ADDRESS BY MR. PRAVIN H PAREKH, PRESIDENT HARVARD CLUB OF INDIA AT HARVARD LAW SCHOOL ON 8TH OCTOBER, 2013

ADDRESS BY MR. PRAVIN H PAREKH, PRESIDENT HARVARD CLUB OF INDIA

AT HARVARD LAW SCHOOL ON 8^TH OCTOBER, 2013

ON

“PUBLIC INTEREST LITIGATION: BOON TO THE INDIAN PUBLIC”

 

I.             INTRODUCTION

1.           I consider it a great privilege to have this opportunity of addressing you teachers and students, fellow Harvardians in this great law school of this greatest educational institution called "Harvard”. Its alumni occupy driver’s seats in all spheres of life, in almost all countries in the entire world which is too well known to be elaborated. Whenever I come here I remember good old days when I used to sit with other fellow students including the then Sitting Chief Justice of Supreme Court of Massachusetts. It is my great honor to speak about a common strain of our judicial philosophy, Public Interest Litigation.

2.           It won't be an exaggeration to say that Public Interest Litigation in India has strengthened our democracy and has prevented the poor, downtrodden and economically, socially and politically disadvantaged suffering from inequality and injustice. Since 1947 democracy has survived and progressed in India, whereas in most of the countries in our neighbourhood it does not exist at all or exists periodically. The Indian democracy’s strength and vibrancy places it in a globally unique position.

3.           Pandit Jawahar Lal Nehru the first Prime Minister of India in his address before the Constituent Assembly on the midnight of 15^th August 1947 when India beckoned independence said:

“Freedom and power bring responsibility. The responsibility rests upon this Assembly, a sovereign body representing the sovereign people of India. The past is over and it is the future that beckons to us now. That future is not one of ease or resting but of incessant striving so that we might fulfil the pledges we have so often taken and the One we shall take today. The service of lndia means the service of the millions who suffer. It means the ending of poverty and ignorance and disease and inequality of opportunity. The ambition of the greatest man of our generation has been to wipe every tear from every eye. That may be beyond us but as long as there is tears and suffering, so long our work will not be over.”

It was this utilitarian spirit with which the Constituent Assembly, took two years, eleven months and seventeen days to come out with the first draft of the Constitution under the guidance of Dr. B. R. Ambedkar who was the Chairman of the Drafting Committee.

4.           Influenced by some of the world’s finest drafted Constitutions, the Indian Constitution adopted a few crucial features from these Constitutions. It borrowed the concept of Separation of Powers from the American Constitution inter alia. One can also see an inspiration from the Canadian Constitution when one looks at the quasi federal nature of Distribution of Powers between the Centre and the State, where the former is more powerful than the later with power over residuary matters as well. Similarly, Suspension of Fundamental Rights in part III of the Constitution under Article 358 is similar to the corresponding provisions in the Weimer Constitution of Germany. The Directive Principles enshrined in Part IV of the Constitution to look after the have not’s and handling by the Legislature and Judiciary have been inspired from the Irish Constitution. It thus appears to me as if the various Constitutions of the world were critically analysed to draw some very crucial features out of them so as to tailor make the Indian Constitution for the Indian conditions and democracy to have internal safeguards for people to be the real sovereigns.

5.           The preamble to the Indian Constitution reads as under:

“WE, THE PEOPLE OF INDIA, having solemnly resolved to constituent India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens: 

          JUSTICE, social, economic and political;

          LIBERTY of thought, expression, belief, Faith and worship; 

          EQUALITY of status and of opportunity; and to promote among them all 

FRATERNITY assuring the dignity of the individual and the unity and integrity of the NATION;”

This endeavour of establishing a ‘Sovereign Socialist Secular Democratic Republic’ with ‘Justice, Liberty and Equality’ at the forefront gets immense momentum from the Part III and Part IV of the Constitution which enumerate the Fundamental Rights and Directive Principles of State Policy respectively.  In his book ‘The Indian Constitution: Cornerstone of a Nation’, Granville Austin describes these parts as the ‘Conscience of the Constitution’ that can push medievalism based on birth, religion, custom, and community and reconstruct her social structure on modern foundations of law, individual merit, and social education.

6.           Article 14, 19 read with Article 21 forms the golden triangle of Fundamental Rights which form a bulwark of protection for the citizens. The mandate of Article 14 is not to deny any person equality before the law or equal protection of the laws within the territory of India.  This Article has been given expansive meaning and interpretation which has given higher Judiciary the right to judicially review the action of the Legislature as well as Executive. Fundamental freedom of speech and expression as laid down in Article 19 is also one of the cornerstones of the Constitution. In fact, courts have expanded its scope by empowering the media to resist any unreasonable restrictions or unreasonable taxation on media as providing citizens to enjoy the freedom of speech and expression in consonance with Article 19(1)(a). The Court has protected the media so that they can permit readers and viewers to exercise their right of freedom of speech and expression. In addition to these two articles, Article 21 also provides that no person shall be deprived of his life or personal liberty except according to procedure established by law.  The interpretation given by our Supreme Court is that the procedure established by law has to be just, fair and reasonable, both substantively as well as procedurally.  In fact the right to primary education has been included in Article 21 on the ground that life does not mean animal existence and the Parliament has accepted the Supreme Court’s verdict and inserted Article 21A- ‘Right to Education’ in Fundamental Rights in the Constitution. In addition to these, Article 32 of the Constitution which empowers citizens to approach the Supreme Court to enforce their Fundamental Rights is also a Fundamental Right which gives power to the Supreme Court to issue appropriate writs orders or directions in case any of these rights are violated.

