantage of allowing PIL in regulatory bodies is that such bodies are not bound to follow any specific procedural code, so they can act quickly and flexibly through investigations, interim measures etc. For stakeholders including consumers,

whistleblowers, general citizens etc., Regulators are less intimidating than general courts. Even the filing formalities are simpler in regulatory bodies.

Conclusion and Way Forward

The Apex Court in the Torrent case reaffirmed the principle that statutory bodies like ERCs cannot exercise jurisdiction beyond their enabling statutes and thus cannot entertain PILs. However, the judgement and reasoning appear to be restrictive when examined against the constitutional philosophy, evolution and object of regulatory governance and PILs in the country, which indicates a natural synergy between the two. PILs emerged to equalize access to justice and expand locus standi in matters of shared concern, while ERCs were created to safeguard public interest in a specialized, technical domain with adjudication by experts. Denying ERCs to entertain PILs would also undermine the constitutional purpose of establishing tribunals and commissions through 42nd amendment i.e. creating accessible and expert forums for effective adjudication.

When the Act grants powers of civil courts to the ERCs and casts a duty upon them to protect consumer interests, a harmonious construction of the statute with constitutional principles suggest that ERCs should not be reduced to mere dispute resolution and regulation making forums but should act as defenders of public interest in their domain. So, permitting PILs before ERCs would be a logical extension of their constitutional purpose and regulatory mandate – a progression that would bring access to justice, regulatory expertise, and public accountability into a single coherent framework.

To implement the same, two-pronged approach may be adopted. First, a harmonious interpretation of the constitution and the Act that acknowledges the constitutional roots of tribunals/commissions and allows commissions to adjudicate upon matters of public interest without the strict restrictions of locus standi; and second, legislative reform to explicitly empower ERCs and other tribunals to entertain PILs in their respective sectors.

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