LL.M Dissertation
LL.M Dissertation
Introduction
-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.
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
1
See S.K. Agrawala – Public Interest Litigation in India – A Critique, p.2.
2
AIR 1993 SC 892 at 906
3
Janta Dal v. H.S. chowdary, AIR 1993 SC 892 at p. 907
(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.
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.
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.
(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.
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
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.
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
1
In re Rudolff Stallman, (1911) 39 Cal 164.
2
Sivanath v. Porter , AIR 1943 Cal 377.
3
ILR 1945 Nag 6.
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.
2
50 Bom LR 183.
3
Brahmeshwar Pd. V. State of Bihar, AIR 1950 Pat 265;
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.
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).
2
State of Punjab v. Ajaib Singh, 1953 SCR 254.
3
Makkan Singh v. State of Punjab, (1950) SCR 88.
4
AIR 1959 SC 357.
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
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, segregation, inadequate
rehabilitative or educational opportunities.
1
Keshav v. Emperor, AIR 1944 FC 24.
2
Samual v. District Magistrate, 56 All 159
3
See Icchu Devi v. Union of India, AIR 1980 SC 1983
4
AIR 1980 SC 1579.
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."
1
AIR 1951 Punj 216.
2
P.L. Lakhanpal v. Union of India, AIR 1967 SC 908
3
AIR 1967 Punj 28 (FB).
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."
(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
2
Amar Singh v. Crown AIR 1949 Punj 130
3
AIR 1947 Mad 605
4
18 Bom 636.
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
AIR 1980 SC 1983
2
(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
(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.
1
Naranjan Singh v. State of Punjab, AIR 1952 SC 106
2
Ram Narayan Singh v. State of Punjab, AIR 1953 SC 277
3
Gopalji v. Shree Chand, AIR 1955 All 28.
"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
1
R v. Dunshett, (1950) 2 All ER 741 at 743
2
Bhagwati, J., in Jan Bug Jain v. Collector of Bombay, (1954) 8 FLJ 267.
3
AIR 1977 SC 2149 at p. 2154
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
2
Chamber of Commerce, Hapur and others v. State of Uttar Pradesh and others, AIR 1955 All 556
3
AIR 1989 SC 1607.
"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
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.
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.
1
AIR 1987 SC 331
2
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
2
AIR 2007 Bom 184.
3
Aeltemesh Rein, Advocate Supreme Court of India V. Union of India and others, AIR 1988 SC 1768
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
2
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
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;
2
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
(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.
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..
2
AIR 1957 Cal 606.
3
M. Pakeera Reddi v. District Collector Cuddapali, AIR 1985 NOC 136.
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
2
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.)
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.
2
AIR 2007 Uttra. 28 (NOC).
3
AIR 2007 SC 1771
4
1950 SCR 809
5
AIR 1962 PC 1210
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.
1
AIR 1952 SC 1183
2
AIR 2002 SC 1600
3
AIR 2004 SC 267.
4
State of Bombay v. Laxmidas, AIR 1952 Bom 468
5
1954 SCR 883.
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
2
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.
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.
1
Aswani Kumar v. Manager, Calcutta Electric Supply Corporation, AIR 1955 Cal 249
2
AIR 1956 Mad 1118.
3
(1941) 1 Cal 16 at 28.
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 non-
user, 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
2
D.C. Jain v. University of Jodhpur, AIR 1977 Raj 89
3
AIR 1954 Pat 297.
4
AIR 1965 SC 491.
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
2
AIR 1952 Nag 330.
3
AIR 1979 NOC 11 (AP)
4
Purushotham Lal Sharma v. State of Rajasthan, AIR 1979 Raj 18.
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.
1
Rex v. Bear, (1903) 2 KB 693
2
AIR 2008 Raj 1026 (NOC).
3
AIR 1975 Delhi 66.
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.
1
AIR 1982 Del 83
2
AIR 1954 Pat 297.
3
Rex v. Morsly, (1846) 115 ER 1130
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.
1
Amarendra v. Narendra, 50 CWN 449.
2
AIR 1973 Pat 85
3
Shri Hanuman Foundaries v. Hem Ranjan, (1967) 15 FLR 122 (148)
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
2
(1945) 8 FBJ p. 300.
3
51 Bom LR 352.
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 quasi-
judicial 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.
1
ILR (1938) 1 Cal 476
2
AIR 1953 Cal 361.
3
Asiatic Engineering Company v. Achhru Ram, AIR 1951 All 746
4
Mariamma Mathai v. Mathulla , 1974 KLT 32
"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.
1
AIR 1951 All 228
2
(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.
2
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.
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
As quoted in Judicial Control of Administrative Action by A.t. Markose, P. 187
2
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 is-
that 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.
1
1950 SCR 459.
2
1950 SCR 169
3
AIR 1961 Mad 180 (FB)
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
2
AIR 1962 All 551
3
(1952) 56 CWN 452.
4
AIR 1956 Assam 164.
5
(1976) 1 SCC 671
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
AIR 2001 Rajasthan 87.