7.           It was a priority for the framers of the Constitution to honour human rights in general along with Fundamental Rights.
Our founding fathers were conscious that without ensuring basic needs of food, shelter, clothing and human dignity the Democracy can't survive. Therefore, Part IV of our Constitution quite extensively provides for the goals which our State should strive to achieve. The Directive Principles of State Policy are directions to the state to achieve economic and social rights as proposed in the preamble. Article 39 provides for principles of governance to be followed by the state to ensure adequate means of livelihood.  Article 39A requires the state to provide free legal aid. Article 41 to 43 mandate the state to endeavour to secure to all citizens the right to employment and livelihood, equal distribution of wealth and other rights. Thus, we can say that these humanitarian and socialistic indicators were aimed at the pursuit of a social revolution envisaged in India by the Constituent Assembly.

8.            In order to ensure these protections that Indian citizens are entitled to, do not remain as empty declarations, the founding fathers also made various provisions in the Constitution to establish an Independent and powerful Judiciary. Our Supreme Court and High Courts are empowered to even strike down laws which are made by Legislatures both Parliament as well as State Legislatures, which are either made without legislative competence to make laws or which violate any Fundamental Right.  One special feature which has been introduced by the Indian Supreme Court by interpretation is that, the Supreme Court can also strike down any amendments to Constitution if they violate the basic structure or basic feature of the Constitution.  The Supreme Court in a series of judgments starting with the famous case of Kesavananda Bharati v. State of Kerala reported in (1973) 4 SCC 225 225 did not exhaustively enumerate what is the basic structure but mentioned  some features of the Constitution which undoubtedly can be said to be basic structure like Supremacy of the Constitution; Republican and democratic form of Government; Secular character of the Constitution; Separation of powers between the Legislature, Executive and the Judiciary; and Federal character of the Constitution as well as certain basic rights guaranteed by Part III of the Constitution

9.           I would like to mention briefly the scope of jurisdiction of Supreme Court of India.  The Supreme Court has original, appellate and advisory jurisdiction. Its exclusive original jurisdiction extends to any dispute between the Government of India and one or more States or between the Government of India and any State or States on one side and one or more States on the other or between two or more States, if and insofar as the dispute involves any question (whether of law or of fact) on which the existence or extent of a legal right depends.

10.        Article 32 of the Constitution confers original jurisdiction to the Supreme Court with regard to enforcement of Fundamental Rights wherein court can issue various writs, orders and directions. This power has been exercised by Supreme Court to scrutinize actions of Legislatures and Executive and to give directions in affirmative manner including at times making legislation when legislatures for many reasons don't want to legislate. Of course such legislation would be operative till legislature makes valid law on that subject matter. At times attempts made by Legislatures are struck down as invalid. It is confidence of people and public opinion which has permitted our Supreme Court to do what highest courts in many countries are unable or unwilling to do.

11.        Under the Arbitration and Conciliation Act, 1996, in case of International Arbitration Supreme Court appoints arbitrators if parties have not been able to appoint arbitrators.

12.         The appellate jurisdiction of the Supreme Court can be invoked by a certificate granted by the High Court concerned under Article 132(1), 133(1) or 134 of the Constitution in respect of any judgement, decree or final order of a High Court in both civil and criminal cases, involving substantial questions of law as to the interpretation of the Constitution.

13.         In addition, the right to approach Supreme Court from orders passed by any courts or tribunals is conferred on every citizen and in certain cases even on aliens. The Supreme Court however uses its discretion whether leave to entertain such cases should be granted or not. The Supreme Court has also a very wide appellate jurisdiction over all Courts and Tribunals in India in as much as it may, in its discretion, grant Special Leave to Appeal under Article 136 of the Constitution from any judgment, decree, sentence or order in any matter passed or made by any Court or Tribunal in the territory of India.

14.         The Supreme Court has special advisory jurisdiction in matters which may specifically be referred to it by the President of India under Article 143 of the Constitution.

15.         There are provisions for reference or appeal to the Supreme Court under Article 317(1) of the Constitution, Section 257 of the Income Tax Act, 1961, Section 7(2) of the Monopolies and Restrictive Trade Practices Act, 1969, Section 130-A of the Customs Act, 1962, Section 35-H of the Central Excises and Salt Act, 1944 and Section 82C of the Gold (Control) Act, 1968. Appeals also lie to the Supreme Court under the Representation of the People Act, 1951, Monopolies and Restrictive Trade Practices Act, 1969, Advocates Act, 1961, Contempt of Courts Act, 1971, Customs Act, 1962, Central Excises and Salt Act, 1944, Enlargement of Criminal Appellate Jurisdiction Act, 1970, Trial of Offences Relating to Transactions in Securities Act, 1992, Terrorist and Disruptive Activities (Prevention) Act, 1987, Consumer Protection Act, 1986 etc. etc.

16.        Election Petitions under Part III of the Presidential and Vice Presidential Elections Act, 1952 are also filed directly in the Supreme Court to challenge the validity of election of President as well as Vice President of India.

II.           PUBLIC INTEREST LITIGATION IN INDIA

17.        Before discussing about Public Interest Litigation in India, the above discussed background was very essential. Over the last four decades or so, the device of Public Interest Litigation (here in after referred to as PIL) has come to be recognized as a distinguishing feature of the higher Judiciary in India. This has made our Supreme Court perhaps the most powerful court in the world. Even though Indian courts cannot take credit for initiating the concept of PIL, they have in due course emerged as the platform where this device has been repeatedly and effectively used to protect the interests of disadvantaged groups as well as address matters of collective concern. What Supreme Court has done is far beyond and far better than the traditional understanding of PIL.

