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.

No extraneous considerations in parole: High Court

Coming down heavily on the Delhi Administration, the High Court of Delhi in a recent decision has declared that it would not tolerate mingling of extraneous and irrelevant considerations in the grant of parole to the convicts. The High Court, dealing with the challenge to the denial of parole to a convict who sought such leave to file appeal against his conviction before the Supreme Court, was miffed by the the denial of parole on the ground that the family members of the convict could provide the necessary details for filing of appeal. To this regard, the Court observed that "the family members can never be a substitute in the matter of briefing the counsel, particularly in a serious matter where the accused has been sentenced to imprisonment for a period of 13 years. Hence, the respondent was not justified in denying parole on the ground that there are other members in the family of the petitioner who can arrange filing of Special Leave Petition on his behalf."

On the legal position, the High Court declared inter alia as under;

4. Grant of parole being an executive function, it is for the Government and not for the Court to consider the request made by a convict for grant of parole and pass appropriate orders on it. If, however, the order passed by the Government is found to be based on extraneous reasons or is on the grounds which are not relevant, or is otherwise unsustainable in law, being unjust or improper, it is open to the Court, in appropriate cases, to quash such an order and direct release on parole.

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.

2008 Financial Crisis and Taxation Policy: Exploring the Nexus

A paper recently published under the aegis of European Commission examines the interactions between tax policy and the 2008 financial crisis which was "characterised by a housing bubble in a context of rapid credit expansion, high risk-taking and exacerbated financial leverage, leading to deleveraging and credit crunch when the bubble burst". The authors have undertaken a review of "existing evidence on the links between taxes and many characteristics of the crisis" to conclude that "available evidence is mixed when it comes to assess whether different tax treatments have led to different price developments, suggesting that lax monetary policy and increased risk-taking by lenders are more powerful explanations for the housing bubble".

Nonetheless the tax policies are to be blamed in as much it is noted that "risk-taking behaviour may have been exacerbated by tax provisions on the treatment of executive compensation and by tax arbitrage possibilities across different types of investors, albeit both relationships still need to be empirically validated." In all the paper provides an interesting insight in the various tax variables affecting the crisis. Have a look.

Gift under Muslim Law: The law revisited

In a recently reported decision, the Supreme Court has revisited the law relating to gifts under Muslim law and has explained the principles relevant therein. The Court referred to its earlier decisions in the issue and also various religious texts discussing the legal scenario [Mulla's Principles of Mohammadan Law; A.A. Faizee's `Outlines of Mohammedan Law'; Syed Ameer Ali's `Commentary on Mohammedan Law'] to declared the settled legal position in the following terms;

10. A gift indisputably becomes complete when a person transfers with immediate effect the ownership of his movable or immovable property to another person, and that other person himself or someone else with his consent takes possession of the property gifted. Under Mohammadan Law it is a contract which takes effect through offer and acceptance. The conditions to make a valid and complete gift under the Mohammadan Law are as under:

(a) The donor should be sane and major and must be the owner of the property which he is gifting. 

(b) The thing gifted should be in existence at the time of hiba.

(c) If the thing gifted is divisible, it should be separated and made distinct.

(d) The thing gifted should be such property to benefit from which is lawful under the Shariat.

(e) The thing gifted should not be accompanied by things not gifted; i.e. should be free from things which have not been gifted.

(f) The thing gifted should come in the possession of the donee himself, or of his representative, guardian or executor.

It is also well settled that if by reason of a valid gift the thing gifted has gone out of the donee's ownership, the same cannot be revoked. The donor may lawfully make a gift of a property in the possession of a lessee or a mortgagee. For effecting a valid gift, the delivery of constructive possession of the property to the donee would serve the purpose. Even a gift of a property in possession of trespasser is permissible in law provided the donor either obtains and gives possession of the property to the donee or does all that he can to put it within the power of the donee to obtain possession.

Have a look at the decision.