Gulab Pil File.docx

PROFESSIONAL ETHICS

DR. SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERSITY, LUCKNOW

FACULTY OF LAW

PROJECT- ON

“PUBLIC INTEREST LITIGATION”

SUBMITTED TO Ass. Proff. Dr. Gulab Rai

FACULTY OF LAW D.S.M.N.R.U

SUBMITTED BY PREETI SINGH B.COM L.L.B (HONS) X SEMESTER

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ACKNOWLEDGEMENT

I Preeti Singh would like to express my deep gratitude to Dr. Gulab Rai sir for giving me valuable input on the topic, which had made me competent enough to prepare my project.

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INDEX

Introduction

5-6

Origin of PIL

7-8

History of PIL

8-12

Meaning of PIL

11-12

Legal Infrastructure of PIL: lesson

12-13

form, asian counties Establishing PIL: A critical

13-14

components the justice system Proactive and Independent Judiciary:

13-14

fulfillment the constitutional promise Growth of PIL

15-23

Article 32 and 226

24-30

Milestones of PIL: landmark cases of

30-36

PIL Recent cases of PIL

35-42

Formats of Writs : habeous corpus,

43-62

Prohibition, Mandamus, certiorari quo warranto Contempt of Court

62-70

Conclusion

70-71

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INTRODUCTION (PIL has become a powerful tool for intervention and for seeking judicial Assistance for dealing with various issues affecting the pubic.) “Injustice anywhere is a threat to justice everywhere” -Martin Luther King, Jr.

Justice without force is impotent; force without justice is tyranny -Pascal in Pensees.

There are times when even justice brings harm with it -Sophocles in Electra.

PIL in broad terms means litigation filed in a court of law for the protection of “Public Interest” on the wide variety of subjects concerning citizens.

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Emergence of Public Interest Litigation has motivated the judicial system to extend its protection to new social, public and group interest. An inscription on the wall of Harvard Law School Library which has been taken from Justivians reads as ‗Institute says honest vivera, honalienum leaders, scum unique tridure‘ which means that the precepts of the law are those to live honourably, not to injustice another to understand his due. The whole congeries of operation cantons against a misleading reduction of ethical problem involved in reaching judgement of social justice.1 Earlier, back into the horizons of law and justice in the west, the great Judaieo Christian, Greek and Roman tradition concerned themselves with theorising and explaining law. But the traditional and the medieval and post medieval successors were free of such concern. They rather focussed on one or both of the two very different concerns. One of these concerns which has survived into modern analytical jurisprudence, has its main point in facilitating on the vision of the logical coherence of the several prepositions and part of a legal order and on fixing the definition of forum used and the presuppositions which will maximize such coherence. Executive delves into the modern problems of electing the representative, the right of the citizen, in other words the human right made in a politically organized society or the integrity of the personality of this organized society or its political institution.

1

Source justice and Law, from on Law judiciary poul ..

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ORIGIN OF PUBLIC INTEREST LITIGATION ( PIL) The term “PIL” originated in the United States in the mid-1980s. Since the nineteenth century, various movements in that country had contributed to public interest law, which was part of the legal aid movement. The first legal aid office was established in New York in 1876. In the 1960s the PIL movement began to receive financial support from the office of Economic Opportunity, This encouraged lawyers and public spirited persons to take up cases of the under-privileged and fight against dangers to environment and public health and exploitation of consumers and the weaker sections. Prior to the 1980s, only the aggrieved party could approach the courts for justice. However, post 1980s and after the emergency era, the apex court decided to reach out to the people and hence it devised an innovative way wherein a person or a civil society group could approach the supreme court seeking legal remedies in cases where public interest is at stake. Justice P. N. Bhagwati and Justice V. R. Krishna Iyer were among the first judges to admit PIL's in the court.2 Filing a PIL is not as cumbersome as any other legal case and there have been instances when even letters and telegrams addressed to the court have been taken up as PIL's and heard by the court.

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PIL A Boon Or A Bane

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HISTORY OF PIL Public Interest Litigation popularly known as PIL can be broadly defined as litigation in the interest of that nebulous entity: the public in general. Prior to 1980s, only the aggrieved party could personally knock the doors of justice and seek remedy for his grievance and any other person who was not personally affected could not knock the doors of justice as a proxy for the victim or the aggrieved party. As a result, there was hardly any link between the rights guaranteed by the Constitution of India and the laws made by the legislature on the one hand and the vast majority of illiterate citizens on the other. However, this entire scenario gradually changed when the post emergency Supreme Court tackled the problem of access to justice by people through radical changes and alterations made in the requirements of locus standi and of party aggrieved. The splendid efforts of Justice P N Bhagwati and Justice V R Krishna Iyer were instrumental of this juristic revolution of eighties to convert the apex court of India into a Supreme Court for all Indians. As a result any citizen of India or any consumer groups or social action groups can approach the apex court of the country seeking legal remedies in all cases where the interests of general public or a section of public are at stake. Further, public interest cases could be filed without investment of heavy court fees as required in private civil litigation. In December 1979, Kapila Hingorani had filed a petition regarding the condition of the prisoners detained in the Bihar jail, whose suits were pending in the court. The special thing about this petition was that it was not filed by any single prisoner, rather it was filed by various prisoners of the Bihar jail. The case was filed in the Supreme Court before the bench headed by Justice P.N.Bhagwati. This petition was filed by the name of the prisoner, Hussainara Khatoon, hence the petition came to be known as Hussainara Khatoon Vs State of Bihar. In this case, the Supreme Court upheld that the prisoners should get benefit of free legal aid and fast hearing. Because of this case 40,000 prisoners, whose suits were pending in the court, were released from the jail. There after many cases like this have registered in the supreme court. It 8|Page/

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was in the case of SP Gupta vs Union of India that the Supreme Court of India defined the term "public interest litigation" in the Indian Context. The concept of Public Interest Litigation (PIL) is in consonance with the principles enshrined in Article 39A of the Constitution of India to protect and deliver prompt social justice with the help of law. Before the 1980s, only the aggrieved party could approach the courts for justice. After the emergency era the high court reached out to the people, devising a means for any person of the public (or an NGO) to approach the court seeking legal remedy in cases where the public interest is at stake. Justice P. N. Bhagwati and Justice V. R. Krishna Iyer were among the first judges to admit PILs in court.[1] Filing a PIL is not as cumbersome as a usual legal case; there have been instances when letters and telegrams addressed to the court have been taken up as PILs and heard.[2] Till 1960s and seventies, the concept of litigation in India was still in its rudimentary form and was seen as a private pursuit for the vindication of private vested interests. Litigation in those days consisted mainly of some action initiated and continued by certain individuals, usually, addressing their own grievances/problems. Thus, the initiation and continuance of litigation was the prerogative of the injured person or the aggrieved party. Even this was greatly limited by the resources available with those individuals. There were very little organized efforts or attempts to take up wider issues that affected classes of consumers or the general public at large. However, these entire scenario changed during Eighties with the Supreme Court of India led the concept of public interest litigation (PIL). The development of Public Interest Litigation (PIL) in the country has, however, very recently uncovered its own pitfalls and drawbacks. The genuine causes and cases of public interest have in fact receded to the background and irresponsible PIL activists all over the country have started to play a major but not a constructive role in the arena of litigation. They try to utilize this extraordinary remedy, available at a cheaper cost, as a substitute for ordinary ones. PIL- A Boon:

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1. In Public Interest Litigation (PIL) vigilant citizens of the country can find an inexpensive legal remedy because there is only a nominal fixed court fee involved in this. 2. Further, through the so-called PIL, the litigants can focus attention on and achieve results pertaining to larger public issues, especially in the fields of human rights, consumer welfare and environment. Abuse of PIL: However, the apex court itself has been compelled to lay down certain guidelines to govern the management and disposal of PILs. Of late, many of the PIL activists in the country have found the PIL as a handy tool of harassment since frivolous cases could be filed without investment of heavy court fees as required in private civil litigation and deals could then be negotiated with the victims of stay orders obtained in the so-called PILs. Just as a weapon meant for defence can be used equally effectively for offence, the lowering of the locus standi requirement has permitted privately motivated interests to pose as public interests. The abuse of PIL has become more rampant than its use and genuine causes either receded to the background or began to be viewed with the suspicion generated by spurious causes mooted by privately motivated interests in the disguise of the so-called public interests. Necessary Steps to be taken There may be cases where the PIL may affect the right of persons not before the court, and therefore in shaping the relief the court must invariably take into account its impact on those interests and the court must exercise greatest caution and adopt procedure ensuring sufficient notice to all interests likely to be affected. At present, the court can treat a letter as a writ petition and take action upon it. But, it is not every letter, which may be treated as a writ petition by the court. The court would be justified in treating the letter as a writ petition only in the following cases: (i) (ii)

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It is only where the letter is addressed by an aggrieved person or A public spirited individual or

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(iii)

A social action group for the enforcement of the constitutional or the legal rights of a person in custody or of a class or group of persons who by reason of poverty, disability or socially or economically disadvantaged position find it difficult to approach the court for redress.

Even though it is very much essential to curb the misuse and abuse of PIL, any move by the government to regulate the PIL results in widespread protests from those who are not aware of its abuse and equate any form of regulation with erosion of their fundamental rights. Under these circumstances the Supreme Court of India is required to step in by incorporating safe guards provided by the civil procedure code in matters of stay orders /injunctions in the arena of PIL. Public Interest Litigants, all over the country, have not taken very kindly to such court decisions. They do fear that this will sound the death-knell of the people friendly concept of PIL. However, bona fide litigants of India have nothing to fear. Only those PIL activists who prefer to file frivolous complaints will have to pay compensation to the opposite parties. It is actually a welcome move because no one in the country can deny that even PIL activists should be responsible and accountable. It is also notable here that even the Consumers Protection Act, 1986 has been amended to provide compensation to opposite parties in cases of frivolous complaints made by consumers. In any way, PIL now does require a complete rethink and restructuring. It is however, obvious that overuse and abuse of PIL can only make it stale and ineffective. Since it is an extraordinary remedy available at a cheaper cost to all citizens of the country, it ought not to be used by all litigants as a substitute for ordinary ones or as a means to file frivolous complaints. Meaning of Public Interest Litigation

In Black's Law Dictionary : "Public Interest Litigation means a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected." Public Interest Litigation's explicit purpose is to alienate the suffering off all those who have borne the brunt of insensitive treatment at the hands of fellow human being. Transparency in public life & fair judicial action are the right answer to check increasing menace of violation 11 | P a g e /

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of legal rights. Traditional rule was that the right to move the Supreme Court is only available to those whose fundamental rights are infringed.

But this traditional rule was considerably relaxed by the Supreme Court in its recent rulings: Peoples Union for Democratic Rights v. Union of India 3-The court now permits Public Interest Litigation or Social Interest Litigation at the instance of “Public spirited citizens" for the enforcement of constitutional & legal rights of any person or group of persons who because of their socially or economically disadvantaged position are unable to approach court for relief. Public interest litigation is a part of the process of participate justice and standing in civil litigation of that pattern must have liberal reception at the judicial door steps.

