PUCL Bulletin, Aug-Sept 1981
Aide-memoire for the Supreme Court:
the Hon'able Court must hear us
By Arun Shourie, 30 July 1981
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 gr6ups 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-hound 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 (eg, 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 aggrieved": 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).
Consequences: 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 (eg, in Articles 48A and SIA (g)) and laws (eg, 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 Da*a 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.
Synoptic indicators: 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:
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:
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;
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, thir&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.
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;
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.
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:
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:
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 Calcntta, 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 ihuggi 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 Corporations'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 f 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, main fides 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, maIa fides 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:
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
"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 ofthe executive to perform its statutory duties? Most certainly:
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.
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.
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 Honourable 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 Honourable 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 Honourable 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.
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 bc 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 conclusipns 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 notjons 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.
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;
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
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 V s 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:
"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 plaintifis.
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
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 8A 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?
can we place as much faith in the Courts as the preceding argument seems to
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
O n 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.
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.
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