2
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
AIR 1958 SC 1018.
2
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.
1
(1954) SCR 738.
2
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.
2
AIR 1922 Cal 112
3
AIR 1962 All 764.
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.
2
AIR 1958 SC 86
3
AIR 1959 SC 308.
4
Bhagwan Shukla v. Union of India, AIR 1994 SC 2480.
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
2
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.
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
2
R v. Gillyard, (1848) 12 QB.
3
Colonial Bank of Australia v. William, ( 1974) LR PC 541.
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 non-
application 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.
2
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.
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.
2
AIR 1970 SC 1334.
3
AIR 1970 SC 1401.
4
AIR 1970 SC 1334 at 1340
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 Anglo-
Saxon procedure in providing access to justice to the poor.
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.
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 promote-
justice.
(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 subject-
matter, 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
2
AIR 1983 SC 339.
3
AIR 1983 Sc 378
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.
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:
(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.
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.
1
Sheela Barse v. State of Maharastra (1983) 2 SCC 96
2
(1978) 4 SCC 494
3
(1980) 4 SCC 162
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."
1
(1989) 4 SCC 286
2
(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 construction-
related jobs clearly fell foul of the constitutional prohibition on child labour
and the non-payment of minimum wages was equated with the extraction of
forced labour.
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
1
(1984) 3 SCC 161
2
(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)
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 gang-
rape of a grassroots social worker. In that opinion, the Court invoked the
text of the Convention for the Elimination of all forms of Discrimination
Against Women (CEDAW) and framed guidelines for establishing redressal
mechanisms to tackle sexual harassment of women at workplaces. Though
the decision has come under considerable criticism for encroaching into the
domain of the legislature, the fact remains that till date the legislature has
not enacted any law on the point. It must be remembered that meaningful
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 mid-
day meal scheme had been launched with much fanfare a few years ago
with the multiple objectives of encouraging the enrolment of children from
low-income backgrounds in schools and also ensuring that they received
adequate nutrition. However, there had been widespread reports of
problems in the implementation of this scheme such as the pilferage of food
grains. As a response to the same, the Supreme Court issued orders to the
concerned governmental authorities in all States and Union Territories, while
giving elaborate directions about the proper publicity and implementation of
the said scheme. 2
1
(2007) 1 SCC 728
2
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
1
their legal rights or liabilities are affected," 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.
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.
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.
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.
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.
1
AIR 1984 SC 802.
2
(1993) 1 SCC 645
3
AIR 1982 SC 1473
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
2
(1987) 3 SCC 50
3
AIR 1987 SC 579
(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.
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.
1
Ely, DEMOCRACY AND DISTRUST (1980).
2
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).
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.
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.
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 faction-
dominated 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.
1
Neier, ONLY JUDGMENT: THE LIMITS OF LITIGATION IN SOCIAL CHANGE (1982).
2
See Rosenberg, THE HOLLOW HOPE: USING THE COURTS TO ACHIEVE SOCIAL CHANGE
(1991).
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 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
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.
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
1
Koh, Transnational Public Law Litigation, 100 YALE L.J. 2347 (1991).
2
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).
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
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
(1992) 4 SCC 605
2
(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
AIR 2004 Sc 1923
2
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
2
(1986) 4 SCC 767
3
AIR 1983 SC 339
4
AIR 1984 SC 803
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
Rudal Shah v. State of Bihar Air 1983 SC 1086
2
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
(1989) 2 SCC 609
2
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
AIR 1984 SC 802
2
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
2
AIR 1991 SC 417
3
(1986) 3 SCC 596.
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.
2
Jiwan Mal Kochar v. Union of India (1984) 1 SCC 200
3
AIR 1987 SC 579
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.
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.
1
Triveniben v. State of Gujarat, AIR 1989 SC 142; Sher Singh v. State of Punjab (1983) 2 SCC 344
2
(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.
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.
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
2
(1985) 4 SCC 677
3
(1989) 4 SCC 730
4
AIR 1990 SC 513
5
(1994) 2 SCC 1
.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
(1995) 3 SCC 600
2
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
Air 1997 SC 83
2
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.
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
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
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4. Granville Austin, Working a Democratic Constitution – The Indian
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(May 2008)
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Court: A study in the light of American experience’, 29 Journal of Indian Law
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5. Emily R. Atwood, ‘Preserving the Taj Mahal: India’s struggle to salvage
cultural icons in the wake of industrialisation’, 11 Penn State Environmental
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Attempting the impossible’, 37 American Journal of Comparative Law 495
(1989)
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Ghiya Memorial Lecture’, (1997) 7 Supreme Court Cases (Journal section),
p. 1
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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
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Exploring issues of access, participation, equity, effectiveness and
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Justice and the rights of the needy in India’, 55 Hastings Law Journal 789
(2004)
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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
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Journal of Indian Law Institute 338 (1988)
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(2005)
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of standing in Public Interest Litigation’, 13 Wisconsin International Law
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Supreme Court’, (1980) Supreme Court Cases (Journal section), at p. 35
1 Chapter-I Introduction
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.
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 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.