18 Feb 2011

No mandamus for 'public hearing' before introduction of Bill in Parliament: High Court

In a recently reported decision [M.Vetri Selvan v. Union of India, AIR 2011 NOC 21] the Madras High Court dismissed a writ petition filed by an Advocate seeking issuance of a writ of mandamus to the Government of India "to arrange public hearings on the Civil Liability for Nuclear Damage Bill, 2010 at all the State Headquarters in the country and at all the places where the nuclear installations are in existence in the country before the introduction of the Bill in the parliament".  The Bill, which culminated into The Civil Liability for Nuclear Damage Act, 2010 dealt inter alia with the quantum of liability in case of nuclear damage.

The factual position, leading to the writ petition, was noted by the High Court in the following terms;
This writ petition has been filed as a public interest litigation by an Advocate, praying for issuance of a writ of mandamus to direct the respondents to arrange "public hearings" on the Civil Liabilities for Nuclear Damage Bill, 2010 at all State Head Quarters in the country and at all the places where the nuclear installations are in existence in the country before the introduction of the Bill in the parliament.
2. It is submitted by the petitioner that the second respondent published a advertisement in the English Daily "The Hindu" dated 24.06.2010, inviting written comments/suggestions either in English or in Hindi on the Civil Liabilities for Nuclear Damage Bill 2010 (for short, the bill). In the terms of the notification those, who are willing to appear before the committee for oral evidence, besides submitting the memoranda may indicate so, In the response to the notification the petitioner is stated to have submitted his memoranda through e-mail on 06.07.2010. The grievance expressed in the writ petition is that the notification does not make any provision for public hearings as available in matters relating to environmental clearance and therefore, in public interest the writ petition has been filed.
On the merits of the claim, however, the High Court was not impressed. The decision, authored by the Chief Justice of the High Court himself, gave a following reasons to dismiss the petition;
8. The sheet anchor of the arguments of the learned counsel is that before the Bill is placed before the Parliament, the respondents have to conduct public hearings in various places, regarding the effect of the Bill and to point out the deficiencies and lacunae. Heavy reliance has been placed on the notification issued under the Environment and Protection Act, stipulating pre-environmental clearance in respect of projects like nuclear projects and in the process of obtaining pre-environmental clearance, public hearing is contemplated and as a nuclear incident or accident would have direct impact on the environment, therefore public hearing has to be conducted.
9. A public hearing is a type of public meeting, and much literature refers to it as such, however there are some distinctive aspects that make a hearing different. Abigail Williamson and Archon Fung define a public hearing as "an open gathering of officials and citizens, in which citizens are permitted to offer comments, but officials are not obliged to act on them or, typically, even to respond publicly." The main purpose of a public hearing is to allow citizens the chance to voice opinions and concerns over a decision facing a legislature, agency, or organization. Public hearing does not always mean public participation in a meeting held for any  purposes. The main purpose of public hearing is to allow citizens the chance to voice opinions and suggestions inter alia on a proposed legislation. This can be done by issuing notifications through news papers and inviting suggestions and opinions from the citizens. If this is done, it will amount to sufficient compliance of the term "public hearing".
10. It is to be borne in mind that the present issue pertains to a legislation proposed to be introduced in order to achieve certain objects and reasons as set forth above. The basic function of the Parliament is to make laws, amend them or repeal them. All legislative proposals are brought before the Parliament in the form of Bills, which is a statute in the draft form and cannot become law, unless it has received the approval of both the houses of Parliament and the assent of the President of India. Under Article 118 of the Constitution, each house of Parliament may make Rules for regulating its procedure and the conduct of its business. In terms of Article 122 of the Constitution, the validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure and no officer or member of Parliament in whom powers are vested under the Constitution for regulating procedure or the conduct of business or for maintaining order in Parliament shall be subject to the jurisdiction of any Court in respect of the exercise by him of those powers, Article 212 of the Constitution is the corresponding Article in respect of State legislature. Based on such power the rules of procedure and conduct of business in Lok Sabha has been made. The Hon'ble Supreme Court in M.S.M. Sharma Vs. Shree. Krishna Sinha, AIR 1960 SC 1186 has held that the validity of the proceeding inside the legislature of a State cannot be called in question on the allegation that the procedure laid down by law had not been strictly followed. As per the Rules of Procedure, there are various steps in the process of enacting a new law, which could be broadly classified it four stages, stage-1 where the need for a new law or an amendment to an existing law is identified, Stage-2 when the concerned Ministry's drafts proposed laws which is termed as the Bill, Stage-3 when the cabinet approves the Bill and is introduced in the Parliament and every such Bill goes through three readings in both houses before it becomes an Act. If the Bill is passed in one house then it is forwarded to other house, where it goes through the second and third readings. During the second reading the Government or any member of Parliament may introduce amendment to the bill, which may be based on recommendations of the Standing Committee. Thereafter, in stage-4 after both the houses of Parliament have passed the bill, it is presented to the President for asset. Perusal of the notification issued by the Rajya Sabha Secretariat, it is seen that the Bill was introduced and was pending in the Lok Sabha, which was referred to the Parliamentary Standing Committee. Thus, it appears that the Bill is in stage-1 (as referred above). At this stage the comments/suggestions/views have been invited from the public and by which the public are given an opportunity to participate in the process of law making. In our view, this notification enables persons interested to get themselves involved in the process of law making.
11. In our opinion a public hearing is required only when a specific statute requires one to be conducted, but it is always open to the Government to hold public hearings in other instances. In the process of law making, which are governed by a separate set of rule, the theory of public hearing as stipulated under the Environment Protection Laws cannot be incorporated into the rules of procedure of Lok Sabha, which are already codified. This Court has no jurisdiction to legislate or amend or vary the Rules of Procedure. The test which is normally required to be fulfilled in administrative or executive action is that the action should be free from arbitrariness and without discrimination thereby, it does not violate Article 14 or 21 of the Constitution of India. Though, the tests evolved to examine executive or administrative action cannot be made applicable to legislative process, it remains to be seen in the instance case, the Standing Committee of the Rajya Sabha, based on a reference, has issued a public notice calling for objections. The notification further permits such persons submitting their memoranda could indicate that they should be given an opportunity of hearing to place material before the Standing Committee. Therefore, the opportunity provided for persons interested for submitting their objections, satisfies the test of fairness. The petitioner cannot import the theory of public hearing stipulated under a statute such as Environment laws in the matter of law making. It is not as if that the Bill which has now been drafted and on which objections/views have been called for, is to be declared a law on the expiry of the time limit in the notification. As seen above, there are various stages before which the Bill become an Act and therefore, in our view the opportunity afforded in the notification to submit memoranda containing objections/views with a right to seek for oral enquiry is an effective opportunity to enable the persons, who are desire of availing such opportunity to submit their views. There is nothing unreasonable or arbitrary in the procedure adopted by the Standing Committee with regulated as per the Rule framed under Article 118 of the Constitution. As already noted, the petitioner herein has not sought for an opportunity to appear before the committee in person. One other ground, which has been raised in the writ petition is that there is no appellate forum provided against the award of the Claims Commission. The Hon'ble Supreme Court in M/s.Babubhai & Co and others Vs. State of Gujarat and others AIR 1985 SC 613 has held that mere absence of a corrective machinery by way of appeal or revision by itself would not make the power under the statute unreasonable or arbitrary, much less would render the provision invalid. 
12. For the above reasons, we do not find any sufficient grounds to grant the prayer sought for in the writ petition as it would amount to enacting a separate set of rules of procedure, which this Court is not entitled to do. In the result, the writ petition fails and it is dismissed. However, there shall be no order as to costs. 

No comments: