Within five days of Kamla being purchased and brought to Delhi three of us filed a writ in the Supreme Court informing the Hon’ble Court what we had learnt about the trade in women in the Morena and Dholpur regions and praying for relief of several kinds.
We deliberately chose not to make Kamla one of the petitioners as we wanted, among other things, to obtain a definitive pronouncement from the Supreme Court about the rights of citizens to move the Courts on matters of public concern. As is well known, several High Courts — for instance, those of Gujarat, Maharashtra and Karnataka — as well as the Supreme Court have been tending towards liberalizing locus standi. But some of the rulings have been ambiguous, some have been contradictory and in the eyes of many whether a matter would be admitted or not has too often depended on whether a case lands before some judges rather than others. While several pronouncements of the Courts have been far-reaching others have been unduly conservative in the sense that in these cases the judiciary has appeared unable to free itself from the roots of such litigation in private law.
For these reasons we felt that the time had come to obtain a clear ruling on the matter and that the Kamla case — alluding as it did to an inhuman traffic affecting hundreds of thousands directly and every single citizen indirectly — was an excellent test case. We consciously decided against going through the empty ritual of obtaining affidavits, waqaalatnaamaas and the like from a Kamla who, given her state of dependence on us and her extremely friendly disposition towards at least one of us, would have certainly certified the documents but who would not have known the meaning, import or purpose of what she was affixing her thumb impression to.
Predictably, the one respondent-namely, the Delhi Administration-that has filed a counter-affidavit has asserted that the petitioners have no right to move the Courts in the matter. The issue is, therefore, joined exactly as we had planned it should be joined.
Both so as to assist the Hon’ble Court in regard to this specific case and in the hope that the material will be useful to other groups of citizens who may want to move the Courts in the public interest, I shall set out (i) principles which Courts abroad and in India have already accepted and which can now provide the foundation for public interest litigation; (ii) features special to our circumstances today on account of which, I respectfully submit, Courts should liberalise even further the rules governing standing; (iii) reasons why citizens are duty-bound to draw such matters to the attention of the Courts and why judges are duty-bound to hear them; and (iv) the criteria by which the locus standi of citizens and groups who are themselves not the direct victims of the impugned act or event should, I respectfully urge, be judged. Finally, I shall deal with possible objections that may be raised by Central and state governments to the liberalisation of standing.
The Direction of Rulings Abroad
Courts, looking as they do to precedents more than to the real world in which they operate, took a long time to recognise the right of citizens to move them and the worth- whileness of their doing so regarding an action or event when they were not themselves the direct victims of that action or event.
In several rulings it was held that the petitioner must have a direct interest in the matter. And this “interest” was interpreted in the sense of a private right as recognised in private law. It was long held, for instance, that when it was alleged that such and such act of the executive had resulted in injury, the injury suffered by him must have been distinct and palpable, that, indeed, he must have suffered the injury to an extent greater than the average citizen-that is, the petitioner was required to demonstrate that he had suffered “special damage” before he could be heard.
He had to demonstrate three further things: that the injury complained of was of a nature which made it redressible by courts; second, that a clear, or at least a fairly traceable, causal connection was evident between the action or inaction of the executive he was bringing to the Court’s attention and the injury he was alleging; and, finally, that the action he was asking the Court to direct the executive or some other agency to take or refrain from taking could be directly related to a duty which under the laws the executive or that other agency owed directly and personally to him. (The tenor of such traditional rulings can be gleaned from Anderson Vs The Commonwealth, Commonwealth Law Reports, Australia, 1932, 50 at 52; Tenessee Electric Power Company Vs. TVA, 306, US, 1937, 118 at 137-8; Attorney General (Victoria), Vs The Commonwealth, 71 Commonwealth Law Reports, Australia, 1945, 273 at 277).
The roots of such rulings in private law and their inappropriateness in an environment in which interdependence grows, an environment in which acts or negligence of one agency have effects on persons far removed, became evident over the years.
Accordingly, courts in several countries — UK, USA, Canada, Australia etc — have moved away from these archaic notions. I shall indicate the direction in which these courts have been moving by referring in each instance to just one or two of the scores of cases that can be cited.
Nature of the right that the petitioner may allege has been violated: The traditional view (expressed, for instance, in Tenessee Electric Power Co. Vs TVA, op cit) that a plaintiff could seek judicial review of an executive act only if he could show that that act had violated one of his legally protected discernible rights, “one of property, one arising out of contract, one protected against tortious invasion or one founded on a statute which confers a privilege” (306 US, 118 (1939) at 137-8) has given way to the position taken in, for instance, Road Review League Vs Boyd (270 F supplement 650 SDNY 1967) and Citizens Committee for the Hudson Valley Vs Volpe.
In these cases it was recognised that not only do groups interested in ecology have the requisite standing, they have it even though the relevant statutes (The Federal Highway Act and the Rivers and Harbours Act respectively) do not provide for judicial review. The reason this view was taken is important and shall provide a useful clue to us about how we may proceed in relation to several corresponding Acts under and Articles of our Constitution. It was held that as these statutes were concerned among other things with protecting the environment, it followed that the US Congress intended to grant standing to groups that were concerned that the Acts be implemented. It was held that as an interest in environment had been legislated in the relevant Act, by the very fact of enactment it had become a legally protected interest and by that very fact groups documenting its violation acquired standing for it could not be, the Court held, that the Congress enacted these laws and yet intended that there be no way to ensure that they are implemented.
Furthermore, it has been held (for instance, in Association of Data Processing Service Organisations Vs Camp 397 US 150 (1970) at 153) that far from the petitioner having to establish that he is seeking the enforcement of a legally protected right or the performance of a duty that is personally owed to him, he shall have standing provided merely that “the interest sought to be protected by the complainant must be arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.”
The extent of injury necessary for standing:
In traditional rulings the injury had to have been sustained directly by the petitioner and to an extent or of a character different from an average member of the public. Thus, for instance, in Anderson Vs. The Commonwealth, op. cit., it was held that to qualify the petitioner must have been “more particularly affected than other people:” in Attorney General (Victoria) Vs The Commonwealth, op. cit., it was held that the petitioner must have suffered “special damage”. The first step in liberalising this notion was in the increasing willingness of Courts to hear an average member of a class that as a whole was affected by the impugned act. Thus, for instance, Courts allowed tax payer suits even though the petitioner did not affirm that he was sustaining an injury greater than the average tax payer.
Next, as was but natural, Courts formally recognised (e.g., 20 US Supreme Court Reports, Lawyers Edition, 1969, at p. 978) that tax payer suits are not in any meaningful sense different from general public actions. It was evident that the taxes the petitioner as a tax payer would have paid would have been paid for general purposes of the State and must, upon receipt, have been lost in general revenues. Thus the interests he would represent before the Courts and the rights he would be espousing would be, as they would be in all public actions, those held in common by all citizens. This tendency has. since been formalised by rulings (such as US Vs SCARP, 412 US, 669, 1973) that standing will not be denied simply because many or all suffer the injury to an identical extent. And standing is now routinely granted (see, for instance, the well known Thorson Vs Attorney General of Canada, 43, DLR (3d), I, SCC, 1974); even when the petitioner alleges no special damage to himself and even when (for instance, in the case of numerous environmental groups that have been granted standing, see eg. Environmental Defence Fund Vs Hardin 428, F 2d, 1093 DC Circuit, 1970 the petitioner alleges no personal injury at all.
