Assimilate disabled in the mainstream of the nation's life: Supreme Court

Noting its disdain over the neglect of the disabled, the Supreme Court in its recent decision in a public interest litigation has implored one and all to create awareness and set an environment where even the disabled can enjoy their human rights. Reflecting its views in Jeeja Ghosh v. Union of India [Writ Petition (Civil) No. 98/2012] [decision dated 12.05.2016] the Court was concerned with the petition filed by noted disabled activity Jeeja Ghosh challenging the alarmingly unacceptable behaviour of an airlines which deboarded her from the aircraft on account of her disability. Imposing a fine of 10 lakhs in Spicejet airlines for their perceived inhuman treatment, the Supreme Court expressed its anguish at the ill-treatment and called upon one and all to ensure that even the disabled are brought within the mainstream of society. 

Some of the notable observations of the Supreme Court are as under;

36) The rights that are guaranteed to differently abled persons under the Act, 1995 are founded on the sound principle of human dignity which is the core value of human right and is treated as a significant facet of right to life and liberty. Such a right, now treated as human right of the persons who are disabled, has it roots in Article 21 of the Constitution. Jurisprudentially, three types of models for determining the content of the constitutional value of human dignity are recognised. These are: (i) Theological Models, (ii) Philosophical Models, and (iii) Constitutional Models. Legal scholars were called upon to determine the theological basis of human dignity as a constitutional value and as a constitutional right. Philosophers also came out with their views justifying human dignity as core human value. Legal understanding is influenced by theological and philosophical views, though these two are not identical. Aquinas and Kant discussed the jurisprudential aspects of human dignity based on the aforesaid philosophies. Over a period of time, human dignity has found its way through constitutionalism, whether written or unwritten. Even right to equality is interpreted based on the value of human dignity. Insofar as India is concerned, we are not even required to take shelter under theological or philosophical theories. We have a written Constitution which guarantees human rights that are contained in Part III with the caption “Fundamental Rights”. One such right enshrined in Article 21 is right to life and liberty. Right to life is given a purposeful meaning by this Court to include right to live with dignity. It is the purposive interpretation which has been adopted by this Court to give a content of the right to human dignity as the fulfillment of the constitutional value enshrined in Article 21. Thus, human dignity is a constitutional value and a constitutional goal.

...

38) We should, therefore, keep in mind that CAR instructions have also been issued keeping in view the spirit of human dignity enshrined in Article 21 and the right that are to be ensured to such persons. The underlying message in all these provisions is the acknowledgment that human rights are individual and have a definite linkage to human development, both sharing common vision and with a common purpose. Respect for human rights is the root for human development and realisation of full potential of each individual, which in turn leads to the augmentation of human resources with progress of the nation. Empowerment of the people through human development is the aim of human rights.

39) In international human rights law, equality is founded upon two complementary principles: non-discrimination and reasonable differentiation. The principle of non-discrimination seeks to ensure that all persons can equally enjoy and exercise all their rights and freedoms. Discrimination occurs due to arbitrary denial of opportunities for equal participation. For example, when public facilities and services are set on standards out of the reach of persons with disabilities, it leads to exclusion and denial of rights. Equality not only implies preventing discrimination (example, the protection of individuals against unfavourable treatment by introducing anti-discrimination laws), but goes beyond in remedying discrimination against groups suffering systematic discrimination in society. In concrete terms, it means embracing the notion of positive rights, affirmative action and reasonable accommodation. The move from the patronising and paternalistic approach to persons with disabilities represented by the medical model to viewing them as members of the community with equal rights has also been reflected in the evolution of international standards relating specifically to disabilities, as well as in moves to place the rights of persons with disabilities within the category of universal human rights. {See – Report of United Nations Consultative Expert Group Meeting on International Norms and Standards Relating to Disability 10-2-2001}.

40) Earlier the traditional approaches to disability have depicted it as health and welfare issue, to be addressed through care provided to persons with disabilities, from a charitable point of view. The disabled persons are viewed as abnormal, deserving of pity and are, and not as individuals who are entitled to enjoy the same opportunities to live a full and satisfying life as other members of society. This resulted in marginalising the disabled persons and their exclusion both from the mainstream of the society and enjoyment of their fundamental rights and freedoms. Disability tends to be couched within a medical and welfare framework, identifying people with disabilities as ill, different from their non-disabled peers, and in need of care. Because the emphasis is on the medical needs of people with disabilities, there is a corresponding neglect of their wider social needs, which has resulted in severe isolation for people with disabilities and their families.

...

42) All these rights conferred upon such persons send an eloquent message that there is no question of sympathising with such persons and extending them medical or other help. What is to be borne in mind is that they are also human beings and they have to grow as normal persons and are to be extended all facilities in this behalf. The subject of the rights of persons with disabilities should be approached from human rights perspective, which recognised that persons with disabilities were entitled to enjoy the full range of internationally guaranteed rights and freedoms without discrimination on the ground of disability. This creates an obligation on the part of the State to take positive measures to ensure that in reality persons with disabilities get enabled to exercise those rights. There should be insistence on the full measure of general human rights guarantees in the case of persons with disabilities, as well as developing specific instruments that refine and given detailed contextual content of those general guarantees. There should be a full recognition of the fact that persons with disability were integral part of the community, equal in dignity and entitled to enjoy the same human rights and freedoms as others. It is a sad commentary that this perceptions has not sunk in the mind and souls of those who are not concerned with the enforcement of these rights. The persons suffering from mental or physical disability experience and encounter nonpareil form of discrimination.They are not looked down by people. However, they are not accepted in the main stream either even when people sympathies with them. Most common, their lives are handicapped by social, cultural and attitudinal barriers which hamper their full participation and enjoyment of equal rights and opportunities. This is the worst form of discrimination which disabled feel as their grievance  is that others do not understand them.

...

45) It is the common experience of several persons with disabilities that they are unable to lead a full life due to societal barriers and discrimination faced by them in employment, access to public spaces, transportation etc. Persons with disability are most neglected lot not only in the society but also in the family. More often they are an object of pity. There are hardly any meaningful attempts to assimilate them in the mainstream of the nation's life. The apathy towards their problems is so pervasive that even the number of disabled persons existing in the country is not well documented.

...

47) On our finding that respondent No.3 acted in a callous manner, and in the process violated Rules, 1937 and CAR, 2008 guidelines resulting in mental and physical suffering experienced by Jeeja Ghosh and also unreasonable discrimination against her, we award a sum of 10,00,000 as ₹ damages to be payable to her by respondent No.3 within a period of two months from today. This petition stands allowed and disposed of in the aforesaid terms.

48) We would like to conclude this judgment by observing that to most disabled persons, the society they live in is a closed door which has been locked and the key to which has been thrown away by the others. Helen Keller has described this phenomena in the following words:

“Some people see a closed door and turn away. Others see a closed door, try the knob and if it doesn't open, they turn away. Still others see a closed door, try the knob and if it doesn't work, they find a key and if the key doesn't fit, they turn way. A rare few see a closed door, try the knob, if it doesn't open and they find a key and if it doesn't fit, they make one!”

These rare persons we have to find out.