18.        Technicalities like the filling procedure, rules of evidence and a pedantic approach in the interpretation of Fundamental Rights resulted in a loss of link between the rights guaranteed by the Constitution of India and the laws made by the legislature on the one hand and the vast majority of illiterate citizens on the other. But the Judges of the Supreme Court prepared groundwork, from mid-1970s to early 1980s, for the birth of PIL in India in a systematic manner which included modifying the traditional requirements of locus standi, liberalizing the procedure to file writ petitions, creating or expanding Fundamental Rights, overcoming evidentiary problems, and evolving innovative remedies has done wonders. If one can communicate with our founding fathers in their grave, I am sure they would be pleasantly surprised about the working of the Constitution they made as it has far surpassed their expectations.

19.        Although most of the proceedings in the Supreme Court arise out of the judgments or orders passed by the High Courts, but the Supreme Court has  been entertaining matters in which interest of the public at large is involved by exercising original jurisdiction under Article 32 of the Constitution. The Court can be moved by any individual or group of persons either by filing a Writ Petition at the Filing Counter of the Court or by addressing a letter to the Supreme Court or High Courts, highlighting the question of public importance for invoking this jurisdiction. The Constitutional provisions that enable the Supreme Court as well as the High Courts to deal with these matters pertaining to a PIL are Article 32 and 226 of the Constitution respectively. But Article 226 has a broader scope than Article 32. The Supreme Court may issue a writ only in case of infringement of Fundamental Rights guaranteed under the Constitution. But in case of High Courts they can issue a writ not only for enforcement of Fundamental Rights but also for “Other Purposes”. However in public interest this difference has practically disappeared.

20.        Several matters of public importance have become landmark cases. This concept is unique to the Supreme Court only and perhaps no other Court in the world has been exercising this extraordinary jurisdiction.

III.         THE RULE OF LOCUS STANDI

21.        In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to recognize that party's participation in the case. In furtherance to justice and fair play, Courts have deviated from this general principle and have made a spacious construction of the concept of locus standi. Thus, diluting the concept of locus standi, forms the very spirit of PIL. One of the earliest decisions of the Supreme Court of India which spells out this very principle of public justice is that of Mumbai Kamagar Sabha vs. Abdul Thai reported in (1976) 3 SCC 832. In a series of cases decided around this time, the court qualified these martyr litigations beyond individual ones owing to their beneficent potency and their consideration for wider representation which strengthens the rule of law. In fact in the case of Bar Council of Maharashtra v. M.V. Dabholkar reported in (1975) 2 SCC 702, the Supreme Court made a very interesting observation and held that the possible apprehension that widening legal standing with a public connotation may unloose a flood of litigation which may overwhelm the judges is misplaced because public resort to court to suppress public mischief is a tribute to the justice system. Thus, our current jurisprudence is a broad-based and people-oriented, and envisions access to justice through ‘class actions’, ‘public interest litigation’, and ‘representative proceedings’. Hence in the case of Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India & Ors reported in (1981) 1 SCC 246 it was laid down that:

          “Indeed, little Indians in large numbers seeking remedies in courts through collective proceedings, instead of being driven to an expensive        plurality of litigations, is an affirmation of participative justice in our       democracy. We have no hesitation in holding that the narrow concepts      of `cause of action', `person aggrieved' and individual litigation are     becoming obsolescent in some jurisdictions.”

22.        In the same year in the case of S.P. Gupta v. Union of India, 1981 Supp SCC (1) 87 popularly known as the law stood settled in black and white. The Supreme Court went on to hold that:

“Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons by reasons of poverty, helplessness or disability or socially or economically disadvantaged position unable to approach the court for relief, any member of public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case any breach of fundamental rights of such persons or determinate class of persons, in this court under Article 32 seeking judicial redress for the legal wrong or legal injury caused to such person or determinate class of persons.”

23.        In the case of Pt. Parmanand Katara v. Union of India reported in (1989) 4 SCC 286, the Supreme Court accepted an application by an advocate that highlighted a news item titled "Law Helps the Injured to Die" published in a national daily, The Hindustan Times. The petitioner brought to light the difficulties faced by persons injured in road and other accidents in availing urgent and life-saving medical treatment, since many hospitals and doctors refused to treat them unless certain procedural formalities were completed in these medico-legal cases. The Supreme Court directed medical establishments to provide instant medical aid to such injured people, notwithstanding the formalities to be followed under the procedural criminal law. Since then starting from labour rights, environmental protection to euthanasia, courts in India have long withdrawn from the pedantic application of locus standi. In fact according to a Compilation of Guidelines to be followed for Entertaining Letters/Petitions Received issued by the Supreme Court in 1988 the following matters inter alia can be adjudicated in a PIL:-

·         Bonded Labour matters

·         Matters of neglected children

·         Exploitation of casual labourers and nonpayment of wages to them (except in individual cases)

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

24.        The Supreme Court in the case of Union of India v. Association for Democratic Reforms & Anr. reported in (2002) 5 SCC 294 held that High Court has ample jurisdiction under Article 32 read with Articles 141 and 142 of Constitution of India to issue necessary direction to executive to sub serve public interest, to fill the void in absence of suitable legislation and gave the following directions:

“56. The Election Commission is directed to call for information on affidavit by issuing necessary order in exercise of its power under Article 324 of the Constitution of India from each candidate seeking election to Parliament or a State Legislature as a necessary part of his nomination paper furnishing therein, information on the following aspects in relation to his/her candidature:

1.       Whether the candidate is convicted/acquitted/discharged of any     criminal offence in the past---- if any, whether he is punished with         imprisonment of fine.