The nature of the injury necessary for standing:
Traditionally standing was granted only where the injury was substantial and, generally, of a physical or pecuniary nature. The first step in liberalisation was to progressively dilute the extent of injury that would qualify the petitioner for approaching the Courts. Thus, while granting standing to a tax payer to file a suit asking the Court to direct a city Corporation to conduct its meeting in a productive manner on the ground that, as he paid taxes, unproductive meetings inflicted a pecuniary injury on him as a part of his taxes was being used to defray the expenses of the meetings, the Courts implicitly acknowledged that the threshold injury need be very slight indeed. The next step in liberalisation was to enlarge the nature of injuries beyond physical and pecuniary injuries to reco’rnise (eg. in Association of Data Processing Service Organisation Vs Camp, 397 US 150 (1970) at 154) that, for instance, the interest injured “may reflect aesthetic, conservational and recreational values.”
“Person aggriev ed”:
The net result of such successive liberalisation has been that while traditionally only he was taken to be aggrieved and, therefore, standing was accorded only to him who had “suffered a legal grievance, a man against whom a decision has been pronounced which has wrongly deprived him of something of wrongfully refused him something or wrongfully affected his title to something” Ex. parte Sidebotham, 1880, 14 Ch. D. 458, at 465), now Courts recognize as a person aggrieved anyone “who has a genuine grievance because an order has been made which prejudicially affects his interest” (Attorney General of Gambia Vs N’Jie 1961, A.C., 617 at 634).
Even the requirement of a “genuine grievance”, which was a far cry from the older requirement of direct and substantial injury, has been gradually transmuted into one that the petitioner has a “genuine interest” in the matter. The latter too has been changed to now require only ”special” and in cases even ”sufficient” interest in the matter.
This evolution can be seen clearly in the manner in which environment groups have been accorded standing over the years. Thus, for instance, while in Tenessee Valley Electric Power Company Vs TVA. op cit, to secure standing a person had to show that one of his legally discernible rights, “one of property, one arising out of contract, one protected against tortious invasion or one founded on a statute which confers a privilege” had been violated, while in FCC Vs Sanders Brothers Radio Station (309 US 470 (1940) to secure standing the plaintiff had to show not just a legal right but a financial “injury in fact”, in scores and scores of recent cases standing has been granted to environment groups merely because of their special interest in the issues at stake even when they had no, indeed even when they claimed no, direct economic interest in the matter, even though they alleged no personal injury. (See for instance, Scenic Hudson Preservation Conference Vs Federal Power Commission, 354 F 2d 608, (Second Circuit 1965); Road Review League Vs Boyd op cit; Association of Data Processing Service Organisations Vs Camp, op cit. In spite of the stricter interpretation of “injury in fact” in Sierra Club Vs Hickel (433, F 2 d, 24, (9th Circuit), 1970) and Sierra Club Vs Morton (405 US, 727, 1972) Courts have continued to grant standing to conservation groups “either without question or with only a brief discussion, and most (…) courts (have) found an allegation that irreparable harm would be suffered to be sufficient to confer standing”, see A Rabie & C Eckard in Comparative and International Law Journal of South Africa, Vol 9, 1976, pp. 141-160, at p. 154).
Scores of additional cases can be cited but the few that have been referred to will be enough to suggest the direction of change. These changes have far reaching operational consequences. I shall illustrate these by taking up, say, just the first point mentioned above- namely, changes in the nature of the right which the petitioner need invoke to acquire standing. Four implications will be at once evident.
First, the focus shifts from a private right of mine that has been protected by a statute to the objectives of the statute itself. This shift has, as will be immediately evident to the Hon’ble Court, very important operational implications in a host of Acts, indeed in each of the Acts that deals with a general public purpose.
Secondly, the mere fact that the interest has been recognised and codified in a law is itself sufficient and is all that is necessary for making it legally enforceable and granting me as a citizen the standing to move the Courts. Thus, on this reasoning my standing to move the Court in the Kamla case is not contingent on my showing that I personally have a right in the matter that is legally protected. The fact that the Constituent Assembly and legislatures enacted Articles (such as Article 23) and Acts (such as the Suppression of Immoral Traffic Act) itself establishes the requisite legally protected interest. Similarly, to urge the Courts to put an end to, say, collusion of a state government with poachers that, let us assume, is endangering a protected species of wild life, I do not have to myself be a member of that species (as would have been the case under the old direct-injury rulings) nor do I have to show that I have a discernible personal right protected under such and thus law to enjoy the continued existence of that species of wild life. The mere fact that the Constitution (e.g., in Articles 48A and SIA (g)) and laws (e.g., The Wild Life Protection Act of 1972) legislate the objective of protecting these species itself makes it a legally protected interest for safeguarding which citizens can approach the Courts.
Third, it is recognised that Acts are legislated to be implemented and therefore, that, in case the specific mode prescribed in the Act proves insufficient, citizens can approach the Courts to ensure the fulfillment of legislative intent. This too, as we shall see, is an eminently desirable premise for reasons that shall become clear when in the Indian context we put the enforcement machinery many Acts prescribe alongside the condition of the agencies that have been charged with the responsibility of implementing the Acts.
Fourth, as will be evident from the passage cited above from Association of Data Processing Service Organization Vs Camp op. cit., where public causes are involved Courts tend to interpret the statutes broadly so that, as in that case, instead of looking for precise provisions that directly spell out the right of the petitioner or duty of the respondent the Courts require only that the interest sought to be protected fall “arguably within the zone of interests �.” Protected by the statute.
Three observations — the first by the Australian Law Commission, the second by two eminent jurists and the third by the Canadian Supreme Court — will help characterise the trend sketched above and indicate the current approach of Courts in liberal democracies to locus standi:
- In its oft-cited paper, “Standing: Public Interest Suits” Supplement to the Australian Law Journal, October 1977, the Australian Law Commission proposes that far from requiring direct and substantial injuries, the expression “interest” too be discarded because of its association with private law ‘and private particularly financial or property, rights. Instead, it says, standing should be granted if the plaintiff has a “real concern” in the issue at stake. Indeed, it proposes that to minimise the possibility of public interest groups being denied access the standing formula should be expressed negatively in the following manner: “relief is not to be denied on standing grounds unless the court is satisfied that the issues sought to be raised are of no real concern to the plaintiff. The legislation,” the Commission goes on to say, “should make clear that ‘concern’ is not to be judged by traditional rules and, particularly, that no property interest is necessary” (ibid, p. 17).
- “Restrictive rules about standing”, Schwartz and Wade point out, “are in general inimical 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 the public interest. Litigants are unlikely to expend their time and money unless they have some real interest at stake. In the rare cases, where they wish to sue merely out of public spirit, why should they be discouraged?”, (B. Schwartz and HWR Wade, QC, Legal Control of Government, 1972, p. 29).
- Even in a case such as Thorson Vs. the Attorney General of Canada (43 DLR, 3d, 1974, SCC) where the formal provision of law was that the action could be initiated only with the consent of an officer of State, such as the Attorney General, Courts tend to take the position that if on merits the matter is worth considering it should not be turned down merely on some technicalities regarding standing. The remarks of Justice Laskin speaking for the majority in the Supreme Court of Canada encapsulate the current outlook of the Courts even on realtor matters:
- “A more telling consideration for me, out on the other side of the issue, is whether a question of constitutionality should be immunized from judicial review by denying standing to anyone to challenge the impunged statute. That, in my view, is the consequence of the judgments below in the present case. The substantive issue raised by the plaintiff’s action is a justiciable one; and prima facie, it would be strange and, indeed, alarming, if there was no way in which a question of alleged excess of legislative power, a matter traditionally within the scope of the judicial process, could be made the subject of adjudication.., where all members of the public are affected alike, as in the present case, and there is a justiciable issue respecting the validity of legislation, the Court must be able to say that as between allowing a taxpayer’s action and denying any standing at all when the Attorney-General refuses to act, it may choose to hear the case on the merits.” (ibid, pp. 7, 18).
The Direction of Rulings in India
Indian Courts too have moved towards enlarging the access of citizens to them. They too have moved beyond the traditional standing criteria that had their roots in private law.