No PIL for challenging Lok Pal Bill Committee: High Court

Dismissing the public interest litigation challenging the constitution of the Lok Pal Committee Bill the Delhi High Court in a recent decision declared that there was no public interest shown to the involved in the challenge and thus the petition was dismissed at the admission stage itself. The decision, authored by the Chief Justice of the Delhi High Court himself, dismissed the petition filed by Hemant Baburao Patil, the President of National Anti Corruption Public Power in the following terms;

6. Having heard learned counsel for the parties, it is manifest that members of the Committee do not hold public office and, hence, there cannot be any eligibility criteria. Therefore, the concept of quo warranto is not applicable. A drafting committee has been constituted which pertains to a pre-enactment stage. We have our grave doubt whether the same can be scrutinized while exercising the power of judicial review. The Constitution casts an obligation on the part of the Court while exercising power of judicial review to test the legislation in the constitutional backdrop, but not at a stage when the drafting of a Bill is in process. It is a resolution passed by the Ministry of Law and Justice for drafting of a Bill. It can be treated as an internal matter of the Executive and exclusively in the domain of Executive. The suitability of the persons, we are disposed to think, cannot be a matter of judicial review, more so in a matter of the present nature. 

7. Resultantly, we do not perceive any public interest involved in this writ petition and, accordingly, there is no need to call for any kind of counter affidavit/return from the respondents. The writ petition does not deserve to be entertained for the purpose of adjudication and, accordingly, the same stands dismissed.

Have a look at the decision.

Payment of bills for water consumption cannot be denied: High Court

Holding that while "availability of the water is a primary requirement in any human habitation" and that "paucity of the water cannot be countenanced" the Delhi High Court in a recent decision [Rajinder Nagar Welfare Association v. Delhi Water Board] held that in circumstances "consumption of more water by the citizens on less payment" could be tolerated. Deciding in the context of challenge to water-bills in a public interest litigation, the High Court observed that it "is the duty of the collective to see that the economic growth of a country rises when the members of the society pay their charges and taxes and any kind of evasion or any subterfuge or any sort of refusal is not acceptable". 

Thus issuing directions to the local body to install correct water bill meters, the High Court inter alia observed as under;

1. Public Interest Litigation, in its denotative contour as well as connotative sweep eschews characteristics of an adversarial litigation and encompasses affirmative facets of public good, endeavours to ameliorate the conditions of the marginalized sections of the society and bestows beneficence through interpretative dynamics on those who deserve. Quite apart from the above, it throws laser beam on issues relating to good governance and attempts to guide the citizens' behaviour in certain fields on the substructure of good governance, economic purity, sustenance of environment and such other spectrums. It, in conceptual essentiality, has an obligation to avoid 'personal interest', 'publicity interest' and 'paise interest' like the plague. Sometimes necessity arises where the court comes across a controversy where it is compelled to remind the citizens their constitutional duty and the obligation because everyone has to bear in mind the age old saying „Right, to its last particle, is duty‟. The present prefatory note has become necessary as, we are disposed to think, citizens who are consumers cannot make their sense of duty an imaginary one totally ostracizing the idea that „grandest of all laws is the law of progressive development‟ and the same is not possible without responsible positive participation of the citizens of a civilized nation. The issue before us is whether consumers of water, supplied by the Delhi Jal Board can only complain that they have not been supplied measuring meters on the basis of which they have to pay the charges or they also have the duty to have the meters and pay for their actual accurate consumption, for “accuracy is the twin brother of honesty, inaccuracy, of dishonesty”.

2. In the present public litigation, the petitioner, namely, Rajinder Nagar Welfare Association(Regd.) through its General Secretary has made colossal grievance that the Delhi Jal Board (for short, „the Board‟) has not performed its statutory duty of installing water meters and taken a decision on 29.10.2009 and hence, a writ of certiorari should be issued for quashment of the said decision and further a writ of mandamus be issued commanding the Board to install the water meter of ISI/ISO standard to the respective water consumers forthwith within the National Capital Territory of Delhi and to stock water and avoid any shortage of water meters in future and further not to take any coercive action against the consumers.

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5. The question that emanates for consideration is whether the Board is under obligation to install water meter or the citizens. That apart a larger question that emanates for consideration is whether the citizens because of the non-installation of water meters while knowing fully well about the more consumption should consume the same and not pay the charges as per actual consumption. At this juncture, we think it appropriate to refer to certain citations pertaining to the fundamental concept of public interest litigation and the role of the Court.

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11. The enunciation of law in the aforesaid decisions clearly demonstrates that the Court has a dynamic role and it has the power to mould the relief regard being had that litigation is not adversial in nature. It is not a litigation in the traditional sense of the term and the reliefs can be shaped keeping in view the future. It should have a liberal reception at the judicial doorstep. The social and economic justice has to become a meaningful reality and cannot be in the realm of illusion. The Court has a sacrosanct duty to protect the rights of the weaker and marginalised sections. Sometimes it is regarded as a duty under Article 226 of the Court to see that the probity and morality in the governance of the State is maintained. Any kind of personal vengeance is not to be entertained and is to be thrown at the threshold. The terms "government" and "governance' are inter-twined. In Black's Law Dictionary, sixth edition, the term "government" has been defined. We may profitably reproduce the part which is relevant for the present purpose:

“The system of polity in a state; that form of fundamental rules and principles by which a nation of state is governed, or by which individual members of a body politic are to regulate their social actions. A constitution, either written or unwritten, by which the rights and duties of citizens and public officers are prescribed and defined, as a monarchical government, a republican government, etc. The sovereign or supreme power in a state or nation. The machinery by which the sovereign power in a state expresses its will and exercises its functions; or the framework of political institutions, departments, and offices, by means of which the executive, judicial, legislative, and administrative business of the state is carried on.” 

12. A good governance also requires peoples' participation, for a citizen cannot claim his right in a routine manner without thinking about his duty. One cannot be oblivious of the fact that democratic governance in its fundamental expanse has to include performance of democratic duties by a citizen. Governance neither etymologically nor in its completest canvas would only include government. A good democratic set up can only be built with excellence where the citizens realise their duty and act giving respect to the spirit of law. It needs no special emphasis to state that the citizens have the constitutional as well as statutory obligations.

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20. Availability of the water is a primary requirement in any human habitation. The need of the same cannot be marginalized. Paucity of the water cannot be countenanced. Similarly consumption of more water by the citizens on less payment is also deplorable. It is the duty of the collective to see that the economic growth of a country rises when the members of the society pay their charges and taxes and any kind of evasion or any subterfuge or any sort of refusal is not acceptable. In this context, we may refer with profit to Article 51. The Article 51A(j) deals with fundamentals which reads as follows:

“(j) 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.”

21. The term "achievement" has to be understood in a broader and larger context including achievement in the field of understanding of the morality of economic and political growth of a nation. The collective cannot only think of its fundamental rights totally brushing aside the conception of duty. A nation constantly rises to a higher level if the citizens act with responsibility as per the existing law. If the citizens take recourse to same maladroit efforts to have something without payment, it is the betrayal of the national value. On certain occasions, it has been noticed that when the State has given one line connection or one "batti" connection, the consumers have abused the same and put the institution to loss. Every institution has a collective character and the Board is no exception. Thus, the consumers are expected to cooperate with the Board and put the meters so that the appropriate charges are collected. 

22. In view of the aforesaid, we proceed to issue the following directions: 

(a) The Board shall first endeavour to install the meters and replace the defective meters. 

(b) In case the Board is not in a position to do so, it shall notify the brands and standards available in such shops so that citizens can buy the meter.

(c) The Board shall publish the same widely in the newspapers so that the consumers are made aware of the changed scenario. 

(d) If any consumer purchases meter from the notified shop, the Board shall not compel him to purchase the meter from the Board and the meter shall be installed by the Board. It shall be the duty of the Board to send a licensed plumber. 