The legal infrastructure for pil: lessons from, and for, asian countries Establishing PIL as a critical component in the justice system Public Interest Litigation, which envisages challenge to governmental transgression of public rights, is a vital concomitant of the justice system. If not permitted, there would be a grave lacuna in the public law system. Justice, broadly understood, requires rebalancing the distribution of legal resources, increasing access to justice for the disadvantaged, and imbuing formal legal guarantees with substantive and positive content. To advance these critical components, there must be the necessary legal support structures in place. PIL is an important starting point. But it needs a comprehensive legal architectural framework to function effectively. This implies, no less, a change in judicial attitudes, the broadening of constitutional rights and the revision of existing procedural rules. Additionally, new remedies need to be shaped to achieve effectual and optimal results. Many Asian countries, while committed to building a strong governance ethos, in particular accountability and transparency, are handicapped by weak institutional structures and an even weaker enforcement culture. PIL provides an avenue for change. Indeed without PIL as an entrenched critical component in the justice system, the proper functioning of the rule of law is in question.

3

A.I.R.. 1982 , S C 1473.

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Establishing it in this schema then becomes a sacrosanct democratic task for all players involved in the justice delivery system: the citizenry working individually or through civil society organizations, the judiciary, lawyers, members of the bureaucracy and the government. What does this practically entail? The following discussion focuses on the essential legal infrastructure that must be constructed for the proper functioning of PIL in Asian societies. The discussion is dealt with under two broad heads: first, the effective enforcement of existing legal norms; and, secondly, the creation of new judicial norms. Enforcing Existing Legal Norms

(a) A Proactive and Independent Judiciary: Fulfilling the Constitutional Promise Courts function within a constitutional democracy founded on the rule of law. There are values inherent in this political and legal construct. It becomes the duty of the judiciary, in the exercise of its collective adjudicatory skills in cases before it, to advance these values. This requires judicial creativity; sometimes, even judicial courage. It may not be a matter of simply searching for the presence or absence of a particular provision in the constitution. This is not in itself dispositive of the nature or strength of the right. In any event constitutions were drafted at a time long gone by. They have to be made relevant to the era of an awakened citizenry. The aphorism that ‘constitutions are alive and for all time’ can only be realized by judges cognizant of their role to advance the values of justice and the proper functioning of the rule of law. Case law is replete with examples where the judiciary, in countries lacking comparable constitutional provisions, has implied constitutional rights even in the absence of a textual provision. In Asia, the constitutions of India, Pakistan and Bangaldesh have no provision protecting the environment. Yet the judges developed one of the most advanced environmental protection jurisprudence in the world. The Supreme Courts in these countries, in a series of creative steps, responded to the clarion call for justice to be done, by first recognizing that the traditional system of litigation, highly individualistic and adversarial, was ill-suited to meet the collective claims of the underprivileged. It relied on the wide power in the Constitution and other sources (such as the Directive principles, in India) to develop an appropriate method to advance and protect fundamental rights. It used this power to foster a Public Interest Litigation system to fulfill the constitutional promise of social and economic order based on equality. Proactive and enlightened members of the judiciary 13 | P a g e /

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exercised their acumen to rebalance the distribution of legal resources, increase access to justice for the disadvantaged, and imbue formal legal guarantees with substantive and positive content. Judges dismantled archaic and irrelevant procedural processes where they were barriers to access to justice. Substantive content was expanded to ensure that the social, political and economic rights guaranteed to its citizens were not thwarted. Judges devised new remedies (investigative expert panels) and cooperative styles, antithetical to the adversarial trial process. Judges delved into areas beyond their traditional fields and searched for sustenance for their decisions from international ‘soft-law’ declarations and treaties. At centre stage of all these changes was the judge furthering the democratic charter of justice. This was pithily captured by a Malaysian judge: This dictum was adopted in Malaysia in a case reputed to have ushered in public interest litigation:4In a Government so firmly founded on the principles of justice and the rule of law, the Judiciary cannot idly stand as a silent and stony pillar of democracy. The court, in its role as a public watch dog, is not expected to turn a deaf ear to the prevailing public outcry against corruption and abuse of administrative powers by authorities or their officials, however high in rank.

This then is the overarching role that a judge must commit to in order to fulfil his or her oath of office in a functioning constitutional democracy based on the rule of law.

4

Mohamed bin Ismail v Tan Sri Haji Othman Saat,

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GROWTH OF PUBLIC INTEREST LITIGATION IN INDIA

Over the last three decades or so, the device of Public Interest Litigation (PIL) has come to be recognized as a characteristic feature of the higher judiciary in India. Even though Indian courts cannot take credit for initiating the concept of ‘public law litigation’, they have in due course emerged as the site where this device has been repeatedly used to protect the interests of disadvantaged groups as well as address matters of collective concern. The phrase ‘public law litigation’ was first prominently used by American academic Abram Chayes to describe the practice of lawyers or public spirited individuals who seek to precipitate social change through court-ordered decrees that reform legal rules, enforce existing laws and articulate public norms.5 However, the evolution of Public Interest Litigation (PIL) in India, or Social Action Litigation – as Prof. Upendra Baxi chooses to describe it, has accommodated several other distinctive features.

I will first summarise the core features of the Public Interest Litigation (PIL) process and demonstrate how it marks a departure from the common-law understanding of the judicial process. After that I will present an overview of the circumstances that led to the introduction of this device which is clearly correlated to the ‘activist’ turn of the higher judiciary in India. The next component will be devoted to a survey of some prominent decisions given in Public Interest Litigation (PIL) cases and to conclude I will reflect on some of the strategies adopted to streamline the institution of cases under this category. Beginning with the first few instances in the late-1970’s, the category of Public Interest Litigation (PIL) has come to be associated with its own ‘people-friendly’ procedure. The foremost change came in the form of the dilution of the requirement of ‘locus standi’ for initiating proceedings. Since the intent was to ensure redressal to those who were otherwise too poor to

5

See: Abram Chaves, ‘The role of the judge in Public Law litigation’, 89 Harvard Law Review 1281 (May 1976)

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move the courts or were unaware of their legal entitlements, the Court allowed actions to be brought on their behalf by social activists and lawyers.6 In numerous instances, the Court took suo moto cognizance of matters involving the abuse of prisoners, bonded labourers and inmates of mental institutions, through letters addressed to sitting judges. This practice of initiating proceedings on the basis of letters has now been streamlined and has come to be described as ‘epistolary jurisdiction’. In Public Interest Litigation (PIL), the nature of proceedings itself does not exactly fit into the accepted common-law framework of adversarial litigation. The courtroom dynamics are substantially different from ordinary civil or criminal appeals. While an adversarial environment may prevail in cases where actions are brought to highlight administrative apathy or the government’s condonation of abusive practices, in most public interest-related litigation, the judges take on a far more active role in terms of posing questions to the parties as well as exploring solutions. Especially in actions seeking directions for ensuring governmental accountability or environmental protection, the orientation of the proceedings is usually more akin to collective problem-solving rather than an acrimonious contest between the counsels. Since these matters are filed straightaway at the level of the Supreme Court or the High Court, the parties do not have a meaningful opportunity to present evidence on record before the start of the court proceeding. To overcome this problem, our Courts have developed the practice of appointing ‘fact-finding commissions’ on a case-by-case basis which are deputed to inquire into the subject-matter of the case and report back to the Court. These commissions usually consist of experts in the concerned fields or practicing lawyers. In matters involving complex legal considerations, the Courts also seek the services of senior counsels by appointing them as amicus curiae on a case-by-case basis.7 For purposes of constitutional competence, these actions are characterized as those coming under the writ jurisdiction of the Supreme Court of India under Article 32 of our Constitution and the various High Courts, under Article 226. The traditional extent of writ jurisdiction was of course Refer: Susan D. Susman, ‘Distant voices in the Courts of India: Transformation of standing in Public Interest Litigation’, 13 Wisconsin International Law Journal 57 (Fall 1994) 6

See Ashok H. Desai & S. Muralidhar, ‘Public Interest Litigation: Potential and Problems’ in B.N. Kirpal et. al. (eds.), Supreme but not Infallible (OUP, 2000) 159-192, at p. 164-167 7

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a colonial inheritance from the British-era and the remedies that could be invoked were those of habeas corpus, quo warranto, mandamus, prohibition and certiorari. However, the Indian Courts have pushed the boundaries of constitutional remedies by evolving the concept of a ‘continuing mandamus’ which involves the passing of regular directions and the monitoring of their implementation by executive agencies. In addition to designing remedies for ensuring that their orders are complied with, the Courts have also resorted to private law remedies such as injunctions and ‘stay’ orders in Public Interest Litigation (PIL) matters. The Supreme Court of India has been able to shape appropriate remedies for a variety of situations on account of the wide discretionary powers for granting constitutional remedies that have been conferred on it as per the language of Article 32 of the Constitution. Furthermore, under Article 141 of the Constitution of India, the Supreme Court’s rulings are considered to be the ‘law of the land’ and become binding precedents for all courts and tribunals in the country’s legal system. Hence, the Supreme Court’s decisions in Public Interest Litigation (PIL) matters have progressively shaped a unique jurisprudence that gives due weightage to the interests of the underprivileged and backward sections in society. A significant consequence of this is that creative remedies designed for particular fact-situations come to be widely reported and are referred to by Courts all over the country. In this way, the rulings given in PIL cases create an active judicial dialogue within the whole legal system. The advent of Public Interest Litigation (PIL) is one of the key components of the approach of ‘judicial activism’ that is attributed to the higher judiciary in India. The Courts’ interventions have played a pivotal role in advancing the protection of civil liberties, the rights of workers, gender justice, and accountability of public institutions, environmental conservation and the guarantee of socio-economic entitlements such as housing, health and education among others. This has not only strengthened the position of the judiciary vis-à-vis the other wings of government, but has also raised its prestige among the general populace. However, this activist disposition of the Courts also has its critics. The principled criticism against Public Interest Litigation (PIL) is that it detracts from the constitutional principle of ‘separation of powers’ by allowing the Courts to arbitrarily interfere with policy-choices made by the legislature and pass orders that may be difficult for the executive agencies to implement. In respect of practical considerations, the criticism revolves around the behaviour of litigants as well as judges. From time to time, it has been urged that the dilution of 17 | P a g e /

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the requirement of ‘locus standi’ has opened up the floodgates for frivolous cases that either involve the litigants’ private interests or are vehicles for gaining publicity rather than seeking justice for disadvantaged groups.8 It is argued that in light of the increasing case-load before the appellate judges, the PIL cases impose an additional ‘gate-keeping’ role and impede efficiency. From the standpoint of the judges, it is reasoned that quite often there are no checks against decisions or orders that amount to ‘judicial overreach’ or ‘judicial populism’. While all of these criticisms have been offered by acclaimed scholars, senior practitioners and sitting judges as well, there is a much more compelling case in defence of the use of Public Interest Litigation (PIL). I would like to take this opportunity to present that defence. The main rationale for ‘judicial activism’ in India lies in the highly unequal social profile of our population, where judges must take proactive steps to protect the interests of those who do not have a voice in the political system and do not have the means or information to move the Courts. This places the Indian Courts in a very different social role as compared to several developed nations where directions given by ‘unelected judges’ are often viewed as unjustified restraints on the will of the majority. It is precisely this countermajoritarian function that needs to be robustly discharged by an independent and responsible judiciary. At this point I would like to recall an observation made in the matter of Bihar Legal Support Society v. The Chief Justice of India & Ors:9 “The majority of the people of our country are subjected to this denial of ‘access to justice’ and overtaken by despair and helplessness, they continue to remain victims of an exploitative society where economic power is concentrated in the hands of a few and it is used for perpetuation of domination over large masses of human beings…… The strategy of public interest litigation has been evolved by this Court with a view to bringing justice within the easy reach of the poor and disadvantaged sections of the community.”