2.       Prior to six months of filing of nomination, whether the candidate     is accused in any pending case, of any offence punishable with        imprisonment for two years or more, and in which charge is   framed or cognizance is taken by the court of law. If so, the           details thereof.

3.       The assets (immovable, movable, bank balance etc.) of a       candidate and of his/her spouse and that of dependants.

4.        Liabilities, if any, particularly whether there are any overdues of     any public financial institution or government dues.

5.        The educational qualification of the candidate.”

25.        Subsequently, the Representation of the People (Amendment) Ordinance, 2002 (4 of 2002) was promulgated on 24^th August, 2002. The Ordinance was later replaced by the Representation of the People (Third Amendment) Act, 2002 (72 of 2002) which received the assent of the President on 28^th December, 2002. Sections 33-A and 33-B were inserted by the said Amending Act.

26.        The Supreme Court in the case of People’s Union for Civil Liberties (PUCL) and Anr. v. Union of India (UOI) & Anr. reported in (2003) 4 SCC 399 observed that the Legislature is entitled to change the law with retrospective effect which forms the basis of a judicial decision but this exercise of power is subject to constitutional limitations. Therefore it cannot enact a law which is violative of fundamental right. It further observed that the attempt of the Court should be to expand the reach and ambit of the fundamental rights by process of judicial interpretation and it has been done by this Court consistently. In result, Section 33-B of the Amended Act held to be illegal, null and void and petitions disposed of accordingly.

IV.         SUO MOTO ACTIONS

27.        A very welcome trend that has emerged with respect to PILs in India is that courts have started taking suo moto actions based on media reports or letters from the general public. Suo moto cognizance means "take notice of the fact on its own”. In numerous instances, the courts have acted on their own motion by taking cognizance including matters involving the abuse of prisoners, bonded labourers and inmates of mental institutions, through letters addressed to sitting Judges. Judges pick up a news item which shows that judicial help is required and lay down the general principles to be followed in future.  

28.        The debate is going on that the Judiciary is trespassing on the functions of Legislature and Executive. Sometimes the criticism may be justified, sometimes it is not justified and sometimes it is done by people who are adversely affected by the judicial intervention not in public interest but in private interest. But by and large Judiciary is doing a good job. This debate will go on but by and large people are happy about use of instrument of PIL by courts.

29.         The practice of initiating proceedings on the basis of letters has now been streamlined and has come to be described as ‘epistolary jurisdiction’. This new dimension was acquired by the jurisprudence of PIL with the decision in the case of Sunil Batra & Ors. v. Delhi Administration reported in (1978) 4 SCC 494. It was initiated by a letter that was written by a prisoner lodged in jail to a Judge of the Supreme Court. The prisoner complained of a brutal assault committed by a Head Warden on another prisoner. The Court treated that letter as a writ petition.

30.            A noteworthy observation with respect to suo moto action has also been made in the case of Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar & Ors. reported in (2008) 9 SCC 54. Dealing with the concept of PIL it was held that the Court is bestowed with a greater responsibility by the makers of the Constitution in terms of Articles 141 and 142. I would like to quote Article 141 and 142 of the Constitution of India, which read as follows:

“141. Law declared by Supreme Court to be binding on all courts - The law declared by the Supreme Court shall be binding on all courts within the territory of India.

142. Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc. - (1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.

(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.”

In the judgment reported in (2008) 9 SCC 54 in a Special Leave Petition under Article 136, after coming to the conclusion that the petitioner did not have the locus standi, the Supreme Court observed:

“…this Court, however, when a question is raised, can take cognizance of a matter of such grave importance suo moto. It may not treat the special leave petition as a PIL, but, as ‘public law litigation’. It is, in a proceeding of that nature, permissible for the court to make a detailed enquiry with regard to the broader aspects of the matter although it was initiated at the instance of a person having a private interest... if such an enquiry sub serves the greater public interest and has a far-reaching effect on the society, in our opinion, this Court will not shirk its responsibilities from doing so.”

31.            Taking a clue from the American Supreme Court's decision in the case of ‘Gideon v Wainwright’, where a post card from a prisoner was treated a petition, the Supreme Court of India has accepted letters and telegrams as petitions and in 1988 has issued the ‘Compilation of Guidelines to be followed for Entertaining Letters/Petitions Received’ which I have already mentioned before. This compilation stipulates that all letter-petitions received by a PIL Cell will first be screened in the Cell and only such petitions as are covered by the  categories laid down will be placed before a Judge to be nominated by Hon'ble the Chief Justice of India for directions after which the case will be listed before the Bench concerned. If a letter-petition is to be lodged, the orders to that effect should be passed by Registrar (Judicial) (or any Registrar nominated by the Hon'ble Chief Justice of India), instead of Additional Registrar, or any junior officer. In fact the court has also been very conscious on the possibility of frivolous PILs flooding the court therefore in the case of Divine Retreat Centre v. State Of Kerala & Ors reported in (2008) 3 SCC 542 the Supreme Court has held that High Court Judges cannot treat anonymous letters and petitions listing allegations against individuals or institutions as PIL and order suo moto investigation.

V.       APPOINTMENT OF AMICUS CURIAE

32.        The Latin term amicus curiae stands for a ‘friend of the court’. If a petition is received from the jail or in any other criminal matter if the accused is unrepresented then an Advocate is appointed as amicus curiae by the Court to defend and argue the case of the accused. In civil matters also the Court can appoint an Advocate as amicus curiae if it thinks it necessary in case of an unrepresented party or in any matter of general public importance or in which the interest of the public at large is involved. The court also assigns a lawyer (Amicus Curiae) to PIL petitioner who may be inarticulate in the presentation or may not understand the legal dimensions of the issue. This happens in most of jurisdictions.