(e) If the meter is installed, the Board shall do 100 per cent billing as per the meter reading.

(f) The installation fee and the maintenance of the meter shall be paid in accordance with the regulations framed under Section 17(2) of the Act.

Have a look at the decision.

Appointment of Central Vigilance Commissioner illegal: Supreme Court

Issuing a writ of Quo Warranto and thus quashing the notification appointing Mr. P.J. Thomas as the Central Vigilance Commissioner of India, the Supreme Court in Centre for PIL v. Union of India allowed the Public Interest Litigation with consequential relief. Holding that "institution is more important than individual", a three-judge bench of the Supreme Court, comprising of the Chief Justice of India himself, made interesting observations in regard to the policy and the constitutional structure in the country. In the opinion of the Court, the non-consideration of the pending criminal case (for corruption) against the CVC was an instance of acute non-consideration of vital material required to be taken into account before recommending the name of the person for the CVC to the President, requiring the recommendation to be declared illegal.

It observed inter alia as under;

2. Government is not accountable to the courts in respect of policy decisions. However, they are accountable for the legality of such decisions. While deciding this case, we must keep in mind the difference between legality and merit as also between judicial review and merit review. On 3rd September, 2010, the High Powered Committee (“HPC” for short), duly constituted under the proviso to Section 4(1) of the 2003 Act, had recommended the name of Shri P.J. Thomas for appointment to the post of Central Vigilance Commissioner. The validity of this recommendation falls for judicial scrutiny in this case. If a duty is cast under the proviso to Section 4(1) on the HPC to recommend to the President the name of the selected candidate, the integrity of that decision making process is got to ensure that the powers are exercised for the purposes and in the manner envisaged by the said Act, otherwise such recommendation will have no existence in the eye of law.

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20. Vigilance is an integral part of all government institutions. Anti-corruption measures are the responsibility of the Central Government. Towards this end the Government set up the following departments :

(i) CBI

(ii) Administrative Vigilance Division in DoPT

(iii) Domestic Vigilance Units in the Ministries / Departments, Government companies, Government Corporations, nationalized banks and PSUs

(iv) CVC

21. Thus, CVC as an integrity institution was set up by the Government of India in 1964 vide Government Resolution pursuant to the recommendations of Santhanam Committee. However, it was not a statutory body at that time. According to the recommendations of the Santhanam Committee, CVC, in its functions, was supposed to be independent of the executive. The sole purpose behind setting up of the CVC was to improve the vigilance administration of the country.

22. In September, 1997, the Government of India established the Independent Review Committee to monitor the functioning of CVC and to examine the working of CBI and the Enforcement Directorate. Independent Review Committee vide its report of December, 1997 suggested that CVC be given a statutory status. It also recommended that the selection of Central Vigilance Commissioner shall be made by a High Powered Committee comprising of the Prime Minister, the Home Minister and the Leader of Opposition in Lok Sabha. It also recommended that the appointment shall be made by the President of India on the specific recommendations made by the HPC. That, the CVC shall be responsible for the efficient functioning of CBI; CBI shall report to CVC about cases taken up for investigations; the appointment of CBI Director shall be by a Committee headed by the Central Vigilance Commissioner; the Central Vigilance Commissioner shall have a minimum fixed tenure and that a Committee headed by the Central Vigilance Commissioner shall prepare a panel for appointment of Director of Enforcement.

23. On 18th December, 1997 the judgment in the case of Vineet Narain v. Union of India [(1998) 1 SCC 226] came to be delivered. Exercising authority under Article 32 read with Article 142, this Court in order to implement an important constitutional principle of the rule of law ordered that CVC shall be given a statutory status as recommended by Independent Review Committee. All the above recommendations of Independent Review Committee were ordered to be given a statutory status.

24. The judgment in Vineet Narain’s case (supra) was followed by the 1999 Ordinance under which CVC became a multi-member Commission headed by Central Vigilance Commissioner. The 1999 Ordinance conferred statutory status on CVC. The said Ordinance incorporated the directions given by this Court in Vineet Narain’s case. Suffice it to state, that, the 1999 Ordinance stood promulgated to improve the vigilance administration and to create a culture of integrity as far as government administration is concerned. 

25. The said 1999 Ordinance was ultimately replaced by the enactment of the 2003 Act which came into force with effect from 11th September, 2003.

26. The 2003 Act has been enacted to provide for the constitution of a Central Vigilance Commission as an institution to inquire or cause inquiries to be conducted into offences alleged to have been committed under the Prevention of Corruption Act, 1988 by certain categories of public servants of the Central Government, corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by the Central Government and for matters connected therewith or incidental thereto (see Preamble). By way of an aside, we may point out that in Australia, US, UK and Canada there exists a concept of integrity institutions. In Hongkong we have an Independent Commission against corruption. In Western Australia there exists a statutory Corruption Commission. In Queensland, we have Misconduct Commission. In New South Wales there is Police Integrity Commission. All these come within the category of integrity institutions. In our opinion, CVC is an integrity institution. This is clear from the scope and ambit (including the functions of the Central Vigilance Commissioner) of the 2003 Act. It is an Institution which is statutorily created under the Act. It is to supervise vigilance administration. The 2003 Act provides for a mechanism by which the CVC retains control over CBI. That is the reason why it is given autonomy and insulation from external influences under the 2003 Act.

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30. For the sake of brevity, we may refer to the Selection Committee as High Powered Committee. The key word in the proviso is the word “recommendation”. While making the recommendation, the HPC performs a statutory duty. The impugned recommendation dated 3rd September, 2010 is in exercise of the statutory power vested in the HPC under the proviso to Section 4(1). The post of Central Vigilance Commissioner is a statutory post. The Commissioner performs statutory functions as enumerated in Section 8. The word ‘recommendation’ in the proviso stands for an informed decision to be taken by the HPC on the basis of a consideration of relevant material keeping in mind the purpose, object and policy of the 2003 Act. As stated, the object and purpose of the 2003 Act is to have an integrity Institution like CVC which is in charge of vigilance administration and which constitutes an anti-corruption mechanism. In its functions, the CVC is similar to Election Commission, Comptroller and Auditor General, Parliamentary Committees etc. Thus, while making the recommendations, the service conditions of the candidate being a public servant or civil servant in the past is not the sole criteria. The HPC must also take into consideration the question of institutional competency into account. If the selection adversely affects institutional competency and functioning then it shall be the duty of the HPC not to recommend such a candidate. Thus, the institutional integrity is the primary consideration which the HPC is required to consider while making recommendation under Section 4 for appointment of Central Vigilance Commissioner. In the present case, this vital aspect has not been taken into account by the HPC while recommending the name of Shri P.J. Thomas for appointment as Central Vigilance Commissioner. We do not wish to discount personal integrity of the candidate. What we are emphasizing is that institutional integrity of an institution like CVC has got to be kept in mind while recommending the name of the candidate. Whether the incumbent would or would not be able to function? Whether the working of the Institution would suffer? If so, would it not be the duty of the HPC not to recommend the person. In this connection the HPC has also to keep in mind the object and the policy behind enactment of the 2003 Act. Under Section 5(1) the Central Vigilance Commissioner shall hold the office for a term of 4 years. Under Section 5(3) the Central Vigilance Commissioner shall, before he enters upon his office, makes and subscribes before the President an oath or affirmation according to the form set out in the Schedule to the Act. Under Section 6(1) the Central Vigilance Commissioner shall be removed from his office only by order of the President and that too on the ground of proved misbehaviour or incapacity after the Supreme Court, on a reference made to it by the President, has on inquiry reported that the Central Vigilance Commissioner be removed. These provisions indicate that the office of the Central Vigilance Commissioner is not only given independence and insulation from external influences, it also indicates that such protections are given in order to enable the Institution of CVC to work in a free and fair environment. The prescribed form of oath under Section 5(3) requires Central Vigilance Commissioner to uphold the sovereignty and integrity of the country and to perform his duties without fear or favour. All these provisions indicate that CVC is an integrity institution. The HPC has, therefore, to take into consideration the values independence and impartiality of the Institution. The said Committee has to consider the institutional competence. It has to take an informed decision keeping in mind the above mentioned vital aspects indicated by the purpose and policy of the 2003 Act.