Once again, it is not necessary in view of the detailed knowledge of the Hon’ble Court on the matter to give an exhaustive enumeration of cases. References to just a few cases will be sufficient to indicate the trend. The point to notice in each case is not the bare remark of the Court but the reason on account of which it deemed fit to enlarge the ambit of standing, and the categories of persons and groups to which it thought fit to grant standing. These reasons even more than the dicta provide the first building blocks for putting together a coherent view on standing in the Indian context.
First, our Courts have long recognised that in certain circumstances the direct victim is just not in a position to move them and so in such cases a third party must be given an opportunity to bring the facts to the attention of the Courts. This reasoning underlies, for instance, the liberalisation of standing criteria in regard to habeas corpus petitions.
Second, in a succession of cases the Supreme Court has laid down that the notion of an “aggrieved person” to whom standing may be given cannot be confined in a narrow, dogmatic formula:
- Thus in J.M. Desai Vs Roshan Kurnar (AIR, Supreme Court, 1976, at p. 581) it observed, “The expression, ‘aggrieved person’ denotes an elastic, and to an extent an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition… Its scope and meaning depend on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner’s interest and the nature and extent of the prejudice or injury suffered by him…”
- In Bar Council of Maharashtra Vs M.V. Dabholkar and others, (SCC, 1975 (2) at pp. 710-11) too the Court reaffirmed that the meaning of the expression “aggrieved person” would vary from circumstance to circumstance, from statute to statute, that while in private law its ainbit was narrow, in regard to professional conduct and morality it had to be taken as having a wide import (ef. ibid, paras 27, 28).
Moreover, even when standing has been confined to one who can demonstrate personal direct injury, minuscule injury has been accepted as establishing a petitioner’s standing;
- In N.N. Chakravarty Vs Corporation of Calcutta (AIR Calcutta 1960, p. 102 at p. 112) it was held that a rate payer has a right to control deliberations of the Corporation as “meetings of the Corporation must necessarily cost money in establishment expenses, the cost of printing, the cost of correspondence and in various other ways. Apart from this,” the Court held, “the waste of time involved necessarily causes financial loss to the Corporation indirectly.” As the petitioner was a rate payer it was his money that was being wasted. Accordingly, he had a right to move the Court.
- Similarly, in Vardarajan Vs Salem Municipality, (AIR, 1973, Madras, p. 55) it was held that a tax payer could challenge the decision of the municipality to erect a statue even when this was being donated out of private funds as, once erected, the statue would have to be maintained and thus the taxes collected from the rate payer would in some part be used for the purpose.
- In Nabaghan Vs Sadananda (AIR, 1972, Orissa, p. 188) members of the general public who worship or who have the right to worship the deity (and in view of our laws this must automatically include everyone) were recognised as persons who hada sufficient interest in the appointment of trustees and the proper management of the temple’s or estate’s affairs.
Third, Courts have recognised that in several circumstances, while the responsibility of moving the Courts is that of the State, the State may not be inclined to initiate action and that in such cases, the general rule as well as specific provisions of laws apart, third parties must be given an opportunity to initiate corrective action. In criminal cases, for instance, the general position is that as crime injures all of society the State alone on behalf of all is to be the master of prosecution. But, to cite just one instance, in PSR Sadanand vs Arunachalam (AIR, Vol. 67, June 1980, 856) a five judge bench of this Hon’ble Court recognised that for various reasons the State may not pursue a criminal case as it should and that, therefore, a private party should be allowed to initiate and pursue a criminal case where allowing it to do so will be in the public interest, where the State has not pursued a case for reasons which do not bear on the public interest but are prompted by private influence, mala fides and other extraneous considerations (see, ibid, paras 14 and 26).
Fourth, and more directly as far as the Kamla case is concerned, Courts have recognised the right to move them of a member of a class that as a whole is likely to be adversely affected by an act or its absence.
- In Sunil Batra Vs Delhi administration, (SCC, 1980, (3), p. 488) the petitioner, Sunil Batra, was clearly granted standing as a member of a class-that of prisoners who were being lodged in unsatisfactory conditions.
- *In K.R. Shency Vs Udipi Municipality (AIR, 1974, SC. 2177 at 2182) the Court affirmed the general proposition that “the Court enforces the performance of statutory duty by public bodies as obligation to rate payers who have a legal right to demand compliance by a local authority with its duty to observe statutory rights alone.”
- In Ratlam Municipality Vs Vardichand and Others (67 AIR, Supreme Court Oct., 1980 p. 1622) the Court clearly laid down that while the Civil and Criminal Procedure Codes confine the power to initiate remedial measures to officials of State-in the specific example mentioned by the Court, to a magistrate under Section 133 of the CrP.C. — social justice and public duties are owed to the people at large and, therefore, an ordinary citizen has a right to trigger off the jurisdiction vested for the people’s benefit in a public functionary (see in particular, ibid. paras 12-14. p. 1628).
- In Fertilizer Corporation Kamgar Union, Sindri Vs Union of India, (344) AIR, Supreme Court, 1980, p. 344) the five judge bench was even more explicit. (The question of access to Courts was dealt with at length by Justice V.R. Krishna Iyer on behalf of Justice P.N. Bhagwati and himself. The Chief Justice on his behalf and those of justices Murtaza Fazal Ali and A.D. Koshal concurred with his conclusions on this; see ibid para 25, p. 351). The Court recognised the right of members of a trade union to move it on a matter that may (but, in fact, was not going to) affect their jobs and livelihood.
Fifth, the Courts have recognised the competence of a person who, though a member of the class to which the victim belongs, is not himself affected by the impugned act;
- In Karkare Vs Shavde (AIR, Nagpur, 1952, p. 330), Masehullah vs Abdul Rehman (AIR, Allahabad, 1953 p. 193) etc. Courts have held that any private citizen can file a petition of quo ivarranto to challenge the appointment of a public official even though his personal rights are not directly affected. In Sunil Batra Vs Delhi Administration, op. cit this Hon’ble Court acknowledged the right of one prisoner to move it in regard to the alleged torture of another prisoner.
Sixth, our Courts have gone much further and held that I need not be the member of any restricted class- such as the class of persons liable to be affected by the impugned action-to acquire standing, that my special interest in, that my special concern for the issue at stake indeed the mere fact of my being a citizen is enough to assure me standing on a matter of public importance.
- Since 1979 in half a dozen cases the Gujarat High Court has admitted writs filed by the Consumer Education and Research Centre, Ahmedabad, and passed orders on them. These relate to tariff increases by the Gujarat State Electricity Board, the Gujarat State Road Transport Corporation and Indian Airlines, to excise refunds claimed by manufacturers on grounds of wrongful levy, to a low-cost insurance policy floated by the Life Insurance Corporation, to excessive billing by the telephone department in Ahmedabad, to the winding up of the Machu Dam Inquiry Commission by the Gujarat government. Some of these cases have already reached the Supreme Court.
- The Hon’ble Supreme Court has itself accorded standing to citizens’ groups in several cases-Citizens’ for Democracy was allowed to intervene in Union of India vs. Sunil Batra, 1979, Hindustani Andolan was allowed to intervene in the Bearer Bonds case, People’s Union for Civil Liberties was allowed to intervene in the hearings on the National Security Ordinance etc. In each of these cases the intervenors intervened not by alleging personal injury but as groups representing responsible citizens who were concerned about the matter under argument.
- The Hon’ble Court has allowed individual citizens, citizens’ groups not merely to i1itervene in matters raised by others but to initiate matters themselves even though the petitioners alleged neither that they had suffered personal injury nor that they belong to a restricted class — i.e. a class narrower than the general public-members of which had suffered direct personal injury. Thus,
- Common Cause, a Delhi based citizens’ group was allowed to initiate proceedings on inequities of specific pension rules
- Two professors of Law from the University of Delh were allowed to initiate proceedings urging an examination of the functioning of a women’s protective home in Agra even though neither claimed that he or she as an individual or any relative of their’s had been injured by the manner in which this home was functioning.