33.        However in our Courts Amicus Curiae also have a significant impact in PIL proceedings. Unlike amici in U.S. litigation, who generally make sua sponte submissions supporting one side in the adversarial process, an amicus curiae in an Indian PIL case is generally an individual appointed by the Court to “dig up” relevant factual data, provide comparative examples from other courts, suggest innovative remedies, ensure that the Court does not overlook important considerations, and to assist the court as an officer of the court and keep PIL actions on track even if the original petitioners lose interest.

34.        I would like to share a personal experience where the Supreme Court received a post card from Vineet Kumar Mathur pointing out the pollution caused in River Gomti. This post card was treated as a writ petition by the Supreme Court of India. The Supreme Court  appointed me as an amicus curiae and entrusted me to draft a proper writ petition waiving the requirement of verification etc and requested me to assist the court as Amicus Curiae and orders were passed from time to time. The Court passed several orders compelling authorities to do their statutory duties. Several orders were passed and Supreme Court practically asked me to oversee whether their orders were complied with or not and while monitoring the case, the Supreme Court delivered a judgement reported in (1996) 1 SCC 119, on failure to comply with the standards by Mohan Meakins Breweries, polluting the river, consent was refused by the State Pollution Control Board under the Water (Control of Pollution) Act, 1974 to them and its unit was made to stop functioning. However despite orders of the Supreme Court, the Pollution Control Board concealed the fact that later in response to a letter written by Mohan Meakins Breweries it had granted consent to them to run the factory in disregard to the Courts directions.

35.        As amicus curiae, I wrote to the State Government repeatedly asking them to explain as to on what basis was the brewery functioning and also to furnish copies of the consent orders but to no avail. When I brought this fact to the notice of the Court they did disclose the details of consent given by the Pollution Control Board. Then in view disclosure of the correct facts by filing affidavits and documents, the Supreme Court issued a notice to three members of State Pollution Control Board and to the Managing Director of Mohan Meakin Breweries to show cause why they should not have been punished for contempt of the Court for granting consent in violation of orders of the Court.  In the contempt proceedings, the Supreme Court held that grant of consent was in clear violation of the court’s order. However, having regard to the affidavits filed by the two officers explaining reasons for and circumstances in which consent was granted to the unit, the unconditional apology tendered by the members of State Pollution Control Board was accepted by the Court. At the same time severe warning was administered to them that repetition of any such violation was to be viewed seriously. However, the owner of brewery was punished under the Supreme Court’s contempt jurisdiction.

36.        Thereafter in that matter an order reported in (2002) 10 SCC 573 was passed directing the State to acquire necessary land indifferent cities through which the River Gomti passed, after identifying land necessary for having oxidation ponds. The court further directed that an affidavit in this respect was to be filed by the State and the same was also to be served upon me as amicus curiae. Further directions were given by the Court in order reported in (2002) 10 SCC 574 regarding compliance of above discussed direction of the court. Thereafter several orders were passed by the Supreme Court issuing directions to various authorities to check the pollution caused to River Gomti and by order dated 25^th July, 2007 this writ petition was directed to be transferred to the High Court of Allahabad for further monitoring.

VI.         COMMITEES AND COMMISIONS

37.        Since PILs are filed straightaway at the level of the Supreme Court or the High Courts, the parties do not have a meaningful opportunity to present evidence on record before the start of the court proceedings. It may also be the case where a genuine petitioner filing a PIL faces difficulty due to lack of access to information. Additionally, the Courts usually are concerned with the importance of the cause and persist with the case on its own even where it finds that the petitioner is not acting bona fide or where the petitioner does not wish to pursue the case further. In such cases, the role of petitioner is terminated.

38.        To overcome this problem, our Courts have developed the practice of appointing ‘fact-finding commissions’ on a case-by-case basis which are deputed to inquire into the subject-matter of the case and report back to the Court. Also in cases where the Court in the first instance calls for a response from the Government, local authorities or any other opposing party. Where the objectivity or veracity of the response is in doubt, or where there is no response at all, the Court will appoint commissioners to verify the facts and submit a report to the Court.

39.        These commissions usually consist of experts in the concerned fields, District Judges, journalists or lawyers. For example in the case of M. C Mehta v. Union of India reported in (1994) Supp 3 SCC 717, the Central Pollution Control Board was appointed as a fact finding commissioner. Similarly in the case of S. Jagannath v. Union of India reported in (1997) 2 SCC 87 and In Re Bhavani River Shakti Sugars Ltd. reported in (1998) 3 SCC 545 the National Environmental Engineering Research Institute was appointed. The power to appoint commissioner in civil matters emanates from Order XXVI of the Civil Procedure Code, 1908 and Order XLVI of the Supreme Court Rules.

VII.             JUDICIAL ACTIVISM AND PUBLIC INTEREST LITIGATION

40.     Earlier, in England there were two kinds of courts namely: Equity Courts (Court of Chancery) and Common Law Courts. Equity Courts used to decide cases applying the principles of equity i.e. justice, equity and good conscience. Whereas the Common Law Courts used to decide cases basing on common law i.e. the principles evolved by the Judge, during judicial pronouncements. The formulation of those new rules by the then courts to settle the conflicting positions that had arisen in certain cases was denoted as 'Judicial Activism'. In India, almost all laws have originated from or referable to the English Common law.