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33. xxx The system governance established by the Constitution is based on distribution of powers and functions amongst the three organs of the State, one of them being the Executive whose duty is to enforce the laws made by the Parliament and administer the country through various statutory bodies like CVC which is empowered to perform the function of vigilance administration. Thus, we are concerned with the institution and its integrity including institutional competence and functioning and not the desirability of the candidate alone who is going to be the Central Vigilance Commissioner, though personal integrity is an important quality. It is the independence and impartiality of the institution like CVC which has to be maintained and preserved in larger interest of the rule of law [see Vineet Narain (supra)]. While making recommendations, the HPC performs a statutory duty. Its duty is to recommend. While making recommendations, the criteria of the candidate being a public servant or a civil servant in the past is not the sole consideration. The HPC has to look at the record and take into consideration whether the candidate would or would not be able to function as a Central Vigilance Commissioner. Whether the institutional competency would be adversely affected by pending proceedings and if by that touchstone the candidate stands disqualified then it shall be the duty of the HPC not to recommend such a candidate. In the present case apart from the pending criminal proceedings, as stated above, between the period 2000 and 2004 various notings of DoPT recommended disciplinary proceedings against Shri P.J. Thomas in respect of Palmolein case. Those notings have not been considered by the HPC. As stated above, the 2003 Act confers autonomy and independence to the institution of CVC. Autonomy has been conferred so that the Central Vigilance Commissioner could act without fear or favour. We may reiterate that institution is more important than an individual. This is the test laid down in para 93 of N. Kannadasan’s case (supra). In the present case, the HPC has failed to take this test into consideration. The recommendation dated 3rd September, 2010 of HPC is entirely premised on the blanket clearance given by CVC on 6th October, 2008 and on the fact of respondent No. 2 being appointed as Chief Secretary of Kerala on 18th September, 2007; his appointment as Secretary of Parliamentary Affairs and his subsequent appointment as Secretary, Telecom. In the process, the HPC, for whatever reasons, has failed to take into consideration the pendency of Palmolein case before the Special Judge, Thiruvananthapuram being case CC 6 of 2003; the sanction accorded by the Government of Kerala on 30th November, 1999 under Section 197 Cr.P.C. for prosecuting inter alia Shri P.J. Thomas for having committed alleged offence under Section 120-B IPC read with Section 13(1)(d) of the Prevention of Corruption Act; the judgment of the Supreme Court dated 29th March, 2000 in the case of K. Karunakaran v. State of Kerala and Another in which this Court observed that, “the registration of the FIR against Shri Karunakaran and others cannot be held to be the result of malafides or actuated by extraneous considerations. The menace of corruption cannot be permitted to be hidden under the carpet of legal technicalities and in such cases probes conducted are required to be determined on facts and in accordance with law”. Further, even the judgment of the Kerala High Court in Criminal Revision Petition No. 430 of 2001 has not been considered. It may be noted that the clearance of CVC dated 6th October, 2008 was not binding on the HPC. However, the aforestated judgment of the Supreme Court dated 29th March, 2000 in the case of K. Karunakaran vs. State of Kerala and Another in Criminal Appeal No. 86 of 1998 was certainly binding on the HPC and, in any event, required due weightage to be given while making recommendation, particularly when the said judgment had emphasized the importance of probity in high offices. This is what we have repeatedly emphasized in our judgment – institution is more important than individual(s). For the above reasons, it is declared that the recommendation made by the HPC on 3rd September, 2010 is non-est in law.

Setting aside the objections of the CVC, that the Court cannot issue a writ of quo warranto so as to remove him from the post, the Supreme Court also held that the appointment of CVC was not a personal choice of the President but was a decision of the Prime Minister which given the Constitutional set-up of the country, was binding on the President.

The Supreme Court also issued directions required to be considered in future for appointment of Central Vigilance Commissioner by the High Powered Committee constituted under the Central Vigilance Commission Act, 2003 comprising of the Prime Minister as its Chairman and Home Minister and Leader of Opposition as the other two members. The Court issued the following directions;

55. No reason has been given as to why in the present case the zone of consideration stood restricted only to the civil service. We therefore direct that : 

(i) In our judgment we have held that there is no prescription of unanimity or consensus under Section 4(2) of the 2003 Act. However, the question still remains as to what should be done in cases of difference of opinion amongst the Members of the High Powered Committee. As in the present case, if one Member of the Committee dissents that Member should give reasons for the dissent and if the majority disagrees with the dissent, the majority shall give reasons for overruling the dissent. This will bring about fairness-in-action. Since we have held that legality of the choice or selection is open to judicial review we are of the view that if the above methodology is followed transparency would emerge which would also maintain the integrity of the decision making process. 

(ii) In future the zone of consideration should be in terms of Section 3(3) of the 2003 Act. It shall not be restricted to civil servants. 

(iii) All the civil servants and other persons empanelled shall be outstanding civil servants or persons of impeccable integrity. 

(iv) The empanelment shall be carried out on the basis of rational criteria, which is to be reflected by recording of reasons and/or noting akin to reasons by the empanelling authority. 

(v) The empanelment shall be carried out by a person not below the rank of Secretary to the Government of India in the concerned Ministry. 

(vi) The empanelling authority, while forwarding the names of the empanelled officers/persons, shall enclose complete information, material and data of the concerned officer/person, whether favourable or adverse. Nothing relevant or material should be withheld from the Selection Committee. It will not only be useful but would also serve larger public interest and enhance public confidence if the contemporaneous service record and acts of outstanding performance of the officer under consideration, even with adverse remarks is specifically brought to the notice of the Selection Committee. 

(vii) The Selection Committee may adopt a fair and transparent process of consideration of the empanelled officers. 

Have a look at the decision.

'Bhumi Pujan' not unsecular activity: High Court

Dismissing a petition purportedly filed in public interest with costs, a Division Bench of the Gujarat High Court in a recent decision [RAJESH HIMMATLAL SOLANKI v. UNION OF INDIA] has declared that the"offering of the prayer to the earth at the time of foundation laying ceremony cannot be termed as non-secular action if 'manav dharma' is to be understood in its real sense in furtherance to the principles of secularism to be observed by our nation."

The High Court culled out the legal principles relating to the meaning and ambit of 'secularism', as propounded by the Constitution of India and went on to examine the various dimensions of 'dharma' and 'religion' which were not anti-thesis to secular but on the contrary were founding stones to human spirit and tolerance in public life to hold that celebrating the foundation of a new building, which essentially was the reason behind 'bhumi-pujan' could not be said to be anti-secular. "Offering of prayer by any person for betterment of everybody cannot be termed as any activity or any action resulting into non-secular activity"

The Division Bench examined the legal position in the following terms;

1. The question arise in the petition is as to whether offering of prayers at “Foundation Laying Ceremony”, called in popular language as “Bhoomi Pujan” for construction of new building could be said as non-secular activity?