- The Free Legal Aid Committee, Jamshedpur, was allowed to initiate proceedings to rectify the conditions in Jamshedpur jail even though neither the Committee nor the member who moved the petition on its behalf claimed any personal injury or that he belonged to a class whose members had suffered (Writ Petition No. 53/80).
Several other instances can be cited. It would be more instructive instead to recall that even in a case such as Fertilizer Corporation Kamgar Union, op cit, where the Court was dealing with petitioners who belonged to a class members of which could claim to be directly affected, its dicta embraced citizens in general.
In its far-reaching observations the Court said:
- “Courts can be moved by “someone with real public interest,” by “the public minded citizen,” by one who belongs to an organisation that has a special interest in the subject matter, by one whose concern is deeper than that of a busy-body (ibid, paras 40, 41, 48);
- That a liberal view has to be taken of standing and representative segments of the public or at least a section of the public which is directly interested or affected shall have the right to approach the Courts and bring to their attention the infraction of public duties and obligations when public property is dissipated (ibid, para 23)
Implications of dicta:
Dicta of the Courts in the kinds of cases that have been cited clearly cover our right to move the Court in the matter of Kamla and the inhuman traffic in women that her case represents. But even more important than the dicta, far reaching though they are, is the underlying reasoning that led the Courts in each instance to liberalise the traditional rules of standing. Even a little reflection will show that the very reasons that have already been acknowledged and accepted by the Courts apply in a much wider set of circumstances than the specific cases which the Courts have already settled. To illustrate the matter I shall take up a few cases mentioned above.
Consider first the reason on account of which Courts have acknowledged the right and worthwhileness of third parties, to move a habeas corpus petition. The reason obviously is that the victim-physically incarcerated possibly incommunicado-may not be in a position to approach the Courts. This being the case, the reasoning has been, if the Courts refuse to listen to anyone but the victim himself, no relief at all will be possible in any number of cases. But, clearly, a similar difficulty in the victim approaching the Courts can also arise in cases other than the one in which the victim is physically incarcerated. Consider the following circumstances:
- What if the direct victims — be they landless labourers, brick kiln workers or tribals in a forest — though not physically incarcerated can be shown to the satisfaction of the Court to be so terror stricken as to convince the Court that it is just unrealistic to expect them to approach it? Is the reasoning that persuaded Courts to recognise the right and worthwhileness of third parties to move habeas corpus petitions not directly applicable to such a circumstance? And is such a circumstance all that academic in contemporary India?
- What if the victims, though neither in physical incarceration nor terrorised. are not able for other reasons to approach the Courts? Consider a species of wild life, the black buck for instance, that is protected under The Wild Life (Protection), Act 1972, but which is endangered by, say, collusion between game wardens and poachers. It is not likely that a wild buck, even though neither incarcerated nor terrorised, would find a way to file a writ before a Court. Can no one then come to move the Court to ensure implementation of the Act? Even less extreme cases leave little room for doubt. For instance, consider the state of workers dying of sclerosis in Mandsaur (Indian Express 23-10-79; 24-10-79; 14-8-80; 13-7-81 and 15-7-81) or of adivasis losing limbs collecting metal on a firing range in MP (Indian Express May 27-29, 1981). The victims here have been forced by economic circumstances to make a living in ways that endanger their health and lives and are thus standing proof that the State is not doing what it is obliged by, say, Article 39 of the Constitution to do. These victims are not incarcerated, nor are they terrorised nor are they as unable to approach a Court as the wild bulk. But economic privatisation has pushed them into an avocation that already endangers and has in fact injured their health and lives and this same desperation will keep them from moving the Courts. On a direct extension of the habeas corpus reasoning, may someone not then move the Courts to request that they direct the executive to do its duty under Article 39 or that it ensure the safety and health of these desperate workers under other laws?
In the habeas corpus rulings, what is important-the fact of physical incarceration or the recognition that the victim is unable to approach the Court directly?
Next, consider the fact that in cases such as N.N. Chakravarty vs. Corporation of Calcutta, op cit, Vardarajan vs Salem Municipality, op cit. and Nagabhan vs Sadananda op cit, the courts have accepted a minuscule injury to be sufficient to establish a tax payers standing or that of a worshipper. In the latter case, indeed the injury must in the view of many be entirely subjective and yet the Courts found it sufficient. Were I to uncover facts that showed that collusion between a forest minister and forest contractors had begun to inflict such depredations on forests in the Terai region that soon enough the rate of soil erosion would jump up, that the siltation rate of dams in the area will increase, that as a result landslides and floods would begin to ravage the area, will the quantum of injury to which I as one residing in the Indo-Gangetic plain would then be subjected be less than to the worshipper who was liable to be injured by the erroneous conduct of a temple’s affairs?
Secondly, even in a case such as N.N. Chakravarty vs Corporation of Calcutta, how can locus standi be confined to one who pays taxes and thus can claim that he is injured by the Corporation’s meetings being disorderly because a bit of his money must have been used to defray the expenses of the meetings? Is a person living within the Corporation’s limits but in a jhuggi and too poor to be charged taxes to be denied standing merely because he is too poor to be charged taxes? Will he not be adversely affected by disorderly conduct of the Corporation’s affairs? In a country where only a minuscule part of the population is rich enough to be charged taxes, can standing be confined to rate-payers when the issue affects non-rate-payers as well? Moreover, if N.N. Chakravarty is to be granted standing to ensure orderly conduct of the Corporation’s meetings, is he to be denied standing in regard to the disorderly meetings of a State legislature or a house of Parliament? Do his taxes not help finance these meetings? Or is it that while disorder in the Corporation is liable to injure Mr Chakravarty, that in a State Assembly or Parliament is not liable to affect him?
Or consider the reasons the Supreme Court accepted in according standing to a Bar Council in Bar Council of Maharashtra Vs M.V. Dabholkar and others (op cit). The Court held that as a body of advocates the Bar Council had standing because, apart from the fact that the Advocates Act specifically assigned investigative and disciplinary powers to Bar Council, (i) the “power” (ibid para 50) and (ii) the “reputation (ibid, para 52) of each of its members was liable to be prejudicially affected by the misconduct of an advocate. As such the Bar Council the Court held, was a “person aggrieved” by the misconduct of an advocate (ibid, paras 30, 31 even though it had suffered no legal grievance, nor any pecuniar loss nor indeed did it have any personal interest in the matter (ibid. pains 28. 29). The Court explicitly recognised that in this case the Bar Council was engaged in public interest litigation of an issue in which a section of the whole of the community was involved (ibid, para 54).
But when such considerations are admitted — namely, my “reputation” and “power” as a lawyer — can access be denied to an average citizen who claims no more than a stake in the Rule of Law arid demonstrates that the Rule of Law will be harmed by the professional misconduct of the advocate? Is the citizen’s stake in this Rule of Law inconsequential and only the advocate’s stake in his “power”, “reputation” or means of livelihood consequential? It has been held, (for instance, in AK. Nair Vs Election Commissioner, AIR, 1972, Kerala 5) that an elector is a person interested in the proper conduct of an election even if he is not personally and directly affected by it. Well, if as an elector I have standing to approach the Courts when the misconduct of a candidate or an electoral officer undermines free and fair elections, do I not as a person with a stake in the Rule of Law have a standing to move the Courts when that Rule of Law as vital to our survival as fair and free elections is threatened? Or is it that I must in addition to the generalised stake in the Rule of Law show that my “power” and “reputation” too are jeopardised? This too cannot be sustained as in A.K. Nair the elector was not asked to demonstrate anything other than an average elector’s interest in free and fair elections.