The ‘activist’ turn of the Indian judiciary

8

See: T.R. Andhyarujina, Judicial Activism and Constitutional Democracy in India (Bombay: N.M. Tripathi, 1992)

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AIR 1987 SC 38

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Our judicial system is a very visible part of the inheritance from the British Raj. We continue to rely on a sizeable body of statutory law and precedents from the colonial period, with the exception of what is repugnant to our constitutional provisions. However, the framers of our Constitution incorporated influences from several countries and adopted the idea of ‘judicial review’ as opposed to the British notion of ‘Parliamentary sovereignty’.10 In India, the criteria for the Courts to review governmental action is threefold – the fundamental rights enshrined in Part III of the Constitution, the reasonableness of administrative actions and the demarcation of legislative competence between the Union and the States. However, the scope of this power of ‘judicial review’ was keenly contested throughout the 1950’ and 1960’s, primarily over the question of the ‘right to property’. During that phase, governments at both the Union level and most states enacted legislations providing for land acquisition in order to advance the policy of agrarian land reforms. However, many of the large landowners who were required to give up their holdings challenged these laws before the Courts on grounds such as inadequate compensation among others. While the Nehru-led government passed several Constitutional amendments with the objective of immunizing these land-reforms measures against ‘judicial review’, the Courts frequently ruled in favour of the property-owners. By the late 1960’s, this tussle between the Courts and the Congress Party controlled Parliament turned into one between the idea of ‘judicial review’ on one hand and unqualified ‘parliamentary sovereignty’ on the other hand.11 The Supreme Court itself was called upon to rule on the scope of the Parliament’s power to amend the Constitution, and it evolved the ‘Basic Structure’ doctrine in the much-cited decision in Keshavananda Bharati v. State of Kerala.12 By a narrow majority of 7-6 it was ruled that Parliament’s power of amendment was not absolute and it could not amend the ‘Basic structure’ of the Constitution, which in the opinion of the judges consisted of elements such as democracy, rule of law, secularism, separation of powers and judicial review.13 The said

There is an express provision for ‘judicial review’ in Article 13 of the Constitution of India. Article 13(1) says that “all laws that were in force in the territory of India immediately before the adoption of the Constitution, in so far as they are inconsistent with the provisions containing the fundamental rights, shall, to the extent of such inconsistency, be void.” Article 13(2) further says that “the states shall not make any law that takes away or abridges any of the fundamental rights, and any law made in contravention of the aforementioned mandate shall, to the extent of the contravention, be void.” 11 For a brief commentary on the evolution of the doctrine of ‘judicial review’ in India, See: S.P. Sathe, ‘Judicial Activism: The Indian experience’, 6 Washington University Journal of Law and Policy 29 (2001) 12 (1973) 4 SCC 225 13 See generally: Raju Ramachandran, ‘The Supreme Court and the Basic Structure Doctrine’ in B.N. Kirpal et. al. (eds.), Supreme but not Infallible (OUP, 2000) at p. 107-133 10

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decision did not curry favour with the Indira Gandhi-led government of the day and three of the judges who ruled for the majority were superseded in the matter of appointment to the position of Chief Justice of India in 1973. Nevertheless, the decision had given a clear signal in defense of judicial independence.

Around the same time, there was an increasing realization on part of the sitting judges in the Supreme Court that the judiciary was commonly perceived as an elitist body which would dispense justice only to those who could afford it. Its pro-landowner decisions had also been portrayed as an impediment to the land reforms programme by the incumbent executive agencies. Recognising the need to engage with the egalitarian Constitutional philosophy, some judges took the lead in raising concerns about improving access to justice for the underprivileged. In a report on legal aid published in 1971, Justice P.N. Bhagwati had observed: “Even while retaining the adversary system, some changes may be effected whereby the judge is given a greater participatory role in the trial so as to place the poor, as far as possible, on a footing of equality with the rich in administration of justice.”14 The Committee on Judicare consisting of Justice V.R. Krishna Iyer and Justice Bhagwati referred to Social Action Litigation as a supplemental tool to grassroots legal services programmes, in their report published in 1977. Soon after, these two judges took the lead in promoting the same by taking suo moto cognisance of matters on the basis of letters addressed to them. However, before describing the use of PIL in some significant instances, it is important to understand the other limb of the Indian judiciary’s ‘activist’ turn – i.e. a change in the understanding of constitutional rights.

The most representative right that can be examined to illustrate this change is Article 21 of the Constitution of India. Article 21 reads as follows: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” The understanding of Article 21 in the early years of the Supreme Court was that ‘personal liberty’ could be curtailed

Cited from: Ashok Desai & S. Muralidhar, ‘Public Interest Litigation: Potential and Problems’ in B.N. Kirpal et. al. (eds.), Supreme but not infallible (OUP, 2000) 159-192, at p. 161 14

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as long as there was a legal prescription for the same. In A.K. Gopalan’s case,15 the Supreme Court had ruled that preventive detention by the state was permissible as long as it was provided for under a governmental measure (e.g. legislation or an ordinance) and the Court could not inquire into the fairness of such a measure. It was held that the words ‘procedure established by law’ were different from the substantive ‘due process’ guarantee provided under the Fourteenth amendment of the US Constitution. The framers of the Indian Constitution had consciously chosen the expression ‘procedure established by law’ which requires a much lower threshold for placing restraints on individual liberty. Noted scholar Granville Austin has speculated that this pro-government orientation may have been prompted by the widespread communal violence that had taken place around the time of partition. Furthermore, it is a well known fact that Shri B.N. Rau, one of the principal draftsmen of our constitutional text had been advised about the complications of incorporating a substantive ‘due process’ clause by none other than Justice Felix Frankfurter.16 This position prevailed for several years until it was changed in Maneka Gandhi’s case.17 In that case, it was held that restraints on ‘personal liberty’ protected under Article 21 should also be tested against the guarantees of non-arbitrariness, reasonableness and fairness that were implicit in the language of Articles14, 19 and 21 of the Indian Constitution. Article 14 mandates the guarantee of ‘equal protection before the law’, while Article 19 enumerates the basic freedoms available to citizens such as free speech, peaceful assembly, association, movement and pursuit of livelihood. The Court developed a theory of ‘inter-relationship of rights’ to hold that governmental action which curtailed either of these rights should meet the designated threshold for restraints on all of them. In this manner, the Courts incorporated the guarantee of ‘substantive due processes into the language of Article 21. Many commentators have opined that this change in the interpretation of Article 21 was prompted by the experience of the ‘internal emergency’ imposed between June 1975 and March 1977 – a period that was marked by the use of arbitrary

15

A.K. Gopalan v. State of Madras, AIR 1950 SC 27

Refer: T.R. Andhyarujina, ‘The Evolution of Due Process of Law by the Supreme Court’ in B.N. Kirpal et. al. (eds.), Supreme but not infallible (OUP, 2000) at p. 193-213 16

17

Maneka Gandhi v. Union of India, AIR 1978 SC 597

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and unjust detention laws against the political opposition as well as thousands of ordinary citizens. The decision in Maneka Gandhi’s case proved to be a precursor to a series of decisions, wherein the conceptions of ‘life’ and ‘personal liberty’ came to be interpreted liberally. Primarily through the vehicle of Public Interest Litigation, the Supreme Court has continued to expand the ambit of Article 21 which now includes some guarantees for socio-economic entitlements which had not been expressly enumerated as part of the fundamental rights in the Constitution. In the words of Justice Bhagwati:18 “we think that the right to life includes the right to live with human dignity and all that goes along with it, namely the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms.”

Moreover, through innovative changes to the process for instituting proceedings, ascertaining facts and granting discretionary remedies, the Indian Courts have stepped beyond their traditional domain to render justice to women, children, bonded labourers and other oppressed sections of society. Notably, the Supreme Court has affirmed that both the Fundamental Rights enumerated in Part III of the Constitution and the Directive Principles enumerated in Part IV, must be interpreted harmoniously. It was observed in the Kesavananda Bharati decision,19 that the directive principles and the fundamental rights supplement each other and aim at the same goal of bringing about a social revolution and the establishment of a welfare State. Furthermore, in Unni Krishnan, J.P. v. State of Andhra Pradesh,20, Justice Jeevan Reddy had declared: “The provisions of Parts III and IV are supplementary and complementary to each other and not exclusionary of each other and that the fundamental rights are but a means to achieve the goal indicated in Part IV”. 18

Observations in Francis Coralie v. Union Territory of Delhi, (1981) 1 SCC 688

19

(1973) 4 SCC 225

(1993) 1 SCC 645; See ‘Chapter 5: Restructuring the Courts: Public Interest Litigation in the Indian Courts’ in Sandra Fredman, Human rights transformed – positive rights and positive duties (Oxford University Press, 2008) at p. 124-149 20

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This approach of harmonizing the fundamental rights and directive principles has been successful to a considerable extent. For example, the Supreme Court has pointed to the objectives of socioeconomic entitlements in order to interpret the right to ‘life and personal liberty’. For instance, in Olga Tellis v. Bombay Municipal Corporation,21 a journalist had filed a petition on behalf of hundreds of pavement-dwellers who were being displaced due to construction activity by the respondent corporation. The Court recognised the ‘right to livelihood and housing’ of the pavement-dwellers as an extension of the protection of life and personal liberty, and issued an injunction to halt their eviction. Similarly, in Parmanand Katara v. Union of India, the Court articulated a ‘right to health’ when it ruled that no medical authority could refuse to provide immediate medical attention in emergency cases.22 In numerous instances where the Court’s intervention has been sought in environment-related matters, it has also referred to a ‘right to a clean environment’ emanating from Article 21. The Courts have also pointed to Directive principles in interpreting the constitutional prohibitions against forced labour and child labour.

In modern democratic countries, the administrative authorities are vested with vast discretionary powers. The exercise of those powers often becomes subjective in the absence of specific guidelines etc. Hence the need for a control of the discretionary powers is essential to ensure that 'rule of law' exist in all governmental actions. The judicial review of administrative actions in the form of writ jurisdiction is to ensure that the decisions taken by the authorities are legal.

Article 32 and 226 of the constitution of India has designed for the enforcement of fundamental rights and for a judicial review of administrative actions, in the form of writs. It is a constitutional remedy available to a person to bring his complaint or grievance against any administrative action to the notice of the court. Safeguard of fundamental rights and assurance of natural justice .

21

AIR 1985 SC 180

22

AIR 1989 SC 2039

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Article 32 and 226

Writ jurisdiction is exercised by the Supreme Court and the High courts only. This power is conferred to Supreme Court by article 32 and to high courts by article 226. •Article 32(1) guarantee a person the right to move the Supreme Court for the enforcement of fundamental

rights

guaranteed

by

part

III

of

the

constitution.

•Article 32(2) empowers the Supreme Court to issue direction or orders or writs in the nature of Habeas Corpus, Certiorari, Prohibition, mandamus and Quo-warranto for the enforcement of fundamental •Article 226 empowers the state high courts to issue directions, orders or writs as mentioned above for the enforcement of fundamental rights and for 'any other purpose'. i.e., High courts can exercise the power of writs not only for the enforcement of fundamental rights but also for a 'non fundamental rights. Principles of exercise of writ jurisdiction.

The writ jurisdictions exercised by the Supreme Court under article 32 and by the high courts under article 226, for the enforcement of fundamental rights are mandatory and not discretionary. But the writ jurisdiction of high courts for 'any other purpose' is discretionary. In that sense the writ jurisdiction of high courts are of a very intrinsic nature. Hence high courts have the great responsibility of exercising this jurisdiction strictly in accordance with judicial consideration.

Writs are meant as prerogative remedies. The five writs incorporated under articles 32 and 226 are known as prerogative writs in English law because they were originated in the king's prerogative power of superintendence over the due observance of law by his officers and tribunals. Such prerogative writs are extraordinary remedies. When ordinary legal remedies seem

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inadequate,

in

exceptional

cases,

writs

are

applied.

Writ Jurisdiction Under Article 32 and 226 A writ is a directive issued by the Supreme Court and High Courts in India to carry out their directives for the enforcement of the fundamental right and/or legal right of the affected person. The Supreme Court can issue writs under Article 32 of the Constitution while the High Courts can issue writs under Article 226 of the Constitution. The different types of writs and their scope are explained below. How is the Writ Jurisdiction of High Courts Wider than the Supreme Court? The Supreme Court can issue writs only for the enforcement of fundamental rights under Article 32, whereas, the High Courts can issue writs for the enforcement of fundamental rights as well as for any other purpose i.e. enforcement of ordinary legal rights as well. This makes their writs jurisdiction wider. However, the territorial jurisdiction of the writs issued by the Supreme Court is applicable throughout the country while the writs issued by the High Court have validity only in the territory under the authority of the High Court or where the cause of action has arisen. Different Types of Writs and their Scope Habeas Corpus It literally means ‘to have the body of’. It is issued against both private and public persons to produce the body of a person who has been illegally detained by the public or private person. Thus it is a bulwark against illegal detention. The Supreme Court explains the meaning of writ petition of Habeas Corpus very well in the case of P.S. SADASHIV SWAMI vs. STATE OF TAMIL NADU (AIR 1974 SC 2271). Thus, the explanation of writ petition meaning is as follows: 1. Court has the authority to ask questions regarding the causes of detention of the detained person. 25 | P a g e /

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2. The court can issue a summon for the production of the detained person in the court. 3. If it is concluded that the detention of the person is illegal, it can order for the release of the person.

One can file the writ petition of Habeas Corpus in any of the courts, be it High Court or the Supreme Court. Also, one can issue it under the following circumstances where: 1. The person has been detained but has not been produced before the magistrate within 24 hours of arrest. 2. The arrest has been made without any violation of law done by the person. 3. The arrest has been made for an unconstitutional law i.e. a law against the provisions of the Indian Constitution, 4. Detention is done with malafide intent, or with the intent to harm the persons. Who can file a writ of Habeas Corpus? Generally, the person who is an illegal detainee files the writ of habeas corpus. To begin the writ process for filing a petition of Habeas Corpus, one can file it and issue it against any public authority or any particular individual. However, in certain cases, the court may allow other people to file a writ of habeas corpus on behalf of the detained person who can their friend or relative.

Mandamus It literally means ‘we command’. The writ of mandamus is a command issued by the court to a public official asking him or her to perform his or her official duties that he or she has failed or refused to perform. It can also be issued against any public body, a corporation, an inferior court, a tribunal or government for the same purpose. The writ of mandamus cannot issued against a private individual or body. The essential requirements of the Mandamus writ petition for the court 26 | P a g e /

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were described by the Supreme Court in the case of MANI SHOBHREJ JAIN vs STATE OF HARYANA (1977 (1) SCC 486). The court laid down the following requirements of the writ of mandamus: 1. There should be a legal right in existence, 2. The legal right should be enforceable by the court, 3. Enforcement of such a right must impose a responsibility of per on a person, public authority, corporation or government, 4. Such duty is of public nature.

Writ of mandamus can be issued against the following : 1. An individual or a private body, 2. If the duty which is the subject matter is discretionary and not mandatory, 3. It can be issued against the president or the governor of the state, 4. Against an acting chief justice, 5. To enforce a private contract. Who can file the Writ of Mandamus? Any person is it an individual or a private body can file for the court petition under the writ of mandamus, only if they have legal rights in the concerned matter to do so. Under the writ of mandamus, you can file a petition even against the president of the country. If the court thinks that the public authority has failed to perform its duty, the court may issue the writ of mandamus.

Prohibition It literally means ‘to forbid’. The writ of prohibition is issued by a higher court like the High Court to a lower court like the District Court or Tribunal to prevent the latter from exceeding its 27 | P a g e /

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jurisdiction or taking over a jurisdiction that it did not possess in the first instance. Therefore the writ of prohibition is opposite to mandamus in so far as unlike mandamus that directs activity, the writ of prohibition directs inactivity. The writ of prohibition can only be issued against judicial and quasi-judicial authorities and not against administrative authorities, legislative bodies, and private individuals or bodies. The Supreme Court in the case of GOVIND MENON vs. UOI (AIR 1967 SC 1893) laid down the conditions in which one can issue the writ of prohibition. The conditions by the court are: 1. When there is an excess of jurisdiction, or 2. When there is an absence of jurisdiction.

Difference between Mandamus and Prohibition In the Writ of Mandamus, where the court like the High Court, directs the performance of an activity to a lower court. Whereas in the Writ of Prohibition, the higher court like the Supreme Court orders to stop doing something which is in excess of their jurisdiction. You can issue the writ of mandamus against any judicial, quasi-judicial and administrative authority. Whereas you can issue a writ of prohibition only against judicial or quasi-judicial authority and not against the administrative authorities.

Certiorari The writ of certiorari is issued by a higher court to a lower court or tribunal either to transfer a case pending with the latter to itself or to squash the order of the latter in a case on the grounds of excess jurisdiction or lack of jurisdiction or error of law. Thus, unlike prohibition, which is only preventive in nature, the writ of certiorari is both preventive as well as curative.

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In the case of STATE OF UP vs MOHAMMED NOOR (AIR 1958 SC 816), the supreme court stated that one can issue the writ of certiorari. To mainly reform the jurisdiction-related mistakes of the inferior court or tribunal. Subsequently, in another judgment of HARI VISHNU KAMATH vs. AHMED ISHAQ (AIR 1995 SC 233). The Supreme Court held that one can only issue the writ of certiorari to correct the errors apparent on the face of records, but not for the correction of an error of fact. The Essential Condition for Writ of Certiorari 1. There should be court, tribunal or an officer having the legal authority to determine the question with a duty to act judicially. 2. Such a court, tribunal or officer must have passed an order acting without jurisdiction. Or in excess of the judicial authority vested by law in such court, tribunal or officer. 3. The order could also be against the principles of natural justice. Or the order could contain an error of judgment in appreciating the facts of the case.

Quo-Warranto Quo-warranto literally means ‘by what authority or warrant’. In this sense it is asking a asking to a public authority. It is issued by the court to enquire into the legality of claim of a person to a public office to prevent illegal occupation of the office by the person. The writ of quo-warranto can be issued only in case of a substantive public office of a permanent character created by a statute or by the Constitution. It cannot be issued in cases of ministerial office or private office. The supreme court in the case of UNIVERSITY OF MYSORE vs. GOVIND RAO laid down the requirements of the petition of quo-warranto which are as follows: 1. A disputed post must be the public post. 2. The post should be held by the person without any legal authority. 29 | P a g e /

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3. The office must be a substantive one and not merely the function or employment of a servant at the will and during the pleasure of another

One should know the stages of a writ petition in order to file a petition in the high court or supreme court. The stepwise procedure is as follows: 

Draft writ petition – for which you can hire a top civil lawyer. He/She will help you in drafting and representation in the court.



After drafting, you can file the petition at the filing counter in court.



On the date of hearing, the court will admit the petition and send a notice to the other party.



Then, the court will fix another date for the hearing. This will be in the presence of such other party if it chooses to appear.



Here the court will finally consider all the contents of the petition, thereby granting a relief accordingly.

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Milestones of Public Interest Litigation in India

Landmark cases of PIL

In the Rights of Prisoners

One of the earliest cases of public interest litigation was that reported as Hussainara Khatoon (I) v. State of Bihar.23 This case was concerned with a series of articles published in a prominent newspaper - the Indian Express which exposed the plight of undertrial prisoners in the state of Bihar. A writ petition was filed by an advocate drawing the Court’s attention to the deplorable plight of these prisoners. Many of them had been in jail for longer periods than the maximum permissible sentences for the offences they had been charged with. The Supreme Court accepted the locus standi of the advocate to maintain the writ petition. Thereafter, a series of cases followed in which the Court gave directions through which the ‘right to speedy trial’ was deemed to be an integral and an essential part of the protection of life and personal liberty.

Soon thereafter, two noted professors of law filed writ petitions in the Supreme Court highlighting various abuses of the law, which, they asserted, were a violation of Article 21 of the Constitution.24 These included inhuman conditions prevailing in protective homes, long pendency of trials in court, trafficking of women, importation of children for homosexual purposes, and the non-payment of wages to bonded labourers among others. The Supreme Court accepted their locus standi to represent the suffering masses and passed guidelines and orders that greatly ameliorated the conditions of these people. In another matter, a journalist, Ms. Sheela Barse25, took up the plight of women prisoners who were confined in the police jails in the city of Bombay. She asserted that they were victims of custodial violence. The Court took cognizance of the matter and directions were issued to the

(1980) 1 SCC 81; See Upendra Baxi, ‘The Supreme Court under trial: Undertrials and the Supreme Court’, (1980) Supreme Court Cases (Journal section), at p. 35 23

24

Upendra Baxi (Dr) v. State of U.P., (1983) 2 SCC 308

25

Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96

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Director of College of Social Work, Bombay. He was ordered to visit the Bombay Central Jail and conduct interviews of various women prisoners in order to ascertain whether they had been subjected to torture or ill-treatment. He was asked to submit a report to the Court in this regard. Based on his findings, the Court issued directions such as the detention of female prisoners only in designated female lock-ups guarded by female constables and that accused females could be interrogated only in the presence of a female police official. Public interest litigation acquired a new dimension – namely that of ‘epistolary jurisdiction’ with the decision in the case of Sunil Batra v. Delhi Administration,26 It was initiated by a letter that was written by a prisoner lodged in jail to a Judge of the Supreme Court. The prisoner complained of a brutal assault committed by a Head Warder on another prisoner. The Court treated that letter as a writ petition, and, while issuing various directions, opined that: “…technicalities and legal niceties are no impediment to the court entertaining even an informal communication as a proceeding for habeas corpus if the basic facts are found”. In Municipal Council, Ratlam v. Vardichand,27 the Court recognized the locus standi of a group of citizens who sought directions against the local Municipal Council for removal of open drains that caused stench as well as diseases. The Court, recognizing the right of the group of citizens, asserted that if the: "…centre of gravity of justice is to shift as indeed the Preamble to the Constitution mandates, from the traditional individualism of locus standi to the community orientation of public interest litigation, the court must consider the issues as there is need to focus on the ordinary men." In Parmanand Katara v. Union of India,28 the Supreme Court accepted an application by an advocate that highlighted a news item titled "Law Helps the Injured to Die" published in a national daily, The Hindustan Times. The petitioner brought to light the difficulties faced by persons injured in road and other accidents in availing urgent and life-saving medical treatment,

26

(1978) 4 SCC 494

27

(1980) 4 SCC 162

28

(1989) 4 SCC 286

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since many hospitals and doctors refused to treat them unless certain procedural formalities were completed in these medico-legal cases. The Supreme Court directed medical establishments to provide instant medical aid to such injured people, notwithstanding the formalities to be followed under the procedural criminal law. In many other instances, the Supreme Court has risen to the changing needs of society and taken proactive steps to address these needs. It was therefore the extensive liberalization of the rule of locus standi which gave birth to a flexible public interest litigation system. A powerful thrust to public interest litigation was given by a 7-judge bench in the case of S.P. Gupta v. Union of India.29 The judgment recognized the locus standi of bar associations to file writs by way of public interest litigation. In this particular case, it was accepted that they had a legitimate interest in questioning the executive’s policy of arbitrarily transferring High Court judges, which threatened the independence of the judiciary. Explaining the liberalization of the concept of locus standi, the court opined: “It must now be regarded as well-settled law where a person who has suffered a legal wrong or a legal injury or whose legal right or legally protected interest is violated, is unable to approach the court on account of some disability or it is not practicable for him to move the court for some other sufficient reasons, such as his socially or economically disadvantaged position, some other person can invoke the assistance of the court for the purpose of providing judicial redress to the person wronged or injured, so that the legal wrong or injury caused to such person does not go unredressed and justice is done to him.” The unique model of public interest litigation that has evolved in India not only looks at issues like consumer protection, gender justice, prevention of environmental pollution and ecological destruction, it is also directed towards finding social and political space for the disadvantaged and other vulnerable groups in society. The Courts have given decisions in cases pertaining to different kinds of entitlements and protections such as the availability of food, access to clean air, safe working conditions, political representation, affirmative action, anti-discrimination measures and the regulation of prison conditions among others.