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5. Much emphasis was given by the learned counsel for the petitioner on the aspects of the secular character of our Constitution and the word “Secular” incorporated in the preamble of the Constitution read with the relevant Articles of the Constitution provided for right to freedom of religion were pressed in service. It was submitted that as per the constitutional debates which had taken place before our Constitution came into force, there were various discussions on the said aspect, some of which are referred to in the petition and some were submitted at the time of hearing to contend that the State cannot have any religion. Any action on the part of the State to identify itself with any particular religion could be said to be non-secular activity on the part of the State. It was contended that offering prayers with the help of Pandits who spoke Sanskrit slokas at the Bhoomi Pujan could be termed as identification by the Constitutional dignitaries or the High Court with Hindu religion and such activity would hurt the religions feeling of the citizens who professes other religion and therefore, such action can be said as non-secular and deserves to be declared as unconstitutional. It was submitted that the petitioner has no enmity with any Constitutional dignitaries who offered prayers at the ceremony including the other Honourable Judges who attended and participated at the function, but such function can be said as resulting into creating adverse feeling amongst the other persons who do not believe in Hindu religion. It was also submitted that the High Court being the highest judiciary in the State should guard the constitutional rights given to all citizens and should maintain the secular character of the State. The performance of such ceremony as per Hindu religion would shake the confidence of the people who do not believe in Hindu religion and therefore, the action deserves to be declared as unconstitutional as prayed in the petition. It was also submitted that secularism being one of the basic character of the Constitution, even Parliament cannot amend the Constitution so as to alter the basic structure of the Constitution. Therefore, such would equally apply to the High Court which is the highest judiciary in the State and the constitutional body to guard the rights of the citizen in the State.

6. We need to emphasise that our constitution is supreme and the preamble and the various rights provided for freedom of religion under the Constitution do make it abundantly clear that secularism is the core or basic character of our Constitution and no further discussion would be required on the said aspects. At the same time, we do lay emphasis that any action on the part of the State or its instrumentality resulting into non-secularism has to be held as unconstitutional. But we need to examine the true and correct meaning of the word “secularism”.

SECULARISM :

7. In S.R. Bommai Vs. Union of India reported at (1994) 3 SCC 1, the Apex Court had an occasion to examine the said aspect in great detail. In the said decision, the Apex Court (through K. Ramaswamy, J.) (concurring with the majority) observed that secularism in the Constitution is not anti-God and it is sometimes believed to be a stay in a free Society. The secularism, therefore, represents faiths born out of the exercise of rational faculties. It enables people to see the imperative requirements for human progress in all aspects and cultural and social advancement and indeed for human survival itself. It also not only improves the material conditions of human life, but also liberates the human spirit from bondage of ignorance, superstition, irrationality, injustice, fraud, hypocrisy and oppressive exploitations. In other words, though the whole course of human history discloses an increasing liberation of mankind, accomplished thought, all is covered by the term secularism. It was further observed that secularism operates as a bridge to cross over from tradition to modernity. The Indian State opted this path for universal tolerance due to its historical and cultural background and multi-religious faiths. Secularism in the Indian context bears positive and affirmative emphasis. Religions with secular craving for spiritual tolerance have flourished more and survived for longer period in the human history than those who claimed to live in a non-existent world of their own. Positive secularism, therefore, separates the religious faiths personal to man and limited to material, temporal aspects of human life. Morality under positive secularism is a pervasive force in favour of human freedom or secular living. Positive secularism gives birth to biological and social nature of the man as a source of morality. True religion must develop into a dynamic force for integration without which the continued existence of human race itself would become uncertain and unreal. Secularism teaches spirit of tolerance, catholicity of outlook, respect for each other's faith and willingness to abide by rules of self-discipline. The more devoted a person in his religious belief, the greater should be his sense of heart, spirit of tolerance, adherence of secular path. Secularism, therefore, is not antithesis of religious devoutness. Our religious tolerance received reflections in our constitutional creed. It was also observed that Religion in the positive sense, is an active instrument to allow the citizen full development of his person, not merely in the physical and material but in the non-material and non-secular life. Religion is one of belief personal to the individual which binds him to his conscience and the moral and basic principles regulating the life of a man had constituted the religion, as understood in our Constitution. Freedom of conscience allows a person to believe in particular religious tenets of his choice. It was observed that the State does not extend patronage to any particular religion, State is neither pro particular religion nor anti particular religion. It stands aloof, in other words maintains neutrality in matters of religion and provides equal protection to all religions subject to regulation and actively acts on secular part. The concept of "secularism" was not expressly engrafted while making the Constitution, its sweep, operation and visibility are apparent from fundamental rights and directive principles and their related provisions. It was made explicit by amending the preamble of the Constitution (42nd Amendment Act). The concept of secularism of which religious freedom is the foremost appears to visualise not only of the subject of God but also an understanding between man and man. Secularism in the Constitution is not anti-God and it is sometimes believed to be a stay in a free society. Matters which are purely religious are left personal to the individual and the secular part is taken charge by the State on grounds of public interest, order and general welfare.

8. In Ramjanmabhumi Babri Masjid issue, for acquisition, in case of Dr. M.Ismail Faruqui Vs. Union of India reported at AIR (1995) SC 605, it was observed that the concept of secularism embodied in the constitutional scheme as a creed adopted by the Indian people has to be understood. After considering the earlier decision of the Apex Court in the case of S.R. Bommai (supra), it was observed that the provisions of section 7(2) of the Acquisition of Certain Area at Ayodhya Act, 1993, in now way curtains the practice of the right of worship of the Muslim community in the disputed area. Further, any step taken to arrest escalation of communal tension and to achieve communal accord and harmony can, by no stretch of argumentation, be termed non-secular much less anti-secular or against the concept of secularism-a creed of the Indian people embedded in the ethos. It was observed that the constitutional scheme that do guarantee equality in the matter of religion to all individuals and the groups irrespective of their faith emphasising that there is no religion of the State itself. The preamble indicates that it is in this manner, the concept of secularism embodied in the constitutional scheme as a creed adopted by Indian people has to be understood. The concept of secularism is one facet of the right to equality woven as the central golden thread in the fabric depicting the pattern of the scheme in our Constitution.

9. In State of Karnataka Vs. Dr.Pravin Togadia reported at (2004) 4 SCC 684, the Apex Court observed that welfare of the people is the ultimate goal of all laws and State action, and above all the Constitution. They have one common object, that is to promote the well-being and larger interest of society as a whole and not of any individual or particular groups carrying any brand names. It is inconceivable that there can be social well-being without communal harmony, love for each other and hatred for none. The core of religion based upon spiritual values, which the Vedas, Upanishad and Puranas were said to reveal to mankind, seem to be “Love others, serve others, help ever, hurt never” and “Servae Jana Sukhino Bhavantoo”. 

10. The true meaning of the word “secular” can be termed as based on principles of “Vasudeva Kutumbakam”. If to be understood in context of religion, it can be said that let the religion allowed to be followed by those who wants to follow. 

11. The aforesaid appears to be the true and real meaning of secularism, viz., equal treatment to all religions by the State. Secularism is a broad religio-traditional consensus and can be termed based on the principles of “Vasudeva Kutumbakam” - Live and let other live. Follow the religion by those who want to follow. 