41.     The doctrine of Separation of Powers was propounded by the French Jurist Montesquieu. It has been adopted in India as well since the Executive Powers are vested in the President, Legislative powers in the Parliament and State Legislatures and the Judicial Powers in the courts the Supreme Court, being at the Apex level. However, the adoption of this principle in India is partial and not total. This is because even though Legislature, Executive and the Judiciary are independent yet Judiciary is entrusted with the right to strike down laws and executive actions, if they violate Constitution or laws. On the other hand, in case of absence of laws on a particular issue, Judiciary at times on matters of public importance, issues guidelines and directions for the Legislature to follow, till they make appropriate valid laws in order to fill in the vacuum. This is an innovation made by the Bar and the Bench together.

42.     In the case of Fertilizer Corporation Kamgar Union v. Union of India reported in (1981) SCC 1 568 the Supreme Court has stressed that judicial activism is essential for participative public justice. The main rationale for judicial activism in India lies in the highly unequal social profile of the population of India, where Judges must take proactive steps to protect the interests of those who do not have a voice in the political system and do not have the means or information to move the Courts. This places the Indian Courts in a very different social role as compared to several developed nations where directions given by ‘unelected judges’ are often viewed as unjustified restraints on the will of the majority. It is precisely this counter majoritarian function that needs to be robustly discharged by an independent and responsible Judiciary. In the case of Bihar Legal Support Society, through its President, New Delhi v. Chief Justice of India & Anr. reported in AIR 1987 SC 38 it has been held that:

“The majority of the people of our country are subjected to this denial of ‘access to justice’ and overtaken by despair and helplessness, they continue to remain victims of an exploitative society where economic power is concentrated in the hands of a few and it is used for perpetuation of domination over large masses of human beings…… The strategy of public interest litigation has been evolved by this Court with a view to bringing justice within the easy reach of the poor and disadvantaged sections of the community.”

43.        In fact in a report on legal aid published in 1971, it was observed that even while retaining the adversarial system, some changes may be effected whereby the Judge is given a greater participatory role in the trial so as to place the poor, as far as possible, on a footing of equality with the rich in administration of justice. In the case of Keshavananda Bharti v. Union of India, reported in (1973) 4 SCC 225 the Supreme Court had clearly laid down that judicial activism is indeed a part of the basic structure of the Indian Constitution. Since then Indians have never regretted the change. Gaps left by the Legislature and Executive which have been filled by the Judiciary have characterized this change. The activist Judiciary has left no stone unturned when it came to the interpretation of the constitutional rights in an expanded horizon. Some important judgments support this hypothesis.

a.    Due process of Law: In the year 1978, the Supreme Court in its landmark judgement in the case of Mrs. Maneka Gandhi v. Union of India (UOI) and Anr. reported in (1978) 1 SCC 248 equated procedure established by law and due process of law. While delivering the judgement, the Court opined that the phrase “Procedure established by law” in Article 21 is intended to include the American phraseology “due process of law”. By virtue of this decision, the Hon’ble Court endowed itself with the power of substantive scrutiny of a legislative enactment, thus shifting from mere procedural scrutiny of legislation. In wake of this judicial pronouncement, the advent and development of PIL reached its pinnacle.

b.   Payment of wages: In the case of People's Union for Democratic Rights and Ors. v. Union of India (UOI) and Ors. reported in (1982) 3 SCC 235 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.