29

(1981) Supp. SCC 87

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In the Rights of Children

People’s Union for Democratic Rights v. Union of India,30 a petition was brought against governmental agencies which questioned the employment of underage labourers and the payment of wages below the prescribed statutory minimum wage-levels to those involved in the construction of facilities for the then upcoming Asian Games in New Delhi. The Court took serious exception to these practices and ruled that they violated constitutional guarantees. The employment of children in construction-related jobs clearly fell foul of the constitutional prohibition on child labour and the non-payment of minimum wages was equated with the extraction of forced labour. Similarly, in Bandhua Mukti Morcha v. Union of India,31 the Supreme Court’s attention was drawn to the widespread incidence of the age-old practice of bonded labour which persists despite the constitutional prohibition. Among other interventions, one can refer to the Shriram Food & Fertilizer case32 where the Court issued directions to employers to check the production of hazardous chemicals and gases that endangered the life and health of workmen. It is also through the vehicle of PIL, that the Indian Courts have come to adopt the strategy of awarding monetary compensation for constitutional wrongs such as unlawful detention, custodial torture and extra-judicial killings by state agencies.33

30

AIR 1982 SC 1473

31

(1984) 3 SCC 1in 61 (1986) 2 SCC 176 33 See observations justifying the payment of compensation for human rights violations by state agencies in the following decisions: Bhim Singh v. State of Jammu and Kashmir, (1985) 4 SCC 677; Nilabati Behera v. State of Orissa, (1993) 2 SCC 746; D.K. Basu v. Union of India, (1997) 1 SCC 416; Also see: Lutz Oette, ‘India’s International obligations towards victims of human rights violations: Implementation in domestic law and practice’ in C. Raj Kumar & K. Chockalingam (eds.), Human rights, Justice and Constitutional empowerment (OUP, 2007) at p. 462-485 32

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In the Rights of Environment

In the realm of environmental protection, many of the leading decisions have been given in actions brought by renowned environmentalist M.C. Mehta. He has been a tireless campaigner in this area and his petitions have resulted in orders placing strict liability for the leak of Oleum gas from a factory in New Delhi,34 directions to check pollution in and around the Ganges river,35 the relocation of hazardous industries from the municipal limits of Delhi,36 directions to state agencies to check pollution in the vicinity of the Taj Mahal37 and several afforestation measures. A prominent decision was made in a petition that raised the problem of extensive vehicular air pollution in Delhi. The Court was faced with considerable statistical evidence of increasing levels of hazardous emissions on account of the use of diesel as a fuel by commercial vehicles. The Supreme Court decided to make a decisive intervention in this matter and ordered governmentrun buses to shift to the use of Compressed Natural Gas (CNG), an environment-friendly fuel.38 This was followed some time later by another order that required privately-run ‘auto rickshaws’ (three-wheeler vehicles which meet local transportation needs) to shift to the use of CNG. At the time, this decision was criticized as an unwarranted intrusion into the functions of the pollution control authorities, but it has now come to be widely acknowledged that it is only because of this judicial intervention that air pollution in Delhi has been checked to a substantial extent. Another crucial intervention was made in Council for Environment Legal Action v. Union of India,39 wherein a registered NGO had sought directions from the Supreme Court in order to tackle ecological degradation in coastal areas. In recent years, the Supreme Court has taken on the

34

M.C. Mehta v. Union of India, (1987) 1 SCC 395 M.C Mehta v. Union of India (1988) 1 SCC 471 36 M.C. Mehta v. Union of India, (1996) 4 SCC 750 37 M.C. Mehta v. Union of India, (1996) 4 SCC 351; Also see Emily R. Atwood, ‘Preserving the Taj Mahal: India’s struggle to salvage cultural icons in the wake of industrialisation’, 11 Penn State Environmental Law Review 101 (Winter 2002) 38 See decision in M.C. Mehta v. Union of India, (1998) 8 SCC 648; Also refer: Armin Rosencranz & Michael Jackson, ‘The Delhi Pollution case: The Supreme Court of India and the limits of judicial power’, 28 Columbia Journal of Environmental Law 223 (2003) 35

39

(1996) 5 SCC 281

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mantle of monitoring forest conservation measures all over India, and a special ‘Green bench’ has been constituted to give directions to the concerned governmental agencies. At present, I am part of this Green bench and can vouch for the need to maintain judicial supervision in order to protect our forests against rampant encroachments and administrative apathy.

In the Rights of Women An important step in the area of gender justice was the decision in Vishaka v. State of Rajasthan.40 The petition in that case originated from the gang-rape of a grassroots social worker. In that opinion, the Court invoked the text of the Convention for the Elimination of all forms of Discrimination against Women (CEDAW) and framed guidelines for establishing redressal mechanisms to tackle sexual harassment of women at workplaces. Though the decision has come under considerable criticism for encroaching into the domain of the legislature, the fact remains that till date the legislature has not enacted any law on the point. It must be remembered that meaningful social change, like any sustained transformation, demands a long-term engagement. Even though a particular petition may fail to secure relief in a wholesome manner or be slow in its implementation, litigation is nevertheless an important step towards systemic reforms. A recent example of this approach was the decision in People’s Union for Civil Liberties v. Union of India,41 where the Court sought to ensure compliance with the policy of supplying mid-day meals in government-run primary schools. The mid-day meal scheme had been launched with much fanfare a few years ago with the multiple objectives of encouraging the enrolment of children from low-income backgrounds in schools and also ensuring that they received adequate nutrition. However, there had been widespread reports of problems in the implementation of this scheme such as the pilferage of food grains. As a response to the same, the Supreme Court issued orders to the concerned governmental authorities in all States and Union Territories, while giving elaborate directions about the proper publicity and implementation of the said scheme.

(1997) 6 SCC 241; See D.K. Srivastava, ‘Sexual harassment and violence against women in India: Constitutional and legal perspectives’ in C. Raj Kumar & K. Chockalingam (eds.), Human rights, Justice and Constitutional empowerment (OUP, 2007)at p. 486-512 40

41

(2007) 1 SCC 728

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Recent Cases of PIL

Cases against the famous Khan troika of Salman, Shah Rukh and Aamir, dispute between Thackeray brothers Udhav and Jaidev over father's will, NSEL scam and a spate of public interest litigations in the Bombay High Court dominated the legal scenario in Maharashtra during 2014. Cases related to former Miss World Yukta Mookhey's divorce, actor Shiney Ahuja's hearing, Vodafone IT issue and Adarsh scam also made news. A fresh trial resumed in a sessions court in the 2002 hit-and-run case involving Salman with prosecution examining more than 15 witnesses during the year. The trial has reached its fag end with a few more witnesses waiting to be examined. Salman is facing the charge of culpable homicide not amounting to murder which attracts sentence up to 10 years. Earlier, he was being tried by a magistrate for rash and negligent driving which prescribes punishment up to two years. In a relief to Shah Rukh, the high court in June dismissed a petition filed by activist Varsha Deshpande against a magistrate's order not allowing her access to records of the surrogate mother in the case of actor's newborn child in 2013. Deshpande had sought prosecution of the actor, his wife and their doctors on the basis of a media report in June 2013 which claimed that the star couple were having a baby boy through surrogacy. Shah Rukh denied the allegations. In another development in early December, the Income Tax Appellate Tribunal overturned an order of the tax authorities to add Rs 2.28 crore to Shah Rukh's net wealth as he had lent his wife as interest free loan to buy flat and jewellery. The superstar's wife Gauri had used Rs 1.65 crore of the loaned amount to buy a house in Delhi and Rs 63 lakh for jewellery. Commissioner of Income Tax (Appeals) had ordered adding the amount to Shah Rukh's net wealth for Assessment Year 2005-06 on ground that it amounted to transfer of assets. 37 | P a g e /

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A civil suit was filed against Aamir and producer and director of his film "PK" challenging the semi-nude poster of the actor saying it displayed vulgarity. The court ruled in December that it had the jurisdiction to hear the suit. In the matrimonial dispute, Mookhey and her estranged husband Prince Tuli were granted divorce as a result of mutual consent by a family court. Later, the Bombay High Court quashed the FIR registered against Tuli at Yukta's instance. The court also asked police to hand over personal belongings of the estranged couple, collected as evidence, to the respective parties following their amicable settlement. Ahuja filed an appeal in the high court against his conviction and sentence in a rape case but the court refused to expedite the hearing observing older cases were pending and the actor was already out on bail. In 2009, Ahuja was sentenced to seven years rigorous imprisonment for raping his domestic help. Hearing a PIL against extension of parole granted to actor Sanjay Dutt, convicted in the 1993 bomb blast case, the high court pulled up the state government for showing "extra diligence" in the matter and discriminating between him and other convicts. The court also directed the state's Chief Secretary to form a committee comprising senior home, law and judiciary department officials, representatives of jail administration and other competent officers to suggest amendments to the rules and procedure related to screening of parole and furlough applications. The PIL argued that while Dutt's application for parole and then its extension were decided within a week, similar applications of other convicts were kept pending for months together. In August, the high court granted conditional bail to FTIL founder Jignesh Shah in the Rs 5000 crore NSEL scam over three months after he was arrested in the case. The trial court had earlier rejected his bail plea on the ground the investigation was still on and he could tamper with evidence or hamper the probe if released.

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Shah came under the scanner of EOW and other agencies in 2013 when NSEL, part of the Financial Technologies (India) Limited group founded by him, faced a payment crisis as nearly 18,000 of its investors allegedly lost millions of rupees. In October, the high court ruled that Vodafone is not liable to pay an income tax demand of Rs 3,200 crore in a case relating to transfer pricing. The verdict came as a big relief for the UKbased mobile service provider which is already locked in a big tax dispute with the government. The I-T Department had asked the company to pay additional income tax during FY10 alleging that it had undervalued its shares in subsidiary Vodafone India Services while transferring them to the parent company in Britain. In another case in November, the I-T department lost its Rs 18,000-crore transfer pricing cases against oil firm Shell India in HC, which quashed the department's tax order. The tax sleuth had added Rs 15,000 crore and Rs 3,000 crore respectively to the taxable income of Shell India Markets Pvt Ltd, the Indian subsidiary of Royal Dutch Shell Plc, for the FY 200708 and FY 2008-09 in two transfer pricing cases. Hearing a PIL, the high court, in October, asked Reserve Bank of India to respond to a petition which sought CBI probe into fraudulent grant of loans and consequent rise in nationalised banks' non-performing assets. The PIL said NPAs of nationalised banks jumped from Rs 455 crore in March 2008 to Rs 9,190 crore in March 2012 according to data obtained under the Right to Information Act. Thackeray's brothers Udhav and Jaidev got entangled in a legal dispute over their father's will. The HC advised both siblings to settle amicably by giving them time until January 6, 2015. Udhav had moved the high court to probate the will left behind by Shiv Sena chief Bal Thackeray in which he had got a major share. Jaidev, who did not get any share, challenged the will saying his father was not in sound mind while signing it.

