Ll.m Dissertation

Chapter-I Introduction

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

P

UBLIC INTEREST Litigation (PIL) - litigation for public interest. PIL was started to protect the fundamental rights of people who are poor, ignorant or in socially/economically disadvantaged position. It

is different from ordinary litigation, in that it is not filed by one private person against another for the enforcement of a personal right. The presence of 'public interest is important to file a PIL. Public Interest Litigation is a sociological strategy of the judicial activism shows comprehensive expansion of the judicial process in the complicated task of mediating between social reality and social change. This judicial strategy is being invoked as an instrument of social change and social development for promoting social welfare. Degraded bonded labourers, humiliated inmates of protective homes, women prisoners, the untouchables, children of prostitutes, victims of custodial violence and rape and many other

oppressed and victimised groups are attracting remedial attention of the courts. At the same time the gap between commitment and performance has resulted in chronic over commitment of the judges to provide relief from all kinds of critical social ills afflicting the Indian Society. Almost anything under the sun is covered under the rubric, public interest litigation. Initially Public interest litigation was considered as a strategy to enable public spirited citizens and social activists to mobilize favourable judicial concern on behalf of the victimised and oppressed groups. It has become today a powerful weapon of the judicial activism for involvement in social political and economic affairs of the society. 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" means a legal action initiated in a Court of aw for the enforcement of public interest or general interest in which the public or a class of community have pecuniary interest or some interest by which their legal rights or liabilities are affected, The council for public interest law set up by the Ford Foundation in A. defined the Public Interest Litigation as follows : "Public interest litigation is the name that has recently been given to efforts to provide for legal representation to previously unrepresented groups and interests. Such efforts have been taken in the recognition that the ordinary market place for legal services fails to provide for such services to significant segments of the population and to

significant interest; Such groups or interests include the poor, environmentalists, consumers, racial ethnic minorities and others."1 S. Ratnavel Pandian, J. in Janta Dai v. H.S. Chowdhary2 said, "Lexically the expression "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 a class of community have pecuniary interest or some interest by which their legal rights or liabilities are affected." "During the last three decades judicial activism has opened up new dimensions for the judicial process and has given a new hope to justice— starved millions. On the question of legitimacy of the PIL and the significant importance of its various aspects in the contest of the present day felt needs, stimulated by the emergence of a variety of new social movements and social exigencies, this Court has laid down a long line of decisions, outlining the evolution of PlL its vital issues and problems relating to the focus, choice of relief methods, the means and the administrative strategy for litigation and the demand for distributive justice for resolving the complicity of social problems and creating genuine initiatives so that this new activism may be more meaningful social justice. Thus, the concept of PIL which has been and is being fostered by the judicial activism that has become an increasingly important rule setting up valuable and respectable records, especially in the area of constitutional and legal "treatment for the 'unrepresented and under represented."3 Characteristics of Public Interest Litigation The true nature of PIL is that in it a selfless citizen or an organisation having no personal motive of any kind except either compassion for the weak and disabled or deep concern for stopping serious public injury approaches the Court either for— 1

See S.K. Agrawala – Public Interest Litigation in India – A Critique, p.2. AIR 1993 SC 892 at 906 3 Janta Dal v. H.S. chowdary, AIR 1993 SC 892 at p. 907 2

(l)

Enforcement of fundamental rights of those who genuinely do not have

adequate means of access to the judicial system, or (2) Extending benefit of the statutory provisions incorporating the Directive Principles of State Policy to those who are denied of the same and for the amelioration of their condition, or (3)

Preventing or annulling executive acts and omissions violative of

Constitution or law resulting in substantial injury to public interest. The following characteristics of PIL are notable:— (1) Petitions in PIL are filed on behalf of a group or class of persons. (2)

Petitions are on behalf of such group or class of persons, who on

account of their social, economic or other constraints cannot approach the Court for any legal remedy. (3)

Action is initiated in PIL against irresponsible, illegal acts of

Government. (4)

It is a new concept of jurisprudence which is developing its own

mechanism for justicing. (5) It is a law proposed and propounded by the Judges. (6) It gives rise to such causes of action where legal damage has been caused to the public at large or a section of it. (7) Any public spirited person or member of an organisation, who initiates public interest litigation, must have bona fide interest in social welfare, his intentions must be free from malice and he should not start the action under the influence of extraneous considerations. Significance of the Topic Judiciary, being the sentinel of constitutional statutory rights of citizens has a special role to play in the constitutional scheme. It can review legislation and administrative actions or decisions on the anvil of constitutional law. For the enforcement of fundamental rights one has to move the Supreme Court or the High Courts directly by invoking Writ Jurisdiction of these courts. But the high cost and complicated procedure involved in litigation, however, makes equal access to jurisdiction in mere slogan in respect of millions of

destitute and underprivileged masses stricken by poverty, illiteracy and ignorance. The Supreme Court of India pioneered the Public Interest Litigation (PIL) thereby throwing upon the portals of courts to the common man. 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 was 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 Supreme Court of India gave all individuals in the country and the newly formed consumer groups or social action groups, an easier access to the law and introduced in their work a broad public interest perspective. Objectives of the study 1. To examine the concept and theory of Public Interest Litigation. 2. To evaluate the various Public interest litigations filed in the Supreme

court and in the various High Courts in India. 3. To examine various writs, their roles and milestones of Public interest

litigations in India. 4. To compare and analyse the Public interest litigations in Countries

like USA , Malaysia & South Africa. 5. To study various judgments delivered in the Public interest litigations

which are having great significance value.

6. To suggest certain suitable suggestions for avoiding the vexatious litigations filed under the veil of PIL’s. Hypothesis: The researcher has formulated the following hypothesis •

Public interest litigations protecting the weaker sections rights in India.

• The relaxation of rule of locus standi paved the way for more PILs. • Political Parties misusing the public interest litigation for their political rivalries. • The government should make the legislation in central level for prescribing the guidelines for filing Pils. • Public interest litigation is a double edged weapon and itmust be used for the purpose of protecting the rights of weaker section otherwise it will cuts hands of the misusers. Review of literature 1. Abram Chaves, ‘The role of the judge in Public Law litigation’, 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 it 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 will reflect on some of the strategies adopted to streamline the institution of cases under this category. 2. Susan D. Susman, ‘Distant voices in the Courts of India: Transformation of standing in Public Interest Litigation’, 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 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. 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’. 3. 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 In Public Interest Litigation (PIL), the nature of proceedings itself does not exactly fit into the accepted commonlaw 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. 4. T.R. Andhyarujina, Judicial Activism and Constitutional Democracy in India 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 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 underprivileged

that and

gives

due

backward

weightage sections

to in

the

interests

society.

A

of

the

significant

consequence of this is that creative remedies designed for particular factsituations come to be widely reported and are referred to by Courts. 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 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.4 It is argued that in light of the increasing case-load before the appellate judges, the PIL cases impose an additional ‘gatekeeping’ 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’. A Writ Petition Be Treated As Public Interest Litigation:a writ petition filed by the aggrieved person, whether on behalf of group or together with group can be treated as a Public Interest Litigation however, • The writ petition should involve a question, which affects public at large or group of people, and not a single individual. •

Only the effected /aggrieved person can file a writ petition.

• There should be a specific prayer, asking the court to direct the state Authorities to take note of the complaint /allegation.

A Public Interest Litigation can be filed before the Supreme Court under Article 32 of the Constitution or before the High Court of a State under Article 226 of the Constitution under their respective Writ Jurisdictions. There are mainly five types of Writs – (i) Writ of Habeaus Corpus, (ii) Writ of Mandamus, (iii) Writ of Quo-Warranto, (iv) Writ of Prohibition, and (v) Writ of Certiorari. (I) Writ of Habeas Corpus: It is the most valuable writ for personal liberty. Habeas Corpus means, "Let us have the body." A person, when arrested, can move the Court for the issue of Habeas Corpus. It is an order by a Court to the detaining authority to produce the arrested person before it so that it may examine whether the person has been detained lawfully or otherwise. If the Court is convinced that the person is illegally detained, it can issue orders for his release. The writ cannot be issued against the detention or custody which is the result of judicial determinations. When a person has been subjected to confinement by an order of the Court which passed the order after going through the merits of the case the writ of habeas corpus cannot be invoked, however erroneous the order may be. Moreover, the writ is not of punitive or of corrective nature. It is not designed to punish the official guilty for illegal confinement of the detenu. Nor can it be used for devising a means to secure damages. An application for habeas corpus can be made by any person on behalf of the prisoner as well as by the prisoner himself, subject to the rules and conditions framed by various High Courts. The writ of habeas corpus is an effective means of immediate release from unlawful detention whether in prison or private custody. Physical confinement is not necessary to constitute detention. Control and custody are sufficient.1 1

Cox v. Haiker (1819) 15 AC 506

Thus if a child is forcibly kept apart from his parents, if a man is wrongfully kept in confinement as a lunatic, if a nun is alleged to be prevented from having her covenant, if, in short, any man, woman or child is or is asserted apparently on good grounds, to be deprived, of liberty, the Court will always issue a writ of habeas corpus to any one who has the aggrieved person in his custody and have such person brought to the Court and if he is suffering restraint without lawful cause, set him free."1 Thus the writ can be issued for various purposes e.g., (a) testing the validity of detention under preventive detention laws; (b) securing the custody of a person alleged to be lunatic; (c) securing the custody of a minor; (d) securing the custody of a marriage partner; (e) testing the validity of detention for a breach of privileges by house; (f) testing the validity of detention by the executive during emergency, etc. Historical development of the Writ of habeas corpus It was as early as 1774 when by a Charter in pursuance of Regulating Act, 1773 (Sections 13-22) the Supreme Court was established in Calcutta. Clause 4 of the Charter gave to each-of the justice’s power to issue the writ of habeas corpus. In 1861 the three Supreme Courts were abolished and substituted by the High Courts in the Presidency towns. These High Courts were vested with all the powers which existed in Supreme Court. In 1875 the High Court Criminal Procedure Act was passed. Section 148 which gave the Presidency High Courts the power to issue direction in the nature of habeas corpus on certain conditions and also took away jurisdictions of High Courts to issue the Common law writs for any of the purpose of which provision was made in that Section.

1

Dicey – Law of the Constitution 9 th edn., p.219

In 1882 the High Court Criminal Procedure Act was repealed and Criminal Procedure Code came into being. Section 491 made provisions for issuing writ of habeas corpus, which were substantially the same as that of Section 148 of the Act of 1875 with the difference that the power was to be exercised within the limits of ordinary original civil jurisdiction and not original criminal jurisdiction. The 1882 Code was again replaced by the Code of 1898 but the latter reproduced Section 491 of the earlier Code and Section 2 of both the Codes were identical. However, the Criminal Law Amendment Act XI of 1923 by amending Section 491 of the Criminal Procedure Code, 1898 threw open the statutory writ of habeas corpus to practically whole population of India and power to issue direction in the nature of habeas corpus was conferred on each of the superior Courts of various provinces within their appellate criminal jurisdiction. After 1923, the state of affairs continued without any change until the new Republic Constitution came into force which by Articles 32 and 226 gave power of issuing writ in the nature of habeas corpus to the Supreme Court and High Courts within their territorial jurisdictions. A study of cases will clearly show how the sanctity of the writ has been consistently maintained. The courts have realised importance of the writ and therefore have granted writ whenever they felt it necessary in the end of justice. As early as in 1775 there arose a case of habeas corpus. One Kamaluddin was imprisoned for not paying arrears of revenue by the Calcutta Revenue Council. But it was established that the arrest was made against the accepted custom and actually for ulterior purpose. He was released on a petition of habeas corpus.1 In 1824 the Supreme Court issued a writ of habeas corpus in the case of Gokulnath Mullick. In this case a false return was made by an administrative 1

Stephen – Nudcoomar and Impey, Vol. II. P.134.

authority. The Court made the rule absolute for writ on the mere ground that the return was false. These are as the matter of fact illustrative cases because they lay down the rule that courts will interfere through habeas corpus and set at liberty persons who are detained in the abuse of the powers given to the administration. Rudolff Stallman in 1911 was released on a writ of habeas corpus after having been arrested thrice on land once in the sea when he was about to be extradited to Germany. High Court in this case allowed the petition on the ground that fair procedure had not been observed by the administration. The decision against Rudolff was taken without giving him an opportunity to render his defence and their Lordships declared the detention may be taken to uphold the rule that Courts will improve the doctrine of fair procedure.1 In 1943 the Bengal Government detained two persons under a "Routine Order" when the Defence of India Act, 1939 read with Rule 29 of the Defence of India Rules required every detention to be effected only after satisfaction of the State Government that the individual is to be detained in order to prevent him from acting in a manner prejudicial to the defence of British India, the public safety or the efficient prosecution of the war. The detenu applied for grant of habeas corpus. The High Court declared that the applicants were not detained on such a satisfaction of the Provincial Government so the order neglected to fulfil the condition precedent for its validity under the Defence of India Act and the Rules. On these grounds their Lordships ordered the detenues to be released.2 In Vimal Bhai Despande v. Crown,3 the petitioner Vimal Bhai was an advocate who was haulted into police lock-up and thereafter was removed to the District Magistrate's lock-up to be interrogated in connection with a dacoity which took place in Bombay. The arrest was made under Rule 129 of Defence of India Rules which authorised detention only for efficient 1

In re Rudolff Stallman, (1911) 39 Cal 164. Sivanath v. Porter , AIR 1943 Cal 377. 3 ILR 1945 Nag 6. 2

prosecution of the war and for public safety on "reasonable cause." On an application by his wife he was given not only the permission to interview his counsels, but was also released by Nagpur High Court. Again in 1950, there came a case before Madras High Court, where one Kumarmangalam, a Communist leader of Madras, was taken into police custody of Bombay Province. But the Bombay Police handed him over to Madras Police because Bombay police could not make out sufficient material to detain him under Preventive Detention Act of 1950. While he was in Madras, Madras Police served a detention order upon him. A petition of habeas corpus was moved by him before Madras High Court, where it was held that initial arrest by Bombay police was illegal, the detention was also therefore illegal.1 In re Pajdhar Kalu Patil,2 it was held that ground furnished must be clear, precise and accurate otherwise they would fail to serve the purpose for which they were intended by the Legislature. Grounds will be deemed to be vague only if they are couched in such language that it is impossible for the detenu to make an effective representation to the Advisory Board. If they are understandable by him they are not vague and this inference would be reinforced if the detenu has actually made a representation. The detaining authority is expected to apply its mind to the grounds and particulars supplied and see that they were sufficient to enable that detenu to make a representation. After coming into force of the present Constitution on 26th January, 1950, Preventive Detention (Extension of Duration) Order of 1950 was passed by the President to continue in force the various Public Security Acts operating in the States. This order was declared ultra vires by four High Courts.3 Parliament had, therefore, to intervene directly and Preventive Detention 1

In re S. Kumarmangalam, AIR 1951 Mad 583. 50 Bom LR 183. 3 Brahmeshwar Pd. V. State of Bihar, AIR 1950 Pat 265; 2

Act, 1950 (IV of 1950) was passed. The Supreme Court in A.K. Gopalan v. State of Madras,1 declared Section 14 of the Act as ultra vires the Constitution and the Preventive Detention Act was amended by the Amendment Act (1 of 1950). The Act was to be in force till 1st April, 1951 but it was extended. Under the Constitution, Article 32 gave a full-fledged jurisdiction to the Supreme Court to issue habeas corpus. Since it constituted a part of Part III of the Constitution, the right to habeas corpus was given to the various High Courts under Article 226. These provisions made the statutory restriction embodied under Section 491 of Criminal Procedure Code, unimportant. Being a guaranteed right under Article 32, habeas corpus could not be suspended except under Article 359 read with clause (4) of Article 32, i.e., where proclamation of an emergency is in operation by the order of the President. When the Writ does not lie It is a writ in the nature of calling upon the person who has detained another to produce the latter before the Court in order to let the Court know the grounds on which he has been confined and to set him free if there is no legal justification for the imprisonment. The writ will not lie in the following circumstances :— 1. If it appears on the face of the record that the detention of the person concerned is in execution of a sentence on indictment of a criminal charge. Even if in such cases it is open to investigate the jurisdiction of the Court which convicted the petitioner, but the mere jurisdiction would not justify interference by habeas corpus. In Bohar Singh v. State of Punjab,2 the Court held that a convict undergoing imprisonment under the judgment of a criminal Court which has become final, cannot prefer and maintain a writ of habeas corpus to assail his detention. A writ of habeas corpus would 1 2

1950 SCJ 174. AIR 1981 NOC 196 (Punj and Har).

not lie against a considered judicial judgment of the High Court on the alleged tenuous ground of an infraction of Article 21 of the Constitution. No writ would lie against the judicial process established by law. 2. In habeas corpus proceedings the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the date of institution of the proceedings. It was, thus, held in Gopalan v. State,1 that if a fresh and valid order justifying the detention was made by the time of the return to the writ, the Court cannot release the detenu whatever might have been the defect of the order in pursuance of which he was arrested or initially detained. 3. There is no right to habeas corpus where a person is put into physical restraint under a law unless the law is unconstitutional or the order is ultra vires the statute.2 But the petitioner can challenge the constitutionality of a law in a habeas corpus proceeding and the Court is bound to release him if the law is held to be unconstitutional.3 4. Under Article 226, a petition for habeas corpus would lie not only where he is detained by an order of the State Government but also when he is detained by another private individual. In Vidya Varma v. Shiva Narain,4 the Supreme Court stated that no petition would lie to Supreme Court under, Article 32 in the latter case, because Article 32 does not apply unless a "fundamental right" has been infringed. The writ of habeas corpus is issued by a High Court only when the person or authority against whom the writ is sought is within the territorial jurisdiction of the High Court, on the date of the application as well as at the time when the writ is sought to be issued.

1

AIR 1966 SC 816 (868). State of Punjab v. Ajaib Singh, 1953 SCR 254. 3 Makkan Singh v. State of Punjab, (1950) SCR 88. 4 AIR 1959 SC 357. 2

Where during the pendency of an appeal against an order refusing an application for habeas corpus the applicant is released from custody, the appeal must be dismissed and the Appellate Court cannot be asked to pronounce upon the correctness of the judgment by which habeas corpus has been refused.1 But a temporary release on bail does not bar an application for habeas corpus to test the legality of the arrest.2 Grounds of Habeas Corpus : The writ of habeas corpus is in the nature of an order, the effect of which is the release of the petitioner from custody of any person, or public authority, who has illegally detained the petitioner. The following grounds may be stated for the grant of the writ ; (1) The applicant must be in custody; (2) The application for the grant of the writ of habeas corpus ordinarily should be by the husband or wife or father or son of the detenu. Till a few years back the writ of habeas corpus could not be entertained if it is filed by a stranger. But now the position has completely changed with the pronouncements of the Supreme Court in a number of cases.3 Even a postcard written by a detenu from jail or by some other person on his behalf inspired by social objectives can be taken as a writ-petition. In Sunil Batra v. Delhi Administration II4 the Court initiated the proceedings on a letter by a co-convict, alleging inhuman torture to his fellow convict. Krishna lyer, J. treated the letter as a petition for habeas corpus. He dwelt upon American cases where the writ of habeas corpus has been issued for the neglect of state penal facilities like over-crowding, in sanitary facilities, brutalities, constant fear of violence, lack of adequate medical facilities, censorship

of

mails,

inhuman

isolation,

rehabilitative or educational opportunities.

1

Keshav v. Emperor, AIR 1944 FC 24. Samual v. District Magistrate, 56 All 159 3 See Icchu Devi v. Union of India, AIR 1980 SC 1983 4 AIR 1980 SC 1579. 2

segregation,

inadequate

The law before the liberalisation of locus standi concept in relation to the writ of habeas corpus has characteristically been elucidated in an early case of In re Hardial Singh1 In this case, fifteen persons were arrested under Section 3 of the Punjab Public Safety Act, 1947, for being members of the Rastriya Swayam Sewak Sangh. One Jagdish Mittar of Simla applied for release, of all such persons under Section 491, Criminal Procedure Code of 1898. The petitioner in the present case is a resident of Simla. He does not seem even to have been aware of their movements. I wish some rules should be framed by the authorities concerned limiting the right to move petitions under Section 491, Cr. P.C., 1898, to the detenues, their relations and the most of their friends, I understand such is the practice of England and it will save a lot of judicial time and a good deal of unnecessary embarrassment to the authorities if a similar practice is introduced in this country. To allow irresponsible people to move petitions of this nature on behalf of the persons about whose affairs they have really no knowledge merely on account of the existence between them of any political or other affinity seems to me prejudicial to the proper and efficient administration of justice and otherwise undesirable." (3) A person has no right to present successive applications for habeas corpus to different Judges of the same court.2 In Bansi v. Additional Director of Consolidation of Holdings3 it has been held that if a writ-petition is dismissed in limine and an order is pronounced in that behalf, if whether or not a dismissal would constitute a bar, would depend upon the nature of order. If the order is on merits, it would be a bar, if the order shows that the dismissal was for the reasons that the petitioner was guilty of laches or that he had an alternative remedy, it would not be a bar except in certain cases. As regards the applicability of res judicata to the writ of habeas corpus the Supreme Court has engrafted an exception to the 1

AIR 1951 Punj 216. P.L. Lakhanpal v. Union of India, AIR 1967 SC 908 3 AIR 1967 Punj 28 (FB). 2

effect that where the petition had been rejected by the High Court, a fresh petition can be filed to Supreme Court under Article 321 (4) All the formalities to arrest and detention have not been complied with and the order of arrest has been made mala fide or for collateral purpose. When a Magistrate did not report the arrest to the Government of the Province as was required under Section 3(2) of the Punjab Safety Act, 1947, the detention was held illegal.2 If there is an intentional delay in communicating the order with a view to preventing the detaining persons from getting redress from Government, mala fides may be attributed to the Government. Whether mala fide could be inferred from long delay in communicating the detention order to Government was discussed by Subba Rao, J., in Venkatramani v. Commr. of Police Madras.3 He said : "If a person is detained and with a view to prevent him from taking step to get redress from Government

if

the

appropriate

authority

intentionally

delays

the

communication of the said order to the Government, it is possible to infer or attribute mala fide to the authority concerned." (5) The order must be defective in substance, e.g., mis-description of detenu, failure to mention place of detention, etc. A warrant which directs the committal of James Hasting Soleman Moses in Alter Kaufman v. Government of Bombay4 without any description of him, is invalid since it may lead to the arrest of ‘any person bearing the name. Hence complete description of the detenu should be given in the order of detention. (6) It must be established that the detaining authority was not satisfied that the detenu was committing prejudicial acts, etc. It may be noted in this

1

Ghulam Sarwar v. Union of India AIR 1967 SC 1335 Amar Singh v. Crown AIR 1949 Punj 130 3 AIR 1947 Mad 605 4 18 Bom 636. 2

connection that the sufficiency of the material on which the satisfaction is based cannot be subject of scrutiny by the court. In Icchu Devi v. Union of India,1 the Court emphasized upon the need of serving on the detenu copies of several documents on whom the authority had relied in grounds of detention. The Court .pointed out that in case of an application for a writ of habeas corpus, it does not. as a matter of practice, follow strict rules of pleading nor does it place undue emphasis on the question on whom the burden of proof lies. Even a postcard by a detenu from jail is sufficient to activise this Court into examining the legality of detention. The Court has consistently shown great anxiety for personal liberty and refused to dismiss a petition merely on the ground that it does not disclose a prima facie case invalidating the order of detention. It has adopted the liberal attitude in view of the peculiar socio-economic conditions prevailing in the country. People in general are poor, illiterate and lack financial resources. It would therefore be not desirable to insist that the petitioner should set out clearly and specifically the grounds on which he challenges the order of detention. The scope of the writ of habeas corpus has considerably increased by virtue of the decision of the Supreme Court in Maneka Gandhi v. Union of India2 and also by the adoption of forty-fourth amendment to the Constitution. Since the judicial interpretation of Article 21 has extended the magnitude of the concept of the personal liberty and the Court introduced the element -of fairness and justness in the 'procedure established by law', now a writ of habeas corpus would lie if the law depriving a person of his personal liberty is not fair, just and equitable. Next by the forty-fourth amendment in 1978, the right to personal liberty under Article 21 cannot be suspended even

1 2

AIR 1980 SC 1983 (1978) 1 SCC 248

during emergency. Hence the writ of habeas corpus will be available to the people against any wrongful detention. Habeas corpus cannot be used as a device to evade the ordinary law for the review, revision or appeal of a judgment under which a person is imprisoned. "An involuntary and illegal confinement of the person in praesenti is the particular concern of habeas corpus." For the issue of habeas corpus, the wrongful restraint must exist at the time when the Court has to make the rule absolute for its issue. If at the time when the rule for the writ is heard and decided, detention begun originally under an invalid order, has been put in by a proper and valid authority even after the presentation of habeas corpus petition it will be refused.1The application should be in proper manner.2 It is generally a wholesome rule that whenever there is a special alternative remedy, habeas corpus should not be given. But it is the normal rule. If need arises, Judges cannot deny the writ.3 (II) The Writ of Mandamus: Mandamus is a Latin word, which means "We Command". Mandamus is an order from a superior court to a lower court or tribunal or public authority to perform an act, which falls within its duty. It is issued to secure the performance of public duties and to enforce private rights withheld by the public authorities. Simply, it is a writ issued to a public official to do a thing which is a part of his official duty, but, which, he has failed to do, so far. This writ cannot be claimed as a matter of right. It is the discretionary power of a court to issue such writs. Professor

A.T.

Markose

writes

in

his

Administrative Actions" :

1

Naranjan Singh v. State of Punjab, AIR 1952 SC 106 Ram Narayan Singh v. State of Punjab, AIR 1953 SC 277 3 Gopalji v. Shree Chand, AIR 1955 All 28. 2

book

"Judicial

Control

of

"Mandamus is a judicial remedy, which is in form an order from superior Court (In India the Supreme Court and the High Court in each State) to any Government, Court, Corporation or public authority to do or to forbear from doing some specific act which that body is obliged under law to do or to refrain from doing, as the case may be, and which is in the nature of a public duty and in certain cases of a statutory duty." Mandamus in England is "neither a writ of course nor a writ of right, but that it will be granted if the duty is in the nature of public duty and specially affects the right of an individual provided there is no other appropriate remedy.1 The writ is issued to compel an authority to do his duties or exercise his powers, in accordance with the mandate of law. The authority may also be prevented from doing an act, which he is not entitled to do. The authority against whom the writ be issued, may be governmental or semigovernmental, or judicial bodies. Its function in Indian Administrative Law is as a general writ of justice, whenever justice is denied, for delayed and the aggrieved person has no other suitable remedy. The writ is in the nature of civil proceeding and intended to supply the defects of justice. "English Judges traced the origin of the writ which was originally in the hands of the sovereign to the discretion in Magna Carta that Crown was bound neither to deny justice to any body nor to delay any body in obtaining justice.2 The Supreme Court in Bihar E.G.F. Co-operative Society v. Sipahi Singh3 very, clearly laid down that "a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of the officer to discharge the statutory obligations. The chief function of the writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and 1

R v. Dunshett, (1950) 2 All ER 741 at 743 Bhagwati, J., in Jan Bug Jain v. Collector of Bombay, (1954) 8 FLJ 267. 3 AIR 1977 SC 2149 at p. 2154 2

officers exercising public functions within the limits of their jurisdiction. It follows, therefore that in order that mandamus may issue to compel the authorities to do something, it be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. The writ can be issued only to enforce mandatory legal duty, not a discretionary function. This proposition was further laid down in Vijaya Mehta v. State1 A petition was moved in the High Court for a writ of mandamus directing the State Government to appoint a commission to inquire into change in climatic cycle floods in the State, etc. Refusing to issue the writ, the Court pointed out that under Section 3 of the Commission of Inquiry Act, the government is obliged to appoint a commission if the Legislature passes the resolution to that effect. In other situations, the government's power to appoint a commission is discretionary and optional as a commission can only be appointed by the State Government, if, in its opinion, it is necessary to do so. The petitioner has therefore no legal right to compel the State Government to appoint a commission of inquiry if it is not necessary to do so in its opinion : "It brings into activity inactive tribunals which decline to exercise their jurisdiction, restrains tribunals which attempt illegalities, compels public corporation to desist from abusing their powers."2 "It is within the scope of mandamus to direct statutory corporations to perform their duties. The writ is issued to restore individual to public offices, which is the normal function of quo warranto and prevents the violation of natural justice by tribunals, the normal province of certiorari and prohibition. Thus mandamus overlaps all the other writs except, habeas corpus." In Anandi Mukta Sadaguru v. V.R. Rudani3 the Supreme Court made the following important observation ;

1

AIR 1980 RAj 207 Chamber of Commerce, Hapur and others v. State of Uttar Pradesh and others, AIR 1955 All 556 3 AIR 1989 SC 1607. 2

"Whether the rights are purely of private character no mandamus can be issued, if the management of the college is purely a private body with no public duty mandamus will not lie. There are two exceptions to mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. The Law relating to mandamus has made the most specticular advance. It may be pointed out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. The judicial control over the fast expanding maze of bodies affecting the rights of people should not be put into a water tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is very wide remedy which must be easily available to reach injustice wherever it is found. Technicalities should not come in the way of granting that relief under Article 226." The Allahabad High Court has held that a writ of mandamus can be issued to a non-statutory body, a person or a private corporation. There is no inherent bar to the issue of the writ against a person or a private corporation. The term and conditions for issuing such a writ are, that the petitioner must have a statutory right and sufficient legal interest in claiming relief and there must be a corresponding statutory duty in the performance of which the person against whom the writ is sought has failed.1 The university authorities decided to cancel an examination in which leakage of certain question papers frustrated the very purpose of examination, the Supreme Court did not issue the writ of mandamus to the university to declare the result on the basis of the examination already held.2 It is neither a curative nor a preventive remedy. It is in the nature of positive remedy. It is a command of the Supreme Court to do or to refrain from doing in positive way. It commands the performance of a legal duty. The Supreme 1 2

Prem Narain Srivastava v. The Kanpur Chemical Works P. Ltd., 1974 Lab IC 479. Vice Chancellor, Utkal University v. S.K. Ghosh, 1954 SCJ 215

Court in 1973, in the case of Dr. Umakant Saran v. State of Bihar1 held that in order that mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty and the aggrieved party had legal right under the statute to enforce its performance. In Manjula Manjari v. Director of Public Instruction2 a publisher of books applied for mandamus to compel the Director of Public Instruction to include her book in the list of books approved for selection for schools. She took the plea that the book published by her was a standard one and upto the mark and can be compared with other books which have been selected for the school studies. The Court held that a writ of mandamus cannot be issued where there is pure exercise of discretion. The Director of Public Instruction exercised his discretionary power in selecting and rejecting the books for school studies. It is solely upto his discretion to choose any book. Therefore, in such a case, writ of mandamus cannot be issued. Similarly, the Supreme Court held that rights and obligations arising under a licence issued under statute cannot necessarily be said to be purely contractual. The writ of mandamus cannot be refused merely on the ground that it was asked for the enforcement of the rights and obligations arising under the licence.3

Against whom writ of mandamus can be issued In Sohan Lal v. Union of India,4 it was observed by the Supreme Court that the writ of mandamus normally does not issue to, or an order in the nature of mandamus is not made against a private individual. Mandamus is an order which is made against a person directing him to do some particular thing, specified in the order which appertains to his office and is in the nature of a public duty. In this case a displaced person was evicted in contravention of the express provisions of Section 3 of the Public Premises (Eviction) Act. It was held that writ of mandamus can be issued to 1

AIR 1973 SC 964. AIR 1952 Orissa 344 3 Ram Chandra Rai v. State of M.P.., AIR 1971 SC 128, 129. 4 AIR 1967 SCC 456 2

the Union of India to restore the possession of the property to the unlawfully evicted person if the property was in possession of the Union of India. If the property was in possession of another displaced person and he was in collusion with the Union of India or had knowledge that eviction was illegal in such a case a writ of mandamus can be issued against the displaced person, who was a private individual, Thus the inclusion of this section in Chapter VIII caused the disappearance of the writ of mandamus. From 1877 to 1950 the writ disappeared from India. But by the Specific Relief Act, an equivalent remedy could be availed. What has been lost by the disappearance of the writ of mandamus, was in another way, fulfilled by the incorporation of certain Sections in the Act. Section 45 of the Specific Relief Act stated that any of the High Courts of Judicature at Calcutta, Madras and Bombay may make order requiring any specific act to be done or forborne, within the local limits of its ordinary original civil jurisdiction by any person holding a public office whether of a permanent or temporary nature or by any corporation or inferior Court of Judicature. Prof. A.T. Markase has correctly commented on this provision in the following manner ; In short the writ was established by an order in the nature of mandamus which was not inaptly called an amalgamation of the remedies of mandamus, prohibition and injunction put together. After the enforcement of the Republic Constitution in 1950 it has become writ of justice in India. Under Article 32 the Supreme Court and the High Courts of the States under Article 226 have been empowered to issue the writ in the nature of mandamus. Grounds of the Writ of Mandamus (1) The writ of mandamus can be issued on the following grounds— (i) that the petitioner has a legal right. In S.S.P. Manocha and another v. State of Madhya Pradesh,1 the Court held that where a person 1

AIR 1973 MP 86.

does not establish any statutory or legal right to be admitted to a college or similar institution, mandamus cannot be issued to the college to admit him. Where it is purely on the discretion of the authority concerned to admit or not to admit, a writ of mandamus will not be available to admit him, unless the rights claimed have any statutory basis. In State of Kerala v. A. Lakshmi Kutty 1the Supreme Court held that there must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. Where the name of a person has been recommended for the appointment as District Judge by the High Court under Article 233(1), he has no legal right to the post, nor was the Governor bound to act on the advice of the High Court and therefore he could not ask for mandamus. The Court observed : The existence of a right is the formation of the jurisdiction of a Court to issue a writ of mandamus. The present trend of judicial opinion appears to be that in the case of non-selection to a post, no writ of mandamus lies. (ii) that there has

been

an infringement

of the

legal

right

of the

Petitioner; (iii) that the infringement has been owing to non-performance of the corresponding duty by the public authority; (iv) that the petitioner has demanded the performance-of the legal duty by the public authority and the authority has refused to act : Allahabad High Court in C.T. College v. Chandra Mohan2 held that any person having a judicially enforceable right as well as legally protected right, may, if there is inaction on the part of said authorities in the matter, approach them for justice, or is only when justice demanded is refused by the authority concerned that a petition under Article 226 of the Constitution can be moved in the High Court for a writ of mandamus. (v) that there has been no effective alternative legal remedy.