3. Environment: In the case of M.C. Mehta and Anr. v. Union of India (UOI) and Ors. reported in (1986) 2 SCC 176, () there was a leakage of oleum gas in Shri Ram Foods and Fertilizer Industries, located in a thickly populated area of Delhi on 4^th December,1985 resulting in the death of an Advocate in the Tees Hazari Court and injuries to several others. The Petitioner, an Advocate of Supreme Court filed PIL petition in the Supreme Court under Article 32 of the Constitution. The petitioner, in his petition requested the Court to direct the Government to take necessary steps to avoid such leakages from the industries engaged in dangerous and hazardous manufacturing processes in future. He also prayed that the Government be directed to order the Management of the Company to shift the plant to a place far away from the city. The Supreme Court admitted the petition and evolved the principle of 'Absolute Liability' and also appreciated the petitioner and ordered the Shri Ram Foods and Fertilizer Industries to pay him Rs.10, 000 by way of costs.
4. The river Ganga is very famous for its historical significance and religious importance. It got polluted due to discharge of industrial wastes, effluents, human excreta into the river. Further, a number of dead bodies are being thrown into the river at Kasi, with a belief that the dead persons would proceed to heaven directly since they consider Kasi as holy place and the river as sacred. In the case of M.C. Mehta v. Union of India reported in (1988)1 SCC 471 (Ganga River Pollution Case), the Petitioner, M.C. Mehta, filed a PIL petition in the Supreme Court under Article 32 of the Constitution against the Union of India, Kanpur Municipal Corporation and others for removal of public nuisance caused by which polluting Ganga water. The Supreme Court allowed the petition and directed the authorities concerned to take up necessary steps for removal of the public nuisance and also appreciated the petitioner for taking imitative in this regard.
5. Domestic Workers: In the landmark judgement of Delhi Domestic Working Women’s Forum v. Union of India (UOI) and Ors. reported in (1995) 1 SCC 14 is a classic example where the Supreme Court filled up a crucial vacuum where neither the Central Government nor the State Government had bestowed any serious attention as to the need for provision of rehabilitatory and compensatory justice for women. It issued guidelines for rehabilitation and compensation for the rape on working women.
6. Ecology: Another crucial intervention was made in Indian Council for Environment-Legal Action v. Union of India (UOI) and Ors. reported in (1996) 5 SCC 281 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.
7. Water Pollution: In the case of Vellore Citizens Welfare Forum v. Union of India and others reported in (1996) 5 SCC 647, Vellore Citizens Welfare Forum, the petitioner filed a PIL petition under Article 32 for pollution caused to the river Polar due to the discharge of untreated effluents by the tanneries and other industries in the State of Tamil Nadu. The Supreme Court appointed a committee to report on the matter. The Court after examining the report- submitted by the Committee delivered its judgement making all efforts to maintain a balance/harmony between economic development of the people on one hand and welfare of the people on the other. The Court held that sustainable development is a balancing concept between ecology and development.
8. Sexual Harassment at work place: In the case of Vishaka and others V. State of Rajasthan and others reported in (1997) 6 SCC 241, the Supreme Court made space for an issue that would otherwise not have invited sufficient attention. This writ petition was filed for the enforcement of the fundamental rights of working women under Articles 14, 19 and 21 of the Constitution of India. It was brought as a class action by certain social activists and NGOs with the aim of focussing attention towards this societal aberration, and assisting in finding suitable methods for realisation of the true concept of 'gender equality'; and to prevent sexual harassment of working women in all work places through judicial process, to fill the vacuum in the Legislation. The Supreme Court in this case framed various guidelines including disciplinary action, complaint mechanism and complaints committee. The Court directed that guidelines and norms be strictly observed in all work places for preservation and enforcement of right to gender equality of working women. The Court directed that the said guidelines would continue till the Parliament makes appropriate legislation. The Supreme Court also monitors judgments in important PILs to ensure the compliance by the executive authorities and other parties to the litigation.
9. Criminalisation of politics: A major problem that India is faced with in the contemporary time is that of criminalization of politics. Studies reveal that 62 out of 545 Lok Sabha MPs and 1258 out of 4,032 sitting MLAs have criminal cases pending against them. Recently in two PILs namely Lily Thomas v. Union of India and along with Lok Prahari, through its General Secretary S.N. Shukla v. Union of India & Ors, reported in (2013) 7 SCC 653, the Supreme Court has struck down Section 8 (4) of the Representation of People Act, 1951 which allowed MPs and MLAs to continue in their posts, provided they had appealed or filed an application for revision against their conviction in higher courts within three months from the date of conviction. However in order to overturn the above stated Supreme Court judgment banning those in jail and police custody from contesting elections, a bill was introduced in the Rajya Sabha to amend the Representation of People Act, 1951. The Bill was passed unanimously in Rajya Sabha. Finally on September 6, 2013 the bill was also passed in Lok Sabha. Reversing its earlier step, the Union Cabinet on 2^nd October, 2013 took a formal decision to withdraw the ordinance as well as bill that sought to give protection to convicted lawmakers in the wake of public outburst. Hence now the current situation is that the above mentioned judgment reported in (2013) 7 SCC 653 remains the law of the land in this respect.
10. Appointment of Judges: The collegium system for appointment of Judges of Supreme Court and High Courts has its genesis in a series of three judgments that is now clubbed together as the "Three Judges Cases". In the case of S. P. Gupta v. Union of India reported in 1981 Supp SCC 87 (December 30, 1981) is called the "First Judges Case". It declared that the "primacy" of the CJI's recommendation to the President can be refused for "cogent reasons" by the executive authorities. This brought a paradigm shift in favour of the Executive having primacy over the Judiciary in judicial appointments for the next 12 years. On October 6, 1993, came a nine-judge bench decision in the case of Supreme Court Advocates-on Record Association v. Union of India case reported in (1993) 4 SCC 441  the "Second Judges Case". I had a leading role in decision to file a writ petition as the President of Supreme Court Advocates- on Record Association. We found that S. P. Gupta judgment gave powers to Executive which they never claimed earlier. This "Second Judges Case" judgment ushered in the collegium system. The majority view said "justiciability" and "primacy" required that the Chief Justice of India be given the "primal" role in such appointments. It overruled the S P Gupta judgment, saying "the role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter. Here the word 'consultation' would shrink in a mini form. Should the executive have an equal role and be in divergence of many a proposal, germs of indiscipline would grow in the judiciary." The majority judgment saw dissent within the bench itself on the individual role of the Chief Justice of India. In a total of five judgments delivered in the Second Judges case, Justice Verma spoke for only himself and four other judges. Justice Pandian and Justice Kuldip Singh went on to write individual judgments supporting the majority view. But Justice Ahmadi had dissented and Justice Punchhi took the view that the CJI need not restrict himself to just two judges and can consult any number of judges if he wants to, or none at all. For the next five years, there was confusion on the roles of the CJI and the two judges in judicial appointments and transfers. In many cases, CJIs took unilateral decisions without consulting two colleagues.
11. In 1998, President of India made a presidential reference to the Supreme Court as to what the term "consultation" really means in Articles 124, 217 and 222 (transfer of HC judges) of the Constitution. There is an interesting background on this reference but I won't like to burden this lecture with that. The question was if the term "consultation" requires consultation with a number of judges in forming the CJI's opinion, or whether the sole opinion of the CJI constituted the meaning of the articles. The nine judge bench of Supreme Court unanimously laid down nine guidelines for the functioning of the coram for appointments/transfers; this came to be the present form of the collegium. Besides, the nine-judge bench judgment in In Re: Appointment & Transfer Of Judges reported in (1998) 7 SCC 739 dated October 28, 1998, used the opportunity to strongly reinforce the concept of "primacy" of the highest judiciary over the executive. This was the "Third Judges Case". The Supreme Court in this judgment recommended that the collegium making the appointments should consist of the Chief Justice and four Senior Most Judges, the opinion of all the judges should be in writing, if majority of the collegiums is against the appointment of any person he should not be appointed. This is the system which has been followed since then, for appointment of judges. On a personal note I had the opportunity to make my submissions in all three cases. In the last case the only private party permitted to make submissions before the Court was Supreme Court Advocates- on Record Association, which I represented being its President at that time. A bill is introduced in Parliament to include more members in collegium like ministers, leader of opposition and experts in addition to CJI and two judges. There is opposition to this bill which is passed by Rajya Sabha (Upper House of Parliament) so far.