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In the Adarsh scam case, the high court in November rejected CBI's plea to remove former Maharashtra Chief Minister Ashok Chavan's name from accused in the FIR. Aggrieved Chavan moved the high court recently to recall the impugned order which was stayed for six weeks. The high court, on November 14, stayed the implementation of the controversial decision of the erstwhile Congress-NCP government in Maharashtra to provide reservation to Marathas in government jobs and educational institutions announced ahead of the state Assembly election. It also stayed the decision to provide five per cent reservation to Muslims in government service but allowed quotas for them in educational institutions. Admitting a batch of PILs, a bench headed by Chief Justice Mohit Shah said the Supreme Court had already laid down the law for reservation which cannot exceed 50 per cent of the total seats. 52 per cent seats in government jobs and educational institutions were already reserved for the targeted groups and the Congress-NCP government had, in the run up to the Assembly poll, raised it to 73 per cent by announcing 16 per cent quotas for Marathas and five per cent for Muslims. The State moved the Supreme Court by filing an appeal but the apex court refused to interfere and referred the matter back to the high court. Hearing another PIL filed by activist Ketan Tirodkar, the high court, on October 9, appointed Justice J A Patil (retd) to probe alleged irregularities in the allotment of flats under the Maharashtra Chief Minister's discretionary housing quota since 1982. Retd Judge Patil is functioning from Pune and has been given office and infrastructure to carry out the probe. In another petition filed by Tirodkar, the court, on May 9, transferred to CBI the probe into the murder of anti- superstition activist Narendra Dabholkar in Pune in August 2013. Earlier, Pune police was investigating the high-profile case but there was no headway following which a PIL was filed seeking a CBI probe into the case. The high court, on December 4, dismissed a bunch of PILs challenging the decision of Maharashtra Assembly Speaker who had ordered a 'voice vote' instead of a head count, enabling 40 | P a g e /

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the newly-elected BJP government to prove its majority in the House last month. The court said it did not have the jurisdiction to hear such PILs challenging Speaker's decision in the house. The court on April 10 dismissed a PIL seeking postponement of Satara Lok Sabha election following NCP chief Sharad Pawar's "ink" and "double voting" remark. It observed that it cannot interfere in election process and cannot direct the Election Commission to change or postpone poll dates. In another development, the high court, in December, ordered a probe by a special investigation team into allegations of money laundering against former Maharashtra PWD minister Chhagan Bhujbal, his son Pankaj and nephew Sameer in connection with certain contracts awarded to private firms. The petition was filed by Aam Aadmi Party. Hearing yet another petition, the high court, in early December, gave three months to Maharashtra government to frame a fresh policy on providing protection to witnesses in the light of the observations made by the Law Commission of India. Picking holes in the existing policy, the court observed the term witness should include not only those who are going to depose in the court but anyone who possesses information and documents related to a crime. In another PIL on allegations about custodial deaths, the high court in August asked the Maharashtra government to install CCTV cameras in all police stations across the state. Again, in November, on the same issue, the court granted four weeks further time to carry out this exercise. Hearing a PIL seeking a ban on participation of children in the mourning ritual of Muharram, the high court appealed to the religious leaders to look into the issue. Members of Shia community opposed the PIL and court allowed them to intervene. The matter is pending decision. Another PIL sought a direction to civic bodies in Maharashtra to prevent the spread of dengue and urged that the disease should be declared as an epidemic as several persons have lost their lives. The high court has asked municipal corporations to take steps in this regard.

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A petition in the court urged for a direction to the state government to tighten security during Kumbh Mela which comes after 12 years in Nasik in 2015. The court has sought the government's reply to the PIL.

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WRITS

-

HABEOUS CORPUS In the Supreme Court of India, New Delhi

(In exercise of jurisdiction under Art.,32 of the Constitution)

Mr. ………………………………, s/o. ………………………… village ……………….., district …………………….., at present detained at……………………. District Jail at……….

…………….

Petitioner

Versus

(1) The State of ………

}

(2) The District Magistrate, ……….. and

} Respondents.

(3) The Superintendent, District Jail, ………

}

Hon'ble Shri ………………….……., Chief Justice of India and his companion Justices of the Supreme Court of India.

This humble petition of the petitioner above named under Art. 32 of the Constitution of India praying for a writ of habeas corpus or such other writ, direction or order as the court may deem 43 | P a g e /

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fit directing the respondents to cause the production of the petitioner in court and directing him to be set at liberty in accordance with law respectfully.

Sheweth:

1. That the petitioner is a respectable law-abiding citizen of India and was arrested by the ………………… [City Name] ……….…… [State] Police on the ………… day of……………. 20……. and is now confined as a detenu under the orders of the second respondent in the custody of third respondent in the District Jail at …………….

2. That the detention of the petitioner purports to be under the Preventive Detention Act, 1950.

3. That the petitioner was given the following grounds of detention under Sec. …… of the Preventive Detention Act, 1950 on the …………. day of ………. 20………

(i) On ………….……… you participated in the general meeting of the ..………. when a resolution delegating full powers to …..……… to manage the affairs of the ………..…. was passed. You also participated in an informal meeting of the …………… workers on ………., when it was decided to hold ….……. Convention on the …….………. day of …..… 20…… As a result of these meetings a resolution, sponsored by ………. has been passed by the Working Committee of the …….. on the ……… to the effect that if the …….. M. L. A's of the ………. [State] Legislative Assembly do not voluntarily quit……., they will be compelled to do so by coercive methods.

(ii) You have in public utterances declared yourself to be a firm believer in leadership of….. and, 44 | P a g e /

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according to you, he is the only person who could deliver goods to the…….. Community. You are of the view that in the long run…….. who were at present working as henchmen of the ….……. would also have to revert to the ……..'s lead.

(iii) Now that a resolution making the intentions of the…….. very clear has been passed that unlawful methods will be adopted, it is strongly believed that in pursuance of that resolution you will commit acts prejudicial to public order.

"Your detention has therefore been ordered to ensure the maintenance of public order."

4. That the petitioner was advised that his arrest and detention is illegal, mala fide and capricious. One ……………… therefore moved the Hon'ble High Court of Judicature for the State of …………. at ……….[Place] on …….. in Criminal Miscellaneous Petition No. …… of ……. under Art. 226 of the Indian Constitution read with Sec. 491 of the Criminal Procedure Code praying for a writ a habeas corpus for the release of the petitioner.

5. That the said Hon'ble High Court was pleased to reject the above said petition of the petitioner herein by its judgment dated……….

6. That the petitioner is not satisfied with the orders of the Hon'ble High Court for the State of ………….. at ……….. [Place], and the petitioner is informed that the said ……..…….. is separately taking steps for obtaining leave to appeal against that order of the High Court.

7. That, in any case the petitioner is advised that his continued detention in the above circumstances is in direct violation of his fundamental rights (as herein below detailed) and 45 | P a g e /

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therefore begs to move this Hon'ble Court under Art. 32 of the Constitution of India for a writ of habeas corpus or other appropriate writ, order or direction directing the respondents to release the petitioner forthwith on the following amongst other

Ground

(i) For that none of the grounds mentioned in para 3 above has any proximate connection or relevancy to the maintenance of public order.

(ii) For that it is an abuse of the process granted to the Executive under the Preventive Detention Act, ……… to detain the petitioner for joining in any procession or making of any speeches as alleged in sub-paragraphs (i) and (ii) of para 3 above. Such use of the Act is mala fide.

(iii) For that similarly the use of the said Act for the detention of the petitioner in respect of the alleged activities of the petitioner as mentioned in sub-paragraphs (i) and (iii) of para 3 above is mala fide.

(iv)

For

that

the

Resolution

of

the

Working

Committee

dated

…………

is

unobjectionable…………. has been released from custody on the ground that provisions of law under which he was being prosecuted, viz., Sec. 124-A and Sec. 153-A, I.P.C., etc. have been held to be ultra vires the Constitution. The whole superstructure built by the second respondent countenanced and accepted as correct by the High Court, in its judgment referred to above falls to the grounds.

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(v) For that the learned Judges of the High Court erred in taking into consideration the speech made by………. and linking the same with the Resolution of the Working Committee.

(vi) For that it is not proper to hold that any alleged past activities of the appellant not resulting in any disturbance of public order then, could from the basis of an assumption regarding the likelihood of an imminent danger of the breach of peace now, at this distance of time; nor could the passing of the Resolution of the Working Committee dated……….. bring about a change in conditions as alleged with the consequential apprehended disturbance of public tranquility. The assumption is unfounded and unreasonable. Further, the petitioner was not even a member of the said Working Committee.

(vii) For that the satisfaction of the learned District Magistrate was not based on such materials or grounds which could reasonably form the basis of an order of detention such as the one passed in this case. It is a camouflage to state that the allegations contained in the said grounds were such as were likely to be prejudicial to the maintenance of public order.

(viii) For that the detention of the petitioner is not in accordance with procedure established by law.

(ix) For that the Preventive Detention Act, …………….. is ultra vires the Constitution inter alia for the following reasons :

(a) It offends against the provisions of Art. 19(1) (a) of the Constitution in as much as it proceeds to do indirectly what it could not do directly in the matter of unjustifiably restricting the freedom of speech and expression, vide ground in sub-paragraphs (i) and (ii).

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(b) It offends similarly against the provisions of Article 19(1)(b) of the Constitution inasmuch as it operates unreasonably on peaceable assembly without arms, vide ground mentioned in sub-paragraphs (ii) of para 3 above.

(c) It offends similarly against the provisions of Article 19(1) (c ) of the Constitution, vide grounds mentioned in sub-paragraphs (i) and (iii) of para 3 above.

(d) Section 3 of the said Act is contrary to procedure established by law. The subjective suggestion provided for in the section is ultra vires the Constitution.

(e) Section 7 of the said Act provides for representation to the State Government itself which is repugnant to fundamental principle of law that no man can be judge in his own cause.

(i) For that the extension dated…….. of the detention order is ultra vires and illegal. Further no grounds in respect of the extension of detention order have been supplied to the petitioner.

(ii) For that the detention order itself mentions "That security of State and the maintenance of public order," the grounds supplied relate only to the maintenance of public order. The said detention order is in itself either vague and inoperative or illegal.

(iii) For that that decision in ……………….. case does not form appropriate precedent in this matter as it was given in a different factual context. For the same reason ……………….. case is not so binding and further the purpose therein was different and the Constitution did not operate thereon.

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(iv) For that the decision in ……………….. case loses much of its validity and operation as precedent as there were competing reasons given by different judges which almost neutralize each other leaving the field clear.

(v) For that in ………………..case reference was made to "due process of law" the Draft Committee's Report, the Debates, etc. Such matters could not be referred to. Personal liberty has always been understood to include freedom of speech and right of association and peaceable assembly. Constitutions are interpreted in a manner in many respects peculiar to themselves. The correct approach to the problem of interpreting Articles 19 to 21 of the Constitution has been entirely overlooked. The well-known rules of interpretation have been ignored in this behalf. Even in matters of procedure the various fundamental principles which form now the basis of legislation in this behalf for generations past are easily ascertainable and have been declared by the Judge in India and in the Privy Council and are now well established. To say that any enactment of Parliament forms the procedure established by law is contrary to the Constitution and is not good law.