Third, recall the reasons on account of which in a case such as Sadhanatham Vs Arunchalalam (op cit) the Court thought fit to permit a private individual to initiate, affect or revive criminal prosecution. The circumstances of that murder case, the Court said had convinced it that the State was not liable to pursue the case for reasons which did not bear on the public interest, that instead its reasons were prompted by private influence, malefides and other extraneous considerations (AIR, Vol 67, June 1980 para 26).
Now, as should be evident, a criminal case is not the only circumstance where the State may not be pursuing a case or enforcing a law for reasons which do not bear on the public interest but are prompted by private influence, malefides and other extraneous considerations. How can it then be that given the reluctance of the State to prosecute a criminal in a murder case the Court would grant a third party standing but given the identical (and equally well documented) reluctance of the State to stop the denudation of a forest because of, say, the collusion between a Minister and some forest contractors the Court would deny standing to a third party? What is the crucial fact in Sadanatham Vs Arunachaiam — the fact that the case at issue is a criminal case or that there are in the view of the Court reasons to believe that the agency charged with pursuing the prosecution is not likely to pursue it? Happily the fact is that Courts have granted standing xo the concerned citizen where he has been able to show that the State which is charged with the duty to prosecute offenders under, say, The Indian Forest Act is not likely to do so- witness the admission by the Karnataka High Court of Writ No. 466-80 regarding the disposal of Kodagu Forest land.
Next, consider just three of the reasons that the Court listed in Fertilizer Corporation Kamgar Union, op cit. and consider their applicability to situations more general than the sale of equipment in one public sector plant:
- “Public enterprises”, the Court observed, “are owned by the people and those who run them are accountable to the people.” Would the principle not apply to forest and other public assets constituting our national material wealth?
- Courts must entertain citizens, this Hon’ble Court observed, as parliamentary control of public enterprises is “haphazard and ineffective”. But is the haphazardness and ineffectiveness of parliamentary control limited to the public sector? What about corruption involving officers of State? Is the State liable to pursue such cases with any vigor? Witness the manner in which sworn affidavits of agencies like the CBI have since January 1980 been replaced by fresh-and equally solemnly sworn-affidavits stating that the earlier affidavits were misrepresentations of facts.
- Courts must allow citizens to move them on matters of public concern so that, the Court said, they do not, in despair, take to the streets and thus destroy the very foundations of the Rule of Law. Again, as will be at once obvious, the reasoning is of wider applicability than cases involving public sector units and the reassurance that the Courts are an avenue through which things can be mended is one that needs to be given in circumstances broader than the conduct of a public sector enterprise.
Fifth, recall the Courts’ rulings in quo warranto cases affirming that every citizen has a sufficient interest in the conduct of public affairs to have the required standing to challenge the wrongful appointment of a public official. But how can it be that while I have standing to challenge the appointment of an official, I do not have the standing to draw the Courts attention to his misconduct when he, for instance, starts making money by allowing contractors to denude forests, by allowing them to build sub-standard houses out of public funds and so on?
Sixth, recall the repeated affirmations by the Courts (e.g. in K.R. Shenoy Vs Udipi Municipality, op cit, or Ratlam Municipality vs Vardichand and others, op cit.) that it is the duty of Courts to ensure that public bodies and public officials perform their statutory duties and that citizens have a right to move the Courts to ensure compliance by officials. A case such as that of Kamla falls squarely within the ambit of these rulings for, as is shown below, the prevalence of the inhuman racket in women can in substantial measure be traced to the failure of agencies of the State to perform duties required of them under the Constitution and under several specific laws. Indeed, a great deal of public interest litigation requires no further basis than the dicta and reasoning in rulings such as these in which the Courts have reaffirmed (i) their duty to ensure that officials perform their statutory duties and (ii) the right of citizens to move them to ensure such compliance. Consider the wide applicability of the following observations of this Hon’ble Court in the
Ratlam Municipality case:
“The nature of the judicial process is not purely adjudicatory nor is it functionally that of an umpire only. Affirmative action to make the remedy effective is of the essence of the right which otherwise becomes sterile. … The law will relentlessly be enforced and the plea of poor finance will be poor alibi when people in misery cry for justice. The dynamics of the judicial process has a new ‘enforcement’ dimension, not merely through some provisions of the Cr.P.C…. but also through activated tort consciousness. The officers in charge and even the elected representatives will have to face the penalty of the law if what the Court and follow up legislation direct them to do is defied or decried wrongfully. The wages of violation are punishment, corporate and personal…” (Ratlam Municipality Vs Vardichand and others, AIR Supreme Court, 1980, October, paras 16, 24).
Four Points in the Kamla Case
The dicta in cases such as the ones that have been cited above and the reasoning that led to the dicta directly ensured that citizens like the petitioners have a standing qua citizens to move the Courts so that they ensure that the executive takes steps to end the inhuman traffic in women.is not necessary to recapitulate each of the points made above and show its one-to-one correspondence with the facts of the Kamla case. I shall confine myself to just four remarks. First, the Courts, as pointed out above, have repeatedly held that citizens have a right to move them to ensure that officers of State perform their statutory duties. The question that thus arises is: Can the traffic in women in any substantial sense be traced to the failure of the executive to perform its statutory duties? Most certainly:
- First, the traffic in women like Kamla testifies to the failure of the State to guarantee the Fundamental Rights enshrined for each citizen in Article 23 which, among other things, prohibits the traffic in human beings.
- Second, the traffic testifies to the failure of the State to ensure compliance with several parts of the Indian Penal Code — specifically Sections 362 and 365, which deal with abduction, kidnapping and wrongful confinement of persons: of Section 366 which deals with kidnapping, abducting or inducing a women to compel her to marry a person against her will and to force her to illict intercourse: of Section 366A which deals with procuration of minor girls; of Sections 367 and 368 which deal with kidnapping and abducting a person to subject him to slavery, grievous hurt etc; of Section 370 and 371 which deal with buying and selling of persons as slaves; as well as of Section 372 to 374 which deal with buying and selling persons for prostitution and unlawful compulsory labour. So extensive are the violations of the Code and yet the traffic proceeds without let or hindrance within but a short journey from the national capital itself: indeed as one of us, Ashwini Sarin, learnt negotiations for purchase and sale, for inspecting the women: can be, and in the case of Kamla were actually, conducted openly and freely from the Circuit House itself a house that is across the road from the residence of the Commissioner in Morena. The traffic could not be as extensive as it is, it could not be conducted as brazenly as it is being conducted had it not been for the collusion or at least willful negligence of the State apparatus.
- Third it is also evident that the continuance of this evil results directly from the failure of the State over decades to act in accordance with the Directive Principles of State Policy laid down in several Articles of the Constitution, specifically in Article 38 which enjoins the State to ensure a social order that would promote the welfare of the people; in Article 39(a) which enjoins the State to ensure that citizens obtain an adequate means to livelihood; in Article 39(e) which requires the State to ensure that the health and strength of citizens and the tender age of children are not exploited and that citizens are not forced by economic necessity to enter avocation unsuited to their age or strength; in Article 39(f) which enjoins the State to ensure that children obtain opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that they are protected against exploitation and against moral and material abandonment.
- Fourth, the traffic continues at this scale because the State is not enforcing other laws, such as the Suppression of Immoral Traffic Act, which it is duty bound to enforce and the effective enforcement of which would deter traffic in women.
Second, Kamala herself is in no position to move the Court either to seek relief for herself or to seek that the Court initiate a series of complex steps that would eliminate or at least diminish traffic in women.
- Before she was purchased by one of us she was in virtual bondage and her condition eminently qualified a presentation to this Hon’ble Court requesting that our application for granting relief to her be treated as a quasi habeas corpus petition.