1 2

AIR 1987 SC 331 AIR 1978 All 93.

The applicant must show that the duty which is sought to be enforced is owed to him and the applicant must be able to establish an interest the invasion of which has given rise to the action.1 The writ of mandamus is available against all kinds of administrative action, if it is affected with illegality. When the action is mandatory the authority has a legal duty to perform it. Where the action is discretionary, the discretion has to be exercised on certain principles, the authority exercising the discretion has mandatory duty to decide in each case whether it is proper to exercise its discretion. In the exercise of its mandatory powers as well as discretionary powers it should be guided by honest and legitimate considerations and the exercise of the discretion should be for the fulfillment of those purposes which are contemplated by the law. If the public authority ignores these basic facts in the exercise of mandatory or discretionary powers a writ of mandamus will come to the rescue of the aggrieved person. In Goenkarancho Ekvot v. Union of India2 the Bombay High Court held that it is a settled rule of law that before seeking a mandamus, the petitioner should approach for appropriate relief, the authorities concerned upon whom an obligation to discharge their duty lies, before invoking the extraordinary jurisdiction of the court under Article 226 of the Constitution of India. (2) Where some mandatory duty including the duty to decide in each case whether or not an occasion has arisen, for the exercise of power, is imposed on public authority it can be compelled to do so by mandamus. In a pronouncement,3 the Supreme Court held that it is not open to the Court to issue a writ in the nature of mandamus to the Central Government to bring a statute or a statutory provision into force when according to the said statute the date on which it should be brought into force is left to the discretion of the Central Government. But that would not come in the way of the Supreme Court issuing a writ in the nature of mandamus to the Central Government to consider whether the time for 1

The Warangal Chamber of Commerce v. Director of Marketing, (1974) 2 Andh. W.R. 382 AIR 2007 Bom 184. 3 Aeltemesh Rein, Advocate Supreme Court of India V. Union of India and others, AIR 1988 SC 1768 2

bringing the statute or provision thereof into force has arrived or not. Every discretionary power vested in the Executive should be exercised in a just, reasonable and fair way. In the above case, the Court issued direction to the Central Government to consider the enforcement of Section 30 of the Advocate Act, 1961, which will enable every advocate registered in the State roll to practice throughout the territory of India as a matter of right. Where the duty is not mandatory but it is only discretionary, the writ of mandamus will not be issued. The principle is illustrated in Vijaya Mehta v. State.1 There a petition was moved in the High Court for directing the State Government to appoint a Commission to inquire into change in climatic cycle, floods in the state etc. (3) Where the public authority exceeds the power, the protection of human liberty and property is the sacred duty of the State. The administration should be restrained from interfering with the liberty and property of the citizens. And for this it is necessary that administrative authorities should act with the limits prescribed by the statutes. If it exceeds the limits it should be checked. When an original legislation by the Union or State exceeds its legislative orbit and injures private interests, the owner of such interests can have a mandamus directing the States not to enforce the impugned law "against the petitioners in any manner whatsoever.”2 The duty of this writ becomes more onerous as it attempts to face different phases and types of ultra vires administrative action, whether with regard to externment3 or election, taxation or licence fees, evacuee property4or dismissal of public officers. (4) Where there is an exercise of discretion in an unlawful manner.— Generally the Court does not issue the writ of mandamus where there is exercise of only discretionary power of administrative authority. But the

1

AIR 1980 Raj 207 Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118 3 Khagendra Nath v. D.M. Dinajpur, AIR 1951 Cal 3. 4 Haquali v. State of Bombay , AIR 1951 Bom 432 2

Court will interfere if there has been an illegal exercise of discretion. The illegal exercise of discretion arises, when— (a) the order is based without or in excess of jurisdiction,1 (bi the order is made mala fides 2 (c) the authority is influenced by extraneous considerations, 3 Chief Justice Chagla laid down following principles in Fernandes v. Labour Appellate Tribunal,4 which he deems to be well-settled : (1) The discretion must be exercised judicially. (2) The Court exercising discretion should not fail to apply established principles of law, (3)

The Court exercising discretion should not wrongly apply a well

established principle of law. If the above principles are not followed by the authorities in the exercise of their discretionary powers, the Court will issue the writ of mandamus. (5) Where there has been an abuse of power.—According to Prof. A.T. Markose the concept of abuse of power comprehends the following elements : (a)

Firstly, in this class, cases of official victimization or

vindictiveness come, for example, where a person was refused to get his licence renewed because the licensee had previously sought judicial help against the officer's illegal actions.5 (b) Exercise of the power though not actuated be selfish or immoral consideration but still moved by undesirable ends. (c) Exercise of the power in such mode as to disclose callous or reckless indifference to private interests,

1

State of Bombay v. Laxmi Das, AIR 1952 Bom 463; S.K.Ghosh v. Vice-Chancellor, Ytkal University, AIR 1952 Orissa 1. 3 Nalini v. District Magistrate, (1950) 55 CWN 297 4 Fernandes v. Labour Appellate Tribunal of India, AIR 1854 Bom 342, 344. 5 Rameshwar Prasad v. District Magistrate of Kanpur, AIR 1954 All 144 2

(d) A further and larger group where abuse of power occurs is where a discretion is exercised on considerations irrelevant to the statutory purposes. In State of Tamil Nadu v. Majestic Bottling Co.1 the Supreme Court clearly held : "Where a statute vests a discretionary power upon an administrative authority, the Court would not interfere with the exercise of such discretion unless it is made with oblique motives or extraneous considerations-" In the instant case there was the question of the grant of liquor licence to the petitioner about which the Court held that it is a matter of privilege only. The grant or refusal of licence is in discretion of the State Government. The issue of the writ of mandamus would depend on the facts and circumstances of the case. (e)

The last class of abuse of power is where the available powers

are issued by the statutory authority for a collateral purpose deliberately and with the motive to further certain official policy which either the specific authority itself may have or the Government and its superior. In these above conditions of abuse of power, Court may grant writ of mandamus. (6) Where a power is coupled with duty, non-performance of such a' duty, may give rise to an illegality and the Court will issue the writ of mandamus in such condition. When a writ of mandamus is asked for, the first question that the Court has to determine is whether there is any statutory obligation upon

the officer concerned,

and the next

question is whether the

officer1 failed to discharge that obligation. So, in short, these are the above grounds upon which a writ of mandamus is issued in India. In India the scope of this writ is fast developing. This development is also due to its overlapping character with the writ of certiorari. Grounds on which writs of mandamus may be refused

1

AIR 1974 SC 1030

The relief by way of the writ of mandamus is discretionary- and not a matter of right. It may be refused by the Court on any of the following grounds: (1) The Supreme Court has held in Daya v. Joint Chief Collector1 that where the act against which mandamus is sought has been completed, the writ if issued, will be infructuous. On the same principle, the Court would refuse a writ of mandamus where it would be meaningless, owing to lapse or otherwise. (2) Calcutta High Court has held in E.I. Commercial Co, v. Collector,2 that where the application is premature, for instance, where no action contrary to law has yet been done or proposed. (3) A mandamus will not go when it appears that it would be futile in its results. Accordingly, the Court will not, by mandamus, order something which is impossible of performance because the party against whom the order is prayed for, does not for reason possess the power to obey, or where the office in respect of which the petitioner seeks relief is held at will and can be terminated immediately on reinstatement, or where the thing ordered cannot be legally given effect to by the party, or will be rendered nugatory by another authority having jurisdiction in the matter who is riot a party to the mandamus proceedings. A petition under Article 226 for the issue at mandamus would not lie to compel the authority under the Essential Commodities Act to release the groundnut oil seized from the godown of X, on the plea that the said goods belonged to the petitioner and not to X. A writ of mandamus could not be used for the purpose of establishing title in property. It could be used for protecting rights in property. The Andhra Pradesh High Court3 held that a petition under Article 226 for the issue of mandamus would not lie to compel the authority under the Essential Commodities Act to release the groundnut oil seized from the godown of X, on the plea that the said goods belonged to the petitioner and not to X. A writ of mandamus could not be issued for the purpose of 1

AIR 1962 SC 1796.. AIR 1957 Cal 606. 3 M. Pakeera Reddi v. District Collector Cuddapali, AIR 1985 NOC 136. 2

establishing title in property. It could be used only for protecting rights in property. (4) A mandamus cannot be issued against a public servant to enforce a contract independently of any statutory duty or obligation to the applicant.1 The Supreme Court has held that where a statutory corporation promises to advance even in terms of a contract entered into by it in exercise of its statutory functions under the State Financial Corporation Act, 1951, the promise was enforceable by mandamus:2 (5) The Supreme Court has held in Vice-Chancellor v. S.K. Ghosh3 that the object of mandamus being simply to compel performance of a legal duty on the part of some person or body who is entrusted by law with duty, the Court, in a proceeding for mandamus, will never sit as a Court of appeal so as to examine facts or to substitute its own wisdom for the discretion vested by law in the person or a body against whom the writ is sought. The Patna High Court in Karpoori Thakur v. Abdul Gafoor, Chief Minister of' Bihar;4 has held that the High Court by issue of writ of mandamus cannot compel the Chief Minister to resign, in the absence of dismissal by the Governor on an implied assumption of lack of confidence by the Legislative Assembly. The petitioners, in their personal status as members of the Legislative Assembly, have no legal right to ask the Court to issue a writ in the nature of mandamus to the Chief Minister not to function and to resign. Mandmus cannot be issued to give a direction for the. removal of the Home Minister or any Minister in the Council of Ministers. The power to remove a Minister is entirely discretionary and is not regulated by any statutory provisions.5 In R.K. Singh v. Union of India,6 the PIL filed by the petitioner to issue writ of mandamus for directing the respondents to take immediate steps and faring an enactment or get promulgated an ordinance by the President of India under Article 123 of the Constitution of India to the effect of prescribing 1

Bihar E.G.F. Coop. Society v. Sipai Singh , AIR 1977 SC 2149 Gujarat State Financial Corp v. Lotus Hotel Pvt. Ltd., AIR 1983 SC 848. 3 AIR 1954 SC 217 4 AIR 1975 Pat 1. 5 Maharshi Awadhesh v. State of U.P.AIR 1991 All 52 6 AIR 2001 Delhi 12 (F.B.) 2

higher qualifications for the legislature (Both Parliamentarian and State legislatures) within a reasonable period of time. The Delhi High Court held that writ of mandamus cannot be issued to legislature to enact provisions in a particular manner or even to legislate particular Act or provision. In A.G. Prayagi v. State,1 the M.P. High Court held that it cannot issue a writ of mandamus to the Chief Minister to advise the Governor to dismiss the Minister. The petition is incompetent and the prayer made in the petition is outside the purview of the Court. In Mahendra Pratap Singh & others v. District Judge, MACT, Hardwar and others2 the court held that writ of mandamus cannot be issued for deducting amount of advocate fees from award given by motor accident claims tribunal to claimant. In Tirumala Tripupati Devasathanams v. K. Jotheeswar Pailli,3 the Supreme Court held that in absence of statutory provision court cannot grant the writ of mandamus for purpose of benefit. Who may apply for mandamus It is only a person whose rights have been infringed who may apply for mandamus. The Supreme Court has held in Charanjit Lal v. Union of India,4 that in the case of an incorporated company, the application must be brought by the company itself; an individual shareholder may apply only if infringement of the rights of the company constitutes an infraction of shareholder's individual rights as well. The Supreme Court in Shivendra v. Nalanda College,5 held that the petitioner must have a legal right to enforce the performance of alleged duty. Thus where the petitioner has no legal right to be appointed to a post he cannot ask for the cancellation of an order appointing another person. The right, infringement of which is complained, must be subsisting on the date of petition. If the interest of the petitioner has been lawfully terminated before the date he is not entitled to the writ. Where such 1

AIR 1987 MP 25. AIR 2007 Uttra. 28 (NOC). 3 AIR 2007 SC 1771 4 1950 SCR 809 5 AIR 1962 PC 1210 2

termination is due to the decision of a Court or other tribunal of competent jurisdiction, no relief, is available under Article 32 or 226 so long as such decision is not set aside by appropriate proceeding.1 In Director of Settlements, A.P. v. M.R. Apparao2 the Court held that in this case writ of mandamus can issue, when the aggrieved person has a legal right, which entitles him to any of the rights and that such right has been infringed. The Court also observed the writ of mandamus is available against any public authority including administrative and local bodies, and it would lie to any person who is under a duty imposed by statute or by the common law to do a particular act. In Apangsha Mohan Lodh v. State of Tripura and others3 the advocates were working as part time lecturers on purely contractual basis in university. The Supreme Court observed that they had no legal right to obtain writ in the nature of mandamus directing authorities to grant minimum scale of pay of Assistant Professors because of advocates being not in regular employment. In short, mandamus will be issued when the Government or its officers either overstep the limits of the power conferred by the statute, or fails to comply with the conditions imposed by the statute for the exercise of the power.4 The Supreme Court has held in Vice-Chancellor Utkal University v. S.K. Ghosh5 that the writ will not be issued simply because there is an irregularity in its proceedings but there has been a substantial compliance with the law. Nor can the Court enter into the merits or soundness of a decision made by such a body, as if sitting in appeal over it. Against whom a Writ of Mandamus cannot be issued Normally a writ of mandamus does not issue to or an order in the nature of mandamus is not made against a private individual. Mandamus is 1

AIR 1952 SC 1183 AIR 2002 SC 1600 3 AIR 2004 SC 267. 4 State of Bombay v. Laxmidas, AIR 1952 Bom 468 5 1954 SCR 883. 2

an order which is made against a person directing him to do some particular thing specified in the order which appertains to his office and is in the nature of public duty.1 Writ of mandamus is issued generally for the enforcement of a right of the petitioner. Where the applicant has no right the writ cannot be issued.2 In Mohan Lal Arya v. Union of India3 the petitioner changed his religion and became a Hindu at Arya Samaj, and his name was changed to Mohan Lal Arya. He moved an application to the Ministry of Home Affairs, Government of India, to grant him Indian citizenship. It was held that where the applicant has no right the writ cannot be issued. In this the petitioner has no legal right to claim Indian citizenship nor there is statutory duty of Govt. to decide his application. In these circumstances writ of mandamus cannot be issued to command Central Government. It cannot lie to regulate or control the discretion of the public authorities. Again in State of M.P. v. G.G. Mandawara,4 it was held that under Rule 44 of the Fundamental Rules the grant of dearness allowance at a particular rate is a matter of grace and not a matter of right and hence a writ of mandamus against the Government for the grant of such allowance at a particular rate is not justified. The writ of mandamus will not be issued if there is mere omission or irregularity committed by the authority.5 It will not lie for the interference in the internal administration of the authority.6 In the matters of official judgment, the High Court cannot interfere with the writ of mandamus. The writ of mandamus will not be issued to enforce a contractual right,7 or a writ which has arisen by virtue of title to a property. 8 The writ will not help in determining questions of title or complicated questions of fact.9

1

Sohan Lal v. Union of India, AIR 1957 SC 74 Director of Endowment v. Akram Ali, AIR 1956 SC 74 3 AIR 2003 All 11. 4 AIR 1954 SC 493 5 AIR 1954 Cal 285. 6 AIR 1955 Assam 52. 7 Ajit Kumar Addy S v. M. Maitra, AIR 1954 Orisssa 74. 8 AIR 1954 Mad 549. 9 Somendra v. Union of India , AIR 1953 Cal 172. 2

Non-statutory duties of the authorities are also out of the reach of mandamus. A High Court cannot issue a writ with a view to compel the Government or a public authority to enter into contract with a third party for the benefit of the petitioner.1 Although the writ can be issued against a Deputy Commissioner, or Collector asking him to pay the money payable to the applicant as pension or grant of money or land revenue. Writ of Mandamus overlaps Certiorari The writ of certiorari is issued on the ground of jurisdiction which includes all sorts of jurisdictional defects. A mandamus will also lie for jurisdictional defects. The question whether it will lie where the violation of natural justice is ground of complaint against the tribunal. In Balkrishna v. Income-tax Commissioner,'2writ of mandamus was issued to the Commissioner directing him to restore a revision-petition under Section 33-A of the Income-tax Act. The ground upon which the writ was issued was that the Commissioner committed an error of law apparent on the face of records. If errors also can be corrected in mandamus then they are covered by certiorari. And cases are not entirely wanting where though writ of mandamus was prayed for certiorari had been issued. The result of the survey of the development of writ of mandamus in India is that it is difficult to say as to what are the limitations of the apparently all-embracing province of this writ. Amir Ali, J., pointed out in Re Laxmi Mani Dasi3 that in India we are not directly concerned at any rate with the difference between prerogative writ of mandamus and the action of mandamus. And in India there is no need for it because mandamus as it has developed in India covers not only both the writ and the action in the nature of the writ of mandamus but overlaps the writ of certiorari and prohibition to a substantial extent. Over and above all these it remains the residuary remedy of public law to see that

1

Aswani Kumar v. Manager, Calcutta Electric Supply Corporation, AIR 1955 Cal 249 AIR 1956 Mad 1118. 3 (1941) 1 Cal 16 at 28. 2

justice is given where a right is denied by a public authority and there is no equally beneficial remedy for it. The observation of Mr. Justice Amir Ali clearly shows that the province and function of the writ of mandamus are very large. It has certainly overlapped the writ of certiorari at many instances. And, therefore, it has become a common practice that writ of certiorari and mandamus both are prayed in the petition. (III) The Writ of Quo-Warranto: The word Quo-Warranto literally means "by what warrants?" It is a writ issued with a view to restraining a person from acting in a public office to which he is not entitled. The Writ of quo-warranto is used to prevent illegal assumption of any public office or usurpation of any public office by anybody. For example, a person of 62 years has been appointed to fill a public office whereas the retirement age is 60 years. Now, the appropriate High Court has a right to issue a Writ of quo-warranto against the person and declare the office vacant. In Halsbury Laws, Vol. 9, p. 804, it has been stated thus : "An information in the nature of quo warranto is the modern form of the obsolete writ of quo warranto which lay against a person who claimed or usurped an office, franchise or liberty to inquire by what authority he supported his claim in order that the right to the office or franchise might be determined. It also lay in cases of nonuser, abuse or long neglect of an office." The basic conditions for the issue of the writ are that the office must be public, it must have been created by statute or Constitution itself, it must be of a substantive character and that the holder of the office must not be legally qualified to hold the office or to remain in the office or he has been appointed in accordance with law.1 A writ of quo warranto is never issued as a matter of course and it is always within the discretion of the Court to decide, after having considered the facts and circumstances of each case, whether the petitioner concerned 1

Dinesh Prasad v. State , AIR 1984 Pat 13

is the person who could be entrusted with such writ which is always issued only in the interest of the public in general. The Court may refuse to grant a writ of quo warranto if it is vexatious or where the petitioner is guilty of laches, or where he has acquiesced or concurred in the very act against which he complains or where the motive of the relater is suspicious.1 Writ of quo warrants is not a writ which issues as a matter of course and as a matter of right. Indeed it is in the discretion, of the Court to refuse or grant it according to the facts and circumstances of the case. The High Court would enquire into the conduct,and motive of the petitioner and the Court might in its discretion decline to grant quo warranto information where the petitioner is moved by extraneous considerations and not in public interest.2 The writ calls upon the holder of the office to show to the Court under what authority he holds the office. If the Court finds that the incumbent holds the office illegally, it would pass order of ouster which must be obeyed by him. The person applying for the writ must show the interest he has in the office with reference to which he seeks the remedy. The writ of quo warranto lies in respect of a public office of a substantive nature. It will not lie in respect of an office of private nature. In Jamalpur Arya Sainaj v. Dr. D. Ram,3 the petitioner moved the High Court for issue of a writ in nature of quo warranto against the members of the Working Committee of the Bihar Raj Arya Pratinidhi Sabha; a private religious association. The Court refused to grant the writ of quo warranto on the ground that it does not lie against an office of private nature. Thus in University of Mysore v. Govind Rao,4 the Supreme Court held that before a citizen can claim a writ of quo warranto he must satisfy the Court that the office in question is a public office and is held by usurper without legal authority and that necessarily leads to the inquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not. 1

Dr. Het Ram Kalia v. Himachala Pradesh University, AIR 1977 NOC 246 D.C. Jain v. University of Jodhpur, AIR 1977 Raj 89 3 AIR 1954 Pat 297. 4 AIR 1965 SC 491. 2

As to the question who can apply for writ of quo warranto, it can be stated that a petition for this writ can be filed by any private person, although he is not personally aggrieved in or interested in the matter. 1 In G.D. Karkare v. T.L. Sheude2 the Nagpur High Court observed : "In proceedings for a writ of quo warranto, the applicant does not seek to enforce any right of his as such, nor does he complain of any performance of duty to him. What is in question is the right of non-applicant to hold the office and an order that is passed is an order ousting him from that office." But in Dr. T.K. Kothandauani v. The Secretary to Shah Commission3 the Andhra Pradesh High Court has laid down that in a writ of quo warranto the petitioner need not show that any right of his has been infringed. But nevertheless he must show that he has some interest in maintaining the writ petition. That interest should not be the one shared by him along with the public but it must be a special one. Where the Chief Minister of a State is holding office without lawful authority, and in breach of Constitutional provision, having not acquired valid membership within six months of his appointment as the Chief Minister without being a member of the Legislative Assembly a substantial injury is caused to every member of the public. In such matter a case of substantial injury to the petitioner, who is a citizen, is prima facie and per se made out even though he is not able to show any specific interest or prejudice affecting him individually. Therefore, High Court has the necessary jurisdiction to examine whether a writ of quo warranto should be granted or not4 But the writ of quo warranto will not be issued for the removal of a' Minister from his office on the ground of alleged breach of oath of office taken under Article 164(3) of the Constitution. However if no oath is taken

1

Rajendra Kumar v. M.P. Government, AIR 1957 MP 16 AIR 1952 Nag 330. 3 AIR 1979 NOC 11 (AP) 4 Purushotham Lal Sharma v. State of Rajasthan, AIR 1979 Raj 18. 2

before assumption of office as enjoined by the Constitution there is no legal title to hold that office and a writ of quo warranto will lie.1 An information in the nature of quo warranto would lie even at the instance of a relation, who is not personally interested in the matter nor affected by the illegal assumption of the office by the opposite party. As a matter of public policy it is desirable that the person wrongfully usurping a public office of substantial nature must be brought to books, it may be done by any person whether interested or not, affected or not. "It is competent for a voter or a member of any of the local bodies to invoke the jurisdiction of the High Court for the issue of information in the nature of quo warranto2 In a petition for the issue of quo warranto, if the person is found to be occupying a public office of substantive nature without any authority, then the wrong committed by him is a continuing wrong which occurs day to day, and, therefore each day on which he functions illegally, gives a fresh cause of action. Under these circumstances ordinarily, delay and laches would be no ground for a writ of quo warranto unless the delay in question is inordinate.3 A member of the Legislative Assembly of a State can apply for a writ of quo warranto against the Speaker. He has a right to know by what authority the Speaker of the body functions as such.4 As we have noticed that ordinarily the power under Article 226 is exercisable for the enforcement of a right, by a person who has been substantially affected. But in the case of issue of quo warranto, the person affected or any other person who is not interested, may pray High Court or Supreme Court for its grant. This is in one way a deviation from the general practice observed in a petition for other writs. Conditions for the issue of quo warranto The writ is issued in case of an illegal usurpation of public office by an unauthorised person. The public office must be of a substantive nature. The 1

B.M. Gangadhariah v. H.D. Dewagowda, AIR 1989 Kant 294. Mocherla Sarma v. Sivalam Pd., AIR 1961 Andhra Pradesh 250 3 Dr. Het Ram Kalia v. Himachal Pradesh University, AIR 1977 NOC 246 4 Nassamony v. T.M. Vargese, 5 DLR 402 2

words 'substantive nature' mean an office independently entitled1 In other words the officer must be an independent official and not merely one discharging the functions of a deputy or servant at the will and pleasure of others.2 The words 'public office' mean an office in which the public have an interest. It has been held in Anand Bihari v. Ram Sahai,3 that the office of Speaker of the Legislative Assembly is a public office and a writ can be issued to him to enquire by what authority he supported his claim to the office. In G.D, Karkare v. T.L. Shevde4 the petitioner applied to the High Court for the issue of writ of quo warranto against the Advocate-General of the State on the allegation that he was guilty of intrusion into the office of the Advocate-General, for on the date of appointment he did not have the necessary qualification prescribed by the Constitution for that office. It has been held that a writ of quo warranto would be issued as the office of the Advocate-General was of a public nature. Likewise it will lie to question the appointment of the Judge of High Court.5 In Shyam Sunder v. State of Punjab,6 quo warranto was issued to declare vacant the office of ten members elected to the Municipal Board on the ground that there had been no valid delimitation of constituencies. "The remedy under this petition will go only to public office and not to private bodies like the Managing Committee of a School" was thus pointed out in Amarendra Chandra v. Narendra Basu,7 This is a cardinal principle, Sinde, J., stated in Anand Bihari v. Ram Sahai8 that "an information in the nature of quo-warranto will lie in respect of any particular office when the office satisfies the following conditions : (1) The office must have been created by statute, or by the Constitution itself; (2) The duties of the office must be of public nature. 1

Rex v. Steyer, (1916) 1 KB 195. Donley v. Rex, (1846) 12 CL and SM 3 AIR 1952 Mad 31 4 AIR 1952 Nag 330 5 Queen- Empress v. Rex, (1894) 16 All 736. 6 AIR 1958 Punj 128. 7 56 CWN 449 8 AIR 1952 Mad 31. 2

(3) The office must be one of the tenure of which is permanent in the sense of not being terminable at pleasure; and (4) The person proceeded against has been in actual possession and is the user of particular office in question. Another instance of granting the writ of quo-warranto is where a candidate becomes subject to a disqualification after election or where there is a continuing disqualification.1 Similarly, the Rajasthan High Court laid down in Harpal Singh v. State of Rajasthan & others,2 Pradhan of Panchayat Samiti disqualified on the ground of involvement in the criminal offence and the congnizance of offence were taken much before filing of nomination. Pradhan was disqualified not only to contest election for membership of Panchayat Samiti but also exposed himself for criminal action having given false affidavit. In such case, when a candidate despite being disqualified become elected the writ of quo-warranto can be issued. In P.L. Lakhanpal v. Ajit Nath Ray, Chief Justice of India,3 the Delhi High Court laid down that the scope of the power of the High Court to issue a writ of quo warranto under Article 226 of the Constitution is not wider than it is in England and Courts in this country have followed the principles including the limitations which have been established in England. The petitioner in this case, who was Chairman, All-India Democratic (Janatantra) Party prayed for writ of quo warranto against the Chief Justice of India. The case of the petitioner was that the appointment was in violation of the provisions of Article 124(2) of the Constitution as the mandatory consultations comprehended was not made and as the rule of seniority which inheres in that Article was not followed and that the appointment was mala fide. The Judges of the Supreme Court who were senior to the present Chief Justice had resigned by the time the writ petition was filed. It was held that the issue of the writ of quo-warranto by the High Court would be futile because as a result of the resignation of the Judges who were senior to him. 1

Rex v. Bear, (1903) 2 KB 693 AIR 2008 Raj 1026 (NOC). 3 AIR 1975 Delhi 66. 2

Justice A.N. Ray became the senior most puisne judge and not only could be re-appointed but would be entitled to be re-appointed as Chief Justice of India, if the contention that the convention of seniority was a rule of law and was inherent in Article 124(2) be correct. On his appointment as Chief Justice of India a Judge of the Supreme Court does not cease to be a Judge of the Supreme Court. This will be so law if the requirement of the Constitution under Article 124(2) is mandatory. Justice A.N. Ray did not lack in the necessary qualifications mentioned in Article 124(3) and he could be reappointed as Chief Justice after the requirement of Constitution under Article 124(2) is fulfilled. The mala fides of the appointing authority or in other words, the motives of the appointing authority in making the appointment of a particular person are irrelevant in considering the question of issuing a writ of quo-warranto. In S.C. Malik v. P.P. Sharma,1 the Court held that where the appointment to public office or to a constitutional office had been unconstitutional the delay of the petition would not make the appointment valid.

Conditions when writ of quo warranto will not lie In cases of office of private nature the writ will not lie. In Jamalpur Arya Samaj Sabha v. Dr. D. Rama,2 the High Court of Patna refused to issue the writ of quo warranto against the members of the Working Committee of Bihar Raj Arya Samaj Pratinidhi Sabha—a private religious association. In the same way the writ was refused in respect of the office of a doctor of a hospital and a master of free school, which were institutions of private charitable foundation, and the right of appointment to offices therein was vested in Governors who were private and not public functionary.3

1

AIR 1982 Del 83 AIR 1954 Pat 297. 3 Rex v. Morsly, (1846) 115 ER 1130 2

It will not lie for the same reasons against the office of surgeon or physician of a hospital founded by private persons.1 Similarly, the membership of the Managing Committee of a private school is not an office of public nature, therefore writ of quo warranto will not lie. In Niranjan Kumar Goenka v. The Univeristy of Bihar, Muzzafarpur2 the Patna High Court held that writ in the nature of quo-warranto cannot be issued against a person not holding a public office. Acquiescence is no ground for refusing quo-warranto in case of appointment to a public office of a disqualified person, though it may be a relevant consideration in the case of election3When the office is abolished no information in the nature of quo-warranto will lie.

(IV) The Writ of Prohibition: Writ of prohibition means to forbid or to stop and it is popularly known as 'Stay Order'. This Writ is issued when a lower court or a body tries to transgress the limits or powers vested in it. It is a Writ issued by a superior court to lower court or a tribunal forbidding it to perform an act outside its jurisdiction. After the issue of this Writ proceedings in the lower court etc. come to a stop. The Writ of prohibition is issued by any High Court or the Supreme Court to any inferior court, prohibiting the latter to continue proceedings in a particular case, where it has no legal jurisdiction of trial. While the Writ of mandamus commands doing of particular thing, the Writ of prohibition is essentially addressed to a subordinate court commanding inactivity. Writ of prohibition is, thus, not available against a public officer not vested with judicial or quasi-judicial powers. The Supreme Court can issue this Writ only where a fundamental right is affected. "Prohibition is a judicial writ issued from a superior jurisdiction to an ecclesiastical or similar tribunal or an inferior temporal Court including under the latter description, administrative authorities having 1

Amarendra v. Narendra, 50 CWN 449. AIR 1973 Pat 85 3 Shri Hanuman Foundaries v. Hem Ranjan, (1967) 15 FLR 122 (148) 2

a duty imposed on them to proceed judicially to, prevent those tribunals from continuing their proceeding in excess of or abuse of their jurisdiction of violation of the rules of natural justice or in contravention of the laws of the land.1 The writ of prohibition is available only when the inferior Court or tribunal has not made a decision. But if the Court or tribunal has made a decision, in that case, writ of certiorari will lie. In many cases like Juggilal Kamlapat v. The Collector of Bombay,2 P.V. Rao v. Khusaldas Advani3 the writ of prohibition and certiorari were asked together. This is well-known practice which exists elsewhere also. Prohibition is concerned with the prevention of usurpation of jurisdiction by the other tribunals. It is, therefore, not concerned with records as such of the tribunals : 'Prohibition is not a continuation of the proceedings to be prohibited. Its object is on the contrary to arrest the inferior tribunal's proceedings. It is a collateral matter that progress essentially between the two tribunals an inferior one and superior one by which the latter, by virtue of its powers of superintendence over the former, restrains it within its rightful competence. Its nature is held to depend upon the nature of proceedings to be prohibited." It is very different from proceedings by way of appeal or certiorari. Its function is not the correction of errors committed by inferior tribunals. Inferior Court or tribunal may indulge in a number of blunders but the High Court will not issue writ of prohibition unless the blunders drag them outside' its prescribed boundaries. India has to re-orientate the principles for issuing the writ of prohibition.

The scope and grounds for the issue of the writ of prohibition

1

A. T. Markose- “ Judicial Control of Administrative Action”, p. 259 (1945) 8 FBJ p. 300. 3 51 Bom LR 352. 2

As the name itself suggests the writ of prohibition is issued to inferior Court or tribunal to prohibit them to continue proceedings in excess of jurisdiction or in the contravention of the laws of the land. The writ is issued from a higher Court (in India by Supreme Court and High Courts) to an inferior Court or tribunal prohibiting it from proceeding further with the matter already pending before it. The scope of this writ is generally that of certiorari with some difference in the errors of law for which the two remedies will lie. For certiorari the error has to be apparent on the face of records. In case of prohibition it will be seen that error must be of very serious degree. In Govinda Menon v. Union of India1 the Supreme Court dealing with objects and principles, of the writ laid down that the jurisdiction for the grant of the writ of prohibition is primarily supervisory and the object of that writ is to restrain courts or inferior tribunals from exceeding a jurisdiction which they do not possess at all or else to prevent them from exceeding the limits of their jurisdiction. In other words, the object is to confine Courts or tribunals of inferior or limited jurisdiction within their bounds. The writ of prohibition is not only for excess of jurisdiction or for absence of jurisdiction but also in a case of departure from the rules of natural justice. But the writ does not lie to correct the course, practice or procedure of an inferior tribunal; a wrong decision on the merits of proceedings. The writ cannot be issued to a Court or an inferior tribunal for an error makes it go outside its jurisdiction. The writ can be issued only when the proceedings are pending in a Court. If the proceedings have matured into a decision, writ will not lie. When the court, before whom the matter is pending, has ceased to exist, in that condition too the writ of prohibition will not lie, because there can be no proceedings upon which it can operate. But on the other hand, if the Court is functioning, the writ can be issued at any stage of the proceeding before the inferior Court or tribunal. It can be issued only against a judicial or quasijudicial proceeding, not against ministerial or legislative function. 1

AIR 1967 SC 1274 at 1277.

The Supreme Court in Isha Beevi and others v. Tax Recovery Officer and others1 has observed that the existence of an alternate remedy is not generally a bar to the issuance of a writ of prohibition. But in order to substantiate a right to obtain a writ of prohibition from a High Court or the Supreme Court, an applicant has to demonstrate total absence of jurisdiction on the part of the officer or authority to proceed. It is not enough if a wrong section of provision of law is cited in a notice or order when the power to proceed is actually there under another provision. Grounds of Writ of Prohibition The grounds for the issue of the writ of prohibition may be enumerated in the following ways : (1) Absence of jurisdiction; (2) Abuse of jurisdiction; (3) Violation of natural justice; (4) Fraud; (5) Contravention of the law of the land. (1 and 2) Prohibition for jurisdiction defects.—where the impugned proceeding is devoid of legal basis, as where an income-tax enquiry goes beyond the period sanctioned by the legislature or where the constitution of the tribunal attempting to impose taxation itself is fundamentally defective, the writ of prohibition will lie in such cases. Where the assessment order is partly legal and partly illegal, prohibition can effectively paralyse the part that is illegal and leave unaffected that part which is valid.2 But the remedy of prohibition in India has been able to debts and counteract more cases of what the Court feel to be arbitrary administrative action and the cases of simple excess of jurisdiction. The writ has been often granted for protection from illegal attempts of the tax authorities to impose illegal taxes. The principle is that where taxation is under an unconstitutional law, original or subordinate, the High 1 2

AIR 1975 SC 2135 Calcutta Discount Co. Ltd. V. Income Tax Officer, Calcutta, AIR 1952 Cal 660

Courts and Supreme Court under Articles 32 and 226, respectively can interfere while there is an error in the proceedings under valid law, then statutory remedies are to be exhausted. (3)

Prohibition

for

the

violation

of

judicial

procedure.—The

administrative discretion should be exercised in such a way as not to affect the interest of the citizens where it is to affect, the interests of the citizens it should be exercised with due respect to fundamentals of justice and judicial procedure. If this is forgotten in the exercise of administrative action of a quasi-judicial nature, prohibition will prevent further proceedings of the official. In Indumati Devi's case1 there was no statutory prescription of any rule to fair procedure and yet as a part of the general law of the country prohibition buttressed the rules of natural justice. In Joneja v. Das Gupta2 the High Court prohibited the authorities from proceeding with the departmental enquiry without specifying the particular documents which are going to be produced at the "hearing and without giving inspection note thereof to the petitioner before hand." If the presiding officer of a judicial tribunal has a personal interest in &ny dispute or clearly acts mala fide he will have no jurisdiction to deal with the proceedings before him and writ of prohibition would be issued to remove those proceedings from his cognizance.3 An application for prohibition is never too late as long as there is something left for it to operate upon. If pursuant to the action of the tribunal something remained to be done, the tribunal does not become functus officio after the action and, if that something directly arose from an order which could not stand, the High Court can prohibit the tribunal by a writ of prohibition from proceeding with or taking further steps pursuant to the wrong order or the order without jurisdiction.4 Distinction between the writ of certiorari and prohibition

1

ILR (1938) 1 Cal 476 AIR 1953 Cal 361. 3 Asiatic Engineering Company v. Achhru Ram, AIR 1951 All 746 4 Mariamma Mathai v. Mathulla , 1974 KLT 32 2

"Prohibition has been much common with certiorari, both in its scope and in the rules by which it is governed." The remedies under both the writs lie against a judicial or quasi-judicial body but not against an executive body. In Hari Vishnu v. Ahmad Ishaque1 it was observed in this way : "Both the writs of prohibition and certiorari have for their object the restraining of inferior Courts from exceeding their jurisdiction and they could be issued not merely to Courts but to authorities exercising judicial or quasi-judicial function. The following points of distinction may be noted (1)

Prohibition wholly concerns with matters of jurisdictional defects

whereas certiorari is only substantially concerned with such defects. (2') Prohibition prevents and prohibits a tribunal or Court from exceeding its jurisdiction, whereas certiorari defeats an order passed without jurisdiction. Thus the interference through the writ of certiorari takes place after the order has been passed by the Court or tribunal, whereas prohibition interferes only when the inferior Courts or Tribunal have proceedings pending before it. (3) The writs of prohibition and certiorari are issued at different stages of the proceeding. When an inferior Court takes up a matter against a person over which it has no jurisdiction, the person so affected may move Supreme Court within whose jurisdiction the matter has arisen, the writ of prohibition, and on that, an order will issue forbidding the inferior Court from continuing the proceedings. On the other hand if the Court hears that case or matter and gives a decision, the party aggrieved will have to move the superior Court for a writ of certiorari and on that, an order will be made quashing the decision of the lower Court or tribunal on the ground of want of jurisdiction." There may be instances where the two writs may overlap. It may happen that in a proceeding before an inferior Court a decision might have been passed which does not completely dispose of the matter, in such cases it would be advisable to apply both for certiorari and prohibition,

1

AIR 1955 SC 233

certiorari against the order passed in fraction and prohibition for arresting the further continuance of the proceeding. Distinction between the writ of prohibition and mandamus The distinction between mandamus and prohibition has been well drawn by Shankar Saran, J., in the case of Chotey Lal v. The State of Uttar Pradesh.1 "Mandamus is neither a writ, of course, nor a writ of right but it will be granted if the duty is in the nature of a public duty and specifically affects the rights of an individual, provided, there is no more appropriate remedy." Lord Goddard in Rex v. Dunsheath2 has observed that the "person against whom it is issued must be either under a statutory or legal duty to do something or not to do something; the duty itself of being imperative nature." The writ of prohibition, on the other hand may be issued against a Minister, an executive authority or semi-public bodies of non-judicial character in order to control their acts of judicial or quasi-judicial nature. As it is well settled that the writ of prohibition can only lie against a body exercising functions of a judicial or Quasi-judicial character.

(V) The Writ of Certiorari: Literally, Certiorari means to be certified. The Writ of Certiorari is issued by the Supreme Court to some inferior court or tribunal to transfer the matter to it or to some other superior authority for proper consideration. The Writ of Certiorari can be issued by the Supreme Court or any High Court for quashing the order already passed by an inferior court. In other words, while the prohibition is available at the earlier stage, Certiorari is available on similar grounds at a later stage. It can also be said that the Writ of prohibition is available during the tendency of proceedings before a sub-ordinate court, Certiorari can be resorted to only after the order or decision has been announced. There are several conditions necessary for the issue of Writ of Certiorari, which are as under:

1 2

AIR 1951 All 228 (1950) 2 All ER 741

(a) There should be court, tribunal or an officer having legal authority to determine the question of deciding fundamental rights with a duty to act judicially. (b) 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 law. The order could also be against the principle of natural justice or it could contain an error of judgment in appreciating the facts of the case. "Certiorari is historically an extraordinary legal remedy and is corrective in nature. It is issued in the form of an order by a superior Court to an inferior civil, tribunal which deals with the civil rights of persons and which is public authority to certify the records of any proceeding of the latter to review the same for defects of jurisdiction, fundamental irregularities of procedure and for errors of law apparent on the proceedings.1 In Champa Lal Binani v. The Commissioner of Income-tax,2 the Supreme Court has stated that the writ of certiorari is discretionary; it is not issued merely because it is lawful to do so. A petition for a writ of certiorari may lie to High Court, where the order is on the face of it erroneous or raise questions of jurisdiction, of infringement of fundamental right of the petitioner. It is available in those cases where a tribunal, though competent to enter upon an enquiry, acts in flagrant disregard of rules of procedure or violates the principles of natural justice where no particular procedure is prescribed3 The jurisdiction to issue a writ of certiorari is a supervisory one and in exercising it, the Court is not entitled to act as a Court of appeal. That necessarily means that the findings of fact arrived at by the inferior Court or tribunal are binding. An error of law apparent on the face of the record could be corrected by a writ of certiorari, but not an error of fact; however grave it may appear to be.4 1

AIR 1954 Pat 297. AIR 1970 SC 645 3 Parry and Co. v. P.C. Lal, AIR 1970 SC 1334 4 JAgadish Prasad v. Smt. Angoori Devi, AIR 1984 SC 1447. 2

Certiorari is thus said to be a corrective remedy. This is, of course, its distinctive feature. The very end of this writ is to correct the error apparent on the face of proceedings and to correct the jurisdictional excesses. It also corrects the procedural omissions made by inferior courts or tribunals. If any inferior Court or tribunal has passed an order in violation of rules of natural justice, or in want of jurisdiction, or there is an error apparent on the face of proceeding, the proper remedy is through the writ of certiorari: "Just as habeas corpus looked for the jailor of the aggrieved detenu, mandamus for a delinquent public authority disinclined to do his duty, quo warranto for an imposter, prohibition for a tribunal about to proceed or proceeding in all illegal manner, Certiorari looks the record from which it wants to detect error, jurisdictional or other. If error is there it liberates the individual as well as the tribunal from the bondage of such error.1 Certiorari is a proceeding in personam.—Unlike the writ of habeas corpus the petition for certiorari should be by the person aggrieved, not by any other person. The effect of the rule of persofiatn is that if the person against whom the writ of certiorari is issued does not obey it, he would be committed forthwith for contempt of Court. Lastly, certiorari is an original proceeding in the superior Court. It has its origin in the Court of issue and therefore the petition in India is to be filed in the High Court under Article 226 or before the Supreme Court under Article 32 of the Constitution. Briefly stated certiorari, in the words of A.T. Markose, may be defined as a judicial order operating in personam and made in an original legal proceedings, directed by a Superior Court as to an inferior public authority, or, to a person who has custody of the records of such an authority requiring the record of some cause or matter which is not of ministerial nature to be submitted to the Superior Court, and on its arrival there to be dealt with according to law.2

1 2

As quoted in Judicial Control of Administrative Action by A.t. Markose, P. 187 A.T. Markose- “ Judicial Control of Administrative Action”, p. 191

Historical growth- The general power to issue certiorari in India was first given by Clause 4 of the Royal Charter issued in 1774 to establish the Supreme Court in Calcutta. The corresponding clause in the subsequent Charters of Madras and Bombay Supreme Courts conferred similar jurisdiction of those Supreme Courts. Historically certiorari was limited to the ordinary original civil jurisdiction of three Supreme Courts of Calcutta, Madras and Bombay and to their successors, the Presidency High Courts. The effect of this was that in whole of India certiorari ran only within three Presidency-towns, namely, Bombay, Calcutta and Madras. Other parts of the country were suffering from the inability to move a petition in case they had any grievance against a judicial or guasi-judicial body. And this state of affairs existed till the enforcement of the Republic Constitution in the year 1950. On the enforcement of the present Constitution all the High Courts of the respective States were given full power to issue writs in the nature of habeas corpus, certiorari etc. under Article 226. This power of issuing writ was to be exercised throughout the territories in relation to which they exercise jurisdiction. Regarding the grounds on which certiorari was available the history 01 this writ in India is in remarkable similarity with those of United States and England. The question of jurisdictional excesses, procedural violations 01 accepted rules and apparent errors were the chief grounds on which writs pi certiorari was granted in the above two countries. So was it accepted in Indian law also. Though before the present century error of law apparent on the face of records was recognised in India as a ground for the issue ot certiorari, a general impression gained ground for some time in this country that certiorari was available only for the defects of jurisdiction. Later on, this defect was removed. Dr. Markose says : "The general comment called forth by the historical survey isthat though the power to issue writ existed in India for' much more than a century the development of the law has taken place only in

recent years. It was in Muljec. Sicka and Company's case in 1939 that Bombay High Court found an opportunity to discuss and establish their general jurisdiction to issue the writ."1 As a matter of fact the historical study of the development of the writ discloses that a consistent procedure to regulate issue of the writ could not be developed in India in pre-Independence period. For example, case of Devichand v. Dlianraj2 shows that even in 1949 there was no rule, in the Madras High Court regulating the procedure regarding application for the writ of certiorari. As late as 1943 the territorial limits for the issue of certiorari had not been finally settled. The process of development of a regulated procedure to issue this writ has been slow and it was only recently when a uniform procedure could be established. Against whom it can be issued As regards the question against whom the writ can be issued, it is well settled that the writ is available against any judicial or quasi-judicial authority, acting in a judicial manner. It is also available to any other authority which performs judicial function and acts in a judicial manner, any other authority may be Government itself. But the conditions allied with it are that Government acts in a judicial manner and the issue is regarding the determination of rights or title of a person. Previously the question was in doubt whether it was available against Central and Local Governments. The majority of judgment is there, when the grant of certiorari against the Government has been denied. The Madras High Court in 1929 and again in 1940 in Chettiar v. Secretary to the Government of Madras3 held that a writ of certiorari, will not lie against Madras Government. The Assam High Court has held that the writ of certiorari will be issued to an authority or body of persons who are under a duty to act judicially. It will not be available against the administrative order or against orders of non-statutory bodies.4 1

A.T. Markose –“ Judicial Control of Administrative Action AIR 1940 Mad 53. 3 ILR 1940 Mad 205. 4 AIR 1949 Bom 227 2

In Surya Dev Rai v. Ram Chandra Rai & others, the Supreme Court has held that, the writ of certiorari will be issued under Article 226 of the constitution of India for correcting gross errors of jurisdiction, i.e., when a subordinate Court is found to have acted (i) without jurisdiction by assuming jurisdiction where there exists none or (ii) in excess of its jurisdiction by over stepping or crossing the limits of jurisdiction or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of,pririciples of natural justice, where there is no procedure specified, and there by occasioning failure of Justice. Who may apply for the writ of certiorari The Supreme Court has held in Bharat Bank v. Employees of Bharat Bank1 that the object of the writ of certiorari is to keep the exercise of powers by judicial and quasi -judicial tribunals within the limits of the jurisdiction assigned to them by law and to restrain them from acting in excess of authority. Now the question is, who may apply for the writ of certiorari. In Chiranjit Lal v. Union of India,2 it has been generally stated that except in the case of a proceeding for habeas corpus, none but the person whose rights have been affected can apply under Article 32. There is. no doubt? that a person aggrieved, by the impugned order shall be entitled to apply. The order need not be expressly adverse to the petitioner, in order to make him a 'person aggrieved'. Thus, where out of several applicants the permit (being the only one to be granted) is issued to one of them, all the others are persons aggrieved by the order granting the permit. In the case of CM. Transport v. Raman & "Raman3 it was held that the fact that such person does not object at a particular stage is not sufficient to reject his petition for certiorari, the principle being whether he has an interest distinct from the general inconvenience which may be suffered by the law being wrongly administered. 1

1950 SCR 459. 1950 SCR 169 3 AIR 1961 Mad 180 (FB) 2

The Calcutta High Court in Sisir Kumar v. Majumdar1 and the Allahabad High Court in R. T.A. v. Kashi Prasad,2 has suggested that a person who was not a party to proceeding before the inferior tribunal was not entitled to apply for certiorari to get an order which was within jurisdiction. But the better view appears to have been taken by the High Court in Assistant Collector v. Soorajmull3 and Damodar v. Sasanarayan4 that if the matter to be received is one which affects the public generally, an individual citizen may ordinarily invoke the remedy of certiorari as may such private citizen who suffers peculiar injury by reasons of a judgment or order in excess of jurisdiction certiorari would lie. In short, any member of the public, who has not disentitled himself by his conduct, may draw the attention of a superior Court to an order passed by a subordinate tribunal being manifestly illegal or ultra vires, for it is the duty of the Superior Court to grant such order. On the same principle, an elector may apply for certiorari to grant against an order of an Election Tribunal on the ground that it is without jurisdiction even though the unsuccessful candidate makes no complaint, An interesting case was decided by the Supreme Court on legal standing to move for certiorari. In J.M. Dcsax v, Roshan Kumar,5a proprietor of a cinema theatre held a licence for exhibiting films. A rival tradesman was granted a 'no objection', certification for exhibition of cinema by the District Magistrate. The proprietor of the cinema then moved a writ-petition to quash the no objection certificate. The question before the Supreme Court was whether he had legal standing to do so. After a review of the relevant cases the Court held that he had no such locus standi because he had no legal right which might have been threatened nor had he any special interest in the locality where the cinema was proposed to be constructed. 1

AIR 1955 Cal 309 AIR 1962 All 551 3 (1952) 56 CWN 452. 4 AIR 1956 Assam 164. 5 (1976) 1 SCC 671 2

The Rajasthan High Court in Mohan Lal v. Lal Chand,1 has suggested that against the order of the Tribunal, a writ of certiorari or a writ in nature ofcertiorari can be issued even under Article 226. Necessary conditions for the issue of the Writ When any body of persons— (a) having legal authority, (b) to determine questions affecting rights of subjects, (c) having duty to act judicially, (d)

acts in excess of their legal authority, writ of certiorari may be issued.

Unless all these conditions are satisfied, mere inconvenience or absence of other remedy does not create a right to certiorari. (i)

The tribunal - must

have authority—Certiorari does not issue where the proceedings of the inferior tribunal are not merely voidable but are absolutely null and void, for in such a case, no benefit will arise from the issue of the writ, e.g.,— (a) where an altogether unauthorised person has purported to act in judicial capacity, or (b) where the proceedings of the tribunal have already become void by the operation of a statute. The ambit of certiorari can be said to cover every case in which a body of persons of a public, as opposed to a purely private or domestic character has to determine matters affecting the subjects provided always that it has a duty to act judicially. And the term judicially would now include quasi-judicially or fairly. It can sometimes even be implied. It is usually implied when the action affects in the broad sense rights or interests of the subjects. It would include administrative acts of such character which affect the rights or interests of citizens and in which they are in any case required to act openly, fairly and impartially.2 The object of certiorari and prohibition is to restrain a tribunal established by law from usurping a jurisdiction which has not been conferred by the Legislature. When a person or body of persons has no legal authority to act as a tribunal, its acts are void ab initio and these need not be quashed 1 2

AIR 2001 Rajasthan 87. Harijander Singh v. Election Committee, kakatiya Medical College, Warangal AIR 1975 AP 33.

by certiorari. This is why neither of these writs is available against a private individual or a domestic tribunal. (ii)

Such

legal

authority

must

be

an

authority

to

determine

questions affecting rights of subjects : In order to attract prohibition or certiorari the determination of the authority must affect the 'rights' of subjects. Nor being qualified in any way, it would comprise any legally enforceable rights or interest, proprietary, pecuniary, or personal whether the right is created by statute or by Common Law. (iii) The tribunal must have the duty to act judicially; It has been held by the Supreme Court in State of Bihar v. Ganguly1 that the writ of certiorari does not issue against executive acts or even ministerial acts of a judicial authority. It is issued only if the act done by the inferior body or authority is a 'judicial' act, which term includes the concept of a 'quasi-judicial' act. (iv) The judicial or guasi-judicial authority must act— (a) without or in excess of jurisdiction; or (b) In contravention of the rule of natural justice; or (c) Commit an error apparent on the face of the record. In order that certiorari may lie, the tribunal must have acted without jurisdiction or in excess of the jurisdiction conferred upon it by law. Defect of jurisdiction must be distinguished from defect in mere procedure.Where the responsibility for the passing of a particular kind of order is by statute vested in a specified authority but such an order passed by a different authority, the fact that the proper Appellate Authority affirmed the original order does not cure the invalidity thereof. (v) The tribunal whose order is sought to be quashed must be inferior to the Court before which certiorari has been applied for : In re Babul Chandra2, Patna High Court has held that no Court can issue certiorari to quash an order made by itself or a Court of equal status or of co-ordinate jurisdiction or against an independent tribunal. For the same

1 2

AIR 1958 SC 1018. AIR 1952 Pat 305.

reasons, a High Court cannot issue a writ of certiorari against itself on its administrative side, e.g., to quash an order of refusal to enroll the petitioner as an advocate. (vi) The tribunal whose order is sought to be quashed or the authority from whose custody the record is called for, must be within the jurisdiction of the High Court. The tribunal whose order is sought to be quashed, as has been held by the Supreme Court in Rashid v. I.T. Commissioner1 must be situated within the jurisdiction of the High Court. But the tribunal should be in existence at the date of issue of the writ. The Patna High Court has held in Bhawani v. Naqvi2 that the writ cannot be issued if the person who has the custody of the record is outside the jurisdiction of the High Court. Thus, after the Labour Appellate Tribunal at Lucknow has been abolished and the records removed to Bombay, the High Court of Allahabad cannot issue certiorari to quash a decision of that Tribunal. On the other hand, if the person in whose custody the record is kept is within the jurisdiction of the Court and has been named in the petition, cannot be defeated on the ground that the present incumbent of the office which issued the impugned order has not been impleaded in the petition. Grounds of Writ of Certiorari The writ ofcertiorari can be issued on the following grounds : (1) Want of jurisdiction, which includes the following : (a) Excess of jurisdiction. (b) Abuse of jurisdiction. (c) Absence of jurisdiction. (2) Violation of Natural Justice. (3) Fraud. (4) Error on the face of records.

1 2

(1954) SCR 738. AIR 1956 Pat 257.

(1) Want of jurisdiction.—The Supreme Court has stated in Ebrahim Abu Bakar v. Custodian-General of Evacuee Property,1 that want of jurisdiction may arise from— (1) the nature of subject-matter. (2) from the abuse of some essential preliminarj-, or (3) upon the existence of some facts collateral to the actual matter which the Court has to try and which are the conditions precedent to the assumption of jurisdiction by it. It may be added that jurisdiction also depends on— (4) the character and constitution of the tribunal. In Naliru Ratijan Guha v. Anant Sankar Roy,2 the Commissioner adjudicated on three claims. The employee prayed for certiorari to quash the orders of Commissioner on the ground that the subject-matter of the claims were outside the jurisdiction of the Commissioner. Bose, J., accepted the contention and quashed the order. In Allahabad case of Budh Prakash Jai Prakash v. Sales Tax Officer, Kanpur3 the High Court quashed an order of Sales Tax Officer of Kanpur by certiorari under U.P. Sales Tax Act. The Officer in this case levied sales tax on forward contracts, irrespective of the place where the delivery took place under the contracts. The High Court held this to be ultra vires because the subject-matter of levy was outside the scope of the power under the Act. In some cases the jurisdiction of inferior tribunal may depend upon the existence of some particular facts collateral to the actual matter, which the tribunal has to try. The facts may be of various kinds. The most important is the constitutional invalidity of the very law under which the inferior tribunals operate. As a matter of fact there is a difference between abuse of jurisdiction and excess of jurisdiction. A tribunal may go beyond the powers given to it. This may be due to ignorance. There has been a good number of cases in Indian Administrative Law where the abuse of jurisdiction has been corrected through the writ of certiorari. Thus the orders of tribunals which did not wait 1

1952 SCJ 488. AIR 1922 Cal 112 3 AIR 1962 All 764. 2

even for 15 minutes to hear a party and which resorted to its own theories to assess the premises of people and acted under the influence of political considerations, have been quashed. The Court does not interfere in the cases where there is a pure exercise of discretion, and which is not arbitrary if it is done in good faith. They do not ignore the legislative intention in the statute which might give a wide aptitude of powers to the administrative authority or the social needs, which demand the bestowal of some wider jurisdiction, or the historical circumstances under which a certain tribunal got exclusive jurisdiction of a particular subject-matter. (2) Violation of Natural Justice.—The next ground for the issue of writ or certiorari is the violation of natural justice. "The doctrine of natural justice has a recognised place in Indian Legal system." The doctrine includes the following three rules : (1) Rules against bicin, i.e., nobody should be a Judge in his own cause; (2)

Rule of audi alteram partem, i.e., nobody should be condemned

unheard; (3)

Reasonable opportunity to know the cause of condemnation. "The

jurisdiction to enforce natural justice was frequently used by Indian authorities." The first rule of natural justice was referred in Alridge case by Lord Haldane, where he stated that an administrative tribunal "must deal with the question referred to them without bias" The adjudicator should be disinterested and unbiased. Impartiality is the very key to justice. The basis of this is that "justice should not only be done, but it should appear to have been done." In R. v. Sussex1 it was laid down that "nothing is to be done which creates even a suspicion that there has been improper interference with the course of justice." The tribunal should act and be able to act impartially, objectively and without any bias. Bias may arise in the following manner : (1) Pecuniary relationship, (2) Special interest in the subject-matter of the adjudication, 1

1 KB 256, 259.

(3) Personal relationship. In Manak Led v. Prem Chand1 enquiries were made against an advocate in connection with his alleged misconduct. The enquiry was made by another advocate who was the Chairman of Bar Council Tribunal which was constituted under the Bar Council Act. The misconduct proceeding had arisen out of certain proceeding under Section 145, Cr. P.C. It was shown that the Chairman advocate has appeared as an advocate for one day for the opposite party. The Supreme Court held that the Tribunal suffered from an infirmity for there was reasonable suspicion against Chairman advocate's impartiality. Again in State of U.P. v. Mohd. Nooh2 a departmental enquiry was made against Nooh. The person presiding over the enquiry himself gave evidence in the proceedings against Nooh and then continued to preside over the enquiry thereafter. The Supreme Court characterized this as shocking to the sense of justice and fairplay for the facts undoubtedly evidenced a state of mind which already disclosed considerable bias against Nooh. In first round of Gullapalli case,3 the hearing held under Section 68(d) of the Motor Vehicles Act by the Secretary of the Transport Department was held to be vitiated, because the scheme of the nationalisation against which hearing was taking place was prepared by the Transport Department itself. Where the basic pay of a Government servant was reduced with retrospective effect without having been granted an opportunity to show cause notice against such reduction and the order came to be made behind his back without following any procedure known to law, it was held to be a flagrant violation of the principles of natural justice. Fair play in action warrants that no such order which has the effect of an employee suffering evil consequences should be passed without putting the concerned to notice and giving him a hearing in the matter.4 Where the petitioner who was a forest contractor was permanently black-listed and debarred from purchasing any coupe and to work as agent 1

AIR 1957 SC 425; 1957 SCR 575. AIR 1958 SC 86 3 AIR 1959 SC 308. 4 Bhagwan Shukla v. Union of India, AIR 1994 SC 2480. 2

of any forest contractor in the Bihar forest department without any opportunity to represent their case, the Court quashed the order of blacklisting of the contractor. The Court held that the authorities must give an opportunity to the contractors to represent their case and hear them against blacklisting.1 In the instant case the Court followed the Supreme Court's judgment in Mis. Evasion Equipment and Chemical Ltd. v. State of West Bengal2 Similarly the drug licence of the petitioner was cancelled without affording proper opportunity to licence-holders and the order was confirmed in appeal relying on the additional materials which were not furnished to him, the Court quashed both the orders holding them to be violative of principles of natural justice3 In Prabhakar Rao v. A.P. Housing Board,4 the Board allotted a flat in favour of the petitioner which was communicated to him. The petitioner failed to pay first instalment within 30 days of the receipt of intimation. He moved for the extension of time and it was not considered by the Board. The Board proceeded to cancel the allotment without giving the petitioner any notice and opportunity of hearing. It was held by the Andhra Pradesh High Court that the cancellation order was arbitrary and illegal. It may be noted with interest that despite so much extension of natural justice, there are still quite a few situations where natural justice cannot be claimed. For example, when a student is removed from the rolls on the ground that his academic performance is not satisfactory, he cannot claim natural justice5.This situation is different from expulsion, of student on the ground of discipline. The former is a case merely of assessment of the academic performance of student. Assessment of a student academically was best left to the prescribed University authorities who are best qualified to judge.6

1

Gopal Nath Sharma v. The State of Bihar, AIR 1978 Pat 46 AIR 1975 SC 268. 3 M/S North Bihar Agency and others v. The State of Vihar , AIR 1981 SC 1758. 4 AIR 19889 NOC 134 (AP) 5 Sanjaya Lobo v. University of Rajasthan, AIR 1981 Raj 69 6 Jawaharlal Nehru University v. B.S. Nerwal, AIR 1980 SC 1966. 2

The third rule of natural justice, which was propounded by Committee of Minister's Powers was that a party was entitled to know the reasons why he has been condemned. Now the judicial decisions in India have clearly established the practice that the High Court and Supreme Court will grant the writ of certiorari in case the rule of natural justice is violated. Professor Markose says "the available evidence in India discloses a strong tendency which has become stronger in more recent cases to enforce this rule of natural justice also and that even in cases where otherwise the administrative determination had no judicial element in it." Where the State Government while considering the allotment of quota of Ayurvedic Medicines to the applicant firms excluded the claim of the petitioner firm from being considered without assigning any reasons, it was held by the Court that non-assigning of reasons or the non-communication thereof was not based on public policy. Hence the act of the Government was held to be arbitrary and violative of natural justice and liable to be set aside;1 (3) Fraud.—There are no cases in India where certiorari has been asked on account of fraud. The cases are found in British Administrative law where on the ground of fraud the Court has granted the writ of certiorari. The superior Courts have an inherent jurisdiction to set aside orders of convictions made by inferior tribunals if they have been procured by fraud or collusion a jurisdiction that now exercised by the issue of certiorari to quash.2 Where fraud is alleged, the Court will decline to quash unless it is satisfied that the fraud was clear and manifest and was instrumental in procuring the order impugned.3 (4) Error of law apparent on the face of record.—"An error in decision or determination itself may also be amenable to a writ of certiorari but it must be a manifest error apparent on the face of the proceeding e.g., when it is based on clear ignorance or disregard of the provision of law." In other words, it is a patent error which can be corrected by certiorari but not a 1

Omprakash v. State, AIR 1995 HP 5 R v. Gillyard, (1848) 12 QB. 3 Colonial Bank of Australia v. William, ( 1974) LR PC 541. 2

mere wrong decision. (T.C. Basappa v. T. Nagappa).1 It was for the first time when the Supreme Court issued the writ of certiorari on the only ground that the decision of the election tribunal clearly presented a case of error of law, which was apparent on the face of the record. The error must be apparent on the face of the records. Again in M/s. Continental Construction Ltd. v. Food Corporation of India and others,2 the Court observed that, Court can interfere particularly when finding was erroneous or the error must be apparent on the face of the records. Where in its judgment the Board of Revenue has not properly appreciated the applicability of the law to the facts of the case, it is an error apparent. The order of the Board is liable to be quashed.3 In Kays Concern v. Union of India,4 the Central Government disposed of an appeal from the State Government under Rule 54 of Mineral Concession Rules. The Government decided the matter without applying its mind to an important consideration which was duly brought to its notice. The Court quashed the Government's order on the ground that because of nonapplication of its mind to material circumstances, the order suffered from a patent error of law. In K.P. Naniunath v. State the High Court5 quashed the order of the State because it had disregarded the rulings of the Court and, thus, the order was held to suffer from an error apparent on the face of the record. The Court emphasized that every quasi-judicial authority in the State was bound to follow the ruling of the High Court unless they are reversed by the Supreme Court. The Supreme Court in Dr. Chetkar Jha v. Vishwanath Prasad Verma6 held that in a writ-petition for certiorari a superior Court would not interfere on the mere ground of an error, of fact or even of law, but if the error of law is apparent on the record, or consists of a misconstruction of a law or that 1

AIR 1954 SC 440. AIR 2003 Del 32 3 Syed Shabbir Ahmad v. Board of Revenue, 1974 RD 11. 4 AIR 1976 SC 1525. 5 AIR 1976 Knt 158. 6 AIR 1970 SC 832. 2

assumption of jurisdiction is made which otherwise does not exist, a certiorari can be issued.5 The Court again in Gujarat Steel Tubes v. Its Mazdoor Sabha1 emphasized that every wrong order cannot be corrected merely because it is wrong. It can be quashed only if it is vitiated by the fundamental flaw of gross miscarriage of justice, absence of legal evidence, perverse misreadig of facts, serious errors of law on the face of the order, jurisdictional failure and the like. In Hindustan Steel Ltd. v. A.K. Roy,2 the Supreme Court held that if a statutory tribunal exercises its discretion on the basis of irrelevant consideration or without regard to relevant considerations, a certiorari may properly be issued to quash its order. In Parry and Co. v. P.C. Lal3 the Supreme Court observed : "A mere wrong decision cannot be corrected by a writ of certiorari as that would be using it as the cloak of an appeal in disguise but a manifest error apparent on the face of proceeding based on a clear ignorance or disregard of the provisions of law or absence of or excess of jurisdiction, when shown can be so corrected. Where the tribunal having jurisdiction to decide a question comes to a finding of fact, such finding is not open to question under Article 226 unless it could be shown to be wholly unwarranted by the evidence where the tribunal has disabled itself from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case, or where its conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person can ever have arrived at the conclusions, interference under Article 226 would be justified."4 Certiorari is not issued on the ground of error of fact, however grave it may be. But where a tribunal has reached a finding on such evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, although it would amount to an error of fact, it can be treated as an error of law. The reason for adopting 1

AIR 1980 SC 1896. AIR 1970 SC 1334. 3 AIR 1970 SC 1401. 4 AIR 1970 SC 1334 at 1340 2

such view is that the Court exercising special jurisdiction under Article 226 does not act as an appellate Court but exercises only supervisory jurisdiction.1 These are the grounds on which writ of certiorari is issued in India. It has been the practice of the Indian Courts in issuing the writ that there must not be adequate alternative remedy.

Chapter-II Origin and Development of PIL

1

see Swaran Singh v. State of Punjab, AIR 1976 SC 232.

Evolution of Public Interest Litigations: 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. In other words, only the affected parties had the locus standi (standing required in law) to file a case and continue the litigation and the non affected persons had no locus standi to do so. And as a result, there was hardly any link between the rights guaranteed by the Constitution of Indian Union and the laws made by the legislature on the one hand and the vast majority of illiterate citizens on the other. The Courts, exercising their power of judicial review found to their dismay that the protest of the poor, depraved, the illiterate, the urban and rural unorganised labourer sector, women, children, handicapped by ''ignorance, indigence and illiteracy", and other downtrodden having either no access to justice or had been denied justice. A new branch of proceedings known as "Social Interest Litigation" or "Public Interest Litigation" was evolved with a view to render complete justice to the aforementioned classes of persons. It expanded it* wings in the course of time. The Court in pro bono publico granted relief to the inmates of the prisons, provided for legal aid directed speedy trial, the maintenance of human dignity and covered several other areas. The Representative actions, pro bono publico and the test litigations were entertained in keeping with the current accent on justice to the common man and a necessary disincentive to those who wish to by-pass the real issues on the merits by suspect reliance on peripheral procedural shortcomings. The Court in pro bone publico proceedings intervened when there had been callous neglect as in policy of State, a lack of probity in public life, abuse of power in the control and destruction of environment. It also protected the inmates of prisons and homes. It sought to restrain exploitation of labour practices.

The Court expanded the meaning of life and liberty as envisaged in Article 21 of the Constitution of India. It zealously enforced Article 23 of the Constitution. The Statutes were interpreted with human right angle in view. The Statutes were interpreted in the fight of international treatises, protocols and conventions. Justice was made available having regard to the concept of human right even in cases where the State was not otherwise apparently liable. The people of India have turned to the Courts more and more for justice whenever there had been a legitimate grievance against the State's statutory authorities and the other public organizations. People come to the Courts as the final resort, to protect their rights and to secure probity in public life. Pro bono publico constituted a significant state in the present day judicial system. They, however, provided the dockets with much greater responsibility for rendering the concept of justice available to the disadvantaged sections nf the society. "Public Interest Litigation" has come to stay and its necessity cannot be over emphasised. The Courts evolved a jurisprudence of procedural propriety was to move over giving place to substantive concerns of the deprivation of rights. The rule of locus standi was diluted. The Court in place of disinterested and dispassionate adjudicator became active participant in the dispensation of justice. But with the passage of time, things started taking different shapes. The process was sometimes abused. Proceedings were initiated in the name of "Public Interest Litigation" for ventilating private dispute. Some petitions were public oriented. A balance was, therefore, required to be struck. The Courts started exercising greater and caution in the matter of exercise of jurisdiction of public interest litigation.1 The Court insisted on famishing of security before granting injunction and imposing very heavy costs when a petition was found to be. It took strict action when it was found that the motive to file public interest litigation was oblique,

Legal History: The Indian PIL is the improved version of PIL of U.S.A. According to “Ford Foundation” of U.S.A., “Public interest law is the name that has recently been given to efforts that provide legal representation to previously unrepresented groups and interests. Such efforts have been undertaken in the recognition that ordinary marketplace for legal services fails to provide such services to significant segments of the population and to significant interests. Such groups and interests include the proper environmentalists, consumers, racial and ethnic minorities and others”. The emergency period (1975-1977) witnessed colonial nature of the Indian legal system. During emergency state repression and governmental lawlessness was widespread. Thousands of innocent people including political opponents were sent to jails and there was complete deprivation of civil and political rights. The post emergency period provided an occasion for the judges of the Supreme Court to openly disregard the impediments of AngloSaxon procedure in providing access to justice to the poor. 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. In other words, only the affected parties had the locus standi (standing required in law) to file a case and continue the litigation and the non affected persons had no locus standi to do so. And as a result, there was hardly any link between the rights guaranteed by the Constitution of Indian Union and the laws made by the legislature on the one hand and the vast majority of illiterate citizens on the other. The traditional view in regard to locus standi in Writ jurisdiction has been that only such persons who: a) Has suffered a legal injury by reason of violation of his legal right or legally protected interest; or b) Is likely to suffer a legal injury by reason of violation of his legal right or legally protected interest. Thus before a person acquired locus standi he had to have a personal or

individual right which was violated or threatened to be violated . He should have been a “person aggrieved” in the sense that he had suffered or was likely to suffer from prejudice, pecuniary or otherwise. However, all these 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. Justice V. R. Krishna Iyer and P. N. Bhagwati recognised the possibility of providing access to justice to the poor and the exploited people by relaxing the rules of standing. In the post-emergency period when the political situations had changed, investigative journalism also began to expose gory scenes of governmental lawlessness, repression, custodial violence, drawing attention of lawyers, judges, and social activists. PIL emerged as a result of an informal nexus of pro-active judges, media persons and social activists. This trend shows starke difference between the traditional justice delivery system and the modern informal justice system where the judiciary is performing administrative judicial role. PIL is necessary rejection of laissez faire notions of traditional jurisprudence. The first reported case of PIL in 1979 focused on the inhuman conditions of prisons and under trial prisoners. In Hussainara Khatoon v. State of Bihar1, the PIL was filed by an advocate on the basis of the news item published in the Indian Express, highlighting the plight of thousands of undertrial prisoners languishing in various jails in Bihar. These proceeding led to the release of more than 40,000 undertrial prisoners. Right to speedy justice emerged as a basic fundamental right which had been denied to these prisoners. The same set pattern was adopted in subsequent cases.

1

AIR 1979 SC 1360

A new era of the PIL movement was heralded by Justice P.N. Bhagawati in the case of S.P. Gupta v. Union of India1. In this case it was held that “any member of the public or social action group acting bonafide” can invoke the Writ Jurisdiction of the High Courts or the Supreme Court seeking redressal against violation of a legal or constitutional rights of persons who due to social or economic or any other disability cannot approach the Court. By this judgment PIL became a potent weapon for the enforcement of “public duties” where executed in action or misdeed resulted in public injury. And as a result any citizen of India or any consumer groups or social action groups can now 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. In 1981 the case of Anil Yadav v. State of Bihar2, exposed the brutalities of the Police. News paper report revealed that about 33 suspected criminals were blinded by the police in Bihar by putting the acid into their eyes. Through interim orders Supreme Court directed the State government to bring the blinded men to Delhi for medical treatment. It also ordered speedy prosecution of the guilty policemen. The court also read right to free legal aid as a fundamental right of every accused. Anil Yadav signalled the growth of social activism and investigative litigation. In Citizen for Democracy v. State of Assam3, the S. C. declared that the handcuffs and other fetters shall not be forced upon a prisoner while lodged in jail or while in transport or transit from one jail to another or to the court or back. Development of Public Interest Litigation in India The seeds of the concept of PIL was initially sown in India by Krishna fyer, J., in 1976 (without assigning the terminology) in Mumbai Kamgar Sabha v. Abdulbhai.4 He, 1

AIR 1982 SC 149 AIR 1984 SCC 257 3 AIR 1983 SC 565 4 AIR 1976 SC 1455 2

while disposing an industrial dispute in regard to the payment of bonus, has observed : "Our adjectival branch of jurisprudence, by and large, deals not with sophiscated litigant but the rural poor, the urban lay and the weaker societal segment for whom law would be an added terror if technical misdescription and deficiencies in drafting, pleading and setting out the cause title create a secret weapon to non-suit a part. Test litigations, representative actions, pro bono publico and like broadened forms of legal proceedings are in keeping with the current accent of justice to the common man and a necessary disincentive to those who wish to bypass the real issues on the merits by suspect reliance on peripheral procedural shortcomings. Even Article 226, viewed on wider prospective, may be amenable to ventilation of collective or common grievances, as distinguished from assertion of individual rights, although the traditional view, backed by precedents has opted for the narrower alternative. Public interest is promoted by a spacious construction of locus standi in our socio-economic circumstances and conceptual latitudianism permits taking liberties with individualisation of the right to invoke the higher courts where the remedy is shared by a considerable number, particularly when they are weaker." After the germination of the seeds of the concept of PIL in the soil of our judicial system, it was nourished, nurtured and developed by the Apex Court by a series of outstanding decisions. In Fertilizer Corporation Kamgar Union v. Union of India1 the terminology "public interest litigation" was used. In this case, Krishna lyer, J., made the following elaborate observations: (1)

If the tone of public life in the country were sufficiently honest, fair

minded, formal norms to control administration may not be needed. But when corruption permeates the entire fabric of Government, legality is the first casuality, for then the State power is exercised on grounds unrelated to its nominal purpose.

1

AIR 1981 SC 344

(2) In such a climate, civil remedies for administrative wrong doing depends upon the action of individual citizen. An individual must depend upon his own expense to challenge the vast panoply of State power by a civil action in a Court at a great financial cost to himself. (3) A pragmatic approach to social justice warrants a liberal interpretation of constitutional provisions (including Articles 32 and 226) so that the Court may carry out effective policing of the corridors of power until other Ombudsman arrangements are made. (4)

Court's function, of course, is limited to testing whether administrative

action has been fair and free from the point of unreasonableness and has substantially complied with the procedural norms set for it by rules of public administration and that the action of the administration is not mala fide. (5) Locus standi must be liberalised to meet the challenge of the times. Ubi jus ibi remedium must be enlarged to embrace all interests of public minded citizen or organisation with serious concern for conservation of public resources and the direction and correction of public power so as to promotejustice. (6) Justifying the broader concept of standing, he stated, 'Law, as I conceive it, is a social auditor and this function can be put into action only when someone with real public interest ignites the jurisdiction. (7)

Restrictive rules of standing are antithesis to a healthy system of

administrative law. If a plaintiff with a good case is turned away merely because he is not sufficiently affected personally, that means that some government agency is left free to violate the law, and that is contrary to public interest. (8) In India, freedoms suffer from atrophy and "activism is essential for participative public justice." Therefore, public minded citizens must be given opportunities to rely on legal process and not to be repelled by narrow and pedantic concept of locus standi. (9) We ought not to be deterred by the prospects of false and frivolous suits. The litigants are unlikely to expend their time and money unless they have some real interest at stake. When a person, wishes to sue merely out

of public interest he should not be discouraged. The Public interest in litigation is a part of the process of participative justice. (10) If a citizen is merely a way-farer or officious intervener without any interest or concern beyond what belongs to any one of the 660 million people of the country, "the door of the Court will not be ajar for him." But if he belongs to an organisation which has special interest in the subjectmatter, if he has some concern deeper than that of a busy body "he cannot be held off the gates although whether the issue raised by him is justifiable may still remain to be considered." (11)

Justiciability of the issues and standing to agitate them are two

different things. The learned Judge also cautioned that "an officious busy body picking up a stray dispute or idle pedlar of black-mail litigation through abuse of the process of the Court cannot be permitted to pollute the Court instrumentality for private objective. Only when a person with real public interest ignites the jurisdiction, the Court's door should be opened." The entire development of public interest litigation in India till today can be attributed to the following four procedures :— (1) liberalisation of the rule of locus standi, (2) treating letters as writ petitions, (3) suo motu intervention by the judge (M.P. Thakkar, J., converted a letter to the Editor in a newspaper by a widow mentioning her plight because of the non-payment of the provident fund family pension.) (4) Adoption of non-adversarial procedure of justice and appointment ofCommission. In S.P. Gupta v. Union of India1 the Supreme Court has carried forward the liberal view of standing so as to provide judicial redress for public injury arising from breach of public duty or from violation of the Constitution or the law. In this case, a few advocates were allowed to file a writ-petition challenging the appointment and transfer of the High Court judges. The petition filed by them was held maintainable. The liberalised rule of locus 1

AIR 1982 SC 149.

standi was a view for extending justice to those who are economically and socially disadvantaged to vindicate their rights before the court. The Court ruled that to insist on traditional rule of locus standi in effect would mean denial of justice to the poor masses and would be disastrous for rule of law for "it would be open to State or public authority to act with punity beyond the scope of its power or in breach of public duty owned by it. Justice Bhagwati expressed his great concern "to innovate new methods and devise new strategies for the purpose of providing access to justice to large masses of people who are denied their basic human rights and to whom freedom and liberty have no meaning." In habeas corpus case, the Court has further liberalised the rule of standing. In Kadra Pahadia v. State of Bihar1 the letter written by Dr. Basudha Dhagamwar pointing out the sad plight of undertrial prisoners languishing in jail for more than a decade, was treated to be a petition and the Court proceeded to grant an appropriate remedy. In Miss Veena Sethi v. State of Bihar2 through a letter addressed by the Free Legal Aid Committee, Hazaribagh to Bhagwati, J., the judicial process was set into motion and the attention of the Court was drawn to the atrociously illegal detention of certain prisoners in the Hazaribagh Central Jail for almost two or three decades without any justification whatsoever, but for this letter these forgotten specimens of humanity languishing in jail for years behind stone walls and iron bars, deprived of freedom and liberty would have continued to remain in jail without any hope of ever walking out of its forbidding environment and breathing the fresh air of freedom. In Sheela Barse v. State of Maharashtra3 the writ-petition was based on a letter addressed by Sheela Barse, a journalist, complaining a custodial violence to women prisoners whilst confined in the police lockup in the city of Bombay. While dealing with the problem the Court laid down certain guidelines for ensuring protection against torture and maltreatment of

1

AIR 1981 SC 934 AIR 1983 SC 339. 3 AIR 1983 Sc 378 2

women in lockup. The Court issued direction for making available legal aid to indigent prisoners in general. In Peoples Union for Democratic Rights and others v. Union of India1 popularly known as Asiad case, an organisation formed for protecting democratic rights addressed a letter to one of the Judges of the Supreme Court alleging violation of labour laws in respect of workmen engaged in the various Asiad projects. The Court took the letter as petition and issued notices to various agencies including Union Government involved in the construction work. The Court in detail considered the nature of public interest litigations coming up before the Court. The Court observed that public interest litigation which is a strategic arm of legal aid-movement and which is intended to bring justice within the reach of poor masses who constitute the low visibility area of humanity is a totally different litigation from the ordinary traditional litigation which is essentially of an adversary character where there is a dispute between two litigating parties. Public interest litigation is brought before the Court not for the purpose of enforcing the right of one individual against another, but it is intended to promote and vindicate public interest which demands that violation of Constitutional and legal rights of large number of people who are poor, ignorant or in a socially and economically disadvantaged position should not go unnoticed and unredressed. That would be destructive of rule of law which forms one of the essential elements of public interest in a democratic form of government. Subjects of Public Interest Litigation. Public Interest Litigation is meant for enforcement of fundamental and other legal rights of the people who are poor, weak, ignorant of legal redressal system or otherwise in a disadvantageous position, due to their social or economic background. Such litigation can be initiated only for redressal of a public injury, enforcement of a public duty or vindicating interest of public nature. It is necessary that the petition is not filed for personal gain or private motive or for other 1

AIR 1982 SC 1473.

extraneous consideration and is filed bona fide in public interest. The following are the subjects which may be litigated under the head of Public Interest Litigation: (I) The matters of public interest: Generally they include (i)

Bonded labour matters

(ii)

Matters of neglected children

(iii)

Exploitation of casual labourers and non-payment of wages to them (except in individual cases)

(iv)

Matters of harassment or torture of persons belonging to Scheduled Castes, Scheduled Tribes and Economically Backward Classes, either by co-villagers or by police

(v)

matters relating to environmental pollution, disturbance of ecological balance, drugs, food adulteration, maintenance of heritage and culture, antiques, forests and wild life,

(vi)

Petitions from riot victims and

(vii)

Other matters of public importance.

(II) The matters of private nature: They include (i)

threat to or harassment of the petitioner by private persons,

(ii)

seeking enquiry by an agency other than local police,

(iii)

seeking police protection,

(iv)

land lord and tenant dispute

(v)

service matters,

(vi)

admission to medical or engineering colleges,

(vii)

Early hearing of matters pending in High Court and subordinate courts and are not considered matters of public interest.

(III) Letter Petitions: Petitions received by post even though not in public interest can be treated as writ petitions if so directed by the Hon’ble Judge nominated for this purpose. Individual petitions complaining harassment or torture or death in jail or by police, complaints of atrocities on women such

as harassment for dowry, bride burning, rape, murder and kidnapping, complaints relating to family pensions and complaints of refusal by police to register the case can be registered as writ petitions, if so approved by the concerned Hon’ble Judge. If deemed expedient, a report from the concerned authority is called before placing the matter before the Hon’ble Judge for directions. If so directed by the Hon’ble Judge, the letter is registered as a writ petition and is thereafter listed before the Court for hearing. Milestones of Public Interest Litigation in India One of the earliest cases of public interest litigation was that reported as Hussainara Khatoon (I) v. State of Bihar.1 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. 2 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 1

(1980) 1 SCC 81; See Upendra Baxi, ‘ The Supreme Court under trial : Under trials and the Supreme Court (1980) Supreme Court Cases (Journal Section) at P. 35 2 Upendra baxi v. State of U.P. (1983) 2 SCC 308

passed guidelines and orders that greatly ameliorated the conditions of these people. In another matter, a journalist, Ms. Sheela Barse1, 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 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,2 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,3 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 1

Sheela Barse v. State of Maharastra (1983) 2 SCC 96 (1978) 4 SCC 494 3 (1980) 4 SCC 162 2

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,1 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, 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.2 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:

1

2

(1989) 4 SCC 286 (1981) Supp. SCC 87

“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. For instance, in People’s Union for Democratic Rights v. Union of India,1 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 constructionrelated 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.

1

AIR 1982 SC 1473

Similarly, in Bandhua Mukti Morcha v. Union of India,1 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 case2 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.3 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,4 directions to check pollution in and around the Ganges river,5 the relocation of hazardous industries from the municipal limits of Delhi,6 directions to state agencies to check pollution in the vicinity of the Taj Mahal7 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 government-run buses to 1

(1984) 3 SCC 161 (1986) 2 SCC 176 3 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 4 M.C. Mehta v. Union of India, (1987) 1 SCC 395 5 M.C Mehta v. Union of India (1988) 1 SCC 471 6 M.C. Mehta v. Union of India, (1996) 4 SCC 750 7 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) 2

shift to the use of Compressed Natural Gas (CNG), an environment-friendly fuel.1 This was followed some time later by another order that required privately-run ‘autorickshaws’ (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,2 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 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. An important step in the area of gender justice was the decision in Vishaka v. State of Rajasthan.3 The petition in that case originated from the gangrape 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 1

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) 2 (1996) 5 SCC 281 3 (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

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,1 where the Court sought to ensure compliance with the policy of supplying mid-day meals in government-run primary schools. The midday 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. 2

1

2

(2007) 1 SCC 728 Cited from (1984) 3 SCC 161, at p. 232

Chapter-III Concept and Theory of PIL 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 a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected,"

1

PIL is a "strategic arm" of the

legal aid movement and is intended to bring justice within the reach of poor masses. Public Interest Litigation is a litigation that where the poor who, on account of their poverty, social disability or lack of awareness, cannot approach the court in case of the denial of their rights, any member of the public or social action group can approach the court on behalf of them. For this, a regular writ petition is not required to be filed through a lawyer it may be done even by addressing a letter to a judge of the court. Whatever the court fee may also not be required to be paid. It is a devise to provide justice to those who individually are not in a position to have access to the courts. It was initiated for the benefit of a class of people, who had been denied their constitutional and legal rights because they were unable to have access to the court on account of their socioeconomic disabilities. Public Interest Litigation can also be filed by any member of the public even in such cases where public injury is suffered by the society in general as a result of breach of public duty, or a constitutional provision, or a law. "Millions of persons belonging to the deprived and vulnerable sections of humanity are looking to the courts for improving their life conditions and making human life meaningful for them. The time has now come when the courts must become the courts for the poor and struggling masses of this

1

Janata Dal vs. H.S.Chowdhury, 1982

country. Fortunately, this change is gradually taking place and Public Interest Litigation is playing a large part in bringing this change." 2 It means that Public Interest Litigation can be filed by any member of the public or any organisation even though he/she himself or herself is not a victim or suffer in these cases. (a)

When the victim is poor or deprived on account of is social,

economic or educational inability. A petition can be filed even if the victim himself does not ask for that. The petition filed for the release of persons detained illegality, justice for that killed inn mob violence due to governments inaction, protection of children engaged in labour etc. are some such examples. (b)

Where the victim or sufferer is not a particular person or a

specific identified section of the society as a whole. The petitions in cases like of this gas leakage, pollution of river waters, encroachment of public land, etc. are some of the examples. In the 1990s the courts have gone a step further. They themselves have started taking note of certain issues on the basis of news paper reports or their information. This means that even when no one has filed a petition or approached the court, the court itself initiates a case, pronounce a decision and directs the appropriate authorities to act accordingly. Conditions for Public Interest Litigation From the above, it becomes clear that Public Interest Litigation is not meant for enforcement of individual specific rights. The Supreme Court has also held that a person filing Public Interest Litigation should act bonafide and not for personal or private profit. Public Interest Litigation can also not 2

AIR 1982 SC 1473

be moved with political or other oblique motivation. Thus for filing Public Interest Litigation, it is necessary that a personal filing a petition should not have private personal interest. It should be for general, social good and not for political gains or motives. The Supreme Court has also made it clear that Public Interest Litigation is not a matter of right. It is only the discretion of the court to admit or not to admit such petition depending on merit of a case. Relevance of Public Interest Litigation The emergence of the principles of Public Interest Litigation is justified on the basis of illiteracy, poverty, social and economic backwardness and lack of awareness of a large section of our population. These have denied millions of our countrymen access to justice. A former CJ of the Supreme Court Justice. Bhagwati said that so far the courts have been used only for the purpose of indicating the rights of wealthy and the affluent; it was only these privileged classes which were able to approach the courts. But now for the first time the doors of the courts have been thrown open to the poor, the downtrodden, the ignorant and the illiterate. Similarly another former judge Justice V.R. Krishna Iyer observed, “It is true that judges are constitutional investigators and statutory interpreters; but they are also, responsive, in its sphere, share the revolutionary purpose of the constitutional order. The statement suggests that over the years, the judiciary has come to a view point that its function is not merely to read the constitution. It is required to implement the ideals contained in it. Accordingly, the courts have been pronouncing on social issues. Though social action litigation the legal and judicial process is becoming a vehicle for establishing the claim and demands of those who are struggling to find expression for the first time, a large member for the protection of their interest. Locus Standi: Traditional view of 'locus standi' was that only an aggrieved person who has personally suffered legal injury by reason of violation of his rights or legally protected interest can file a suit for redress of his grievance. This was highly restrictive and individualistic view of Anglo-India legal

system which did not suit to the needs of present day society and as such the phrase has been liberally interpretated in the field of PIL to allow standing to any pro bono publico. Thus interpreted the rule of 'focus standi' has been made broad-based and people-oriented to allow access to justice through 'class actions', representative actions' and 'public or social action litigation' so that justice may be easily available to the lowly and lost. The scope of 'locus standi' is no more confined to private injury but it has been extended to public injury. Standing is given to public-spirited individuals and social activist to initiate proceedings in the court of law on behalf of those who on account of their poverty, illiteracy "and ignorance cannot come before the court and thus continue to suffer injustice and deprivation. Wade and Schwartz have supported liberalization of locus standi by stating that "restrictive rules about standing are in general inimical to a healthy system of administrative law." Consequently in such circumstances the strict rule of standing has been liberalised in the United States, in England and in India. When Can A Public Interest Litigation Be Filed: A Public Interest Litigation can be filed only in a case where "Public Interest" at large is affected. Merely because, only one person is effected by state inaction is not a ground for Public Interest Litigation These are some of the possible areas where a Public Interest Litigation can be filed. • Where a factory / industrial unit is causing air pollution, and people nearly are getting effected. • Where, in an area / street there are no street lights, causing inconvenience to commuters • Where some "Banquet Hall" plays a loud music, in night causing noise pollution. • Where some construction company is cutting down trees, causing environmental pollution. • Where poor people, are affected, because of state government's arbitrary decision to impose heavy "tax".

• For directing the police / Jail authorities to take appropriate decisions in regards to jail reforms, such as segregation of convicts, delay in trial, production of under trial before the court on remand dates. • For abolishing child labour, and bonded labour. • Where rights of working women are affected by sexual harassment. • For keeping a check on corruption and crime involving holders of high political officer. • For maintaining Roads, Sewer etc in good conditions. • For removal of Big Hoarding and signboard from the busy road to avoid traffic problem. Recently a Public Interest Litigation has been filed, for directing the "Delhi Traffic Police" to stop the method of sending challans to address by post, as it is being misused. Who Can File A Public Interest Litigation: Earlier it was only a person whose interest was directly affected along with others, whereby his fundamental right is affected who used to file such litigation. Now, the trend has changed, and, any Public-spirited person can file a case (Public Interest Litigation) on behalf of a group of person, whose rights are effected. It is not necessary, that person filing a case should have a direct interest in this Public Interest Litigation. For e.g. a person in Bombay, can file a Public Interest Litigation for, some labour workers being exploited in Madhya Pradesh or as someone filed a Public Interest Litigation in supreme court for taking action against Cracker factory in Sivakasi Tamilnadu, for employing child labour or the case where a standing practicing lawyer filed a Public Interest Litigation challenged a government policy to transfer High Court judges and similarly a lawyer filed a Public Interest Litigation for release of 80 under trials in a jail, who had spent more number of years in jail, than the period prescribed as punishment for offence, for which they were tried.

It is clear that, any person, can file a Public Interest Litigation on behalf of group of affected people. However it will depend on every facts of case, whether it should be allowed or not. Against whom Public Interest Litigation can be filed: A Public Interest Litigation can be filed against a State/ Central Govt., Municipal Authorities, and not any private party. The definition of State is the same as given under Article 12 of the Constitution and this includes the Governmental and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. According to Art.12, the term “State” includes the Government and Parliament of India and the Government and the Legislatures of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. Thus the authorities and instrumentalities specified under Art.12 are – • The Government and Parliament of India • The Government and Legislature of each of the States • All local authorities • Other authorities within the territory of India or under the Government of India. In Electricity Board, Rajasthan v. Mohan Lal, the Supreme Court held that “other authorities would include all authorities created by the Constitution of India or Statute on whom powers are conferred by law”. However, “Private party” can be included in the PIL as “Respondent”, after making concerned state authority, a party. For example- if there is a Private factory in Delhi, which is causing pollution, then people living nearly, or any other person can file a PIL against the Government of Delhi, Pollution Control Board, and against the private factory. However, a PIL cannot be filed against the Private party alone. Aspects of Public Interest Litigation (a) Remedial in Nature: Remedial nature of PIL departs from traditional locus standi rules. It indirectly incorporated the principles enshrined in the

part IV of the Constitution of India into part III of the Constitution. By riding the aspirations of part IV into part III of the Constitution had change the procedural nature of the Indian law into dynamic welfare one. Bandhu Mukti Morcha v. Union of India1, Unnikrishnan v. State of A.P2., etc were the obvious examples of this change in nature of judiciary. (b) Representative Standing: Representative standing can be seen as a creative expansion of the well-accepted standing exception which allows a third party to file a habeas corpus petition on the ground that the injured party cannot approach the court himself. And in this regard the Indian concept of PIL is much broader in relation to the American. PIL is a modified form of class action. (c) Citizen standing: The doctrine of citizen standing thus marks a significant expansion of the court’s rule, from protector of individual rights to guardian of the rule of law wherever threatened by official lawlessness. (d) Non-adversarial Litigation: In the words of Supreme Court in People’s Union for Democratic Rights v. Union of India3, “We wish to point out with all the emphasis at our command that public interest litigation…is a totally different kind of litigation from the ordinary traditional litigation which is essentially of an adversary character where there is a dispute between two litigating parties, one making claim or seeking relief against the other and that other opposing such claim or resisting such relief”. Non-adversarial litigation has two aspects: 1. Collaborative litigation: In collaborative litigation the effort is from all the sides. The claimant, the court and the Government or the public official, all are in collaboration here to see that basic human rights become meaningful for the large masses of the people. PIL helps executive to discharge its constitutional obligations. Court assumes three different functions other than that from traditional determination and issuance of a decree. (i). Ombudsman- The court receives citizen complaints and brings the most important ones to the attention of responsible government officials. (ii) 1

AIR 1984 SC 802. (1993) 1 SCC 645 3 AIR 1982 SC 1473 2

Forum – The court provides a forum or place to discuss the public issues at length and providing emergency relief through interim orders. (iii) Mediator – The court comes up with possible compromises. 2. Investigative Litigation: It is investigative litigation because it works on the reports of the Registrar, District Magistrate, comments of experts, newspapers etc. (e) Crucial Aspects: The flexibility introduced in the adherence to procedural laws. In Rural Litigation and Entitlement Kendra v. State of U.P.1, Supreme Court rejected the defense of Res Judicta. Court refused to withdraw the PIL and ordered compensation too. To curtail custodial violence, Supreme Court in Sheela Barse v. State of Maharashtra2, issued certain guidelines. Supreme Court has broadened the meaning of Right to live with human dignity available under the Article 21 of the Constitution of India to a greatest extent possible. (f) Relaxation of strict rule of Locus Standi: The strict rule of locus standi has been relaxed by way of (a) Representative standing, and (b) Citizen standing. In D.C.Wadhwa v. State of Bihar3, Supreme Court held that a petitioner, a professor of political science who had done substantial research and deeply interested in ensuring proper implementation of the constitutional provisions, challenged the practice followed by the state of Bihar in repromulgating a number of ordinances without getting the approval of the legislature. The court held that the petitioner as a member of public has ‘sufficient interest’ to maintain a petition under Article 32. The rule of locus standi have been relaxed and a person acting bonafide and having sufficient interest in the proceeding of Public Interest Litigation will alone have a locus standi and can approach the court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration…court has to strike balance between two conflicting interests:

1

(1985) 2 SCC 431 (1987) 3 SCC 50 3 AIR 1987 SC 579 2

(i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive and the legislature. It is depressing to note that on account of trumpery proceedings initiated before the courts, innumerable days are wasted, which time otherwise could have been spent for the disposal of cases of genuine litigants. Though the Supreme Court spares no efforts in fostering and developing the laudable concept of PIL and extending its ling arm of sympathy to the poor, ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go unnoticed, unrepresented and unheard. (g) Epistolary Jurisdiction: The judicial activism gets its highest bonus when its orders wipe some tears from some eyes. This jurisdiction is somehow different from collective action. Number of PIL cells was open all over India for providing the footing or at least platform to the needy class of the society. Factors that have contributed to growth of PIL:Among, the numerous factors that have contributed to the growth of PIL in this country, the following deserve special mention: The character of the Indian Constitution. Unlike Britain, India has a written constitution which through Part III (Fundamental Rights) and Part IV (Directive Principles of State Policy) provides a framework for regulating relations between the state and its citizens and between citizens inter-se. • India has some of the most progressive social legislation to be found anywhere in the world whether it be relating to bonded labor, minimum wages, land ceiling, environmental protection, etc. This has made it easier for the courts to haul up the executive when it is not performing its duties in ensuring the rights of the poor as per the law of the land. • The liberal interpretation of locus standi where any person can apply to the court on behalf of those who are economically or physically unable to come

before it has helped. Judges themselves have in some cases initiated suo moto action based on newspaper articles or letters received. • Although social and economic rights given in the Indian Constitution under Part IV are not legally enforceable, courts have creatively read these into fundamental rights thereby making them judicially enforceable. For instance the "right to life" in Article 21 has been expanded to include right to free legal aid, right to live with dignity, right to education, right to work, freedom from torture, bar fetters and hand cuffing in prisons, etc. • Sensitive judges have constantly innovated on the side of the poor. for instance, in the Bandhua Mukti Morcha1 case in 1983, the Supreme Court put the burden of proof on the respondent stating it would treat every case of forced labor as a case of bonded labor unless proven otherwise by the employer. Similarly in the Asiad Workers judgment case2, Justice P.N. Bhagwati held that anyone getting less than the minimum wage can approach the Supreme Court directly without going through the labor commissioner and lower courts • In PIL cases where the petitioner is not in a position to provide all the necessary evidence, either because it is voluminous or because the parties are weak socially or economically, courts have appointed commissions to collect information on facts and present it before the bench. Mechanism for protection of Human Rights through PIL Features of PIL through the mechanism of PIL, the courts seek to protect human rights in the following ways: 1) By creating a new regime of human rights by expanding the meaning of fundamental right to equality, life and personal liberty. In this process, the right to speedy trial, free legal aid, dignity, means and livelihood, education, housing, medical care, clean environment, right against torture, sexual harassment, solitary confinement, bondage and servitude, exploitation and so on emerge as human rights. These new re-conceptualised rights provide legal resources to activate the courts for their enforcement through PIL. 1 2

AIR 1984 SC 802 AIR 1982 SC 1473.

2) By democratization of access to justice. This is done by relaxing the traditional rule of locus standi. Any public spirited citizen or social action group can approach the court on behalf of the oppressed classes. Courts attention can be drawn even by writing a letter or sending a telegram. This has been called epistolary jurisdiction. 3) By fashioning new kinds of relief’s under the court’s writ jurisdiction. For example, the court can award interim compensation to the victims of governmental lawlessness. This stands in sharp contrast to the AngloSaxon model of adjudication where interim relief is limited to preserving the status quo pending final decision. The grant of compensation in PIL matters does not preclude the aggrieved person from bringing a civil suit for damages. In PIL cases the court can fashion any relief to the victims. 4) By judicial monitoring of State institutions such as jails, women’s protective homes, juvenile homes, mental asylums, and the like. Through judicial invigilation, the court seeks gradual improvement in their management and administration. This has been characterized as creeping jurisdiction in which the court takes over the administration of these institutions for protecting human rights. 5) By devising new techniques of fact-finding. In most of the cases the court has appointed its own socio-legal commissions of inquiry or has deputed its own official for investigation. Sometimes it has taken the help of National Human Rights Commission or Central Bureau of Investigation (CBI) or experts to inquire into human rights violations. This may be called investigative litigation. A "Public Interest Litigation", is filed in the same manner, as a writ petition is filed. In High Court: If a Public Interest Litigation is filed in a High court, then two (2) copies of the petition have to be filed. Also, an advance copy of the petition has to be served on the each respondent, i.e. opposite party, and this proof of service has to be affixed on the petition.

In Supreme Court: If a Public Interest Litigation is filed in the Supreme court, then (4)+(1) (i.e. 5) sets of petition has to be filed opposite party is served, the copy only when notice is issued. Court Fees: A Court fee of RS. 50, per respondent (i.e. for each number of opposite party, court fees of RS. 50) has to be affixed on the petition. Procedure: Proceedings, in the Public Interest Litigation commence and carry on in the same manner, as other cases. However, in between the proceedings if the judge feels he may appoint a commissioner, to inspect allegations like pollution being caused, trees being cut, sewer problems, etc. After filing of replies, by opposite party, and rejoinder by the petitioner, final hearing takes place, and the judge gives his final decision. Procedure for Filing Public Interest Litigation. (a) Filing: Public Interest Litigation petition is filed in the same manner, as a writ petition is filed. If a PIL is filed in a High Court, then two (2) copies of the petition have to be filed (for Supreme Court, then (4)+(1)(i.e.5) sets) Also, an advance copy of the petition has to be served on the each respondent, i.e. opposite party, and this proof of service has to be affixed on the petition. (b) The Procedure:A Court fee of Rs. 50 , per respondent (i.e. for each number of party, court fees of Rs 50) have to be affixed on the petition. Proceedings, in the PIL commence and carry on in the same manner, as other cases. However, in between the proceedings if the Judge feels that he may appoint the commissioner, to inspect allegations like pollution being caused, trees being cut, sewer problems, etc. After filing of replies, by opposite party, or rejoinder by the petitioner, final hearing takes place, and the judge gives his final decision.

Chapter-IV Comparative analysis of PIL Public Interest Litigation in United States: Judicially-precipitated change, like social change generally, comes with no blueprint or template for future developments. Whether a strategy works for one issue or one cause carries no guarantee that it will work elsewhere. Indeed, an initial success in one venue may carry the seeds of its own defeat, as affected actors respond, adapt, and resist. The U.S. does not necessarily provide a model for cause lawyers in other nations, but it offers informative lessons of how situations have played out in one complex judicial system under specific and often

nonreplicable conditions. Commentators frequently date the emergence of public law litigation in the U.S. to the celebrated campaign that resulted in the decision in Brown v. Board of Education1,in which the U.S. Supreme Court declared unconstitutional a state's segregation of public school students by race. Brown included many procedural features since associated with public law litigation: the defendant was a public institution; the claimants comprised a self constituted group with membership that changed over time; relief was prospective, seeking to reform future action by government agents; and the judge played a leadership role, complemented by the parties' efforts at negotiation. The literature distinguishes this form of litigation from the classical model of adjudication, which is conceptualized as a private, bipolar dispute marked by individual participation and the imposition of retrospective relief involving a tight fit between right and remedy.2 Brown provided inspiration to a generation of lawyers who saw law as a source of liberation as well as transformation for marginalized groups. Courts, mostly federal but state as well, became involved in a broad range of social issues, including voting and apportionment, contraception and abortion, employment and housing discrimination, environmental regulation, and prison conditions. Prison reform litigation illustrates the extent of the judiciary's involvement in public law cases: after years of taking a "hands off" approach to prison conditions, courts imposed remedial decrees in 48 of the nation's 53 jurisdictions (the 50states, the District of Columbia, Puerto Rico and the Virgin Islands).3 More recently, private bar attorneys, operating under a different set of economic incentives from those of civil rights lawyers, have adapted the public law model to address the problems that result from mass torts, using court-ordered damages and broad injunctive decrees to shape and monitor 1

347 U.S. 483 (1954). Fuller, The Forms and Limits of Adjudication, 92 HARV. L. REV. 353 (1978). 3 Feeley & Rubin, JUDICIAL POLICY MAKING AND THE MODERN STATE: HOW THE COURTS REFORMED AMERICA'S PRISONS (1998). 2

future corporate behavior (while also, in some cases, earning large attorneys' fees).1 The identification of U.S. public law litigation as procedurally novel has provoked criticism that it is an illegitimate use of judicial power.8 Other commentators, however, locate public litigation as well within the judiciary's historic competence and view it as a modern iteration of earlier adjudicative forms, such as trust and estate proceedings that span decades and involve innumerable parties and diverse interests.2 In addition, even the strategic use of adjudication for social, economic, or political ends is not new: throughout the 19th and 20th centuries, and especially during the New Deal period, business groups self-consciously filed lawsuits to extend property rights and to resist regulatory changes. Finally, as the Legal Realists emphasize, the lack of any logical fit between right and remedy is not unique to public interest litigation, but rather a more general feature of modern constitutional law. The public law litigation that Professor Chayes described is, however, innovative in its substantive emphasis on the needs and interests of groups long excluded from conventional majoritarian politics -- those who, as Professor Robert Cover so aptly put it, are "not simply losers in the political arena, they are perpetual losers."3 Although prisoners, women, the poor, immigrants, and African-Americans had previously asserted claims in courts (consider, for example, early challenges to all-white primaries, or to restrictions on the sale of property to designated races), public interest litigation after Brown was often generally perceived as part of a broader effort to use the tools and principles of legal liberalism as a way to change existing patterns of power and privilege. 1

Compare Parmet, Tobacco, HIV, and the Courtroom: The Role of Affirmative Litigation in the Formation of Public Health Policy, 36 HOUSTON L. REV. 1663 (1999), with Mullenix, Resolving Aggregate Mass Tort Litigation: The New PrivateLaw Dispute Resolution Paradigm, 33 VAL. U.L. REV. 413 (1999). 2 See Eisenberg & Yeazell, The Ordinary and Extraordinary in Institutional Litigation, 93 HARV. L. REV. 465 (1980). 3 Cover, The Origins of Judicial Activism in the Protection of Minorities, 91 YALE L.J. 1287 (1982).

The theory and structure of public interest litigation : Public interest litigation on behalf of marginalized groups and interests rests on three related theoretical accounts of law. First, public interest litigation draws from an anti-positivist perspective that questions the inevitable legitimacy of majoritarian outcomes.1 Judicial intervention in this view may be justified by process-defects in the enactment process that structurally work to exclude or dilute the interests of affected groups. In addition, legislation may be suspect because of an inadequate deliberative process that ignores, distorts, or misstates the concerns of outsider groups; judicial review solves a public choice problem by ensuring due regard for those who would otherwise, to borrow from Mancur Olson, "suffer in silence."2 Majoritarian laws may also be distrusted because they deviate from national normative commitments (whether constitutional or statutory) or because they lack what U.S. constitutionalists call "minimum rationality."3 Second, public interest litigation rests on a view of law that acknowledges the gap between "law on the books" and "law on the ground."4 Even after a legislature or regulatory agency has adopted protections or proscriptions affecting a particular group, the formal provision may not be given effect because of evasion, indifference, or hostility. Judicial intervention is warranted on this basis to secure compliance with existing rules and standards. Public interest litigation does not inevitably bridge the gap: court decrees may go unendorsed because of political decision; failure of will; or a kind of slippage between text and action different from that found in the legislative arena. 1

Ely, DEMOCRACY AND DISTRUST (1980). Olson, THE LOGIC OF COLLECTIVE ACTION (1965). 3 Loffredo, Poverty, Democracy and Constitutional Law, 141 U. PA. L. REV. 1277 (1993). 4 Upham, Ideology, Experience, and the Rule of Law in Developing Societies, PRESENTED AT THE UNRISD CONFERENCE IN BANGKOK, THAILAND, MAY 12-14, 2000 (Unpublished manuscript on file with the author at New York University School of Law). 2

Third, public interest litigation recognizes the expressive value of law and its constitutive relation to the customs and discourse of a civil society.1 Public interest litigation on this view is part of what sociologists call the "new" social movements in which participants contest the terms of public meaning.2 The very act of litigation affords a juridical space in which those who lack formal access to power become visible and find expression. Moreover, because courts are only one means for the enforcement of law, reform can be sustained only when it becomes second-nature and interwoven into discourse, low-level discretionary acts, and market exchanges. Lawsuits can give what Professor Dan M. Kahan in a different context describes as "gentle nudges" for the internalization of changed social values by altering the terms of public discussion and giving voice to reform goals.3 The forms of public interest litigation in the U.S. flow from these three theoretical insights. One category of public interest litigation, the so-called "test" case, challenges the legality of existing laws and regulations or attempts to give new meaning to existing laws. A test case may be filed on behalf of a single individual, but the effect of stare decisis will give the judgment precedential effect in other lawsuits filed by other individuals. In addition, government agents or bureaucracies may feel obliged to conform their programs to a test-case ruling without further action by a court. A second form of action, the "structural reform suit," challenges deficiencies in the enforcement of existing laws, and seeks to regulate the defendant's future conduct through the imposition and monitoring of detailed judicial decrees that spell out in highly specific terms constitutional or statutory requirements. In practice, the line between the creation of "new" law and mere enforcement blurs: rights frequently have an indeterminate 1

McCann, Causal versus Constitutive Explanations (or, On the Difficulty of Being So Positive ...), 21 L. & SOC. INQUIRY 457 (1996). 2 See Touraine, An Introduction to the Study of Social Movements, 53 SOC. RES. 749 (1985). 3

Kahan, Gentle Nudges vs. Hard Shoves: Solving the Sticky Norms Problem, 67 U.CHI. L. REV. 607 (2000).

scope and are given content and acquire social meaning only through an on-the-ground process of implementation. Finally, both forms of action depend on declaratory relief: the judicial expression of a constitutional or statutory norm that informs and educates the other branches and the public at large. Public law litigation as a political practice. Public interest litigation is not only a form of legal practice; it also constitutes a political practice that affords marginalized groups and interests an entry point into contested issues. To carry out the work, lawyers must marshall institutional structures, organizational techniques, and resources, such as funds and personnel.1 In the U.S., public interest litigation early on modeled itself on the NAACP's use of the public interest law firm, or legal defense fund, to design and pursue litigation. Influenced by this model, as well as by the decentralized volunteer membership structure of the American Civil Liberties Union, private foundations during the 1960s began to provide funds to establish formal organizations focused on systemic law-based reform efforts in a broad range of fields. At the same time, the federal government established a national agency, the Legal Services Corporation, to fund lawyers for the poor working in neighborhood offices that provided individual client service and also challenged government practices on a systemic, classwide basis. During this period, foundations, notably the Ford Foundation, also supported the establishment of innovative legal education programs, including university-based law clinics, with the goal of training a new generation of public interest lawyer. Private law firms undertook pro bono activities, and statutory measures allowing the payment of attorneys’ fees to prevailing plaintiffs in specified public law cases created a financial incentive for lawyers, both private and not-for-profit, to undertake such work. Moreover, the federal government contributed to public law reform efforts by appearing as amicus curiae in private law suits or initiating its own compliance actions. 1

See Oberschall, SOCIAL MOVEMENTS: IDEOLOGIES, INTERESTS, AND IDENTITIES (1993).

Over the last generation, this public interest infrastructure has evolved to meet changing political pressures: reduced federal funding for legal services work; government-imposed restrictions on the kinds of cases the publicly funded lawyers can undertake; reductions in the availability of court-ordered attorneys' fees; judicial appointments that largely oppose the substantive goals of public interest litigation; and the rise of conservative groups committed to using the courts for their own ideological ends.1 Far from viewing public law litigation as a "silver bullet" that will effect immediate and sustainable change, lawyers instead regard it as a contributory factor to an incremental process that builds in complex ways and interacts with external conditions.2 Many practitioners complement their court-centered work with such activities as community organizing, media outreach, public education, lobbying, and legislative and regulatory drafting. In the process, they promote the creation of consensus by forging alliances with mainstream as well as constituent groups, while also achieving greater visibility, credibility, and support. Their work includes transactional activities, including community development projects, the establishment of community non-profit groups, and grass-roots counseling centers, often at shelters or other service provider sites, that educate the public and help to empower affected constituencies about their legal and political options. These new forms of "critical" practice also mediate some of the concerns that the traditional lawyer-client hierarchy presents.3 The efficacy of public interest litigation to achieve social change in the U.S. The pervasiveness of public interest litigation in the U.S. prompted Aryeh Neier to remark, "Since 1

19 See Hershkoff & Hollander, Rights into Action: Public Interest Litigation in the United States, in MANY ROADS TO JUSTICE: THE LAW RELATED WORK OF FORD FOUNDATION GRANTEES AROUND THE WORLD (McClymont & Golub eds., 2000). 2 Edelman, Toward a Comprehensive Antipoverty Strategy: Getting Beyond the Silver Bullet, 81 GEO. L.J. 1697 (1993). 3 See McCann & Silverstein, Rethinking Law's "Allurements": A Relational Analysis of Social Movement Lawyers in the United States, in CAUSE LAWYERING: POLITICAL COMMITMENTS AND PROFESSIONAL RESPONSIBILITIES (Sarat & Scheingold eds., 1998).

the early 1950s, the courts have been the most accessible and, often, the most effective instrument of government for bringing about the changes in public

policy

sought

by

social

protest

movements."1

Revisionist

commentators, however, question the impact of public interest litigation, pointing to the continued segregation of U.S. public schools, to the persistence of entrenched poverty, and to enduring opposition to gender equality and reproductive choice.2 In theory, public law litigation can precipitate a number of important effects that involve policy formation, political mobilization, government monitoring, and legal enforcement. Litigation is an important participatory activity that complements and supports electoral politics; for marginalized groups, litigation sometimes offers the only, or least expensive, entry into political life at a given time. The shared act of litigation, the temporary coming together in the collective of a plaintiff-class, contributes to a sense of public purpose and builds social capital by encouraging trust and cooperation. In this view, litigation confers political endowments on groups that otherwise lack political clout; it confers legitimacy by including previously ignored or excluded interests in the broader social agenda. Moreover, although writers frequently refer to public law litigation as a form of top-down social engineering, in practice it makes use of local knowledge and on-the-ground adjustment in designing remedies and strategies for implementation. Litigation also contributes to the provision of public goods by holding government accountable to constitutional and statutory preferences, and by filtering out factiondominated rent-seeking from public decision-making. Against critics who claim that structural reform injunctions violate the separation of powers, reformers argue that public law cases promote both accountability and transparency in government decision making. In practice, commentators find it difficult to assess the impact of public interest litigationThey argue that the most significant effects of such efforts 1

Neier, ONLY JUDGMENT: THE LIMITS OF LITIGATION IN SOCIAL CHANGE (1982). See Rosenberg, THE HOLLOW HOPE: USING THE COURTS TO ACHIEVE SOCIAL CHANGE (1991). 2

are likely to be unanticipated and often perverse. "Court fatalists" maintain that the effectiveness of social reform depends on factors that courts can perhaps reinforce, but to which they are otherwise either irrelevant or epiphenomenal.1 The literature shares no common definition of goals or of success; nor is there a general theory of the relation between judicial action and societal reform. Some analysts look for linear and instrumental approaches to causation; others emphasize the constitutive and radiating effects of legal decisions.

Empirical

studies

are

limited

in

design,

fraught

with

methodological difficulty, and few in number. Moreover, public law litigation is not monolithic, and commentators frequently recite that its effects are uneven across institutions and regions. For example, Professor Michael J. Klarman of the Virginia School of Law contends that U.S. Supreme Court decisions had little effect in reforming the criminal law system's treatment of African Americans, yet "inaugurated a political revolution in the urban South" by its decision striking down the all-white party primary.2 Not surprisingly, public law cases provoke opposition, resistance, and unintended consequences, although the content and shape of these effects are difficult to predict. Well resourced groups can better attempt to overcome intransigence and resistance; underdeveloped efforts -- those lacking in personnel and outreach facilities -- are likely to find the barriers to change more formidable. Commentators express concern that a judicial decree may not adequately carry out a program of reform unless it reflects a social consensus in favor of reform or the affected agent has an internal and independent reason to change. At the same time, we cannot say whether a government actor will undertake a process of self-reform unless pressed by the threat of litigation. A lawsuit can motivate other institutions to act by 1

Schuck, Public Law Litigation and Social Reform, 102 YALE L.J. 1763 (1993). Klarman, The White Primary Rulings: A Case Study in the Consequences of Supreme Court Decisionmaking (University of Virginia School of Law Public Law and Legal Theory Research Paper Series, Working Paper No. 01-4, May 2001). 2

highlighting an issue of concern and by placing it on the public agenda, or by fostering alliances which, even in defeat, become important for later mobilization efforts. Finally, an individual's participation in litigation can itself be an empowering event that encourages further activity and changes in behavior. Public interest litigation in nations other than the U.S. : Presenting at a conference in London in 1984, Dr. Rajeev Dhavan, now ex-officio trustee of the New Delhi-based Public Interest Legal Support and Research Centre, characterized public interest litigation as "a culture-specific phenomenon which was developed in America and confidently exported to the rest of the world."1 Almost two decades later, the social technology of public interest litigation seems to have developed in many different countries, drawing on common background issues, but within specific conditions, taking different shape and assuming indigenous forms. Some commentators describe public interest litigation outside the U.S. as part of a "justice cascade," fostered by "the concerted efforts of small groups of activist lawyers who pioneered the strategies,"2 and U.S. human rights groups and foundations remain important to the development of public interest practice in other nations.3 But it is also important not to lose sight of the indigenous forces and extraordinary variegation that currently mark public interest litigation around the world. As Professor Frank Upham emphasizes, public law litigation in Japan "evolved in directions largely different from .... our Western models."4 Similarly, Professor Clark Cunningham describes public interest litigation in India as "a phoenix: a whole new creature arising out of the ashes of an older order."5 Indeed, the Ford Foundation's Global Law Programming Learning Initiative, reporting on 1

Dhavan, Whose Law? Whose Interest?, in PUBLIC INTEREST LAW (Cooper & Dhavan eds.,1986). Lutz & Sikkink, The Justice Cascade: The Evolution and Impact of Foreign Human Rights Trial in Latin America, 2 CHI. J. INT'L L. 1 (2001). 3 Dezelay & Garth, Constructing Law Out of Power: Investing in Human Rights asan Alternative Political Strategy, in CAUSE LAWYERING AND THE STATE IN A GLOBAL ERA(Sarat & Scheingold eds., 2001). 4 Upham, LAW AND SOCIAL CHANGE IN POSTWAR JAPAN (1987) 5 Cunningham, Public Interest Litigation in Indian Supreme Court: A Study in Light of American Experience, 29 J. OF THE INDIAN L. INST. 495 (1987). 2

the lawrelated work of its grantees around the world, should dispel any idea that public interest litigation is any longer confined to the U.S., dependent on U.S. legal concepts, or constrained by U.S. organizational forms.1 The context of public law litigation varies from place to place. In some countries, such as Russia, lawyers and activists do For example, in the last five years, the Ford Foundation has sponsored two symposia on public interest litigation, one in Oxford, England and the other in Durban, South Africa, and reports that "[w]ith these seminars the concept of public interest law was introduced to a select number of activists and lawyers in Eastern Europe and Russia.” not use the term "public interest litigation," but their law-based activities -- such as university based law clinics; assistance to prisoners and the poor; and environmental work -- are connected to the concept. Professors Sarat and Scheingold caution that "providing a single, cross-culturally valid definition of the concept is impossible."2 One common thread remains that identified twenty years ago by Dr. Dhavan: the practice is part of the struggle by, and on behalf of, the disadvantaged to use "law" to solve social and economic problems arising out of a differential and unequal distribution of opportunities and entitlement in society. In an effort to procure "justice between generations" it is also concerned with preventing the present and future needless exploitation of human, natural and technological resources.3 Public interest litigation also treats interests, such as consumer concerns, that otherwise may not receive adequate political attention.

1

McClymont & Golub eds., MANY ROADS TO JUSTICE: THE LAW RELATED WORK OF FORD FOUNDATION GRANTEES AROUND THE WORLD (2000). 2

Sarat & Scheingold, Cause Lawyering and the Reproduction of Professional Authority: An Introduction, in CAUSE LAWYERING: POLITICAL COMMITMENTS AND PROFESSIONAL RESPONSIBILITIES (Sarat & Scheingold eds., 1998). 3 Dhavan, Whose Law? Whose Interest?, in PUBLIC INTEREST LAW (Cooper & Dhavan eds.,1986).

Just as one cannot generalize from the U.S. experience, so conditions that are effective in one locale may prove insufficient -- or counterproductive -- in another. In some nations, legal liberalism and "rule of law" values have been necessary conditions for public interest litigation, although elsewhere cause lawyering flows from indigenous practice and professional norms, fostering a broader project for democratic reform.1 Social, economic, and political conditions create different pressures and opportunities for public interest litigation, which is further affected by the nature of the existing legal regime,2 the independence and prestige of the judicial system,3 and forms of professional organization.4 Governments also differ considerably in their support of nongovernmental groups pursuing public interest litigation. In some countries and on some issues, courts will be able to help forge a social consensus in favor of reform; elsewhere, courts will be disabled from precipitating change unless the public already displays some measure of receptivity to reform. Even where formal structures for judicial review are in place, courts in transitional or developing countries may lack the confidence, credibility, or capacity to secure enforcement or respect of

Political

pressures may deter a court from staking out a principled position vis-a vis the other branches of government or the military; on the other hand, as the South African experience suggests, public interest lawyers may achieve surprising victories even within repressive legal systems.5 Legalist approaches have uneven effects on economic development and resource allocation. Public attitudes toward law vary; where law has previously been used as a despotic tool, those seeking reform may be wary of lawyers and court-centered approaches. Finally, pressures and opportunities change over time: writing about Colombia in 1981, for example, one commentator 1

Lev, Lawyers' Causes in Indonesia and Malaysia, in CAUSE LAWYERING: POLITICAL COMMITMENTS AND PROFESSIONAL RESPONSIBILITIES (Sarat & Scheingold eds., 1998). 2 Symposium: Lawyering in Repressive States, 20 L. & SOC. INQUIRY 339 (1995). 3 Vyas, The Independence of the Judiciary: A Third World Perspective, THIRD WORLD LEGAL STUDIES--1992. 4 Dias, Luckham, Lynch, & Paul eds., LAWYERS IN THE THIRD WORLD: COMPARATIVE AND DEVELOPMENTAL PERSPECTIVES (1981). 5

Ellmann, IN A TIME OF TROUBLE: LAW AND LIBERTY IN SOUTH AFRICA'S STATE OF EMERGENCY (1992).

saw "little reason to believe the judiciary or government attorneys would be very receptive to innovative forms of legal advocacy,"1 yet today women's groups in that country successfully deploy the tutela, a judicial procedure with no exact equivalent in common law systems, as a tool to stop domestic violence and to press feminist reforms.2 Marshalling resources for public interest litigation Members of marginalized groups -- women, the poor, ethnic groups (whether minority or majority) -frequently lack access to legal resources, and an important component of public law work involves strategies to increase access to the legal system, allowing individuals not only to know their rights, but also to appreciate law's transformative possibilities.3 The availability of lawyers, professional organizations, and other resources play an important strategic role in how public interest litigation is carried out in other nations and how extensive it is as a practice. Non-governmental organizations are only just emerging in some countries; China's first NGO legal aid center opened in 1992.4 In Korea, changes in the bar examination quota generated a larger pool of lawyers available to do pro bono activity; some lawyers became affiliated with NGOs and others formed their own public law groups (for example, in 1988 Lawyers for a Democratic Society – Minbyun in Korean abbreviation -was established to provide lawyers forhuman rights cases).5 In some places, local lawyers explicitly model themselves on U.S. style public interest law firms and also partner with U.S. organizations (as, for example, the 1

Lynch, Legal Roles in Colombia, in LAWYERS IN THE THIRD WORLD: COMPARATIVE AND DEVELOPMENTAL PERSPECTIVES (Dias, Luckham, Lynch, & Paul eds., 1981). 2 Morgan, Taking Machismo to Court: The Gender Jurisprudence of the Colombia Constitutional Court, 30 U. MIAMI INTER-AMER. L. REV. 253 (1998). 3 Symposium Report, Public Interest Law: Worldwide Strategies, in PUBLIC INTERESTLAW AROUND THE WORLD, REPORT OF A SYMPOSIUM HELD AT COLUMBIA UNIVERSITY IN MAY, 1991 WITH DESCRIPTIONS OF PARTICIPATING LEGAL ORGANIZATIONS FROM TWENTY COUNTRIES, COLUM. HUM. RTS. L.REV. (1992). 4 Liebman, Legal Aid and Public Interest Law in China, 34 TEX. INT'L L.J. 211 (1999). 5 Yoon, Public Interest Lawyering: The Korean Experience, SYMPOSIUM ON LEGAL AID AND PUBLIC INTEREST LAWYERING IN EAST AND SOUTHEAST ASIAN COUNTRIES, Japan Foundation, Tokyo (Dec. 17-18, 1999)(Unpublished manuscript on file with the author at New York University School of Law).

Environmental Foundation, Ltd. in Sri Lanka and its work with the U.S.based Environmental Defense Fund).1 In Malaysia, law firms work within non-governmental organizations2; local law groups in other countries work together with international human rights organizations and sometimes foreign NGOs assist local groups by providing lawyers for specific lawsuits. 3 These different organizational structures, combining endogenous and exogenous interests, raise complex questions, as Professor Benedict Kingsbury has emphasized, involving accountability and representation within the advocacy community itself.4 Cause lawyers also work with non-lawyers in creative ways that overcome some of the hierarchy associated with professional relations. In Zimbabwe, for example, paralegals staff legal literacy programs in poor rural areas, helping individuals to develop self-reliant strategies for reform.5 Similarly, in the Philippines, the legal services NGO Sentro ng Alternatibong Lingap Panlegal (Saligan) has worked effectively with volunteer paralegals on land reform issues affecting coconut farmers.6 In India, the Supreme Court took the lead by allowing volunteer social activists -- lay and legal -- to represent the interests of the poor in judicial proceedings. By expanding locus standi -the doctrine that governs who may file a claim in court -- and creating epistolary jurisdiction -- allowing the court to entertain a letter written on behalf of a disadvantaged person as a petition that commences an investigation of conditions and, if appropriate, the start of a lawsuit -- the judiciary facilitated a public law practice that draws on that nation's tradition

1

Wirth, Legitimacy, Accountability, and Partnership: A Model for Advocacy on Third World Environmental Issues, 100 YALE L.J. 2645 (1991). 2 Harding, Public Interest Groups, Public Interest Law and Development in Malaysia, THIRD WORLD LEGAL STUDIES--1992. 3 Ellmann, Cause Lawyering in the Third World, in CAUSE LAWYERING: POLITICAL COMMITMENTS AND PROFESSIONAL RESPONSIBILITIES (Sarat & Scheingold eds., 1998). 4 Kingsbury, Representation in Human Rights Litigation, HUMAN RIGHTS DIALOGUE (Spring 2000). 5 Manase, Legal Services in Rural Areas: The Zimbabwean Experience, THIRD WORLD LEGAL STUDIES--1992. 6 Golub, Nonlawyers as Legal Resources for Their Communities, in MANY ROADS TO JUSTICE: THE LAW RELATED WORK OF FORD FOUNDATION GRANTEES AROUND THE WORLD (McClymont & Golub eds., 2000).

of volunteerism.7 Varieties of social cause lawyering Cause lawyers work strategically in many different venues. The availability of multiple advocacy sites provide claimants with alternative points of entry into contested issues, expanding network affiliations, affording media exposure, and encouraging support for shared values. Strategies and venues change over time: the Child Poverty Action Group in England, established in 1965, during the 1980s combined individual advocacy with information centers and test case litigation.1 Moreover, lawrelated NGOs have had to adapt to political transitions and regime shifts; in Argentina, the Center for Legal and Social Studies changed itsagenda as the country moved from military to civilian rule.2 Probably the bulk of public interest litigation, as in the U.S., takes place in the domestic courts and local commissions of the home country. For example, over the last decade the Israeli Supreme Court has ruled on important human rights issues concerning such matters as freedom of religion, treatment of children, and equality. Most recently, the Israeli Court ordered the Israeli Secret Service to stop using interrogation methods that amounted to torture under both the Basic Law's principles of Dignity and Liberty and the Torture Convention ratified by Israel.3 Cause lawyers also work outside their domestic judicial systems, drawing on international norms and treaties that might not receive a warm reception in their home courts. One category of cause lawyering involves "transnational public law litigation," lawsuits filed in foreign (usually 7

Cottrell, Courts and Accountability: Public Interest Litigation in the Indian High Courts, THIRD WORLD LEGAL STUDIES--1992; Baxi, Taking Suffering Seriously:Social Action Litigation in the Supreme Court of India, 29 THE REVIEW, INTERNATIONAL COMMISSION OF JURISTS 37 (1982); Bhagwati, Judicial Activism and Public Interest Litigation, 23 COLUM. J. OF TRANSNAT'L L. 561 (1985). 1 Smith, How Good are Test Cases? in PUBLIC INTEREST LAW (Cooper & Dhavan eds.,1986). 2 Shifter, Weathering the Storm: NGOs Adapting to Major Political Transitions, in MANY ROADS TO JUSTICE:THE LAW RELATED WORK OF FORD FOUNDATION GRANTEES AROUND THE WORLD (McClymont & Golub eds., 2000). 3 Zilbershats, Update on Human Rights Decisions in Israel, JUSTICE, no. 26 (Winter 2000).

U.S.) courts on behalf of non-domestic citizens and government groups. Often the lawyers are from the U.S.; defendants are foreign governments or corporations alleged to have violated international human rights law1 -typified by the $1.5 billion lawsuit filed in New York federal court against Texaco on behalf of 30,000 indigenous and settler residents in the Northern Ecuadoran Amazon region.2 Another category of cause lawyering outside a domestic court system involves "supranational adjudication," cases carried out in the two dozen regional or finally, because lawyering can take place outside conventional Western legal sites (as, for example, the Madaripur Legal Aid Association's use of mediation).3 Cause lawyering has contributed in immeasurable ways to encouraging legal reforms, educating the judiciary and other branches of government, documenting abusive practices, implementing laws, and bridging some of the gap in resource allocation among different groups. As in the U.S., the systemic effects of such work are difficult to gauge and have not been comprehensively analyzed. Some groups assume that resources would be better applied to more enduring forms of political practice: the residents of Umm El-Fahem, a Palestinian town in central Israel, rejected litigation in challenging expropriation of their land.4 Anecdotal evidence suggests that in some places at least, even where lawsuits fail in the short term, they can make a difference to long term change. For example, in Chile, the Vicariate of Solidarity filed unsuccessful habeas corpus petitions over many years seeking the release of political prisoners; with the return to civilian rule, their lawsuits

provided

important

documentation

of

abuse

and

torture,

contributing to investigations by the National Commission on Truth and

1

Koh, Transnational Public Law Litigation, 100 YALE L.J. 2347 (1991). Kimerling, The Story from the Oil Patch: The Under-Represented in Aguinda v.Texaco, HUMAN RIGHTS DIALOGUE (Spring 2000).28international tribunals that have emerged worldwide since World War II. 3 Golub, From the Village to the University: Legal Activism in Bangladesh, in MANY ROADS TO JUSTICE: THE LAW RELATED WORK OF FORD FOUNDATION GRANTEES (McClymont & Golub eds., 2000). 4 Esmeir & Rosenberg, Resisting Litigation in Umm El-Fahem, HUMAN RIGHTS DIALOGUE (Spring 2000). 2

Reconciliation.1 In their work, cause lawyers in other nations draw variously from indigenous sources, existing national practices, models established in the U.S. and elsewhere, international human rights law, and internal motivation.2 Indeed, public interest litigation in other nations reveals many strategic approaches and legal theories not presently utilized in the U.S., and lawyers here can learn from these other experiences. For example, U.S. constitutional law draws a firm line between negative and positive rights; between state action and private conduct; and between the justiciable and merely political. Cause lawyers elsewhere, however, draw on different jurisprudential traditions that afford alternative approaches to important matters such as discrimination by non-government entities, as well affording important bases for affirmative claims to essential goods such as health care or education. The Indian Supreme Court's decisions involving bonded labor, for example, draw on a concept of dignity and freedom from expropriation from which the court derived a right to humane employment conditions.3 Similarly, public law work before the South African Supreme Court builds on constitutional provisions that recognize the relevance of material economic conditions to liberty and autonomy.4 Finally, international law recognizes indigenous people as distinct groups with rights to land and cultural integrity in ways that are suggestive for improved approaches in the U.S.5 61 62 63

1

Hershkoff & McCutcheon, Public Interest Litigation: An International Perspective, in MANY ROADS TO JUSTICE: THE LAW RELATED WORK OF FORD FOUNDATION GRANTEES AROUNDTHE WORLD (McClymont & Golub eds., 2000). 2 For a survey, see PUBLIC INTEREST LITIGATION IN SOUTH ASIA: RIGHTS IN SEARCH OF REMEDIES (Hossain, Malik, & Musa eds., 1997). 3

Craig & Deshpande, Rights, Autonomy and Process: Public Interest Litigation in India, 9 OXFORD J. OF LEGAL STUD. 356 (1989). 4 Sachs, Social and Economic Rights: Can They Be Made Justiciable, 53 SMU L.REV. 1381 (2000). 5 Kingsbury, Reconciling Five Competing Conceptual Structures of Indigenous Peoples' Claims in International and Comparative Law, in PEOPLES' RIGHTS (Alston ed., 2001)(forthcoming); Anaya & Williams, Jr., The Protection of Indigenous People's Rights over Lands and Natural Resources Under the Inter-American Human Rights System, 14 HARV. HUMAN RTS. J. 33 (2001).

Chapter-V PIL and Judicial Activism in India

Public interest litigation, or PIL as it is conveniently called, has become a major and prominent segment of the jurisdiction of the Supreme Court and High Courts in India.. It is an old maxim that "delay defeats justice". For the foregoing reasons, in the author's opinion, there was no need to invent-this new mechanism of curative petition which is beyond the preview of the Constitution. Who can apply.—Locus Standi.—The traditional rule is that the right to move the Supreme Court is only available to those whose fundamental rights are infringed. The power vested in the Supreme Court can only be exercised for the enforcement of fundamental rights. The writ under which the remedy is asked under Article 32 must be correlated to one of the fundamental rights sought to be enforced. The remedy must be sought through appropriate proceedings. A

Dynamic

Approach—Public

Interest

Litigation.—The

above

traditional rule of locus standi that a petition under Article 32 can only be filed by a person whose fundamental right is infringed has now been considerably relaxed by the .3 Supreme Court in its recent rulings. The

Court now permits public interest litigations or social interest litigations at the instance of 'public spirited citizens' for the enforcement of Constitutional and other legal rights of any person or group of persons who because of their poverty or socially or economically disadvantaged position are unable to approach the Court for relief. In A. B. S. K. Sangh (Rly) v. Union of India,1 it was held that the Akhil Bhartiya

Soshil Karmachari Sangh (Railway), though an unregistered

association could maintain a £ writ petition under Art. 32 for the redressal of a common grievance. Access to justice through 'class actions', 'public interest

litigation'

and

'representative

proceedings'

is

the

present

constitutional jurisprudence, Krishna lyer, J., declared. In the Judges Transfer case,2 a 7-member Bench of the Supreme Court has firmly established the rule regarding the public interest litigation. The Court held that any member of the public having "sufficient interest" can approach the court for enforcing constitutional or legal rights of other persons and redressal of a common grievance. Speaking for the majority Bhagwati, J., (as he then was) stated the rule as follows: "Where a legal wrong or legal injury is caused to person or to a determinate class of persons by reason of violation of any constitutional or legal right and such person or determinate class of persons is by reason of poverty, helplessness of disability or socially or economically disadvantaged position unable to approach the court for relief, any member of the public can maintain an application for an appropriate direction or order writ in the High Court under Article 226 or in case of breach of any Fundamental Right to this Court under Article 32. Where the weaker sections of the community are concerned such as under-trial prisoners languishing in jails without a trial, inmates of the Protective Home in Agra, or Harijan workers; engaged in road construction in the District of Ajmer, who are living in poverty and desolation, who are barely eking out a miserable existence with their sweat and toil who are helpless victims of an 1 2

AIR 1981 SC 298. S.P. Gupta and others v. President of India and others, AIR 1982 SC149

exploitative society and who do not have easy " to justice, the Supreme Court will not insist on a regular writ petition to be filed by the public spirited individual espousing their cause and seeking relief for them. The Supreme Court will readily respond to a letter addressed by such individual pro bono publico. It is true that there are rules made by the Supreme court prescribing the procedure for moving it for relief under Article 32 and they require various formalities to be of one through by a person seeking to approach it. But it must not be forgotten the procedure is but a hand made of justice and the cause of justice may never be allowed to be wasted by any procedural technicalities. The Court will, therefore, unhesitatingly cast aside the technical rules of procedure in the exercise of its dispensing power and treat the letter of the public-minded individual as a writ petition and act upon it." However, the Court said that it would have to be decided from case to case as to whether the person approaching the court for relief has "sufficient interest' and has not acted with mala fide or political motives. In the instant case, the court upheld the right of the practising lawyers to maintain a writ petition under Art. 32 on matters affecting the independence of judiciary, Bhagwati, J., (as he then was) held :— "We would, therefore, hold that any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision. This is absolutely necessary for maintaining the rule of law. furthering the cause of justice and accelerating the pace of realisation of the Constitutional objectives". His Lordship also rejected the argument of fear that such a liberal view would lead the Court being flooded with writ litigation and therefore, they should not be encouraged. Quoting the words of the Australia Law Reforms Commission his Lordship observed the ''the liberalised standing rules has

caused no significant increase in the number of actions brought, arguing that the parties will not litigate at considerable personal cost unless they have a real interest in the matters". The case of Janata Dal v. H. S. Chowdhari1 is an example where the petitioner tried to abuse the public interest litigation for political purposes. In 1986 the Government of India had placed orders for purchase of Bofors guns. On April 17, 1987 some leading news papers of India published news broadcast made by Swedish Radio that bribe had been paid to some Indian politicians and Defence personnel to secure the contract. On the other hand the Bofors denied the allegations. Meanwhile, there was a change of government and the Janata Dal came to power at the Centre. On the basis of information 'available, the CBL registered a criminal case against 3 named and 11 unnamed accused under the relevant section of IPC and the Prevention of Corruption Act, 1947. The CBI wanted to get more information and evidence from Swiss authorities. For that purpose, the CBI moved an application before the special judge to issue a letter of rogatory (request) to Switzerland for getting necessary assistance in conducting investigation. At this stage, an advocate Sri Harinder Singh Chowdhari made an application in public interest litigation under Art. 51 -before the Special judge requesting the Court not to issue the letter of rogatory unless the allegations against named persons are proved. The special judge dismissed the petition on the ground that the petitioner had no locus standi. Against this order, Sri Chowdhari filed a criminal revision before the High Court of Delhi under Section 397/482 of the Criminal Procedure Code and prayed for quashing the F.I.R. A Single Judge of the High Court held that the petitioner has no locus standi to file the 'petition and thus his petition was not maintainable. However, the Single Judge suo motto took judicial notice of illegalities in the trial court and ordered that the FIR filed by the CBI be quashed. The Supreme Court agreed with the first part of the order of the High Court holding that the petitioner had no locus standi to file the petition. But as

1

(1992) 4 SCC 653.

regards the second part of the order the court quashed the order of the High Court. Similarly, in Krishna Swami v. Union of India1 the petitioner filed a public interest litigation under Art. 32 of the Constitution for quashing the motion given to the Speaker by 108 members of the Ninth Lok Sabha for initiating proceedings for the removal from office of Mr. Justice V. Ramaswami of the Supreme Court against whom there were allegations of financial irregularities. The petitioner, Krishna Swami, a member of the Tenth Lok Sabha from Tamil Nadu, claimed that he had sufficient interest to file the petition. He alleged that there were certain illegalities in procedure adopted by the Inquiry Committee and therefore it should be quashed. The second petitioner Raj Kanwar, an advocate of District of Karnal in Haryana claimed that the notion of motion by 108 members of the Ninth Lok Sabha and its admission by the Speaker and the constitution of Inquiry Commission under the Judges (Inquiry) Act, 1968, were unconstitutional being violative of Art. 124 (4) of the Constitution liable to be quashed. The Supreme Court by 4-1 majority held that the petitioners had no locus standi to file the petition. The petitioners have no public purpose in filing the petition. Likewise, in Simranjit Singh Mann v. Union of India2 the question was whether a third party who is a total stranger to the prosecution culminating in the conviction of the accused have any locus standi to challenge the conviction and sentence awarded lo the convicts through the public interest litigation. The two assassins of General Vaidya charge-sheeted and found guilty for murdering him and awarded death penalty which was confirmed by the Supreme Court. The petitioner who was the President of a recognised political party, viz. Akali Dal (M) and therefore was vitally interested in upholding the rule of law and ensuring that the same is applied equally with fairness, equity and good conscience to all, filed the public interest litigation under Art. 32 challenging the conviction and the sentence on the ground of violation of Arts. 22, 21 and 14 of the Constitution. Following the decision in 1 2

(1992) 4 SCC 605 (1992) 4 SCC 653

Janata Dal v. H. S. Chowdhari the Court held that the petitioners had no 'locus standi' to file petition as they were a total stranger to the prosecution and more than that they were not even authorised by the convicts. In B. Singh v. Union of India1the petitioner, on the basis of a representation of one Ramsarup, addressed to the President, published in a newspaper, against a person likely to be appointed a Judge of the High Court filed a public interest litigation challenging his appointment. The petitioner nowhere has stated that he has any personal1 knowledge of the allegations made against the respondent. He did not even make an effort to find out whether the allegation had any basis. The Supreme Court held that this was a clear and blatant abuse of PIL filed with oblique motive. The Court dismissed the suit and imposed an exemplary cost of Rs. 10,000. The Court held that the PIL filed with reckless allegations and vitriolic statements against judges and persons whose names were under consideration for judgeship must be sternly dealt with. The petitioner is a business person seeking publicity and not interested in welfare of judicial system, In Guruvayur Devasawom Managing Committee v. C. K. Rajan2 a three judge bench of the Supreme Court, with a view of checking the abuse of PIL, re-examined its scope and ambit in detail and reiterated the guiding principles for its exercise. In this case one Mr. C. K. Rajan addressed a letter to one of the Judges of the Kerala High Court bringing to his notice purported

irregularities,

corrupt

practices,

maladministration

and

mismanagement prevailing in Shree Krishna Temple in the State of Kerala requesting him to do justice to downtrodden people who visit the temple Guruvayur. The management of the temple was to be carried out in terms of the provisions of the Guruvayur Devasom Act. The letter was treated as an original petition under Art. 226 of the Constitution. The High Court appointed the District Judge as the Commissioner to make a general inquiry in the matter and submit its report to the Court. On the basis of the Commissioner's report the High Court directed to take the management of the temple. Against this order, a special leave petition was filed in the 1 2

AIR 2004 Sc 1923 AIR 2004 Sc 561 (Supp)

Supreme Court by the Management Committee of the temple. The Supreme Court held that public interest litigation cannot be used in solving disputes of private nature. Public Interest Litigation was evolved with a view to render justice to poor, depraved, the illiterate and downtrodden who have either no access to justice or had been denied justice. It cannot be used for removing corruptions in a temple. As a result of this broad view of locus standi permitting public interest litigations or social action litigation Supreme Court has considerably widened the scope of Article 32 of the Constitution. The Supreme Court will now be ready to interfere under Article 32 wherever and whenever any injustice is caused or being caused by the State action to the poor and helpless persons who cannot approach the Court. The Court has jurisdiction to give appropriate remedy to the aggrieved persons in various situations. Bihar Blinding case, Flesh Trade in Protective Home of Agra,1 Injustice done to children in jails, Protection of Pavement and slum-dwellers of Bombay, Payment of minimum wages and other benefits to workers in various State projects, Abolition of Bonded Labours, Protection of environment and ecology, are the instances where the Court has issued appropriate writs, orders and directions on the basis of public interest litigation or social action litigation. The new trend on locus standi is to be welcomed. This would go a long way in creating a sense of responsibility in public authorities exercising enormous powers under the Constitution and the law. This jurisdiction would certainly be able to minimise, if not completely stop, the abuse of power by public authorities. Henceforth they would be much more vigilant in exercising their powers and performing their Constitutional and statutory duties and obligations towards the people, particularly poor and helpless persons. If public property is dissipated, it would require a strong argument to convince the Court that representative segments of the public or at least a section of public would have not right to complain of the infraction of public duties and obligations. Public enterprises are owned by the people and 1

Upendra Baxi v. Sttae of U.P. (19830 2SCC 308.

those who run them are accountable to the people. The accountability of the public sector to the Parliament is ineffective. In such cases the Court would be under duty to interfere.1 In Bihar Legal Support Society v. Chief Justice of India2, the Court made it clear that 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 the disadvantaged sections of the community. In Peoples Union for Democratic Rights v. Union of India,3 it was held that the Peoples Union for Democratic Rights and locus standi to file a petition for enforcement of various labour laws under which certain benefits is conferred on the workers. The Union brought this fact to the notice of the Court through a letter. The Court rejected the argument that such 'public interest litigation' would create arrears of cases and therefore they should not be encouraged. Bhagwati, J., (as he then was) declared, "No State had the right to tell its citizens that because a large number of cases of the rich are pending in our courts we will not help the poor to come to the courts for seeking justice until the staggering load of cases of people who can afford rich lawyers is disposed off.” In Bandhu Mukti Morcha v. Union of India,4 an organisation dedicated to the cause of release of bonded labours informed the Supreme Court through a letter that they conducted a survey of- the stone-quarries situated in Faridabad District of the State of Haryana and found that there were a large number of labours working in these stone-quarries under "inhuman and intolerable conditions" and many of them were bonded labours. The petitioners prayed that a writ be issued for proper implementation of the various provisions of the Constitution and statutes with a view to ending the misery, suffering and helplessness of these labours, and release of bonded labourers. The Court treated the letter as a writ-petition, and appointed a Commission consisting of two advocates to visit these stone-quarries and make an inquiry and report to the Court about the existence of bonded 1

Fertilizer Corporation Kamgar Union v. Union of India AIR 1981SC 434 (1986) 4 SCC 767 3 AIR 1983 SC 339 4 AIR 1984 SC 803 2

labourers. Speaking for the majority Bhagwati, J. {as he then was) no behalf of himself and Pathak and Amarendra Nath Sen. JJ., held that where a public interest litigation alleging the existence of bonded labourers is filed it is not proper on the part of the Government to raise preliminary objection. On the contrary, the Government should welcome an enquiry by the court so that if it is found that there are bonded labourers or workers living inhuman condition such a situation can be set right by the Government, Bhagwati, J. (as he then was) explained the nature and purpose of public interest litigation as follows :— "Public interest litigation is not in the nature of adversary litigation but it is a challenge and an opportunity to the Government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social and economic justice which is the significant tune of our Constitution. The Government and its officers must welcome public interest litigation, because it would provide them an accession to examine whether the poor and the down trodden are getting their social and economic entitlements or whether they are continuing to remain victims of deception and exploitation at the hands of strong and powerful sections of the community ...................... when the court entertains public interest litigation, it does not do so in a cavilling spirit or in a controversial mood or with a view to tilting at executive authority or seeking to usurp it, but its attempt is only to endure observance of social and economic programmes framed for the benefit of the have-nots and the handicapped and to protect them against violation of their basic human rights, which is also the constitutional obligation of the executive, the court is thus merely assisting in the realisation of the constitutional objective." The Court held that the power of the Supreme Court under Art. 32 includes the power to appoint Commission for making enquiry into facts relating to the violation of fundamental rights.

Pathak and Amarendra Nath Sen, JJ. although agreed with Bhagwati, J. that public interest litigation through a letter should be permitted, but expressed the view that in entertaining such petitions the Court must he cautious so that might not be abused. There is a grave danger in such practice and the court must be vigilant against the abuses of its process. Their Lordships suggested that all such letters must be addressed to the entire Court and not to a particular judge and secondly, it should be entertained only after proper verification of materials supplied by the petitioner. In another landmark judgment in the case of M.C. Mehta v. Union of India,1 the Supreme Court has further widened the scope of public interest litigation social interest litigation under Art. 32. Bhagwati J. speaking for the majority laid down the following guidelines : (1) The Court held that the poor in India can seek enforcement of their fundamental rights from the Supreme Court by writing a letter to any judge. Also, such a letter does not have to be accompanied by an affidavit. His Lordship expressly referred the apprehension expressed by Pathak J. (as he then was) in Bandhu Mukti Morcha case that such letters should not be addressed to any individual judge but only to the Court, held that such an approach would deny easy access to the Court to the poor and disadvantaged persons or by social action group who might not know the proper form of address to the Court. They may know only the particular judge who comes from their State and they may therefore address the letter to him. (2) The Court also held that under Art. 32 it has power to grant remedial relief which includes the power to grant compensation in appropriate cases where the fundamental rights of the poor and disadvantaged person are violated. However, Art. 32 cannot be used as a substitute for claiming compensation for the infringement of fundamental rights through the ordinary process of a Civil Court. It can only be done where the violation of fundamental right of poor is 1

AIR 1987 SC 1087

"gross and patent" and "affects persons on a large scale” or where it appears to be "unjust or unduly harsh or oppressive on account of their poverty or disability or socially or economically disadvantage position to seek remedy in the civil court. This is the principle on which the Court awarded compensation to Rudal Shah1 and Bhim Singh2 whose fundamental right to personal liberty were grossly violated by the State. In such cases it would be gravely unjust to ask him to go to the civil court for claiming compensation. (3) The Court held that the Court can appoint socio-legal commissions or devise any procedure and forge any tools it deems appropriate for the enforcement of fundamental rights of the poor. The Court endorsed the Statement of law laid down by Bhagwati, J. (as he then was) in Bandhu Mukti Morcha case :— "Art. 32 does not merely confer power on the Court to issue a direction, order or writ for the enforcement of the fundamental rights but it also lays a constitutional obligation on this Court to protect the fundamental rights of the people and for that purpose this Court has all incidental and ancillary powers including to forge new remedies and fashion new strategies designed to enforce fundamental rights. It is in realisation of this constitutional obligation that this Court has innovated new methods and strategies particularly for enforcing the fundamental rights of the poor and disadvantaged who are denied their human rights and to whom freedom and liberty have no meaning". The present case came before the Supreme Court on a reference made by the three judges who permitted Shriram Foods and Fertilizer Industries to restart its power plant subject to the conditions laid down in the judgment. While the writ petition for the direction to close the company's unit producing dangerous gas was pending in the Court there was escape of Oleum gas from one of its units. A writ petition was filed by the Delhi Legal Aid and Advice Board and the Delhi Bar Association for award of compensation to the persons who had suffered harm on account of escape of Oleum gas. A 1 2

Rudal Shah v. State of Bihar Air 1983 SC 1086 Bhim Singh v. State of J.K. (1985) 4 SCC 677

preliminary objection was raised that since there was no claim for compensation originally made in the writ petition it could not be claimed subsequently without amending the petition. The Court held that while dealing with such applications for compensation for enforcement of right to life in Art. 21 the Court cannot adopt a hyper-technical approach which would defeat the end of justice. The verdict of Bhagwati, J. in the above landmark judgment has opened the doors of the highest Court of the nation for the oppressed, the exploited and the down-trodden in villages of India or urban slums. The poor in India can seek enforcement of their fundamental rights from the Supreme Court by writing a letter to any judge of the Court even without the support of an affidavit. The Court has brought legal aid to the door steps of the teeming millions of Indian which the executive has not been able to do despite that a lot of money is being spent on new legal aid scheme operating at the Central and State level. In Mohanlal Sharma v. State of U.P.1 a telegram was sent to the Court from the petitioner alleging that his son was murdered by the police in the police lock-up. The telegram was treated a writ-petition by the Court and the case was directed to be referred to C.B.I, for a thorough and detailed investigation. In a landmark judgment in Sarbanand Sonowal v. Union of India,2 Supreme Court reiterated the importance of the public interest litigation. In this case, the petitioner challenged the Constitutionality of the Illegal Migrants (Determination by Tribunal) Act, 1983, by way of public interest litigation on the ground that it was wholly arbitrary, unreasonable and discriminates against the citizens of Assam with the citizens of rest of the country and is violative of Article 14 of the Constitution. The I.M.D.T. Act applies to Assam only, while the Foreigners Act, 1946 applies to the whole of India. On behalf the Government, it was argued that the PIL was filed for achieving political purpose and liable to be dismissed. The Supreme Court held that under Article 32 every citizen of India has right to bring to the 1 2

(1989) 2 SCC 609 AIR 2005 SC 2920

notice of the Court a matter of public importance as the I.M.D.T. Act was made applicable to the State of Assam for detecting and deporting lakhs of Bangladesh nationals who have trespassed the international border illegally and are residing in India. Article 51-A (d) imposes a duty on every citizen of India to defend the country and render national service when called upon to do so. If an Act made by the legislature has the disastrous effect of giving shelter and protection to foreign nationals who have illegally transgressed international border and are residing in India, and the Act is unconstitutional, any citizen is entitled to bring it to the notice of the Court filing a writ petitions under Article 32 of the Constitution. It is the foremost duty of the Central Government to protect its borders, and prevent trespass by foreign nationals. There are number of instances where such petitions have been entertained by the Supreme Court at the instance of citizens who were not themselves personally aggrieved in the sense that there was no direct invasion of their own fundamental right. The petition filed by the MLA cannot be rejected on the ground that he is trying to achieve a purpose which his party could not achieve politically. During the year 2005 a number of writ petitions were filed by way of public interest litigation highlighting social and political problems which the legislature and the executive were not willing to solve due to political reasons, e.g. M.P. Sting operation in which 11 M.P. were charged taking money for asking questions in the Parliament. The matter is still pending before the Supreme Court. Judicial Activism The powers of the Supreme Court for the protection of the constitutional rights of citizens are of the widest amplitude and there is no reason why the Court should not adopt activist approach similar to Courts in America and issue to the State directions which may involve taking of positive action with a view to securing enforcement of the fundamental right. The judiciary has been assigned this active role under the Constitution. They are not expected to sit in an ivory tower like an Olympian closing their

eyes uncaring for the problems faced by the society. They have to exercise their judicial powers for protecting the fundamental rights and liberties of citizens of the country. Therefore in order to achieve this mission the judiciary has to exercise and evolve its jurisdiction with courage, creativity and circumstances and with vision, vigilance and practical wisdom. Judicial activism and self restraint are facets of that courageous creativity and pragmatic wisdom. One should, however, understand that this exercise of authority of the judiciary is not for vain glory but it is in discharge of its constitutional obligation. For otherwise the judiciary will become crippled which in turn will cripple democracy. When the executive and legislature are apathetic and fail to discharge their constitutional obligations. The bureaucracy shows a total indifference and insensitivity to its mandatory duties. This in turn affects the basic rights of the people. When the law enforcing authorities show their brutality in the process of implementation of law, the judiciary should check the excesses and also direct the authorities to effectively implement the welfare legislation. The Supreme Court's role in sensitising the Central Investigating authorities to discharge their legal obligations in the various scams cases and if various judgments ranging from the need for Uniform Civil Code, pollution control, preservation of historical monument like Taj Mahal, cleaning and keeping the big cities more hygienic, directing removal of encroachments, interim compensation to rape victims, protecting working women from sexual harassment, punishing senior Karnataka IAS Officer, Vasudevan and puncturing the ego of Chief Election Commissioner T. N. Seshan have attracted praise. In Hussainara Khatoon v. State of Bihar1 the Supreme Court has held that speedy trial is an essential and integral part of the fundamental right to life and liberty enshrined in Art. 21. In Bihar a number of under-trial prisoners were kept in various jails for several years without trial. The Court ordered that all such prisoners whose names were submitted to the Court should be released forthwith. Since speedy trial was 1

AIR 1979 SC 1369

held to be a fundamental right guaranteed by Art. 21, the Supreme Court considered its constitutional duty to enforce this right of the accused persons. In Bandhu Mukti Morcha v. Union of India1 it has been held that the provisions-conferring on the Supreme Court the power to enforce fundamental rights in the widest possible terms show the anxiety of the Constitution-makers not to allow any procedural technicalities to stand in the way of enforcement of fundamental rights. It is not at all obligatory that an adversary procedure must be followed in proceedings under Art. 32 for the enforcement of fundamental rights. There is no such compulsion in clause (2) of Art. 32 or in any other part of the Constitution. Public interest litigations for the enforcement of fundamental rights is very much included in Art. 32. The Supreme Court has now realised its proper role in a welfare Slate, and it is using this new strategy not only for helping the poor by enforcing their fundamental rights of persons but for the transformation of the whole society as an ordered and crime free society. The Supreme Court's pivotal role in making up for the lethargy of the Legislature and the inefficiency of the Executive is commendable. Those who oppose to the growing judicial activism of the higher courts do not realise that it has proved a boon for the common men. Judicial activism has set right a number of wrongs committed by the States. Ban on smoking in public places.—In a significant judgment,2 the Supreme Court has directed all States and Union Territories to immediately issue orders banning smoking in public places and public transports, including railways. Hearing a PIL against smoking filed by Maharashtra Congress Leader Murli Deora the Court also asked the Commissioners of Police of Delhi, Mumbai, Chennai, Kolkata, Bangalore and Ahmadabad to submit status reports of action taken against cigarette manufacturers violating advertising code. The orders banning smoking in public places would include hospitals, health institutes, public offices, public transports 1 2