8. Your humble petitioner therefore begs to pray that Your Lordships may be pleased to issue rule nisi to the respondents directing them to produce the petitioner before this Hon'ble Court and to justify his detention in accordance with procedure established by law and that after hearing the parties, Your Lordships may be pleased to issue a writ of habeas corpus or other appropriate writ or direction to set the petitioner at liberty. For which favour this humble petitioner shall ever pray.

Delhi………….. (Sd.) Advocate,

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Dated …………..

Settled by Supreme Court.

Senior Advocate, Supreme Court.

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WRIT

PROHIBITION

IN THE HON’BLE HIGH COURT OF JUDICATURE AT_________

(Original Civil Jurisdiction)

Writ Petition No_________. of _________20 _________

AA. son of _________resident of _________ Petitioner. Versus

1. State of _________

2. BB, Inspector-General of Police _________

3. CC., Inspector of Police _________ Respondents. Petition under Article 226 of the Constitution for the issue of a writ of prohibition.

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To The Hon’ble the Chief Justice and his companion Judges of the Hon’ble High Court.

The

above

named

Petitioner

begs

to

submit

as

under

:

1. That he was appointed a Sub-Inspector of Police in the State of _________on _________

2. That he served the State in various capacities, to wit as _________. in _________at _________and

as

_________in

_________at_________

3. That while he was stationed at _________and serving as _________, he was served with a charge-sheet

dated

_________a

copy

whereof

is

filed

herewith.

4. That enquiry into the said charges was made by Respondent No. 3 from _________to _________who submitted a report dated _________to Respondent No. 2 finding the charges mentioned

in

the

charge-sheet

above-mentioned

to

be

proved.

5. That according to Rule _________of _________the charges aforementioned could not be enquired into except by an officer of the rank of Superintendent of Police of _________Division or with the approval of Respondent No. 2 of another Division in the State of _________

6. That on _________the Petitioner received a notice from Respondent No. 2 to show cause why he

should

not

be

dismissed

from

service.

7. That the aforesaid enquiry was illegal and ultra vires. Respondent No. 2 had no jurisdiction to take into consideration the said enquiry or pass any order on the basis thereof. The so-called inquiry

was

held

by

a

person

not

duly

authorised

to

do

so.

8. The holding of a departmental inquiry by a Superintendent of Police is a condition precedent, a fact which must exist before Respondent No. 2 can assume jurisdiction or authority for the 52 | P a g e /

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purpose of passing the final order of dismissal under Rule _________of _________ against the Petitioner.

It is therefore, most respectfully prayed that a writ direction or order in the nature of prohibition be issued to the respondents prohibiting them from proceeding further with the disciplinary proceedings

on

the

basis

dated

of

the

enquiry

report

of

Respondent

No.

3.

_________

_________

_________

(Advocate for the Petitioner.)

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(Petitioner)

PROFESSIONAL ETHICS

WRIT

MANDAMUS

IN THE HON’BLE HIGH COURT OF JUDICATURE AT_____

(Original Civil Jurisdiction)

Writ Petition No_________of _________20_________

AA., son of _________resident of _________Petitioner; Versus

1. Collector, _________.District

2. State of _________. Respondents. Petition under Article 226 of the Constitution for the issue of a writ of mandamus.

To

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The Hon’ble the Chief Justice and his companion Judges of the Hon’ble High Court of Judicature at

_________.

The

above

named

Petitioner

begs

to

submit

as

under:

1. That the Petitioner is the owner of a plot of land numbered _________in _________at _________detailed in Annexure ‘‘A’’ to this petition.

2. That on _________a notification under Section 4 of the Land Acquisition Act, 1894, was published that certain land including the Petitioner’s aforesaid plot was needed for a public purpose.

3. That the Petitioner filed objections to the proposed acquisition of his plot under Section 5-A of

the

Act.

4. That the objections filed by the petitioner were heard by the Collector on _________and thereafter he submitted his report with recommendations to the State Government.

5. That the State Government accepted the report and recommendations of the Collector and rejected

the

objections

filed

by

the

petitioner.

6. That on _________the State Government made the declaration under Section 6 of the Act.

7. That on _________the Petitioner received a notice under Section 9 of the Act, to state his claim to

compensation

for

his

plot

which

was

under

acquisition.

8. That on _________the Petitioner filed his claim to compensation claiming Rs_________as compensation

for

the

acquisition

of

his

plot.

9. That on _________the Collector gave his award determining a sum of only Rs_________as compensation 55 | P a g e /

for

the

Petitioner’s

plot.

PROFESSIONAL ETHICS

10. That the award was filed in the Collector’s Office and notice of the same was given to the Petitioner.

11. That the compensation It is, therefore, most respectfully prayed that a writ, direction or order in the nature of mandamus be issued to Respondent No. 1 directing him to refer the matter of compensation for the Petitioner 痴

plot

for

determination

to

the

District

Judge

.

.

.

.

.

.

.

AA.

Dated

(Petitioner)

___________________

(Counsel for the Petitioner)

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_________.

PROFESSIONAL ETHICS

WRIT

QUO WARRANTO In the High Court Of Judicature at In re Article 226 of the Constitution of India

Name & Address :.................................... Petitioner .......................................................... Versus

(1) Name & Address :.......................... .................................................... (2) ...................................., Chairman of the Municipal Board of ......... at................... Respondents. (3) State of........, through Secretary, Local Self-Government.......

Petition for a writ of quo warranto and other direction or order

The petitioner above named states as under : 1. That the respondent No. 1 was nominated on .......by the respondent No. 2 under Sec...... of ......... Municipalities Act on the occurring of a vacancy in the Municipal Board of ....... in respect of a seat to 57 | P a g e /

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which a member had to be nominated. 2. That the respondent No. 1 was a candidate at the previous (20...........) general election of this Municipal Board and had failed in getting elected. 3. That under the proviso to Section .......of ..........Municipal Act, 20......... a person who had stood as a candidate at the previous general election and had not been elected, could not be nominated to the Board. 4. That the nomination of the respondent No. 1 was in contravention of the provisions of law and his membership of the Board is, therefore, invalid. 5. That the petitioner is a resident within the Municipality of .......... and is a voter at No. ......in Ward No. ........ of the said Municipality. 6. In the circumstances, it is prayed that a writ of quo warranto be issued declaring that the nomination of respondent No. 1 by respondent No. 2 for a seat in Municipal Board of ...... ...... is invalid and that the respondent No. 1 is not entitled to hold the office of a member thereof and directing him not to exercise or use the rights, liberties and privileges in respect of the notice of a member of the Municipal Board of ........ N.B. - An affidavit in support of the petition is also filed herewith. 58 | P a g e /

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Dated............

(Sd.) Advocate for the Petitioner

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(Sd.) Petitioner

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WRIT OF CERTIORARI

IN THE HON’BLE HIGH COURT AT_________

(Original Civil Jurisdiction)

Writ Petition No_________of _________ , 20 _________

A _________ Petitioner; Versus

1. State of _________ 2. Drug Controller _________ 3. Appellate Authority _________ Respondents. Petition under Article 226 of the Constitution for the issue of a writ of certiorari.

To The Hon’ble the Chief Justice and his companion Judges of the Hon’ble High Court of Judicature. The abovenamed Petitioner begs to submit as under : 1. That the Petitioner is a stockist and dealer in drugs and carries on his business in the name and style of _________at ______ 2. That the Petitioner held a drug dealer’s licence No_________. dated _________ and has been carrying on this business for the last six years. 60 | P a g e /

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3. That on _________ the Petitioner received a notice from Respondent No. 2 to show cause why his licence should not be cancelled for selling substandard and spurious drugs. He was also required by the notice to produce his licence before Respondent No. 2. 4. That on _________ the Petitioner submitted his explanation to the show-cause notice submitting that he did not sell any substandard or spurious drugs and that he sold only drugs in their original containers obtained from reputed drug manufacturers. He expressed his inability to produce the licence as the same had been submitted to the Civil Surgeon for renewal. 5. That without giving proper consideration to the pleas raised by the Petitioner Respondent No. 2 passed an order dated _________ cancelling the Petitioner’s licence. 6. That, thereupon, the petitioner preferred an appeal against the order of Respondent No. 2 to Respondent No. 3. 7. That by order dated _________ Respondent No. 3 dismissed the appeal. 8. That the Petitioner has no other remedy but to approach this Hon’ble Court. 9. That the orders of Respondents No. 2 and No. 3 are void and illegal for the following amongst other— REASONS

(i) Because the orders of respondents Nos. 2 and 3 are vitiated as they have acted in violation of the

principles

of

natural

justice.

(ii) Because both respondents Nos. 2 and 3 have placed great reliance on the report of the Central Drugs Laboratory dated _________ which report was never disclosed to the Petitioner and which the

Petitioner

was

not

given

any

opportunity

to

meet.

(iii) Because the authorities have been influenced by the failure of the Petitioner to produce the licence but have themselves failed to consider the Petitioner’s explanation that the licence had been

submitted

to

the

Civil

Surgeon

for

renewal.

(iv) Because respondents Nos. 2 and 3 have not applied their minds to the facts and circumstances of 61 | P a g e /

the

case.

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(v) Because the impugned orders violate the fundamental right of the Petitioner to carry on his trade

and

business

guaranteed

by

Article

19(1)(g)

of

the

Constitution.

It is, therefore, most respectfully prayed that a writ, direction or order in the nature of certiorari be issued quashing the order of Respondent No. 2 dated _________ and the order of Respondent No.

______________

(Petitioner.)

Dated_________

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3

dated_________

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. CONTEMPT OF COURT

Meaning and Nature: It is very difficult to define the concept of ‘contempt of court’. What would offend the dignity of the court and lower the court’s prestige is a matter for the court to determine and it cannot be confined within the four walls of a definition. The Contempt of Court Act, 1971 defined contempt of court for the first time. There is no statutory definition of contempt of court. Whatever definition is provided under this act is not a definition but only classification of the term contempt of court. Contempt of court in general means, “To offend the dignity of the court and lower the prestige of the court”. Oswald defines, contempt to be constituted by any conduct that tends to bring the authority and administration of Law into disrespect or disregard or to interfere with or prejudice parties or their witnesses during litigation. In Halsbury laws of England, it is defined as follow “Any act done or writing published which is calculated to bring a court or judge into contempt or lower his authority or to interfere with the due course of justice or the lawful process of the court is contempt of court”. As per Corpus Juris Secondum, Contempt of court is disobedience to court by acting in opposition to the authority, justice and dignity thereof. It signifies a willful disregard or disobedience of courts order. It also signifies such conduct as tends to bring the authority of the court and the administration of law into disrespect. II. CLASSIFICATION: According to Section 2(a) of the Contempt of Court Act, 1971, contempt of court means civil contempt or criminal contempt. Section 2(b) of the Act, defines “Civil Contempt” as willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court. Section 2(c) of the Act, defines “Criminal Contempt” as the publication (whether by words spoken or written or by signs or by visible representations or otherwise) of any matter or the doing of any act whatsoever which –

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(i) Scandalizes or tends to scandalize or lower or tends to lower, the authority of any court, or (ii) Prejudices or interferes or tends to interfere with, the due course of any judicial proceeding; or (iii)

Interferes or tends to interfere with or obstructs or tends to obstruct, the

administration of justice in any other manner. The above definition contained in the Contempt of Court Act, 1971, is not exhaustive. It merely indicates that the contempt may be civil contempt or criminal contempt. It is thus better to leave it to the court to deal with each case as it comes and a right of appeal under Section 19 of Section the Contempt of Court Act, 1971, in all cases of contempt will cure whatever defect there may be in the application of the law. There are several instances of the misconduct such as using insulting language against the judge, suppressing the facts to obtain favorable order, imputation of partiality and unfairness against the judge. A council who advices his client to disobey the order of court is also held liable for contempt of court. Attacking the judiciary in the bar council election is taken as contempt of court. If the council refuses to answer the question of the court is also liable for contempt of court. In Re Ajay Kumar Pandey case the Supreme Court held that advocate using intemperate language against various judicial officers and attributing motives to them while discharging there judicial function would be held guilty of contempt of court. In this case such advocate was sentenced or punished to 4 months simple imprisonment and fine of rupees 1000/-.