DHARMA AND RELIGION – SEPARATE:

11. The Apex Court in the case of A.S.Narayana Deekshitulu Vs. State of A.P. & others reported at (1996) 9 SCC 548, observed that the word “Dharma” denotes upholding, supporting, nourishing, which upholds, nourishes or supports the stability of the society, the maintenance of social order and the general well-being and progress of humankind. Whatever conduces to the fulfillment of these objects is Dharma. It is "Sarva Dharma Samabhav”. It is further observed that the religion as used in Articles 25 and 26 of the Constitution must be construed in its etymological sense. Essentially, religion is what a person regards as cosmos, is maker or his creator which, he believes, regulates the existence of insentient beings and the forces of the universe. Religion is not necessarily theistic and in fact there are well-known religions in India itself like Budhism and Jainism which do not believe in the existence of God. In India, Muslims believe in Allah and have faith in Islam; Christians in Christ and Christianity; Parsis in Zoroastrianism; Sikhs in Gurugranth Sahib and teachings of Gurunanak Devji, its founder, which is a facet of Hinduism like Brahamos, Aryasamaj etc. It was observed that every religion must believe in a conscience and ethical and moral precepts. Therefore, whatever binds a man to his own conscience and whatever moral or ethical principle regulate the lives of men believing in that theistic, conscience or religious belief that alone can constitute religion as understood in the Constitution which forsters feeling of brotherhood, amenity, fraternity and equality of all persons which find their foothold in secular aspect of the Constitution. Secular activities and aspects do not constitute religion which brings under its own cloak every human activity. There is nothing which a man can do, whether in the way of wearing clothes or food or drink, which in not considered a religious activity. Every mundane or human activity was not intended to be protected by the Constitution under the guise of religion. It was observed that all secular activities which may be associated with religion but which do not relate or constitute an essential part of it may be amenable to State regulations but what constitutes the essential part of religion may be ascertained primarily from the doctrines of that religion itself according to its tenets, historical background and change in evolved process, etc. The concept of essentially is not itself a determination factor. It is one of the circumstances to be considered in adjudging whether the particular matters of religion or religious practices or belief are an integral part of the religion. It must be decided whether the practices or matters are considered integral by the community itself. Though not conclusive, this is also one of the facets to be noticed. The practice in question is religious in character and whether it could be regarded as an integral and essential part of the religion and if the Court finds upon evidence adduced before it that it is an integral or essential part of the religion, Article 25 accords protection to it. Though the performance of certain duties is part of religion and the person performing the duties is also part of the religion or religious faith or matters of religion, it is required to be carefully examined and considered to decide whether it is a matter of religion or a secular management by the State.

12. In the very decision, the Apex Court (through Hansaria, J.) (supplementing), observed that the very often the words 'religion' and 'dharma' are used to signify one and the same concept or notion. To put it differently, they are used interchangeably. Dharma is said to be “Sanatana”, i.e., one which has eternal values; one which is neither time-bound nor space-bound. It is because of this that Rigveda has referred to the existence “Sanatan Dharmani”. This concept of 'dharma', therefore, has been with us for time immemorial. Dharma is for stability of the society, maintenance of social order and well being and progress of humankind. Whatever conduces to the fulfillment of these objects is Dharma.

13. In deciding the question as to whether a given religion practice is an integral part of the religion or not, the test always would be whether it is regarded as such by the community following the religion or not. This formula may in some cases present difficulties in operation. Take the case of a practice in relation to food or dress. If in a given proceeding, one section of the community claims that while performing certain rites while dress is an integral part of the religion itself, whereas another section contends that the yellow dress and not the white dress is the essential part of the religion, how is the Court going to decide this question. Similar disputes may arise in regard to food. In cases where conflicting evidence is produced in respect of rival contentions as to competing religious practices, the Court may not be able to resolve the dispute by a blind application of the formula that the community decides which practice is an integral part of its religion, because the community may speak with more than one voice and the formula would, therefore break down. This question will always have to be decided by the Court and in doing so, the Court may have to enquire whether the practice in question is religions in  character and if it is, whether it can be regarded as an integral or essential part of the religion, and the finding of the Court on such an issue will always depend upon the evidence adduced before it as to the conscience of the community and tenents of its religion. Otherwise, purely secular practices which are not an essential or integral part of the religion are apt to be clothed with a religions form and may make a claim being treated as religious practices within the meaning of fundamental rights of freedom of religionas provided by the Constitution. It is true that the decision of the question as to whether a certain practice is religions practice or not, as well as the question as to whether the affair in question is an affair in the matter of religion or not, may present difficulties because sometimes practices, religious and secular, are inextricably mixed up. This is more particularly so in regard to Hindu religion because as is well known, under the provisions of ancient Smritis, all human actions from birth to death and most of the individual actions from day to day are  regarded as religions in character. As an illustration, if an obviously secular matter is claimed to be matter of religion, or if an obviously secular practice is alleged to be religious practice, the Court would be justified in rejecting the claim. For example, a disposition towards making a gift for charitable or religious purpose may be a pious act of a person but the same cannot be said to be an integral part of any religion. It is not the case that the religion of Christianity commands gift for charitable or religious purpose compulsory or the same is regarded as such by the community following Christianity. Disposition of property for religious and charitable purpose is recommended in all the religions but the same cannot be said to be an integral part of it. If a person professing Christian religion does not show any inclination of disposition towards charitable or religious purpose, he does not cease to be a Christian. Even certain practices adopted by the person professing a particular religion may not have anything to do with the religion itself.

14. The aforesaid shows that the word 'dharma' is not in contradistinction to the secularism if it is understood in its real sense, that is, “Sarve Bhavantu Sukhino”. Merely because in certain religious practices, there is no identification of certain offering to the supreme power or almighty would not result into adharma or anti-dharma. 

15. In the same manner, in our opinion, we can say that dharma in real sense of  mankind embraces to all religion be it, Hindu, Muslim, Christian, Parsi, etc. If the basic human character for the interest of the mankind irrespective of its caste or community or religion are shown as the practices in any religion, such cannot be termed so as to claim exclusive part of a particular religion, but can be said as a secular activity also identified by the religion on the broad principles of “Vasudeva Kutumbakam” or “Sarve Jana Sukhino Bhavantu” being welfare to everybody, hurt to none. It is in this light and background, we need to examine the incident of Foundation Laying Ceremony and the prayers offered at the said incident of Foundation Laying Ceremony.

ACTION OF FOUNDATION LAYING CEREMONY:

16. If the incident of ceremony of laying of foundation for construction of any building is considered in its materialistic sense, it results into starting of construction by laying out foundation. The foundation, if considered in its materialistic sense, it does hold the importance since the building is to stand on such foundation. If such important event is celebrated by the State or the High Court, by no stretch of imagination it can be said that such action of celebration is non-secular in any manner.

17. If such incident is further considered, one needs to excavate the earth to some extent for laying down any foundation. If the earth even if treated in its materialistic sense, the existence of the earth and well being of the earth touches to all mankind on the earth. At the time of excavation of such earth or at the time when a building is to be constructed by adding physical burden, offering of the prayer to the earth to pardon or to graciously bear the burden or the damage, if any, to make the construction successful, which is to be used for betterment of the institution of the High Court, such an action can be termed as for the betterment of all persons connected thereby directly or indirectly, irrespective of their caste or religion or community. Therefore, such offering of the prayer to the earth at the time of foundation laying ceremony cannot be termed as non-secular action if “manav dharma” is to be understood in its real sense in furtherance to the principles of secularism to be observed by our nation.