- She is terror-stricken, having been beaten, confined to an asylum, and maltreated over years. She is completely ignorant of the duties of the State towards a citizen like her, as she is of the power, procedures and concerns of Courts.
- Indeed, in the first report on her condition the psychiatrist of the All India Medical Institute of Medical Sciences has said that Kamla seems to be slightly retarded and to be suffering from psychosis.
In such circumstances to rule that the petition would not be entertained till Kamla herself were the petitioner would, quite apart from the fact of going contrary to a host of past rulings, lead the Court to set its faith entirely in an empty ritual — that of obtaining thumb impressions of a person who has not the slightest notion of the powers, procedures or concerns of the Court or of the laws and other considerations that impinge on the matter.
Third, while Kamla has hot been and is not in a position to move the Hon’ble Court, the petitioners are qualified as well as duty bound on several counts to move the Court on this case, on several counts even apart from the fact that as noted above, past rulings entitle them to move the Court to compel performance of statutory duties by officers by State.
- Like every citizen of India we are directly affected, indeed endangered by the continued and unhindered prevalence of this traffic. As pointed out elsewhere, apart from other heinous and barbarous aspects, the act involves kidnapping of children and women and violence directed against them as well as against competitors in the trade. Just as Kamla and thousands others are sold in servitude so too can the sisters and daughters of each one of us. We thus have a direct stake in the matter and thus a direct locus standi. The fact that our stake is shared by thousands does not, as Lord Denning has observed (QB, 1973, I. at p. 649), dilute our interest in the matter.
- Second, we believe that even within the narrow confines of law we have a locus standi in this matter as under Article 51A it is our Fundamental Duty to bring such facts of the notice of the Courts and to petition them to initiate remedial action, Article 51(A) enjoins upon as the Fundamental Duty to abide by the Constitution and to respect its ideals and institutions. To “abide” and to “respect” include the duty to do all we can to ensure that its provisions and ideals prevail. How may we perform this Fundamental Duty if we are forbidden from petitioning this august Court when we see such widespread violation of the provisions and ideals of the Constitution as well as of specific laws enacted under it? Similarly, Article 51 A(e) enjoins upon us, inter alia, the Fundamental Duty to renounce practices derogatory to the dignity of women; Article 5I A(g) enjoins upon us the Fundamental Duty to have compassion for living creatures; Article 51A(j) enjoins on us the Fundamental Duty to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. As in the case of Article 51A(a), these provisions also and with the same directnees and immediacy enjoin upon us the duty to petition the Courts to take cognizance of and to initiate action to eliminate the enormous social evils that our investigations have revealed.
Finally, it isn’t just that Kamla is not in a position to move the Courts and that the petitioners are qualified as well as duty-bound to do so, the Hon’ble Court itself is, I most humbly submit for your Lordships’ consideration, in a sense duty bound to hear us. For the Honorable judges, even though holding the high office of judges, are still citizens and are thereby, like the petitioners themselves, bound by Article 51A that prescribes the Fundamental Duties of each citizen of India. They too must do all they can — and at a minimum this includes what is within their immediate and unqualified power to do, that is to hear other citizens who bring facts that have a bearing on the matter to their notice — to abide by and respect the ideals of the Constitution (such as those enjoined in Articles 23, 39 etc. alluded to above), to renounce practices derogatory to the dignity of women (which must surely preclude barring the door to citizens who bring facts to their notice acting on which the Hon’ble judges would help safeguard the dignity of hundreds of thousands of women and pull them out of a most miserable servitude), to have compassion for living creatures (and Kamla is still a living creature) and so on.
Reasons More Fundamental than Precedents
Dicta of the Courts in past cases and even more the reasons which in each instance led them to formulating the dicta go far, as we have seen, in establishing sufficient precedents and grounds on which public interest litigation can be based.
Circumstances in which our country and our people are today placed constitute an even stronger rationale for broadening the scope of such litigation. These are familiar to the Honorable Court for in many instances the Court has to do little more than reflect on its own experience to assess how little it would have been able to accomplish had it closed the doors on citizens motivated by the public interests (For this reason and as the propositions have been documented at length elsewhere, in this section I shall merely state a few conclusions as truths that I think all of us now deem to be self-evident. I shall, of course, document them if the Honorable Court feels that they need to be documented.)
The strongest rationale for permitting citizens and citizens’ groups to approach the Courts in the public interest lies in the nature of the Indian executive today.
- Persons who come to occupy office in India today look upon it not as a device for serving our people but as a perch from which to further their personal interest — witness the detailed findings of each one of the Commissions of Inquiry which have submitted their reports in the last decade and that were chaired in many instances by distinguished members of this Honorable Court itself.
- This pursuit of personal and parochial gain invariably inflicts depredations upon the people and our national wealth — witness the numerous wasteful projects etc that come to light every month.
- Members of the executive whether of this political party or that, whether at this level of government or that, are collectively now so entangled in interlocking webs of mutual complicity and individually so conscious of their own misconduct that the executive as a whole is not liable to pursue cases against any one of them — witness the fact .that in spite of the most far-reaching indictment by the most distinguished jurists, many of them members of this Honorable Court, not one officer of State — from Prime Minister, Chief Ministers, sundry Ministers, down to a police constable or forest ranger — not one has been brought to book for his predatory conduct. Not one. On the. contrary, processes of justice have been perverted- cases have been lodged and then withdrawn with impunity, affidavits have been sworn by officers as well as agencies like the CBI and then replaced by affidavits swearing the opposite…
- Internal correctives have all but broken down. Legislative control of the executive,. for instance, is now, as this Honourable Court has had occasion to remark in the case of the public sector, “haphazard and ineffective.”
- The executive now looks upon the judiciary as a hostile branch of the State that must be put down — witness the recent denigration of judges by sundry Chief Ministers and Central Minister, witness the surreptitious moves of the executive in regard to transfer of judges, the Law Minister’s circular, the humiliatingly short-term and discriminatory extensions doled out to Additional Judges at the last possible moment… An executive with such an attitude towards the judiciary is not going to assist the latter ascertain facts in. which the central issue often is the manner in which individuals in the executive or the policies of the executive as a whole are harming the public weal.
- Indeed, even where senior members of the executive are not involved, even when on one hand so much as alleged that the episode being unraveled has resulted from their actions, the executive today invariably seeks to cover up the facts. The Honorable Court has to do no more than recall its own experience in the matter of undertrials in Bihar, the Bhagalpur blindings, the Protective Home for Women in Agra, the condition of slate mine workers in Mandsaur, the Paniwala case in Delhi and so on to ascertain with how much difficulty it had to pray information out of the executive and how, in every single instance, the executive prevaricated, how it concealed vital information, how indeed, in so many of these cases it supplied misleading information to the Court. In the Kamla case itself the court was pleased on May 1 to direct the governments of four states as well as the Central government to supply information and file counters by May 8, 1981. Eleven weeks have passed since the Court’s order. Apart from a perfunctory counter from the Delhi Administration none of the governments has complied with the Court’s direction.
In such circumstances to insist that where, say, the Suppression of Immoral Traffic is involved the Court shall bear only the police officers designated in Section 13 of SITA, 1956, or that where forests are being denuded it shall hear only the forest official or magistrate designated under Chapter IX of The Indian Forest Act 1927, or where a protected species is endangered it, shall take cognizance of the matter only if the Game Warden or some other officer designated by the state government files a complaint as required under Section 55 of The Wild Life (Protection) Act, 1972 — were the Court to adopt such a position and refuse to hear concerned citizens it shall be consigning these Acts to the waster-paper basket. It shall be clearing the way for thousands like Kamla to be subjected’ to indignity and suffering for our national wealth-like our forests-to be plundered. And it would be announcing that it is turning its back on the principle that this Honourable Court has so eloquently and so recently expressed — namely that it is determined to ensure that laws are implemented. A narrow approach to locus standi based on technicalities and rooted in traditional norms borrowed from private law just cannot square with conclusions expressed by this Court in cases such as Ratlam Municipality, op cit, that were cited earlier.