AIR 1984 SC 802 Hindustan Times 3 Nov., 2001

including railways, court buildings, Educational institutions, libraries and auditoriums. Seeing the ill-effects of smoking, the ruling of the Court would boost public health. The State Governments of Delhi, Goa and Rajasthan have taken the lead in this matter and already enacted laws banning smoking in public places. The Centre has introduced an Anti-Smoking Bill in the Parliament which has been referred to a Parliamentary Select Committee. A major problem is regarding the implementation of the direction of the Court. Protection against inhuman treatment in jail.—In Sunil Batra v. Delhi Administration,1 it has been held that the writ of habeas corpus can be issued not only for relating a person from illegal detention but also for protecting prisoners from inhuman and barbarous treatment. The dynamic role of judicial remedies imports to the habeas corpus writ a versatile vitality and operational utility as bastion of liberty even within jails. Wherever the rights of a prisoner either under the Constitution or under other laws are violated the writ power of the court can run and should run to rescue, declared Krishna lyer, J. In Veena Sethi v. State of Bihar,2 the Court was informed through a letter that some prisoners, who were insane at the time of trial but subsequently declared sane, were not released due to inaction of State authorities and had to remain in jails from 20 to 30 years. The Court directed that they be released forthwith. In D.S. Nakara v. Union of India3 it has been held that a registered society, non-political, non-profit-making and voluntary organisation is entitled to file a writ petition under Art. 32 for espousing the cause for the large number of old infirm pensioners who are unable to approach the court individually. Child Welfare.—In Lakshmi Kant Pandey v. Union of India,4 a writ-petition was filed on the basis of a letter complaining of malpractices indulged in by social organisation and voluntary agencies engaged in the work of offering 1

AIR 1980 SC 1759, Sunil Batra’s case No. (1) AIR 1978 SC 1975; Rakesh v. B.L. Vig Supdt. Cnetral Jail, New Delhi, AIR 1981 SC 1767 2 AIR 1983 SC 339 3 4

(1984) 2 SCC 244 ; See also Laxmi Kant Pandey v. Union of India, (1987) 1SCC 667 ; Sheela Barse v. Secretary, Childrren Aid Society, (1987) 3 SCC 50

Indian children in adoption to foreign parents. It was alleged that in the guise of adoption Indian children of tender age were not only exposed to the long dreadful journey to distant foreign countries at great risk to their lives but in case they survive they were not provided any shelter and relief homes and in course of time they become beggars or prostitutes for want of proper care. Bhagwati, J. (as he then was) laid down principles and norms which should be followed in determining whether a child should be allowed to be adopted by foreign parents. With the object of ensuring the welfare of the child his Lordship directed the Government and various agencies dealing with the matter to follow these principles in such cases as it is their constitutional obligation under Arts. 15 (3) and 39 (c) and (f) to ensure the welfare of the child. In Munna v. State of U.P.1 a public interest litigation was filed in the Court on the basis of a news report about sexual exploitation of children by hardened criminals in Kanpur Jail. The Court directed the District Judge, Kanpur to visit the jail and report. The report confirmed the crime of sodomy committed against the Children. The Court directed the release of the children from jail and their shifting them to children's home. In M, C. Mehta v. State of Tamil Nadu2 it has been held that the children cannot be employed in match factories which are directly connected with the manufacturing process as it is a hazardous employment within the meaning of Employment of Children Act. 1938. They can, however, be employed in packing process but it should be done in area away from the place of manufacture to avoid exposure to accidents. Every children must be insured for a sum of Rs. 5000/- and premium to be paid by employer as a condition of service. In Sheela Barse v. Union of India,3 the Court directed the Central Government to pay to the petitioner, a social worker, Rs. 10,000 for the expenses and to extend all necessary assistance who offered to personally visit different parts of the country to verify whether the information submitted 1

(1982) 1 SCC 545 AIR 1991 SC 417 3 (1986) 3 SCC 596. 2

by the authorities regarding children below the age of 18 years detained in jails in different States of the country was correct. The Court directed that the Children's Acts enacted by various States be must brought into force and their provisions be implemented vigorously. It is desirable that Parliament should pass a Central legislation on the subject. Under Art. 32 the Court has power to award cost of public interest petition to the petitioner who was not in legal profession but brought an important matter before the court for its consideration.1 The petitioner had asked the court to issue directions to the Government to improve Railway Services. Although the Court held that in view of the limited resources of the Government directions could not be issued, but it hoped that the Government would try to improve this public utility service in an effective way. Since the petitioner through this public interest litigation has attempted to voice the grievances of the Community availing Indian Railways, took great pains to highlight his stand, collected a lot of relevant material and argued his case it was directed that he was entitled to cost of litigation from the Railway Ministry.2 However, damages and compensation for losses, humiliation and indignation suffered by the petitioner cannot be granted by the Court under Art. 32. In D. C. Wadhwa v. State ofBihar,3 the petitioner, a professor of political science who had done substantial research and deeply interested in ensuring proper implementation of the constitutional provisions, challenged the practice followed by the State of Bihar in repromulgating a number of ordinances without getting the approval of the legislature. The Court held that the petitioner as a member of public has 'sufficient interest' to maintain a petition under Art. 32. Every citizen has right to insist that he should be governed by laws made in accordance with the Constitution and not laws made by the executive in violation of the constitutional limitations. The Court directed the State of Bihar to pay Rs. 10,000 to Dr. Wadhawa whose research brought in light this repressive practice. Under Art, 32 of the 1

P. Nala Thampy v. Union of India (1983) 4 SCC 598. Jiwan Mal Kochar v. Union of India (1984) 1 SCC 200 3 AIR 1987 SC 579 2

Constitution the Supreme Court has power to award compensation by way of exemplary costs to the petitioner whose constitutional right is violated by the illegal and mala fide action of the State and its officials. In public interest litigation the court has power to take affirmative action by issuing specific directions in cases of governmental inaction or lethargy to perform the functions under the law. Thus it was held that the High Court was well within the limits of its jurisdiction in directing the P.W.D. authorities to complete the construction of a road in a poor and Harijan basti and also to the Government to make available an additional sum of Rs. 50,000 for the completion of the work.1 In Gaurav Jain v. Union of India.2 the Court rejected the demand for providing separate schools and hostels for children of prostitutes as it was not in the interest of such children. The application under Art. 32 was made through public interest litigation asking for direction to the government for making such provisions for children of prostitutes. Protection of Ecology and Environment Pollution.—In Rural Litigation and Entitlement Kendra v. State of U.

3

the Court ordered the closure of

certain lime stone quarries on the ground that there were serious deficiencies regarding safety and hazards in them. The Court had appointed a committee for the purpose of inspecting certain lime stone-quarries. The Committee had suggested the closure of certain categories of stone quarries having regard to adverse impact of mining operations therein . A large scale pollution was caused by lime stone quarries adversely affecting the safety and health of the people living in the area. In Shriram Food and Fertilizer case,4 the Supreme Court directed the Company manufacturing hazardous and lethal chemicals and gases posing danger to health and life of workmen and people living in its neighbourhood, to take all necessary safety measures before reopening the plant. There was a leakage of chlorine gas from the plant resulting in death of one 1

State of H.P. v. Umed Ram Sharma, (1986) 2 SCC 68 AIR 1990 SC 292. 3 (1985) 2 SCC 431 4 M.C. Mehta v. Union of India (1986) 2 SCC 176 2

person and causing hardships to workers and residents of the locality. This was due to the negligence of the management in maintenance and operation of the caustic chlorine plant of the Company. The matter was brought before the Court through Public interest litigation. The management was directed to deposit a sum of Rs. 20 lacs by way of security for payment of compensation claims of the victims of Oleum gas leak with the Registrar of the Court. In addition, a bank guarantee for a sum of 15 lacs was also directed to be deposited which shall be encashed in case of any escape of chlorine gas within a period of three years from the date of the judgment resulting in death or injury to any workman or any person living in the vicinity. Subject to these conditions the Court allowed the partial reopening of the plant. The efforts of the highest court in environment pollution control through public interest litigation is indeed laudable, particularly when the legislature is lagging behind in bridging the lacuna in the existing legal system and administration is not well equipped to meet the challenge. In M. C. Mehta v. Union of India,1 the Supreme Court ordered the closure of tanneries at Jajmau near Kanpur, polluting the Ganga. The matter was brought to the notice of the Court by the petitioner, a social worker, through a public interest litigation. The Court said that notwithstanding the comprehensive provisions contained in the Water (Prevention and Control of Pollution) Act and the Environmental (Protection) Act, no effective steps have been taken by Government to stop the grave public nuisance caused by the tanneries at Jajmau, Kanpur. In the circumstances, it was held that the Court was entitled to order the closure of tanneries unless they took steps to set up treatment plants. In M. C. Mehta (2) v. Union of India, the petitioner brought a public interest litigation against Ganga water pollution requiring the Court to issue appropriate directions for the prevention of Ganga water pollution. He claimed that although Parliament and the State legislatures have passed 1

(1987) 4 SCC 463.

several laws imposing duties on the Central and State Boards constituted under the Water (Prevention and Control of Pollution) Act and the municipalities under the U.P. Nagar Mahapalika Adhiniyam, they have just remained on paper and no proper action has been taken pursuant thereto. The Supreme Court held that the petitioner, although not a riparian owner (living on the river side) is entitled to move the court for the enforcement of various statutory provisions which impose duties on the municipal and other authorities. He is a person interested in protecting the lives of the people who make use of the Ganga water. The nuisance caused by the pollution of the river Ganga is a public nuisance which is wide spread and affecting the lives of large number of persons and therefore any particular person can take proceedings to stop it as distinct from the community at large. Accordingly, the Court directed the Kanpur Nagar Mahapalika to submit its proposals for effective prevention and control of water pollution within 6 months to the Board constituted under the Water Act, It also directed the Mahapalika to get the dairies shifted to a place outside the city and arrange for removal of wastes accumulated at the dairies so that it may not reach the river Ganga, to lay. sewerage line wherever it is not constructed, to construct public latrines and urinals, for the use of poor people free of charge, to ensure that dead bodies or half burnt bodies are not thrown into the river Ganga and to take action against the industries responsible for pollution, licences to establish new industries should be granted only to those who make adequate provisions for the treatment of trade effluent flowing out of the factories. The above directions apply mutatis mutandis to all other Mahapalikas and municipalities which have the jurisdiction over the areas through which the river Ganga flows. In Indian Council for Enviro-Legal Action v. Union of India1 the Supreme Court has held that if by the action of private corporate bodies a person's fundamental right is

violated the Court would not accept the

argument that it is not 'State' within the meaning of Art. 12 and therefore, 1

91986) 3 SCC 212; See also Vellore Citizen Welfare Forum v. Union of India (1986) 5 SCC 647.

action cannot be taken against it. If the Court finds that the Government or authorities concerned have not taken the action required of them by law and this has resulted in violation of the right to life of the citizens, it will be the duty of the Court to intervene. In this case an environmentalist organisation filed a writ petition under Art. 32 before the court complaining the plight of people living in the vicinity of chemical industrial plants in India and requesting for appropriate remedial measures. The fact was that in a village Bichari in Udaipur district of Rajasthan an industrial complex had developed and respondents have established their chemical industries therein. Some of the industries were producing chemicals like oleum and single phosphate. The respondent had not obtained the requisite licences and nor did they install any equipment for treatment of highly toxic effluents discharged by them. As a result of this the water in the wells became unfit for human consumption. It spread diseases, death and disaster in the village and surrounding areas. The villagers revolted against all this resulting in stoppage of manufacturing 'H' acid and ultimately these industries were closed. But the consequences of their action remained in existence causing damage to the village. The Court requested the National Environment Engineering Research Institute to study the situation and to submit their report. In the technical report, it was found that out of 2440 tones of sludge, about 720 tonnes was still there. With a view to conceal it from the eyes of the inspection teams the respondents had dispersed it all over the area and covered it with earth. Inspite of the court's order they did not remove the sludge. Likewise in Council for Enviro-legal Action v. Union of India1 the Court issued appropriate orders and directions for implementing and enforcing the laws to protect ecology. The petition was filed by a registered voluntary organisation working for the cause of environment protection in India as a public interest litigation complaining ecological degradation in coastal areas. It was contended that the government was not implementing its own Notification which was issued to regulate activities in the said zones. It was said that there was blatant violation of this Notification and industries 1

(1996) 5 SCC 281.

were being set up causing serious damage to the environment and ecology of that area. It held that the matter be raised before the concerned Stale High Courts which shall issue necessary orders or directions. In another case in M. C. Mehta v. Union of India1 (Pollution of Taj Mahal) the petitioner Mr. M. C. Mehta filed a public interest litigation in the Court drawing the attention of the Court towards the degradation of the Taj Mahal due to the atmospheric pollution caused by a number of foundries, chemically hazardous industries established and functioning around the Taj Mahal, and requested the Court to issue appropriate directions to the authorities concerned to take immediate steps to stop air pollution in the Taj Trapezium (TTZ) Mr. Justice Kuldip Singh, who is known as a green Judge for his decisions on pollution, delivering the judgment of the Court on behalf of the Court held that the 292 polluting industries locally operating in the area are the main source of pollution and directed them to change over within fixed time schedule to natural gas as industrial fuel and if they could not do so they must stop functioning beyond 31 st Dec., 1997 and be reallocated alternatives plots in the industrial estate outside Taj Trapezium (TTZ). The Corporation/Government shall then provide alternative plots to the industries which are seeking relocation. The closure by Dec. 31, 1997 is unconditional and applicable to new and old both units. The Deputy Commissioner, Agra and the Superintendent of Police shall effect the closure of industries. The U.P. State Government shall render all assistance to the industries in the process of relocation. The Court also took care of rights and benefits of the workers employed in these industries and issued necessary directions. They shall be entitled to following rights and benefits:— (a) The workmen shall have continuity of employment in the relocated industries with same terms and conditions. (b) The period between the closure and its restart shall be treated as active employment and shall be paid to their full wages.

1

AIR 1997 SC 735

(c) The workmen who agree to shift with the industry shall be given one year's wages as shifting bonus to help them settle at the new location. The said bonus shall be paid before Jan. 31. 1998. (d) The workmen who opt for closure shall be deemed to have been retrenched by May 31, 1997 and shall be paid compensation in terms of Section 25-F (b) of Industrial Disputes Act. These workmen shall also be paid in addition six years wages as additional compensation, (e) The compensation payable to the workmen in terms of this judgment shall be paid by the management within two months of the retrenchment. (f) The gratuity amount payable to any workmen shall be paid in addition. In Ramesh v. Union of India,1 it has been held that public interest litigation for ensuring communal harmony is maintainable under Art. 32 of the Constitution. In Subhas Kumar v. State of Bihar,2 it has been held that public interest litigation is maintainable for ensuring enjoyment of pollution free water and air which is included in the right, of life under Art, 21 of the Constitution. If any thing endangers or impairs that quality of life in violation of laws a citizen has right to have recourse to Art. 32 for removing the pollution of water or air which may be detrimental to the quality of life. Such a petition under Art. 32 are maintainable at the instance of affected persons or even by a group of social workers or journalists. In M. C. Mehta v. Union of India.3 it was held that public interest litigation against pollution in Delhi caused by increasing number of petrol and diesel driven vehicles in maintainable. The Court directed the Delhi Administration to made the Central Motor Vehicle Act, 1989 effective from April, 1991 and to implement it seriously and effectively. In Sachidanand Pandey v. State of W. B.4 the appellants through a public interest writ petition challenged the Government of West Bengal's 1

(1988) 1 SCC 668 AIR 1991 SC 420 3 91991) 2 SCC 137 4 (1987) 2 SCC 295 2

decision to allot a land for the construction of a Five Star Hotel in the vicinity of the Zoological Garden of Calcutta. It was argued that multi-storie building in the vicinity of the Zoo would disturb the animals and the ecological balance and would affect the bird migration which was a great attraction. The decision was thus taken without considering its impact on the Zoo. The Court held that although in view of the Articles 48-A and 51-A (g) whenever a problem of ecology is brought before the Court it would not refuse to interfere only on the ground that priorities are matter of policy and so it is a matter for the policy making authority. At least the Court may examine whether appropriate considerations are borne in mind and irrelevancies excluded. The court has always the power to give necessary directions. In the present case, however, it was held that the interference of the Court was not called for. It was held that the decision to allot the land for the construction of Hotel was taken openly by the Government after taking into consideration all facts and considerations including ecology. Its action was neither against the interest of the Zoo nor against the financial interest of the State. The Government had acted bonafide in allotting the land to the Taj Group of Hotels for the constructions of a Five Star Hotel at the vicinity of the Zoo. In Vincent Panikurlangara v. Union of India,1 the petitioner, an advocate and General Secretary of Public Law Service Society, Cochin, filed a petition under. Art. 32 asking for directions for maintenance of approved standards of drugs and banning of injurious and harmful drugs. It was held that the public interest writ was maintainable as the issues raised by the petitioner were of vital importance, i.e. the maintenance and improvement of public health. The Court directed the Central Government to compensate and reimburse him for his expenses in recognition of his service for bringing the matter before the Court. In M. K. Shanna v. B. E. L.,2 the petitioners, the Bharat Electronic Employees7 Union, claimed that the employees working in the transmitter assembly room of the Company, Bharat Electronic Limited, a public sector 1 2

(1987) 2 SCC 165 (1987) 3 SCC 231

undertaking, were exposed to the ill-effects of X-ray radiation because of the failure on the part of the company to comply with safety rules and safety measures and claimed compensation for the violation of their fundamental right. Though on medical examination no ill-effect was apparently found on the workers but the respondent agreed to pay compensation in the event of proof of ill-effect on a future date. The Court directed that safety rules and other safety measures must strictly be complied with and there should be annual checking of it by competent authority. The Court also directed that every workman and officers working in the sensitive portion of the factory must be insured for Rs. 1 lakh and Rs. 2 lakhs respectively over and above the general insurance, if any, available to them, The cost of these insurance policies were to be borne by respondents an business expenditure. In Bangalore Medical Trust v. B. S. Muddappa,1 an open space which was reserved for public park was allotted to a private person for the purpose of construction a hospital by the Development Authority, Bangalore. The residents of the locality challenged the allotment on the ground that it was contrary to the object of the Act. It was held thai the residents of the locality have locus standi to challenge the allotment under Arts. 32 and 226 of the Constitution. A private nursing home could neither be considered to be an amenity nor it could be considered improvement over necessity like a public park. A park is a necessity not a mere amenity. For maintaining ecology in urban areas open space and park is necessary. Professional ethics and Medical men.—In a significant judgment in Parmanand Katara v. Union of India,2 the Supreme Court has held that it is a paramount obligation of every member of medical profession (Private or Government) to give medical aid to every injured citizen brought for treatment immediately without waiting for procedural formalities to be completed in order to avoid negligent death. The matter was brought to the notice of the Court by petitioner, a human right activist fighting for general public interest. He appended to the writ petition a report entitled—'Law helps the injured to die—published in the Hindustan Times. In the said publication 1 2

(1991) 4 SCC 54 AIR 1989 SC 2039

it has alleged that a scooterist was knocked down by a speeding car. Seeing him profusely bleeding a-person who was on the road picked up the injured and took him to the nearest hospital. The doctor refused to attend and asked him to take him to a named hospital located sonic 20 kilometers away authorised to handle medico-legal cases. The man carried the victim to that hospital but before he could reach there the victim succumbed to him injuries. The Court held that it is the obligation of those who are in charge of the health of the community to preserve life of innocent as well as the guilty. Social laws do not contemplate death by negligence. Further the Court directed that the decision of the Court must be published in all legal journals and adequate publicity should be given by the national media as also through the Doordarshan and the All India Radio. This decision would, if followed sincerely, save many injured (either in accidents or rivalary) citizens who die because of delay in getting medical aid which could not be given to them without going through certain legal formalities by the police. Handicapped to be given job opportunities.—In an important judgmenl in National Federation of Blind v. U.P.S.C1 the Supreme Court has held that the visually handicapped (blind and partially blind) are eligible to compete and write civil services examination in the categories of group 'A' and 'B' posts which are suitable for the handicapped in Braille Script or with the help of a Scribe. The Court gave this direction on the representative petition filed by the National Federation of Blind. The visually handicapped constitute a significant section of our society and as such it is necessary to encourage their participation in every walk of life, the court declared. Power to commute death sentence into life imprisonment.—In Harbans Singh v. State of U.P.2 it was held the under Art. 32 very wide power has been conferred on the Supreme Court for due and proper administration of justice. This inherent power is to be exercised in extraordinary situations in the large interests of administration and for prevention of manifest injustice. Accordingly, the court commuted the death sentence of the petitioner into the imprisonment for life on the ground that 1 2

(1993) 2 SCC 411 AIR 1982 SC 849

one of his co-accused's sentences was commuted by the court. The Court recommended that the President should normally exercise his power under Art. 72 to commute the death sentence because he has considered petitioner's mercy petition and rejected it. But if he fails to exercise his power the court will interfere to do justice in a particular case. Under Art. 32 the Supreme

Court has power to commute death sentence into life

imprisonment if there is undue delay in execution of sentence of death. However, for this, no period can be fixed for making the sentence of death to be changed into life imprisonment. The court will examine the nature of delay in the fight of all circumstances of the case and then decide whether death sentence should be carried out or altered into life imprisonment.1 Protection of dignity and honour of Courts.—In Delhi Judicial Service Association v. State of Gujarat,2 the Court for the first time sent five police officers including an I.P.S. to Jail as they were found guilty for committing criminal contempt Judicial Magistrate Court for harassing and hand-cuffLig the Chief Judicial Magistrate of Nadiad, district Kbeda, in the State of Gujarat. On September 25, 1989 a horrible incident took place in town of Nadiad in the State of Gujarat. The Police Inspector of Nadiad arrested, assaulted and handcuffed the Chief Judicial Magistrate and tied him with thick rope like an animal and took him openly to the hospital for medical examination on the alleged charge of having consumed liquor in breach of the State Prohibition Law. The incident undermined the dignity of courts in the country. A member of Bar Associations and the Indian Judges Associations approached to the Supreme Court by petitions under Art. 32 for saving the dignity and honour of the judiciary. The Court issued notices for contempt to seven police officers. Since there was dispute between the parties with regard to the entire incident the court appointed Justice R. M. Sahai of the Allahabad High Court to inquire into the incident and submit report to the court. On the basis of this report the seven police officers were found guilty of committing criminal contempt and sent to jails.

1 2

Triveniben v. State of Gujarat, AIR 1989 SC 142; Sher Singh v. State of Punjab (1983) 2 SCC 344 (1991) 4 SCC 406

Rape on working women—Guidelines for rehabilitation and compensation.—In Delhi Domestic Working Women's Forum v. Union of India3 a public interest litigation was filed under Art. 32 at the instance of the petitioner Delhi Domestic Working Women Forum to expose the pathetic plight of four domestic servants who were subjected to indecent sexual assault by seven army personnel. The incident had occurred in train while these six women were travelling by the Muri Express from Ranchi to Delhi. The Supreme Court with a view to assisting rape victims has laid down the following broad guidelines (parameters)— (1) The complainants of sexual assault cases should be provided with legal representation. It is important to have someone who is well acquianted with the criminal justice. The role of victim's advocate would not only be to explain to the victim the nature of the proceedings to prepare her for the case and to assist her in the police station and in Court but to provide her with guidance as to how she might obtain help of a different nature from other agencies, for example, mind counselling or medical assistance. It is important to secure continuity of assistance by ensuring that the same person who looked after the complainant's interests in the police station represent her till the end of the case. (2) Legal assistance will have lo be provided at the police station since victim of sexual assault might very well be in a distressed state upon arrival at the police station, the guidance and support of a lawyer at this stage and whilst she was being questioned would be of great assistance to her. 3) The police should be under a duty to inform the victim of her right to representation before any questions were asked of her and that the police report should state that the victim was so informed. (4) A list of advocates willing to act in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable. 3

(1995) 1 SCC 14

(5) The advocate shall be appointed by the Court, on application by the police at the earliest convenient moment, but in order to ensure thai victims were questioned without undue delay, advocates would be authorised to act at the police station before leave of the court was sought or obtained. (6) In all rape trials anonymity (name not to be disclosed) of the victim must be maintained, as far as necessary. (7)It is necessary, having regard to the Directive Principles contained under Art. 38{1} of the Constitution to set Criminal Injuries Compensation Board. Rape victims frequently incur substantial financial loss. Some for example are too traumatised to continue in employment. (8)

Compensation of victims shall be awarded by the Court on

conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will look into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result of the rape. The Court directed the National Commission for Women to evolve a scheme within six months and take necessary steps for its implementation at the earliest. In a significant judgment in Vishaka v. State of Rajasthan,1 the Supreme Court has laid down exhaustive guidelines for preventing sexual harassment of working women in place of their work until a legislation is enacted for this purpose. The Court held that it is the duty of the employer or other responsible person in work place and other institutions, whether public or private, to prevent sexual harassment of working women. The judgment of the Court was delivered by J. S. Verma, C.J., on behalf of Sujata V. Manohar and B. N. Kripal, JJ. on a writ-petition filed by Vishaka a non-governmental organisation working for "gender equality" by way of P1L seeking enforcement of fundamental rights of working women under Articles 1

AIR 1997 SC 3011

14, 19 and 21 of the Constitution. The immediate cause for the filing of this writ petition was the alleged brutal gang rape of a social worker of Rajasthan. The Court directed the employers to set up procedure through which working women can make their complaints heard. In holding so the Court relied on International convention and norms to which India is a party and held that in absence of any domestic law on the point, they can be relied on interpreting the guarantee of 'gender equality' in Articles 14, 19 and 21 of the Constitution. The Court held that the Court has the power under Article 32 to lay down such guidelines for effective enforcement of fundamental rights of working women at their work places and declared that this would be treated as the law declared by the Supreme Court under Article 141 of the Constitution. Direction for protection of women from prostitution and rehabilitation of their children.—In a significant judgment in Gaurav Jain v. Union of India,1 the petitioner, a public spirited advocate "Gaurav Jain", filed a public interest petition seeking appropriate directions to the Government for the improvement of the plight of prostitutes, fallen women and their children. He was inspired by reading an Article entitled "A red light trap" "Society gives no chance to prostitutes offspring". published in India To Day dated July 11, 1988. The Supreme Court has issued a number of directions to the government and all social organisations to take upon appropriate measures for prevention of women in various forms of prostitution and to rescue them from falling them again into the trap of red light areas and to rehabilitate their children through various welfare measures so as to provide them with dignity of person means of livelihood and socio-economic improvement. The Court has issued the following directions :— (1) The Court held that it is the duty of Government and all voluntary nongovernmental organisation to take necessary measurer for

1

AIR 1997 SC 3021

protecting them from prostitution and rehabilitate them so that they may lead a life with dignity of person. (2) The Court directed that they should be provided opportunity for education. Financial support developed marketing facilities for goods produced by them. If possible their marriages may be arranged so that the problem of child prostitution can be eradicated. Marriage would give them real status in society. They should be given housing facilities, legal aid. free counselling assistance and all similar aids and services so that they do not fall into the trap of red light area again. (3) The Court held that economic empowerment is one of the major factors, that prevent the practice of dedication of the young girls to the prostitution as Devadasis Jogins or Venkatasins. Referring the various measures taken up by different States, the Court directed that the social welfare Department should undertake similar rehabilitation programmes for the fallen victims so that the foul practice is totally eradicated and they are not again trapped into the prostitution. The Court gave example of State of Andhra Pradesh where the State Government is providing housing facilities, free treatment in hospitals and pension to Devadasis women of 60 years or above and adult literacy programme.

Such measures are being taken by Non-

Governmental Organisations (N.G.O.S.) in the States of Maharashtra. Karnataka and Andhra Pradesh. (4) The Court directed that the rescue and rehabilitation of the child prostitutes and children should be kept under nodal department, namely, Department of Women and Child Development under the Ministry of Welfare and Human Resources, Government of India, which will, devise suitable schemes for proper and effective implementation. The Court directed the Ministry of Welfare, Government of India for the establishment of Juvenile homes. (5) The Court directed to constitute a Committee within a month from the judgment which would make an indepth study into these problem and evolve suitable schemes as are appropriate and consistent with

the directions given above. It shall submit its report within three months. On the basis of its report, direction would be given to the State Governments for effective implementation of the schemes. The Nodal Department would enforce and regularly be supervised by the Minister of Welfare. A permanent Committee of Secretaries should be constituted to review the progress of the implementation on annual basis and to take such other steps as may be expedient in the effective implementation of the Schemes. Periodical progress as to funding and enforcement of the scheme should be submitted with Registry of the Supreme Court. "It is hoped", the Court said, the above law and direction would relieve the human problem by rehabilitation of the unfortunate fallen women caught in the trap of prostitution, their children would be brought into the mainstream of the social order. These directions would enable them to avail the equality of opportunity and of status with dignity of person which are the arch of the Constitution. The Court held that under Article 32 of the Constitution the Court has power to adopt such procedure as is expedient in a given fact and situation and deal with the matter appropriately therefore, the rigours of the pleading or the reliefs sought for on adversial litigation has been soften, new methods, tools and procedures have been evolved to meet out justice and to enforce fundamental right. Proper Storage and Supply of Blood by Blood Banks In a landmark judgment in Common Cause v. Union of India1 the petitioner through a public interest litigation highlighted the serious deficiencies and shortcomings in the matter of collection, of storage and supply of blood through various blood centres operating in the country and prayed that an appropriate writ, order or direction be issued directing the Centre and State Government and the Union Territories to ensure that positive steps in a time bound programme be taken for removing the malpractices, malfunctioning 1

(1996) 1 SCC 753

and unedquacies of Blood Banks all over the country. On the basis of the reports of various Committees and the committee constituted by the Court, the Supreme Court gave the following directions : (1) To establish a National Council of Blood Transfusion, State Councils as a Society registered under the Societies Registration Act. (2) The National Council shall have a Secretariat at Delhi. Their programme and activities will be licensing of blood banks, elimination of system of professional donors within 2 years, strengthening of machinery for enforcement of provision of Drugs and Cosmelic Act and Rules, periodically checking by inspectors for regulating, collection, storage and supply blood be treated as drug under the Act, separate legislation for regulating collection, processing, storage, distribution and transportation of blood and operation of blood banks and submission of report by Director of Health Services, Government of India, to the Court by 15.7.1996 under the Drugs and Cosmetics Act, 1940 & Rules, 1945, Part X-B & Part XIII-B. Power to award compensation under Art. 32 In M. C. Mehla v. Union oflndia,1 the Supreme Court held that the scope of Art. 32 is wide enough to include the power to grant compensation for violation of fundamental rights. The power of the court under Art. 32 is not merely preventive that is, preventing the infringement of fundamental rights, but also remedial in nature, i.e., power to grant compensation. The Court said, "The power of the court to grant such remedial relief may include the power to award compensation in appropriate cases." The Court then clarified that the compensation would be given only in "appropriate cases'" and not in every case. The "appropriate cases" are those cases where "the infringement of fundamental right is gross and patent" that is incontrovertible and ex facie glaring and either such infringement should be on a large scale affecting the fundamental right of a large number of persons or it should appear unjust or unduly harsh or oppressive on account of their poverty or 1

AIR 1987 SC 1086.

disability or socially or economically disadvantaged position to require the person affected by such infringement to initiate and pursue action in civil courts. However, the Court clarified that ordinarily a petition under Art. 32 "should not be used as a substitute for inforcement of the right through the ordinary process of the civil court". The court gave example of Rudal Shah and Sebastian cases where the court awarded compensation on the same principle. In such cases, the court said that it would be gravely unjust to ask the victim to go to the civil court of claiming compensation. In the prevailing circumstances of the country where it takes many years for the victim, to get relief in a civil court the present ruling of the court is to be welcomed. In Rudal Shah v. State ofBihar,1 the court awarded Rs, 30,000 as compensation to the petitioner who had to remain in jail for 14 years because of the irresponsible conduct of the State authorities. Similarly, in Bhim Singh v. State of J. & K.2 the petitioner was awarded compensation of Rs. 50,000 for the violation of his constitutional right. In Peoples Union for Democratic Rights v. Police Commissioner, Delhi Police Headquarter3 one of the labourer was taken to the police station for doing some work, when he demanded wages he was severely beaten and as a result of which he died. It was held that the State was liable to pay compensation of Rs. 75,000 to the family of the deceased, Following this decision, in Saheli v. Commr. of Police,4 the Court directed the Government to pay Rs. 75000/- as compensation to mother of victim who died because of beating by police officer. A boy aged 9 years had died because of beating by police officer. The writ peitition was filed by the Womens and Civil Rights Organisation known as Saheli on behalf of the mother of the victim. In Chiranjit Kaur v. Union of India5 the petitioner's husband 'a major in Army' died while in service in mysterious circumstances. No proper investigation was made regarding the cause of his death. His case was 1