18. At the time when the prayers are to be offered to the earth by the dignitaries who had laid down the foundation for the building, simultaneously if sanskrit slokas are spoken by brahmins, it can be said as in furtherance to the prayer offered to the earth. Such slokas could also be termed as supplementing prayers offered by the person/s laying foundation for a noble desire to achieve successful construction of new building. If the ultimate aim for successful construction of the building is holy and with the larger interest of those persons who are to be directly or indirectly benefited by successful construction of the building, irrespective of their caste or community or religion, it would fall within the principles of “Vasudeva Kutumbakam”, welfare to all and hurt to none. Such in no manner can be termed as non-secular activity.

19. The apprehension voiced of the alleged hurt of any religions feeling or that the impartiality of the highest judiciary of the State would be at stake on account of the foundation laying ceremony performed by offering prayers and the sanskrit slokas spoken at that ceremony, can be termed as a pervert view or ingenuine doubts self created in the mind of the petitioner or the persons whose cause is sought to be exposed by the petitioner in the present petition to a noble intention of praying the earth for the successful construction of a building to be used by all persons directly or indirectly connected therewith, irrespective of their caste, community, or religion, etc. Offering of prayer by any person for betterment of everybody cannot be termed as any activity or any action resulting into non-secular activity. Further, as observed earlier, such action of offering prayer to the earth at the time of foundation laying ceremony cannot be termed as an activity by the High Court which may result into flourishing any particular religion as sought to be canvassed. The real object and purpose is for successful construction of the building and not for flourishment of any religion. If for any noble cause, prayers are offered by any person, such would not result into an action for flourishment of any particular religion, but could be termed as for betterment of all persons who are directly or indirectly to be benefited by the successful construction of the building. If one has to offer prayer for successful construction of the building, naturally, he or she would offer prayer as per his own understanding of prayer. The language used for offering prayer or mode adopted for offering prayer with the help of a group speaking a particular language cannot be termed as siding with a person or a group of person adopting a particular mode for offering prayers. As such, offering of prayer at the incident of Foundation Laying Ceremony for the successful construction of the building to be used by the persons irrespective of their caste, community or religion, etc., could be termed as a part of secular activity and it cannot be termed or branded as choosing a particular religion since the prayers offered for such a noble cause cannot be termed as essential and integral part of a particular religion, but can rather be termed as for the benefit of all who are to make use of the new building directly or indirectly in future. Hence, it cannot be said that the High Court or the Chief Justice of the High Court or the Governor while offering prayer for successful completion of the building has taken any action which can be termed as non-secular and consequently, unconstitutional.

20. We find that when the principles of secularism are considered to test the action, it can be said that the same is by maintaining the spirit of the secularism as envisaged by our Constitution.

Have a look at the decision.

Delhi High Court (Public Interest Litigation) Rules, 2010 notified

We had in an earlier post covered the decision of the Supreme Court exhaustively discussing the concept of 'public interest litigation' as a specific branch of jurisprudence developed under the constitutional canons by a pro-effective judiciary. The Supreme Court therein had laid down the guidelines to be followed in respect of the filing of public interest petitions and also directed the High Court to frame rules in this regard. Accordingly the Delhi High Court has framed and notified the Delhi High Court (Public Interest Litigation) Rules, 2010 to this end.

These Rules provide for constitution of a "Public Interest Litigation Cell" in the High Court whose duty shall be to process the public interest petitions before the "Public Interest Litigation Committee" of the High Court i.e. "the Committee consisting of at least two sitting Judges nominated by the Chief Justice" to hear public interest petitions.

The Rules category the various types of public interest petitions into five types i.e. (i) Landlord-Tenant disputes; (ii) Service matters and those pertaining to pension (not being family pension)
and gratuity; (iii) Personal disputes between individuals; (iv) Disputes relating to contractual or statutory liabilities; (v) Matrimonial disputes. But we are not impressed. Creation of Environmental law related category and a separate category for inaction of public functionaries, which have generally been the subject-matter and have set the trend of public interest litigation in India, should also have been provided for.

The Rules provide for preliminary screening of the petitions and stipulates that "neither any anonymous Letter Petition nor any such Petition from which the identity of the Letter Petitioner cannot be established or ascertained shall be entertained." Thus the alleged petitioners would be required to establish their identity before the grievances can be addressed. The Rules further provide other instructions in regard to the filing of these petitions. 

As a word of caution, the Rules themselves provide that they do not restrict the wide powers of the High Court under exercise of its constitutional and inherent jurisdiction "to make such orders
as may be necessary for the ends of justice or to prevent abuse of the process of the Court, including the power to impose exemplary costs and/or to debar a petitioner or an Advocate to file Public Interest Litigation if found to be indulging in frivolous or motivated litigation".

No PIL in 'service law matters': Supreme Court

In a recent decision [Hari Bansh Lal v. Sahodar Prasad Mahto] the Supreme Court has declared that the law to this regard is settled that the Courts will not entertain a public interest litigation in a matter relating to service law. The only exception to this rule, the Court pointed out, was when the writ of 'quo warranto' was sought wherein the Courts may require the respondents to justify as to why they should not be removed from the post they occupied. 

This decision, which succinctly explains the law to this aspect, notes inter alia as under;

6) About maintainability of the Public Interest Litigation in service matters except for a writ of quo warranto, there are series of decisions of this Court laying down the principles to be followed. It is not seriously contended that the matter in issue is not a service matter. In fact, such objection was not raised and agitated before the High Court. Even otherwise, in view of the fact that the appellant herein was initially appointed and served in the State Electricity Board as a Member in terms of Section 5(4) and from among the Members of the Board, considering the qualifications specified in sub-section (4), the State Government, after getting a report from the vigilance department, appointed him as Chairman of the Board, it is impermissible to claim that the issue cannot be agitated under service jurisprudence. We have already pointed out that the person who approached the High Court by way of a Public Interest Litigation is not a competitor or eligible to be considered as a Member or Chairman of the Board but according to him, he is a Vidyut Shramik Leader. Either before the High Court or in this Court, he has not placed any material or highlighted on what way he is suitable and eligible for that post.

7) In Dr. Duryodhan Sahu and Others vs. Jitendra Kumar Mishra and Others, (1998) 7 SCC 273, a three- Judge Bench of this Court held “if public interest litigations at the instance of strangers are allowed to be entertained by the Tribunal, the very object of speedy disposal of service matters would get defeated”. In para 21, this Court reiterated as under:

“21. In the result, we answer the first question in the negative and hold that the Administrative Tribunal constituted under the Act cannot entertain a public interest litigation at the instance of a total stranger.” 

8) In Ashok Kumar Pandey vs. State of W.B., (2004) 3 SCC 349, this Court held thus:

“16. As noted supra, a time has come to weed out the petitions, which though titled as public interest litigations are in essence something else. It is shocking to note that courts are flooded with a large number of so-called public interest litigations where even a minuscule percentage can legitimately be called public interest litigations. Though the parameters of public interest litigation have been indicated by this Court in a large number of cases, yet unmindful of the real intentions and objectives, courts are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases. Though in Duryodhan Sahu (Dr) v. Jitendra Kumar Mishra this Court held that in service matters PILs should not be entertained, the inflow of so-called PILs involving service matters continues unabated in the courts and strangely are entertained. The least the High Courts could do is to throw them out on the basis of the said decision. The other interesting aspect is that in the PILs, official documents are being annexed without even indicating as to how the petitioner came to possess them. In one case, it was noticed that an interesting answer was given as to its possession. It was stated that a packet was lying on the road and when out of curiosity the  petitioner opened it, he found copies of the official documents. Whenever such frivolous pleas are taken to explain possession, the courts should do well not only to dismiss the petitions but also to impose exemplary costs. It would be desirable for the courts to filter out the frivolous petitions and dismiss them with costs as aforestated so that the message goes in the right direction that petitions filed with oblique motive do not have the approval of the courts.”