44.        The only down side to the increasing activism which I can probably foresee in the existing scenario is an unnecessary financial burden on the public exchequer without the authority of legislature. While activists and non-governmental organizations are anxious to test the constitutionality of legal provisions and the legality of alleged wrongful acts by the public authorities in order to pursue their causes, they are, as depicted by Hon’ble Mr. Justice Michael Hartmann of the final court of appeal at Hong Kong “placing their necks beneath the guillotine of costs” in the process as they have to bear the uncertain risks of the respondent public authority’s legal costs if they do not succeed in the challenge.

VIII.     MISUSE OF PIL

45.        Of late, a number of motivated PIL petitions are filed. Thus, PIL has also been termed as "publicity interest litigation", "private interest litigation", "politics interest litigation", and even "paisa (money) income litigation".

46.        In the case of Ashok Kumar Pandey v. The State of West Bengal and Ors. reported in (2004) 3 SCC 349 the Supreme Court observed:

"Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity- seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity-oriented or founded on personal vendetta. As indicated above, court must be careful to see that a body of persons or a member of the public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or othoblique consideration. The court must not allow its process to be abused for oblique considerations. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busybodies deserve to be thrown out by rejection at the threshold, and in appropriate cases, with exemplary costs."

47.         Keeping in mind the objective behind the PIL, using this device for settling personal scores and oblique interest is a gross abuse of the process of law. It has to be always remembered that PIL is a mechanism to ensure the welfare of ‘little Indians’ or the cause of the ‘down trodden ’but not to entertain malicious interests of vexatious litigants. In fact recently in 2010, in the case of State Of Uttaranchal v. Balwant Singh Chaufal reported in (2010) 3 SCC 402 , the Supreme Court in a judgment laid down the following rules that courts should keep in mind before admitting any writ petition:

 “(1) The courts should encourage honest and bona fide P.I.Ls and effectively disallow those filed for oblique considerations.

(2) Instead of every individual judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the Rules prepared by the High Court is sent to the Secretary General of this court immediately thereafter.

(3) The courts should prima facie verify the credentials of the petitioner before entertaining a P.I.L.

(4) The court should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL.

(5) The court should be fully satisfied that substantial public interest is involved before entertaining the petition.

(6) The court should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions.

(7) The courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation.

(8) The court should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations.”

48.         The compilation of guidelines issued by the Supreme Court which I have already discussed above clearly enumerate the various kinds of matter that can’t be entertained under a PIL inter alia including matters pertaining to Landlord-Tenant matters, Service matters and those pertaining to Pension and Gratuity, Complaints against Central/ State Government Departments and Local Bodies above and admission to medical and other educational institution etc.

IX.        CONCLUSION

49.        PIL has been a blessing in disguise and is essential for the inclusive growth of our nation. The commitment of Indian judges to social action litigation has reflected their conviction that the Courts are bound to make a meaningful and relevant contribution to the alleviation of tensions and to the preservation of social fabric. The phenomenon is one which seeks to reach out to the benefits of community bereft of influence and privilege and to assure to them at least in fundamental sense, the benefits of legal order. The ultimate aim of PIL is the well being of larger number of people. The need of PIL is essential, though the Courts should always be aware that vexatious and frivolous litigants be disallowed and discouraged, and be suitably penalized.

50.        PIL has played an important role in justice delivery system and has been a boon to the Indian public as it has afforded a ladder to justice to disadvantaged sections of society, some of whom might not even be well-informed about their rights or lack resources to approach the courts. Furthermore, it has provided an avenue to enforce diffused rights for which either it has been difficult to identify an aggrieved person or where aggrieved persons have no incentives to knock at the doors of the courts. PIL has also contributed to good governance by keeping the government accountable. PIL has enabled civil society to play an active role in spreading social awareness about human rights, in providing voice to the marginalised sections of society, and in allowing their participation in government decision making. The public opinion in India is largely in favour of PIL and large majority believes it to be a great boon to people of India specially who don't have resources to approach the courts.

51.        In the end I would like to conclude by saying that the device of Public Interest Litigation may have its detractors, but it has played an invaluable role in advancing our constitutional philosophy of social transformation and improving access to justice.

52.        Friends I was very happy that 12 Harvard krokodiles came to Delhi and performed before the President of India in the auditorium of presidential palace known as ‘Rashtrapati bhavan’. The performance was watched by Judges of our Supreme Court, High Courts and by the members of Rashtrapati bhavan’ and many other. Everybody admired the performance both in Delhi and Mumbai.

53.        Ladies and gentlemen as president of Harvard club of India as well as president of confederation of Indian bar I invite you to visit the Supreme Court of India, spend some time there and attend some of the Public Interest Litigation matters in the laboratory of highest Court of India, since seeing is believing.  

54.        I would like to thank my alma mater for presenting me with this wonderful opportunity and to each one of you ladies and gentlemen for lending me a patient ear. Thanks a million

© Pravin Parekh

President, Harvard Club of India

October 8, 2013