Civil Contempt: The purpose of the proceeding for the civil contempt is not only to punish the contemner but also to exercise enforcement and obedience to the order of the Court. In Vidya Sagar v. Third Aditional District Judge, Dehradun, 1991 Cr LJ 2286, it was held that Civil Contempt, actually, serves dual purpose: (i) Vindication of the public interest by punishment of contemptuous conduct; and 64 | P a g e /

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(ii)

Coercion to compel the contemner to do what the Court requires of him.

To constitute ‘Civil Contempt' the followings are required to be proved: 1. There is disobedience of the order, decree, etc. of the Court or breach of undertaking given to the Court; and 2. The disobedience or breach is willful. These requirements may be discussed as follows: 1. Disobedience of the order, decree, etc. of the Court or breach of undertaking given to the Court: For civil contempt it is necessary that order which has been disobeyed must have been passed by the Court having jurisdiction to pass order. If the order has been passed without jurisdiction, it is not binding on the party against which it has been passed and, therefore, the disobedience of such order will not amount to contempt of Court.42 Further, the burden to prove that the Court which has passed the order had no jurisdiction to pass it or the proceeding in which the undertaking was given was without jurisdiction lies on the person who alleges it. In Courts on its Own Motion v. N.S. Kumar, 1995 Cr LJ 1261, it was held that usually the order should be served on the person against whom it has been passed. However, where it is proved to the satisfaction of the Court that the person against whom the order was passed had actual knowledge of the order, he cannot escape liability for contempt on the ground that the copy of the Order has not been formally served on him. Once an order is made by the Court and a person is charged with the allegation of non-compliance of that order, he cannot plead that he was waiting for instruction to comply with the Court's order can possibly contend that he is to seek instructions from his superiors before he could carry out his obligation of complying with the Court's order. The breach of undertaking given to the Court is also taken as contempt, if it is willful. Where a person is committed for contempt for breach of undertaking, the undertaking must be given to

42

Sultan Ali Nanghiara v. Nur Hussain, AIR 1949 Lah 131.

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the Court. The undertaking given by one party to another is not sufficient for this purpose. An undertaking may be given by the party himself or by any other person on his behalf provided in the later case the person giving the undertaking has authority to give such undertaking. Thus, an undertaking may be given by an advocate on behalf of his client provided he had authority on behalf of his client to give such undertaking.43 2. Willful disobedience or breach: For Civil Contempt the disobedience of the order, decree, etc. of the Court or breach of undertaking given to the Court must be willful. In India the Supreme Court44 has, often, pointed out that in order to punish a person or authority for contempt of Court, the disobedience to any judgment, etc. or breach of undertaking to the Court must be willful. Thus, mere disobedience of the order of Court is not sufficient to constitute civil contempt. The disobedience must be willful. The disobedience must be deliberate and intentional. The contempt power cannot be used unless the court is satisfied beyond doubt that the person has deliberately and intentionally violated the order of the court.45 Whether the disobedience has been wilful, is an issue to be decided by the Court, taking into account the facts and circumstances of the case.46 In Ram Narang v. Ramesh Narang,47 the Court has held that the definition of civil contempt given in section 2(b) creates two categories of cases: (1)

Wilful disobedience to a process of Court; and

(2)

Wilful breach of undertaking given to a Court.

As far as the first category is concerned the word "any" further indicates the wide nature of the power. No distinction has been statutorily drawn between an order passed after an adjudication and an order passed by consent. This first category is separate from the second category. The legislative intention has been to distinguish between the two and create distinct classes of contumacious behaviour. For application of category second the undertaking must have been given to the Court and not to the other party. The Court has made it clear that wilful violation of terms of consent decree amounts to contempt of Court. For the enforcement of decree or direction 43

B.K. Rao v. Prithwish Kor, (1989) IT CHN 58 (DB).

44

J. Vasudevan v. T.R. Dhananjaya, AIR 1996 SC 137.

45

C. Elumalai v. A.G.L. Arudayaraj, AIR 2009 SC 2214.

46

Niaz Mohammad v. State of Haryana, (1994) 6 see 332. AIR 2006 se 1883.

47

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of the court for payment of money, the contempt jurisdiction cannot be used.48 The Court has made it clear that for the enforcement of such decree or direction the contempt jurisdiction either under the Contempt of Court Act or under order 39 Rule 2A of the CPC cannot be used.

Criminal Contempt: In India the definition of contempt of court is found in clause (c) of Section 2 of the Contempt of Courts Act, 1971. It provides that "Criminal Contempt" means the publication whether by words, spoken or written or by signs, or by visible representations, or otherwise of any matter of the doing of any act whatsoever which scandalizes or tends to scandalize or lower or tends to lower the authority of any court, or prejudices or interferes or tends to interfere with the due course of any judicial proceedings or interferes or tends to interfere with or obstructs or tends to obstruct the administration of justice in any other manner. In Delhi Judicial Services Association v. State of Gujarat & others, (1991) 4 SCC 406, the court held that the definition of criminal contempt is wide enough to include any act of a person which would tend to interfere with the administration of justice or which would lower the authority of the Court. The scope of the criminal contempt has been made very wide so as to empower the Court to preserve the majesty of law which is an indispensable condition, for the rule of law. Essential Ingredients of Criminal Contempt: They are: 1. Publication or other act; In the case of Re S.K. Sundarami, AIR 2001 SC 2374, the telegraphic communication sent by the contemner contain the following: "I call upon Shriman Dr. A.S. Anand Hon'ble Chief Justice of India to step down from the constitutional office of the Chief Justice of India forthwith, failing which I will be constrained to move the criminal court for offences under sections 420, 406, 471, Indian Penal Code for falsification of your age, without prejudice to the right to file a writ of quowarranto against you and for a direction to deposit a sum of Rs. 3 crores for usurping to the office of Chief Justice of .India even after attaining the age of superannuation." 48

Food Corporation of India v. Sukh Deo Prasad, AIR 2009 se 2331.

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The .Court held it as gross criminal contempt of court. The contention that sending such telegram would not amount to publication was not accepted by the court. The Court has held that a telegraphic message can be transmitted only after the sender gives the content of the message to the telegraphic office which would invariably be manned by the staff of that office. The message after transmission, reaches the destination office which also is manned by the members of the staff. From these only the message would be dispatched to the sender. At all those levels the message is open to be read by, at least, those who are engaged in the process of transmission. A telegraph message is not like a letter handwritten by the sender and enveloped in a sealed cover to be opened only by the sender for reading. 2. Scandalizing or lowering the authority of the court or interfering with judicial proceeding or administration of justice; It is as much a contempt of Court to say that the judiciary has lost its independence by reason of something it is alleged to have done out of Court, as to say that a result of a case it has decided, it is clear that it has no independence or has lost what it had. Where the article complained of stated: "It is so unfortunate and regrettable that at the present day the Chief Justice and the Judges find a peculiar delight in hobnobbing with the executive with the result that the judiciary is robbed of its independence which at one time attracted the admiration of the whole country. The old order of things has vanished away." The Court held that it was a clear case of contempt of Court - re Tushar Kanti Ghosh, AIR 1935 Ca! 419. In Rajendra Sail v. M.P. High Court Bar Association, 2005 AIR SCW 2443, the prosecution witness made statement in public that in murder trial the judge had disposition to acquit the accused. The judge about to retire was available for sale and that the judgment was rubbish and deserves to be thrown in dustbin. This comment made by the witness was published in newspaper. The Court held that it amounts to gross contempt of Court. 3. Interference or obstruction with administration of justice in any other manner This clause is a residuary clause and. it covers the cases of the criminal contempt not expressly covered by sub-clauses (i) and (ii) of Section 2(c) of the Contempt of Courts Act, 1971. Thus, the publication or doing of any other act which interferes or tends to interfere with or obstructs or tends to obstruct the administration of justice in a manner otherwise than by scandalizing the 68 | P a g e /

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Court or lowering the authority of the Court or by causing prejudice or by interfering with due course of any judicial proceeding would fall within the ambit of this sub-clause and, thus, would amount criminal contempt under this sub-clause. In J.R. Parashar v. Prashant Bhushani, AIR 2001 se 3395, the Supreme Court has held that holding a Dharna by itself may not amount to contempt of court, but if by holding a dharna access to the courts is hindered and the officers of the court and members of the police are not allowed free ingress and egress or the proceedings in court are otherwise disrupted, disturbed or hampered, the Dharna may amount to contempt because the administration of justice would be obstructed. An advocate is an officer of the Court and therefore undue interference with the advocate in the discharge of his professional functions amounts to contempt of Court. A counsel or legal practitioner is not merely agent of the parties but he is an officer of the Court. His duty is to inform the Court as to the law and facts of the case and to aid it do justice by arriving at correct conclusion. Interference with counsel may amount to contempt of Court. The Court's jurisdiction in contempt is not exercised out of any mere notion of the dignity of judicial office but is exercised for the purpose of preventing interference with the due course of justice and it is quite possible to interfere with the due course of justice by making comments upon an advocate in the way of his profession. The acts or words complained of may amount to contempt of Court, if it interferes or tends to interfere with the course of justice. Thus, casting aspersions on counsel which tends to deter him from discharging his duties amounts to contempt of Court. Similarly, where a party threatens the advocate of other party to prosecute him in Court or where a solicitor assaults the opposing solicitor outside the Court or where a person demands the counsel not to undertake defence of the accused, it will amount to contempt of Court - Damayanti G. Chandiramani v. S. Vaney, AIR 1966 Born 19.

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Conclusion The power of the Court to entertain any circumstance that may hinder societal growth, or may cause hardship to a class of individuals is not uninhibited. It is carefully regulated with tight reins, and cases of public interest are taken up only after rigorous scrutiny. For instance, in a case wherein a challenge was made to the Government of India’s telecommunication policy, the Supreme Court refused to entertain the matter on the ground that it purely concerned a question of policy. Similarly, public interest litigations that have sought to prohibit the sale of liquor or the recognition of a particular language as a national language, or the introduction of a uniform civil code, have been rejected on the ground that these were matters of policy and were beyond the ambit of judicial scrutiny. The need for deference to the other wings of government in respect of questions of policy was clearly expressed by Justice R.S. Pathak in the following words: “Where the Court embarks upon affirmative action in the attempt to remedy a constitutional imbalance within the social order, few critics will find fault with it so long as it confines itself to the scope of its legitimate authority. But there is always the possibility in public interest litigation, of succumbing to the temptation of crossing into territory which properly pertains to the legislature or to the executive government… In the process of correcting executive error or removing legislative omission the Court can so easily find itself involved in policy making of a quality and to a degree characteristic of political authority, and indeed run the risk of being mistaken for one.”49 The Court has refused to entertain cases that are ‘private interest’ litigations disguised as ‘public interest’ litigations. It has also refused to interfere with convictions in criminal cases. In a case where directions were sought from the Supreme Court to the Central Government to preserve and protect certain temples, the said request was rejected. The Court stated: “The matter is eminently one for appropriate evaluation and action by the executive, and may not have an adjudicative disposition or judicially manageable standards as the pleadings now stand.”’

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