9) The same principles have been reiterated in the subsequent decisions, namely, Dr. B. Singh vs. Union of India and Others, (2004) 3 SCC 363, Dattaraj Nathuji Thaware vs. State of Maharashtra and Others, (2005) 1 SCC 590 and Gurpal Singh vs. State of Punjab and Others, (2005) 5 SCC 136. The above principles make it clear that except for a writ of quo warranto, Public Interest Litigation is not maintainable in service matters. 

Writ of Quo Warranto

10) Writ of quo warranto lies only when appointment is contrary to a statutory provision. In High Court of Gujarat and Another vs. Gujarat Kishan Mazdoor Panchayat and Others, (2003) 4 SCC 712, (three-Judges Bench) Hon’ble S.B. Sinha, J. concurring with the majority view held:

“22. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine at the outset as to whether a case has been made out for issuance of a writ of certiorari or a writ of quo warranto. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one. While issuing such a writ, the Court merely makes a public declaration but will not consider the respective impact of the candidates or other factors which may be relevant for issuance of a writ of certiorari. (See R.K. Jain v. Union of India 2, SCC para 74.)

23. A writ of quo warranto can only be issued when the appointment is contrary to the statutory rules. (See Mor Modern Coop. Transport Society Ltd. v. Financial Commr. & Secy. to Govt. of Haryana)”

11) In Mor Modern Cooperative Transport Society Ltd. vs. Financial Commissioner & Secretary to Govt. of Haryana and Another, (2002) 6 SCC 269, the following conclusion in para 11 is relevant.

“11. … …. The High Court did not exercise its writ jurisdiction in the absence of any averment to the effect that the aforesaid officers had misused their authority and acted in a manner prejudicial to the interest of the appellants. In our view the High Court should have considered the challenge to the appointment of the officials concerned as members of the Regional Transport Authority on the ground of breach of statutory provisions. The mere fact that they had not acted in a manner prejudicial to the interest of the appellant could not lend validity to their appointment, if otherwise, the appointment was in breach of statutory provisions of a mandatory nature. It has, therefore, become necessary for us to consider the validity of the impugned notification said to have been issued in breach of statutory provision.”

12) In B. Srinivasa Reddy vs. Karnataka Urban Water Supply & Drainage Board Employees’ Assn. and Others, (2006) 11 SCC 731, this Court held:

“49. The law is well settled. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine, at the outset, as to whether a case has been made out for issuance of a writ of quo warranto. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one which can only be issued when the appointment is contrary to the statutory rules.”

It is clear from the above decisions that even for issuance of writ of quo warranto, the High Court has to satisfy that the appointment is contrary to the statutory rules.

Have a look at the decision.

Guidelines for PILs: Supreme Court

In a recently delivered judgment running over 200 paragraphs the Supreme Court has traced the history of Public Interest Litigations in India, the trends which the courts have seen in regard to PILs, the situation in other countries relating to litigation of such nature and has also examined the impact of the PIL movement in India over the legal system in the other countries of the Indian subcontinent. The Court undertook this exercise to bring to fore the diametric shift in the nature of cases being brought to the courts in the garb of PILs and the abuse thereon so as to come out with the guidelines to be observed by all the courts in the country while entertaining such petitions.  

The Supreme Court was dealing with a challenge to a decision of the High Court wherein a PIL had been filed before the High Court challenging the appointment to the position of the Advocate General of the State of Uttrakhand on grounds which in the opinion of the Supreme Court were settled five decades ago by categorical pronouncements of the Supreme Court. In this background, feeling the requirement to streamline the process, the Supreme Court concluded as under;

194. We must abundantly make it clear that we are not discouraging the public interest litigation in any manner, what we are trying to curb is its misuse and abuse. According to us, this is a very important branch and, in a large number of PIL petitions, significant directions have been given by the courts for improving ecology and environment, and directions helped in preservation of forests, wildlife, marine life etc. etc. It is the bounden duty and obligation of the courts to encourage genuine bona fide PIL petitions and pass directions and orders in the public interest which are in consonance with the Constitution and the Laws.

195. The Public Interest Litigation, which has been in existence in our country for more than four decades, has a glorious record. This Court and the High Courts by their judicial creativity and craftsmanship have passed a number of directions in the larger public interest in consonance with the inherent spirits of the Constitution. The conditions of marginalized and vulnerable section of society have significantly improved on account of courts directions in the P.I.L.

196. In our considered view, now it has become imperative to streamline the P.I.L.

197. We have carefully considered the facts of the present case. We have also examined the law declared by this court and other courts in a number of judgments.

198. In order to preserve the purity and sanctity of the PIL, it has become imperative to issue the following directions:-

(1) The courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations.

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

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

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

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

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

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

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

199. Copies of this judgment be sent to the Registrar Generals of all the High Courts within one week.

Have a look at the decision.

Exemplary costs against frivolous PIL: High Court

Holding that abuse of law would not be tolerated under the garb of petitions styled as public interest litigations, the Bombay High Court in a recent decision has imposed exemplary costs of Rs. 40 lakhs the petitioner. The High Court was miffed by the inadequacy of preparation and background material on the basis of which various allegations were made in the PIL against the Municipal Corporation and against a builder to the account that the construction made by them was unauthorized and liable to be demolished. 

The High Court inter alia observed;

8. This Court cannot ignore the fact that in Mumbai a flood gate has been opened by such organisations in initiating public interest litigations and persons like the petitioners are dragging people to Court without satisfying themselves whether the cause which they are espousing in public interest is genuine for the reason they lose nothing in the transaction. On the other hand, the party against whom PILs are filed are put to substantial loss not only monetary but their reputation is at stake. In this fact situation such petitioners may go scot free even if they loose leaving the respondents to suffer the pain and loss.

9. Specifically, after the affidavit in reply has been filed by the Municipal Corporation and on behalf of respondent nos. 2 and 4, the petitioners did not care to file a specific rejoinder as to how the sanction granted by Respondent No. 1 is invalid. On the other hand, they seek a roving inquiry to be conducted by this Court by appointing Court Commissioner to verify the actual calculation of the FSI by respondent nos. 2 to 4 in the light of Development Control Regulations, 1991. This tendency on the part of the litigants and particularly who are filing public interest litigations in this Court has to be contained and unless this Court discourages such litigation at the threshold, it will be impossible to regulate them and any person who finds that a particular building has not been constructed according to his whims and fancy, may approach this Court and seek its demolition by abusing the process of this Court in seeking direction that the Court should appoint Court Commissioner to assess the unauthorised construction. Such relief can be sought in case of any structure authorised or unauthorised. This is one such petition where the petitioners have taken liberty in the matter and have come with allegations which to their own knowledge were not correct as the petition is merely based on certain queries made under the Right to Information Act from the Corporation. There is mushroom growth of unauthorised construction all over Mumbai even on public land without seeking any sanction from Municipal Corporation, but the petitioners have thus targeted the building constructed by Respondent Nos. 2 to 4 without verifying the fact as to in what manner the sanction granted by Respondent No. 1 is contrary to Building Bye Laws, Rules and D.C. Regulations. We, therefore, dismiss this petition with exemplary cost for abusing the process of the Court.

Have a look at the decision.