(1983) 4 SCC 141 (1985) 4 SCC 677 3 (1989) 4 SCC 730 4 AIR 1990 SC 513 5 (1994) 2 SCC 1 2

.handled with culpable negligence and cynical indifference by the authorities concerned. It was held the widow and her minor children were entitled 'a compensation' of Rs. six lakhs as well as to the special family pension and the children allowance according to the relevant rules. In Kewal Pati v. State of Uttar Pradesh,1 the Court awarded compensation to the petitioner, the wife of a convict who was killed by a co-accused in jail while serving out his sentence under Section 302, IPC- It was held that the killing in jail resulted in deprivation of his life contrary to law. Corruption in Public life and PIL The PIL has proved to be a stronge and potent weapon in the hand of the Court enabling it to unearth many scams and corruption cases in public life and to punish the guilty involved in those scams. Hawala Scam, Uria Scam, Fodder Scam in Bihar, St. Kits Scam, Ayurvedic Medicine Scam and Illegal Allotment of Government Houses and Petrol Pumps have come to light through the public interest litigation. Certain social organisations and public spirited individuals filed a writ petition in the Supreme Court and the High Courts by way of public interest litigation requesting Court to inquire and punish those who are found guilty of by passing laws of the country, and misusing their official position in public life. The Supreme Court has directed the three senior ministers of former Prime Minister's Mr. Narshima Rao Ministry—Smt. Sheela Kaul, Mr. Sukhram and Capt. Satish Sharma2—to pay Rs. 50,00,000 compensation to the Government of India as punishment for misusing their discretionary power as Ministers. This will certainly deter the ministers, and high public officials from misusing their powers for personal gain. Although it is the function of the Executive to deal with such problems but because of electoral politics it has no will power to fight against corruption. In view of this inaction on the part of the Executive and the Legislature the judiciary has taken this work in its hands because under the Constitution a citizen has right to seek justice from the Courts and Courts arc bound to give justice to them. 1 2

(1995) 3 SCC 600 Common Cause A Registred Society v. Union of India AIR 1997 SC 1886

For the first time since the Independence, a Chief Minister has been charged for misappropriation of public funds and has been arrested and sent to jail as under-trial prisoner. Mr. Laloo Prasad Yadav, the Chief Minister of Bihar, has been'chargsheeted for his involvement in the Rs. 950 Crores Fodder Scam case by the CBI and has been sent to jail pending his trial. This has been possible due to the public interest litigation. In Shiv Sagar Tiwari v. Union of India1 the petitioner has challenged through the public interest litigation the validity of allotment of 52 shops and stalls made by Smt. Sheela Kaul. the then Minister for Housing and Urban Development, Government of India. The Supreme Court held that the allotment of shops by the Minister was arbitrary, mala fide, and unconstitutional as it was done without following any policy or criterion and hence she was directed to pay Rs. 60 lakhs as exemplary damages done to the Government Exchequer. Since the property with which Smt. Sheela Kaul was dealing was public property, the Government which is "by the people" has to be compensated. The amount must be deposited within nine months. The amount if not paid, shall be recoverable as arears of land revenue. The material on record showed that 43 shops were allotted without inviting applications, from eligible persons in violation of Government's policy and 6 shops were allotted by the minister to her own relatives, employees and domestic servants of her family and family's friends. The ease against her will be decided on the basis of the material made available with the CBI. Electoral Reforms.—In Union of India v. Association for Democratic Reforms2 the petitioners for Democratic Reforms filed a Public Interest Litigation and for direction to implement the recommendation made by the Law Commission in its 170th report on March 2, 2002 the Supreme Court directed the Election Commission to issue a notification making it compulsory for those contesting elections to make available information about their educational qualification, assets, liabilities and criminal antecedents at the time of nomination for the benefit of voters. The Election Commission issued a notification making it compulsory for those contesting 1 2

Air 1997 SC 83 AIR 2002 SC 2112

elections to provide alone information. But the Parliament amended the electoral law (Public Representation Act) and negatived the judgment and Election Commission's notification. The Peoples Union for Democratic Reforms filed a PIL in the Court challenging the validity of Electoral Reforms Law as being violation of citizen's right of information under Art. 19( 1 Kg) of the Constitution. The Supreme Court held that Parliament has no legislative competence to direct the slate authorities to disobey the order of the Court and therefore the amendment made in Section 33 of the Peoples Representation Act was violative of fundamental right of voters to know about their representatives and hence invalid and restored its May 2, 2002 order and directed the Election Commission to issue fresh order. Justice Shah said, the judgment was arrived at cleansing the democracy of unwarranted elements and give the country a competent legislature, People in Jail cannot contest Elections.—The Patna High Court has come down heavily on Bihar Government of Rabri Devi for making mockery of the election process, the rule of law and the Courts during 2004 Parliamentary elections by allowing criminals to contest elections. The Court held that those behind bars cannot contest Lok Sabha election. The Court delivering the order on public interest petition filed by the Peoples Watch convenor Basant Kumar Chaudhary an Advocate took note of absconding Lok Janshakti Party MLA wanted by Police of Bihar, Jharkhand, Madhya Pradesh and West Bengal in several cases casting vote in Hazipur Parliamentary constituency. The Judges castigated the Bihar Government for allowing an absconder to cast vote and its failure to check the activities of prisoners freely running election campaign from hospitals in judicial custody. This is enough to prove the connivance of the State Government. Six candidates were contesting from jail in Bihar. The Court held that these persons were "disenfranchised" by law and they should not be permitted in the arena of elections. The elections in which they have participated have been desecrated. The Court held the D.G.P. of Bihar responsible for the mockery that the rule of law had been reduced to in the State. It directed the State Government to take action against the District Magistrate and the

Superintendent of Police for allowing absconders to cast their votes. They directed the Election Commission to take speedy decision in this regard before declaration of results scheduled for May 13, 2004. The Supreme Court however stayed the order of the Patna High Court on the ground that once the process of election has begun it cannot be halted. The matter may be taken up for hearing after the election is over.

Directions to make CBI independent and efficient In a significant judgment in Vineet Narain v. Union of India,1 Court has issued directions to make the CBI independent agency so that it may function more effectively and investigate crimes and corruptions at high places in public life which poses a serious threat to the integrity, security and economy of the nation and to take necessary measure to prosecute the guilty. The matter was brought before the Court by way of public interest litigation under Article 32 of the Constitution. It was contended that the government agencies, like the CBI and the revenue authorities have failed to perform their duties and legal obligations inasmuch as they have failed to investigate matters arising out of the seizure of the "Jain diaries" and to prosecute all persons who were found to have committed an offence. The Supreme Court has given the following directions: — No court can stay proceedings under Prevention of Corruption Act In a significant judgment Satya Narain Sharma v. State of Rajasthan2 the Supreme Court has held that no court can stay proceedings involving an offence under Prevention of Corruption Act, 1988, on any ground whatsoever. This ruling of the Court would help speedy trial of such cases. A usual practice had been that the criminals were successful in obtaining stay in such proceeding and delaying trial for indefinite period thereby frustrating the purpose of the Act. The reason which prompted Parliament to divest all the lower Courts in India under Section 19 of the Act to stay proceedings in the trial Court involving such offence is to foreclose even the 1 2

AIR 1998 SC 889 AIR 2001 SC 2856

possible chance of delaying such trials. The object for bringing the Act with new amendments was for speedy trial of such cases. In spite of this clear ban, it was found that in large number of cases stays have been granted by several High Courts in proceedings involving offence under the Act pending before Courts of Special Judge. Corruption in public offices is becoming rampant. When public servants are sought to be prosecuted under the said Act, by filing revisions under Section 397 Cr.P.C. or by filing petitions under Section 432 Cr.P.C. stay of the trials are obtained and parties successfully manage to delay trials. This has an adverse effect on combating corruption among public servants. In the present cases the appellant successfully delayed the trial for 7 years by obtaining stay from the High Court against the order of the Court of Special Judge. Central

Bureau

of

Investigation

(CBI)

and

Central

Vigilance

Commission (CVC) (1) The Central Vigilance Commission (CVC) shall be given statutory status. (2) Selection for the post of Central Vigilance Commissioner shall be made by a Committee comprising the Prime Minister, Home Minister and the leader of the Opposition from a panel of outstanding civil servants and others with unimpeachable integrity to be furnished by the Cabinet Secretary. The appointment shall be made by the President on the basis of the recommendations made by the Committee. This shall be done immediately. (3) The CVC shall be responsible for the efficient functioning of the CBI while the Government shall remain answerable for the CBI's functioning, to introduce visible objectivity in the machanism to be established for overviewing the CBI's working. The CVC shall be entrusted with the responsibility of superintendence over the CBI's functioning. The CBI shall report to the CVC about cases taken up by it for investigation, of progress of investigation cases in which chargesheet has been filed and their progress. The CVC shall review the progress of all cases moved by the

CBI for sanction of prosecution of public servants which are pending with the competent authorities specially those in which sanction has been delayed or refused. (4) Recommendation for the appointment of the Director, CBI, shall be made by a Committee headed by the Central Vigilance Commissioner with the Home Secretary (Personal) as members. The views of the incumbent Director shall be considered by the Committee for making the best choice. The Committee shall draw up a panel of IPS officers on the basis of their seniority, integrity, experience in investigation and anticorruption work. The final selection shall be made by the Appointment Committee of the Cabinet (ACC) from the panel recommended by the Selection Committee. If none among the panel is found suitable, the reasons thereof shall be recorded and the Committee shall be asked to draw up a fresh panel. (5) The Director, CBI shall have a minimum tenure of two years, regardless of the date of his superannuation.

Enforcement Directorate (1) A Selection Committee headed by the Central Vigilance Commissioner and including the Home Secretary (Personal) and Revenue Secretary, shall prepare a panel for appointment of the Director Enforcement Directorate. The appointment to the post of Director shall be made by the Appointments Committee of the Cabinet (ACC) from the panel recommended by the Selection Committee. (2) The Director, Enforcement Directorate like the Director CBI, shall have a minimum tenure of two years. In his case also, premature transfer for any extraordinary reason should be approved by the aforesaid Selection Committee beaded by the Central Vigilance Commissioner. (3) In view of the importance of the post of Directors, Enforcement Directorate, it shall be upgraded lo that of an Additional Secretary/Special Secretary to the Government.

(4) Officers of the Enforcement Directorate handling sensitive assignments shall be provided adequate security to enable them to discharge their functions fearlessly. (5) Extensions of tenure upto the level of Joint Director in the Enforcement Directorate should be decided by the said Committee headed by the Central Vigilance Commissioner. There shall be no premature media publicity by the CBI/Enforcement Directorate. (6) Adjudication/commencement of prosecution shall be made by the Enforcement Directorate within a period of one year, (7) The Director, Enforcement Directorate shall monitor and ensure speedy

completion

of

investigation/adjudication

and

launching

of

prosecutions Revenue Secretary must review their progress regularly. (8) For speedy conduct of investigation abroad the procedure to approve filing of applications for letters of Rogatory shall be streamlined and, if necessary, Revenue Secretary shall be authorised to grant approval. (9) In house legal advice mechanism shall be strengthened by appointment of competent legal advisors in the CBI/Directorate of Enforcement. Custodial Death.—In Nilabati Behera v. State of Orissa,1 the Supreme Court has laid down the principle on which compensation is to be awarded by the Court under Arts. 32 and 226 to the victim of State action. The object to award compensation in public law proceedings under Arts. 32 and 226 is different from compensation in private tort law proceeding. Award of compensation in proceeding under Arts. 32 and 226 is a remedy available in public law based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply even though it may be available as a defence in private law in an action based on tori. The purpose of public law is not only to civilize power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. The payment of compensation in such

1

(1993) 2 SCC 746

cases to provide relief by way of "monetary amends" for wrong done due to breach of public duty of not protecting the fundamental rights of the citizen. In this case, the deceased aged about 22 years was taken into police custody at about « a.m. on December 1, 1987, by Assistant Sub-Inspector of Police in connection with the investigation of an offence of theft in a village and detained at the Police outpost. He ^as handcuffed tied and kept in custody in the police station. His mother went to the Police station at about 8 p.m. with food for him which he ate. The accused police constable and some other persons were present at the police outpost that night. At about 2 p.m. on Dec. 2 the petitioner came to know that the dead body of her son with a handcuff and multiple injuries was found lying on the railway track. The police reached the spot much later in the day to take charge of the dead body. The mother of the deceased sent a letter to the Supreme Court alleging custodial death of her son and claimed compensation on the ground of violation of Art. 21. The Court treated the letter as a writ petition under Art. 32 and impleaded the State of Orissa, the Police ASI and the concerned constable as respondents in the petition. The defence of the respondents was that the deceased managed to escape from police custody at about 3 a.m. by chewing off the rope with which he was tied and thereafter his dead body was found on the railway track which indicated that he was run over by a passing train. On the basis of evidence of the doctor who conducted post mortem examination and the report of Forensic Science Laboratory the Court held that the deceased had died in the police custody and having regard to the age of the deceased and his monthly income between Rs. 1200 to Rs. 1500 the Slate was directed to pay Rs. 1,50,000 as compensation to the deceased's mother and a further sum of Rs. 10,000 as costs to the Supreme Court Legal Aid Committee. The Court, however, clarified that this will not affect the petitioners right to claim compensation in other proceedings in which case the amount awarded by the court would be adjusted.

Protection from police atrocities.—In Arvinder Singh Bagga v. Stare of U.P.1 the Supreme Court awarded compensation of Rs. 10.000 to the victim of police atrocities. In this case the police had arrested a married woman on the pretext of her being a victim of abduction and rape, She was threatened and commanded to implicate her husband and his family in a case of abduction and forcible marriage thereafter. The police officer subjected her to physical, mental and psychological torture lo make her submit to the demand of the police and to abandon her legal marriage.

1

91994) 4 SCC 602

Chapter-VI Conclusion and suggestions Injustice anywhere is a threat to justice everywhere

-Martin Luther King,Jr.

The 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. 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. Public Interest Litigation as it has developed in recent years marks a significant departure from traditional judicial proceedings. The court is now seen as an institution not only reaching out to provide relief to citizens but even venturing into formulation policy which the state must follow. 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. Public Interest Litigation (PIL) has been an invaluable innovative judicial remedy. It has translated the rhetoric of fundamental rights into living reality for at least some segments of our exploited and downtrodden humanity. Under trial prisoners languishing in jails for inordinately long periods, inmates of asylums and care-homes living in sub-human conditions, children working in hazardous occupations and similar disadvantaged sections. But the development of Public Interest Litigation (PIL) in the country has very recently uncovered its own pitfalls and drawbacks.

1.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. In a recent case the court while dismissing an ostensible PIL against the sale of a plot of land through public auction, held that the matter had not been raised in public interest at all, but to ventilate a private grievance.

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 defense 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. Every matter of public interest cannot be the basis of a PIL, e.g. increase in the price of onions or in railway fares or the dilapidated condition of railway stations or the Red Fort or trains not running on time. Over the years, PIL has degenerated into Private Interest Litigation, Political Interest Litigation, and above all, Publicity Interest Litigation. Weakness for publicity affects judges, lawyers and litigants alike. 2. The framers of Indian constitution did not incorporate a strict doctrine of separation of powers but envisaged a system of checks and balances. Policy making and implementation of policy are conventionally regarding as the exclusive domain of the executive and the legislature. The power of judicial review cannot be used by the court to usurp or abdicate the powers of other organs. PIL in practice, however, tends to narrow the divide between the roles of the various organs of government and has invited controversy principally for this reason. The court has sometime even obliterated the distinction between law and policy. The approach of the court

in policy matters is to ask whether the implementation or nonimplementation of the policy result in a violation of fundamental rights. In M.N Mehta v union of India, the court explained how despite the enactment of Environment (protection) Act, 1986, there had been a considerable decline in the quality of environment. Any further delay in the performance of duty by the central government cannot, therefore, be permitted. The court, however, required the central government to indicate what steps it had taken thus far and also place before it the national policy for the protection of environment. The law and policy divide was obliterated in Vishaka v State of Rajasthan which was a PIL concerning sexual harassment of women at work place. A significant feature of this decision was the courts readiness to step in where the legislature had not. The court declared that till the legislature enacted a law consistent with the convention on the Elimination of All Forms of Discrimination Against Women which India was a signatory, the guidelines set out by the court would be enforceable. However, in the Delhi Science Forum v Union of India where the government of India telecommunication policy was challenged by a PIL the court refused to interfere with the matter on the ground that it concerned a question of policy. PILs that have sought prohibition on sale of liquor or recognition of a particular language as the national language or the introduction of a uniform civil code have been rejected on the basis that these were matters of policy. The court may refuse to entertain a PIL if it finds that the issues raised are not within the judicial ambit or capacity. Thus, a petition seeking directions to the central government to preserve and protect the Gyanvapi Masjid and the Vsihwanath temple at Varanasi as well as the Krishna temple and Idgah at Mathura was rejected. Despite such observations the court has not adopted a uniform and consistent approach in dealing with its emerging role as policy maker. While in some cases, the court

has

expressed

its

reluctance

to

step

into

the legislative field, in others it has laid down detailed guidelines and explicitly formulated policy.

3.The flexibility of procedure that is a character of PIL has given rise to another set of problems. It gives an opportunity to opposite parties to ascertain the precise allegation and respond specific issues. The PIL relating to depletion of forest cover is a case in pint. The petition, as originally drafted and presented, pertained to the arbitrary felling of Khair trees in Jammu and Kashmir. The PIL has now been enlarged by the court to encompass all forests throughout India. Individual States, therefore, will not be able to respond to the original pleading as such, since it may not concern them at all. The reports given by court appointed commissioners raise problems regarding their evidentiary value. No court can found its decision on facts unless they are proved according to law. This implies the right of an adversary to test them by cross-examination or atleast counteraffidavits. In such instances the affected parties may have misgivings about the role of the court. 4.In the political arena too, the debate over the limits of judicial activism , particularly in the field of PIL, has been vigorous. The attempt by the judiciary through PILs to enter the area of policy making and policy implementation has caused concern in political circles. A private members bill, entitled Public Interest Litigation (Regulation) Bill, 1996 was tabled in Rajya Sabha. According to it the PIL was being grossly misused. Moreover, PIL cases were being given priority over other cases, which had remained pending in the court for years. It was urged that if a PIL petition failed or was shown to be mala fide the petitioner should be put behind bars and pay the damages. Although the bill lapsed, the debate in parliament revealed some of the criticism and suspicion that PIL had begun to attract. 5.The credibility of PIL process is now adversely affected by the criticism that the judiciary is overstepping the boundaries pf its jurisdiction and that it is unable to supervise the effective implementation of its orders. It has also been increasingly felt that PIL is being misused by the people agitating for private grievance in the grab of public interest and seeking publicity rather than espousing public cause. The judiciary has itself recognized and articulated these concerns periodically. A further concern is

that as the judiciary enters into the policy making arena it will have to fashion new remedies and mechanisms for ensuring effective compliance with its orders. A judicial system can suffer no greater lack of credibility than a perception that its order can be flouted with impunity. This court must refrain from passing orders that cannot be enforced, whatever the fundamental right may be and however good the cause. It serves no purpose to issue some high profile mandamus or declaration that can remain only on paper. Although usually the Supreme Court immediately passes interim orders for relief, rarely is a final verdict given, and in most of the cases, the follow-up is poor. To regulate the abuse of PIL the apex court it has framed certain guidelines (to govern the management and disposal of PILs.) The court must be careful to see that the petitioner who approaches it is acting bona fide and not for personal gain, private profit or political or other oblique considerations. The court should not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain political objectives. 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)

It is only where the letter is addressed by an aggrieved person or

(ii)

a public spirited individual or

(iii)

a social action group for 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.

In his recent write up, Mr. Soli Sorabji, the former Attorney General while applauding the liberalization of the rule of locus standi by the Supreme Court of India benefiting under-trial prisoners languishing in jail for inordinately long periods, inmates of asylums and care homes living in subhuman conditions, children working in hazardous occupation and similar disadvantaged persons, has lamented that PIL is being abused with increasing frequency and that over the years. I made the following suggestions: i. Reject dubious PIL at the threshold, and in appropriate case with exemplary

costs,

ii. In cases where important projects or socio-economic regulations are challenged after gross delay, such petitions should be thrown out at the very threshold on the ground of latches. Just because a petition is termed as PIL does not mean that ordinary principles applicable to litigation will not apply. Latches is one of them. In the U.K., for enabling an applicant seeking an order of judicial review the applicant has to satisfy the test of sufficient interest in the matter to which the application relates. For satisfying this test an applicant need not have a direct legal or financial interest but a mere busy body will not have sufficient interest.. It is, however, not necessary that applicants interest should be different from that of an ordinary member of the public. An applicant having no personal connection with the dispute, in the traditional sense of locus standi, may be allowed standing, if in its discretion, the court considers the case to be of sufficient public importance. The courts have held in the U.K. that standing should usually be considered along with the merits of the case and not as a preliminary issue. The Ontario Law Reform Commission Report on the law of Standing, 1989, recommended that any person should be able to commence a proceeding unless a party satisfies the Court that there exist factors against proceeding that outweigh the factors in favour of the proceedings. The factors to be considered by the court would include: i.

whether the issue is trivial;

ii.

in case where the applicant does not have a personal, proprietary or pecuniary interest the number of people affected;

iii.

whether another reasonable and effective method exists to raise the issues that are sought to be litigated;

iv.

whether another proceeding has been instituted against the same opponent in which the same issues arise and the interests of the applicant could be met by intervening in those proceedings and it is reasonable to expect the applicant to do so;

v.

whether to proceed would be unfair to persons affected.

Public Interest Litigants fear that implementation of these suggestions will sound the death-knell of the people friendly concept of PIL. However, it cannot be denied that 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. PIL requires rethinking and restructuring. Overuse and abuse of PIL will make it ineffective. PIL has translated the rhetoric of fundamental rights into living reality for at least some segments of our exploited and downtrodden humanity. Under trial prisoners languishing in jails for inordinately long periods, inmates of asylums and care-homes living in sub-human conditions, children working in hazardous occupations and similar disadvantaged sections. Hence, any change to improve it further should be encouraged and welcomed. Suggestions After careful and thorough study the researcher wish to give the following suggestion for the effectiveness of the concept of PIL and also to avoid the misuse of the concept of PIL.

Bibliography Books

1. B.N. Kirpal, Ashok H. Desai, Gopal Subramanium, Rajeev Dhavan & Raju Ramachandran (eds.), Supreme but not Infallible – Essays in Honour of the Supreme Court of India (New Delhi: Oxford University Press, 2000) 2. C. Raj Kumar & K. Chockalingam (eds.), Human rights, Justice and Constitutional empowerment (New Delhi: Oxford University Press, 2007) 3. Charles Epp, The Rights Revolution: Lawyers, Activists and Supreme Courts in comparative perspective (University of Chicago, 1998) 4. Granville Austin, Working a Democratic Constitution – The Indian experience (New Delhi: Oxford University Press, 1999) 5. Jagga Kapur (ed.), Supreme Court on Public Interest Litigation: Cases and materials – The debate over original intent, in 4 volumes (New Delhi, LIPS Publications Pvt. Ltd., 1998) 6. Jeremy Cooper & Rajeev Dhavan, Public Interest Law (London: Blackwell Publishing, 1987) 7. M.P. Singh (ed.), V.N. Shukla’s Constitution of India, 11th edn. (Lucknow: Eastern Book Company, 2008) 8. Mamta Rao, Public Interest Litigation in India – a Renaissance in Social Justice, 2nd edn. (Lucknow: Eastern Book Company, 2004) 9. Marc Galanter, Law and society in modern India (New Delhi: Oxford University Press, 1989) 10. S.K. Verma & Kusum (eds.), Fifty years of the Supreme Court of India: Its Grasp and Reach (New Delhi: Oxford University Press, 2000) 11. S.P. Sathe, Judicial Activism in India (New Delhi: Oxford University Press, 2002) 12. Sandra Fredman, Human rights transformed – positive rights and positive duties (Oxford University Press, 2008) 13. Sangeeta Ahuja, People, Law and Justice: A casebook on Public Interest Litigation, in 2 volumes (New Delhi: Orient Longman, 1996) 14. T.R. Andhyarujina, Judicial Activism and Constitutional Democracy in India (Bombay: N.M. Tripathi, 1992)

15. V.R. Krishna Iyer, Rajeev Dhavan, Salman Khurshid & R. Sudarshan (eds.), Judges and the Judicial Power: Essays in Honour of Justice V.R. Krishna Iyer (London: Sweet & Maxwell, 1985) Articles 1. Abram Chaves, ‘The role of the judge in Public Law litigation’, 89 Harvard Law Review 1281 (May 1976) 2. 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) 3. Avani Mehta Sood, ‘Gender Justice through Public Interest Litigation: Case studies from India’, 41 Vanderbilt Journal of Transnational Law 833 (May 2008) 4. Clark D. Cunningham, ‘Public Interest Litigation in the Indian Supreme Court: A study in the light of American experience’, 29 Journal of Indian Law Institute 494 (1987) 5. 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) 6. Gobind Mukhoty, ‘Public Interest Litigation: A silent revolution?’, (1985) 1 Supreme Court Cases (Journal section), p. 1 7. Jamie Cassels, ‘Judicial Activism and Public Interest Litigation in India: Attempting the impossible’, 37 American Journal of Comparative Law 495 (1989) 8. Jayanth K. Krishnan, ‘Lawyering for a cause and experiences from abroad’, 94 California Law Review 575 (March 2006) 9. Jeremy Cooper, ‘Poverty and Constitutional justice: The Indian experience’, 44 Mercer Law Review 611 (Winter 1993) 10. Justice A.S. Anand, ‘Protection of Human Rights: Judicial obligation or Judicial Activism? – Krishan Rao Memorial Lecture’, (1997) 7 Supreme Court Cases (Journal section), p. 11

11. Justice J.S. Verma, ‘The Constitutional Obligation of the Judiciary – R.C. Ghiya Memorial Lecture’, (1997) 7 Supreme Court Cases (Journal section), p. 1 12. Justice P.N. Bhagwati, ‘Judicial Activism and Public Interest Litigation’, 23 Columbia Journal of Transnational Law 561 (1985) 13. Justice V.D. Tulzapurkar, ‘Judiciary: Attacks and Survival’, All India Reporter 1982 (Journal section), p. 14 14. Lavanya Rajamani, ‘Public Interest Environmental litigation in India: Exploring issues of access, participation, equity, effectiveness and sustainability’, 19 Journal of Environmental Law 293 (2007) 15. Marc Galanter & Jayanth K. Krishnan, ‘Bread for the Poor: Access to Justice and the rights of the needy in India’, 55 Hastings Law Journal 789 (2004) 16. N.R. Madhava Menon, ‘Public Interest Litigation: A major breakthrough in the delivery of social justice’, 9 Journal of Bar Council of India 150 (1982) 17. Parmanand Singh, ‘Access to justice: Public Interest Litigation and the Indian Supreme Court’, 10 Delhi Law Review 56 (1981-82) 18. Parmanand Singh, ‘Judicial socialism and promises of liberation’, 28 Journal of Indian Law Institute 338 (1988) 19. Parmanand Singh, ‘Promises and perils of Public Interest Litigation in protecting the rights of the poor and the oppressed’, 27 Delhi Law Review 8 (2005) 20. Rajeev Dhavan, ‘Law as struggle: Public Interest Law in India’, 36 Journal of Indian Law Institute 302 (1994) 21. Ranjan K. Aggarwal, ‘The barefoot lawyers: Prosecuting child labour in the Supreme Court of India’, 21 Arizona Journal of International and Comparative Law 663 (2004) 22. S.P. Sathe, ‘Judicial Activism: The Indian experience’, 6 Washington University Journal of Law and Policy 29 (2001) 23. 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)

24. Upendra Baxi, ‘Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India’, 29 Review of the International Commission of Jurists 37 (1982) 25. Upendra Baxi, ‘The Avatars of Indian Judicial Activism: Explorations in the Geographies of [In]justice’, in S.K. Verma & Kusum (eds.), Fifty years of the Supreme Court of India: Its Grasp and Reach (New Delhi: Oxford University Press, 2000) 26. Upendra Baxi, ‘The Supreme Court under trial: Undertrials and the Supreme Court’, (1980) Supreme Court Cases (Journal section), at p. 35

1

Chapter-I

Introduction

2 3

Chapter-II Chapter-III

Origin and Development of PIL Concept and Theory of PIL

4

Chapter-IV

Comparative analysis of PIL

5

Chapter-V

PIL and Judicial activism in India

6

Chapter-VI

Conclusions and suggestions

Abuse of PIL : Guidelines : While expanding the scope of the 'Locus standi' rules his Lordship Bhagwati. J. (as he then was) expressed a note of caution also. He observed :

"But we must be careful to see that "the member of the public, who approaches the court in case of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The court must not allow its process to be abused by politicians and others..................." This observation makes it clear that his lordship was aware that this liberal rule of locus standi might be misused by vested interests. He. therefore, made it clear that in thai case the court will not allow the remedy to be abused. Criticism of Public Interest litigation.—Inspite of its beneficial effect, the use of this new strategy by the Court for enforcement of various fundamental right and other legal right is criticised by many. It is said, that by entertaining violation of fundamental rights through a letter, the Court will be flooded with litigation resulting delay in deciding many other important cases. Secondly, it is pointed out that interference by the Courts through the PIL in the sphere of Executive and Legislature is not justified as it is likely to cause conflict between the three organ's of the government. Thirdly, the court has no capacity to enforce its orders and in many cases the conditions have not changed. Bhagwati, J. has already answered to these criticisms. As regards the enforcement of the orders and direction of the Court, Art. 144 is very clear. Art. 144 says that "All authorities civil and judicial in the territory of India shall act in aid of the Supreme Court. If any of these authorities fail to carry out the orders of the Court, the Court can punish them for the contempt of the court. PREVENTING MISUSE OF PUBLIC INTEREST LITIGATION The Centre has decided not to take measures for prevention of misuse of Public Interest Litigation (PIL) at the moment. In fact, it is for the courts to ensure that frivolous litigations in the name of PIL by persons having vested

interests are not entertained. Added to this, the Supreme Court of India has prescribed guidelines for entertaining PIL by the courts.

The PIL is usually entertained by court for redressing the grievances of the down trodden masses, public injury, enforcing public duty, protecting social rights and vindicating public interest. The PIL has, to some extent, served the objective of helping the poor and under privileged for getting justice.

The Supreme Court has laid down recently seven-point guidelines to prevent misuse of PIL in Raunaq International Ltd. Vs. I.V.R. Construction Ltd. and Malik Brothers Vs. Narendra Dadhich and Others both in 1999.

The guidelines provide, the PIL should not be merely a cloak for attaining private ends of a third party or of the party bringing the petition.

The court should examine the previous record of public service rendered by the organization brining PIL. Before entertaining a writ petition and passing any interim orders in such petitions, the court must carefully weigh conflicting public interests. Only when it comes to a conclusion that there is overwhelming public interest in entertaining the petition, the court should intervene.

Even when public interest litigation is entertained, the court must be careful to weigh conflicting public interests before intervening.

The party at whose instance interim orders are obtained has to be made accountable for the consequences of the interim order. In appropriate case, the petitioner asking for interim orders should be asked to provide security for any increase in costs as a result of delay or any damages suffered by the opposite party in consequence of any interim order. Stay orders or interim order, if passed, must be moulded to provide for restitution. If the PIL fails, the public must be compensated for the delay in implementation of the project and the cost escalation resulting from such delay on account of the interim order.

If the court finds that in the garb of PIL, actually an individual’s interest is sought to be carried out or protected, it would be the bounden duty of the court not to entertain such petition.

The court should restrict the flow of cases in the name of PIL, otherwise traditional litigation will suffer and courts of law, instead of dispensing justice will have to take upon themselves administrative and executive functions. Present Scenario: In the past, many people have tried to misuse the privilege of Pill's and thus now the Court generally requires a detailed narration of facts and complaint, & then decides whether to issue notice and call the opposite party. However, as there is no statute laying down rules and regulations for a PIL; the Court can treat a letter as a Public Interest Litigation, The letter should bring the true & clear facts, and if the matter is really an urgent one, the court can treat it is a PIL But still it depends upon facts and circumstances, and court has the entire discretion.

Strategies for PIL: The allegations against state and private party should be backed by reliable evidence, for eg in a PIL on malnutrition deaths you need reports indicating it and data of the state regarding child mortality rates from various government surveys. Research based evidence will hold well in a PIL. It will be good to make an NGO working on the issue a party to the petition, if there can be more than one organisation agreeing on an issue it will hold more ground in the court. A good lawyer with an experience in PILS will add advantage for the success of the PIL.