The second consideration relates to the manner in which “injury” changes as a society modernizes. As was noted in Sections I and II above, Courts have already come a long way in lowering the level of injury that a petitioner must have sustained before he can be granted standing. We have also seen how the concept of what constitutes an “injury” has been broadened to include aesthetic and environmental concerns and even purely subjective concerns as in the case of a worshipper at a temple. But these have been stray, hesitant advances. It is necessary to base this part of the matter squarely on the changing nature of “injury” in a modernizing society.
Based as these notions have traditionally been in private law, to be accorded standing in the eyes of some judges the petitioner had to affirm that (i) he had already sustained the injury, (ii) that he had personally and directly sustained the injury, that (iii) the injury had been substantial, and (iv) that he had sustained it to an extent greater than an average member of the public.
Now, consider two situations-both of which have already come to pass in India in the last 15 years.
- Experts affirm that forests should cover about 60 per cent of the foot-hills in the Himalayas to avoid soil erosion etc. In several parts collusion among officers of State and rapacious contractors has reduced forest cover to a mere 10 per cent. This has led to more and more frequent, more and more lethal landslides, higher and higher rates of situation of dams (rates that are five to four times the rates that had been envisaged when the dams were built) and an increased incidence of floods.
- Manufacturers are being given licenses one after another to produce goods that incorporate substances that are known to be carcinogenic.
Now, consider the situation from the point of view of the Courts and what would happen if they confined themselves to the traditional norms of private law;
- In neither case is the injury direct. It would indeed be difficult to trace a specific landslide to a specific felling or to trace a specific cancer death to the consumption of a specific product on a specific occasion.
- At no single point is the injury dramatic or substantial, at no point, that is, till it is too late in the sense that the land has already slid or the patient has already died. The ultimate effect is the cumulative result of accretions that are so gradual in all phases but the last as to be imperceptible. When the injury becomes evident it is already in most cases too late to initiate corrective action.
- In many instances there may be no identifiable victim in the area where the damage is being done-parts of the Himalayas that are being denuded, for instance, are uninhabited, consumers of wheat on which a carcinogenic pesticide has been used may be located far away from the place at which the pesticide has been produced or used.
- The ultimate injury is most often generalized and diffused, affecting all uniformly so that were standing to be confined, as in traditional rulings,, to a person who could demonstrate that he had been injured to an extent qualitatively greater than the average citizen, it would be almost impossible to move the Courts on the matter.
Third, even in cases where the injury is substantial, where it is personal and where it can be directly traced to an act or an omission of some agency, in a country like India the direct victims are often just not in a position to move the Courts effectively for redress. Most often they are:
- Unaware of the duties of the State and other agencies in the matter;
- Unaware of their rights and their ability to move the Courts;
- unaware of the concerns, procedures and powers of the Courts;
- unable to conduct or to even initiate protracted legal battles against the State or rapacious contractors and the like;
- unable to deploy legal and other talent to match the resources that the State and the predators invariably deploy.
One has only to look at the direct victims of any of the major cases involving the poor-undertrials, Bhagalpur blindings, detainees in Jamshedpur jails, the destitute women in the Agra Protection Home’ the slate-mine workers in Mandsaur, and Kamla herself-to conclude that for Courts to insist that only direct victims shall have standing would be to foreclose relief altogether.
As this is the reality the presumption in rulings such as the oft-cited Baker Vs Carr (369 US 1962, p. 186) or Flast Vs Cohen. (392 US, 1968, p 83) that personal adversar-ness alone can ensure that all the facts will be brought before the Courts is wholly inappropriate in India. In the matter of undertrials, Bhagalpur blindings, the Agra Protective Home was the Court not well assisted in getting at the facts by citizens other than the direct victims?
Thus, quite apart from precedents set by direct rulings, the Courts should, I humbly submit, liberalise rules governing standing for these three reasons: the nature of the executive in contemporary India, the nature of “injuries” in a society that is modernising as India now is and, third, the helplessness of the victims specially when they are put against the resources of the State and of rapacious predators.
Principles to Govern our Approach
In view of the foregoing — the dicta of our Courts in specific cases, the reasoning underlying the dicta, and, even more the peculiar characteristics of the executive, the nature of injuries and of the direct victims in contemporary India — I humbly urge this Hon’ble Court to found the approach to standing explicitly and conclusively on the following principles:
- The order embodied in the Constitution and in laws framed under it is the concern of every citizen as a breakdown of that order shell jeopardize our existence as a free and cohesive society and tjius injure every citizen. This stake in the order is sufficient to provide standing to a citizen to draw the attention of Courts to developments that endanger that order.
- Violation of the Constitution and of laws, including the non-enforcement of their provisions, endangers the order embodied in them and so becomes a fit subject on which a citizen may move the Courts.
- Laws are not passed merely for being passed but for being implemented. The mere fact that an objective has been embodied in the Constitution or a law itself indicates that the Constituent Assembly and the relevant legislature wanted it to be achieved. The Courts thus have a direct interest in ensuring that the objectives are realized and citizens have the right as well as duty to approach the Courts to ensure that everything necessary is done to see that the objectives so embodied are achieved. Where officers of the State who have been charged in the first instance with the responsibility to implement the laws fail to do so, citizens have the right and duty to approach the Courts to ensure implementation and the Courts have a right and a duty to hear them.
- The criteria for judging the intrinsic importance of an issue must be the gravity and the generality of the eventual cumulative effects of the act of negligence, not the personal, direct, immediate effects and citizens who have a special concern for or who are specially equipped to alert the Courts about the eventual effects must be given the opportunity to bring facts to the attention of the Courts in the public interest.
- In permitting citizens or groups of citizens not directly affected by the impugned act or negligence of an agency to approach them the Courts must consider the probability of the direct victim being deterred from approaching the Courts out of physical impossibility, ignorance, fear, desperate circumstances or other reasons and even when they are not altogether deterred, the Court must consider whether they will at all be able to deploy resources to match those that the State or the predators will deploy.
- Correspondingly the Courts must weigh the extent to which a citizen or a group of citizens not directly affected but motivated by the public interest is willing and able to do the homework necessary to assist the Courts and this ability and willingness to do the requisite homework must be an important requirement as well as an important criterion to afford standing to those who want to intervene in the public interest.
“But will such liberalised access not open the floodgates of litigation and increase even further the crushing backlog of cases?”
This bug-bear which has been rightly said to haunt law books rather than the Court-room has been nailed by successive authorities that have examined the evidence. Thus, the Australian Law Commission (op. cit, pp. 6-7) reviewed the increase in litigation that resulted from laws like the extremely liberal Michigan Environmental Protection Act, 1970 and concurred that there had been no significant increase in the number of cases and that all the actions brought had raised serious, socially useful issues. Of the completed cases two-thirds had resulted in substantial relief to the plaintiffs.
“But India is different.”
It is indeed. In that we are less likely to and less organised to take up or sustain long legal battles in the interests of others. A case in India is certain to take much, much longer than in a country like the US or Canada and thus the number who will stay the course — even if the commitment and resourcefulness were identical — is liable to be much smaller. Moreover, few will take advantage of liberal precedents like M.V. Dabholkar (op. cit.) or Sadhanantham (op. cit.) simply because few will hear of them. Finally, taking up cases in the public interest is much more likely to invite reprisal and harassment from the State and predators in India than in Western democracies; this too shall keep the number down.
Considerations such as these and the actual record have led this Hon’ble Court to dismiss the bugbear of the busybody flooding the Courts with frivolous cases and concur with findings such as those of the Australian Law Commission (see, for instance, Sadhanantham Vs Arunachalam, op. Cit., paras 14-16.)
A year and a half has passed since a five judge bench of the Hon’ble Court in Sadhanantham Vs Arunchalam invited citizens to come forward and tell the Courts which criminal cases needed to be pursued in the public interest and yet were not likely to be pursued by the state. How many have come forward to respond to the Court’s open invitation? Maharashtra Bar Council Vs M.V. Dabbolkar was decided six years ago. How many professional bodies placed vis-a-vis members of their profession exactly as the Maharashtra Bar Council was vis-a-vis the erring advocate in that case have come forward to bring to book any of their members for professional misconduct?
The point, indeed is stronger. What if liberalised standing rules do, in fact, lead to a few additional cases in the Supreme Court on forests, lakes, rivers, jail conditions etc.-on matters, that is, of urgent public importance?
Has the problem of pendancies not to be dealt with by other means — written submissions, cut-off limits to oral arguments doubling or tripling the number of judges etc. — rather than by adopting a course of action that would in effect consign national ills to continue and grow? What sense of proportion is it that would allow literally hundreds of disputes between tenants and landlords and thousands of appeals by individual companies against Income-tax assesments to come up and further clog this Hon’ble Court but would keep out cases on plunder of forests, wholesale pollution and similar matters that are liable to spell disaster for millions?
“But will liberalised standing not involve the Courts in frequent and repeated confrontations with the executive?”
On this reasoning the Courts should not take up any of the great constitutional questions that are being pressed on them. Indeed, they should not take up most cases of any and all descriptions because, the State being by far the largest litigant in India, most cases involve the executive in one form or another.
“But would the Courts not get dragged into details of administration in this way? Would they have the expertise for settling such matters?”
First, the Courts have taken up and routinely take up cases upon cases which have led them into details of administration, engineering, stock markets, financial manipulations and most of whatever else one can think of. In many of these cases the judges picked up data and knowledge about the subject as the case proceeded. It cannot seriously be maintained that the Courts will go into details of administration, engineering etc. where issues arising from private law are concerned but will refuse to touch matters affecting the public at large on the apprehension that the matters may force them to examine technical details.
Second, in a society that is becoming increasingly integrated, that is adopting modern technology there is just no way in which Courts can avoid going into details with which judges in the first instance are not liable to be familiar. This fact has been recognised by our lawgivers and accordingly in 1976 they amended the Code of Civil Procedure precisely to provide for contingencies in which the Courts may need the help of experts and others. Section 8 A of the Code now provides that:
“While trying a suit, the Court may, if satisfied that a person or body of persons is interested in any question of law which is directly and substantially in issue in the suit and that it is necessary in the public interest to allow that person or body of persons to present his or its opinion on that question of law, permit that person or body of persons to present such opinion and to take part in the proceedings of the suit as the Court may specify.”
It cannot be that while judges are expected to and entitled to seek assistance of experts on a matter — law — about which they know such a great deal already they are not expected to or not entitled to seek the assistance of experts on matters about which they know much less. Thus, given such facility, should the Courts go forth and take up cases of general public importance and seek the assistance they require or should they close the doors on citizens on the apprehension that these citizens may ask for verdicts on matters requiring an acquaintance with issues with which a judge may not be initially conversant.
Third, given the state of the executive in India today and its recalcitrant attitude towards the Courts a refusal by the Courts to pursue details of administration and implementation will reduce the Courts to academic bodies, bodies that will issue pronouncements but from whose pronouncements little will follow. In such a situation, is the duty of judges merely to pronounce eloquent judgments or is it to ensure that their verdicts are obeyed and implemented? If the latter, what is the rationale for refusing to pursue details if such pursuit is necessary for ensuring obedience and implementation? Should the Courts then refuse to hear citizens who are placing before them and have a special competence to place before them important facts that bear on the implementation of their decisions? Is it not the case that the mere probability that some concerned citizens might bring such facts to the notice of the Courts and that the Courts will hear them, this probability itself will ensure better compliance and implementation by the executive?
“Should we, can we place as much faith in the Courts as the preceding argument seems to repose?”
The Courts are today one of the few forums left in which rational discourse is still possible. Should they not have the opportunity to salvage what can still be salvaged, the opportunity to further the public weal?
Second, it is not just that Courts are one of the few forums in which rational discourse is still possible, they are unique in other respects too. For instance, this Hon’ble Court is today perhaps the only institution in the country that has not been besmirched by so much as an allegation of corruption. At a time when almost all other correctives have become ineffective should an institution with such credibility refuse to intervene in matters of public importance by sticking to norms derived from private law?
Third, the question is not whether we should repose faith in the Courts but whether or not it is the duty of the Courts to ensure that provisions of the Constitution and the laws are implemented.
Fourth, whatever the attitude of the Courts, citizens must give them the opportunity to consider issues of general public import. Should the Courts close their doors, that itself would be an announcement of the first importance.
Sine qua non
On account of a variety of considerations, therefore, there can be little doubt that the three of us who have petitioned this Hon’ble Court on the matter of Kamla have a right and a duty to do so.
There can also be little doubt, again for a variety of reasons, that citizens must be allowed every possible opportunity to bring facts to the notice of the Courts where the interests of the general public are involved. The present position in which, when my personal interest is at stake, I am immediately heared and allowed to invoke the interests of the general public to the extent and in the manner that helps further my parochial interest, but when I approach the Courts in the public interest alone I must cross various hurdles, this position needs to be explicitly, directly and wholly revised. As the issue has come up head-long in the Kamla case I respectfully hope that the Hon’ble Court shall give a definitive and conclusive verdict on this matter.
Were it to do so, a final difficulty would still remain. The position today is that the executive has become completely cavalier in regard to the Courts’ requests, queries, or even orders.
- Requests by Courts, by this Hon’ble Court itself, for information are being dealt with in a shiphood and studiously lackadaisical manner.
- Deadlines specified by the Courts are being routinely overstepped — in the Kamla case itself this Hon’ble Court was pleased to pass an order on May 1, 1981 that the five respondents furnish information and file their views by May 8; almost three months have gone by; save one, not one respondent has bothered to file even a pro-forma reply.
- In an alarming number of instances — for instance, in the matter of Bhagalpur blindings — when information is submitted it is demonstrably incomplete and demonstrably untruthful.
- Next, affidavits are being sworn before Courts — including this Hon’ble Court as in the Kissa Kursi Ka case, as in cases relating to demolitions in Bhiwani and so on-and then replaced by affidavits swearing the opposite — the two sets of affidavits sworn by the CBI as well as by lAS officers in cases relating to M. Karunanidhi in Tamil Nadu would have been unthinkable a decade ago.
- Further still, strictures by the Courts, including this Hon’ble Court, are being cared for less and less.
- Finally, pronouncements of this Court are being ignored. What, for instance, has been done to give effect to the far-reaching pronouncements of this Hon’ble Court, in, to take a recent example, Sunil Batra Vs. Delhi Administration, on the manner in which conditions in jails should be improved? All that has happened in the year that has elapsed since the judgement was delivered is that even the inquiry instituted by this Hon’ble Court to do no more than ascertain facts about the conditions in Tihar Jail has been thwarted.
Given this state of affairs more liberal rules on standing can only be the first step. A more stringent and more frequently enforced law of contempt is the sine qua non for making public interest litigation, indeed for making law itself an instrument of the public interest. Were the Courts to liberalise standing but were the law of contempt to remain as little used as it now is, the net result will merely be that concerned citizens will bring piles of well-researched facts to the Courts, the Courts would sift them and issue learned pronouncements and the pronouncements would be dumped on to book-shelves.
Read more articles by Dr. Arun Shourie here.