Amit A. Pai |
The reading of fundamental rights by the constitutional courts in India changed after its experiences with Internal Emergency between 1975 and 1977, and fundamental rights guaranteed in Part III of the India Constitution, and the scope of the rights that hitherto was expounded narrowly were expanded tremendously. The first attack on the conservative approach was in the judgment in Maneka Gandhi’s case, when the due process clause was read into Article 212 (Protection of life and personal liberty) – something that was specifically avoided by the drafters upon the advice of the textualist Felix Frankfurter, J. to Sir B.N. Rau.
With the judicial adoption of the due process clause within Article 21, the reading of fundamental rights permanently changed, and its scope was enlarged. Soon after the judgment of Maneka Gandhi began the era of public interest litigation (PIL) and the relaxation of the rule of locus standi. The judicial process was democratized and rights, which were otherwise found only in text, were realized by the people without having to go to Court. Justice Vivian Bose’s famous words, that the fundamental rights were “for the butcher, the baker and the candlestick maker” were brought to fruition.
On the issue of corruption in public life, the Courts have taken a strong stand, and ensured that the Court monitor trials which involved high profile persons, especially Government functionaries.
With the advent of PILs, the Supreme Court and the High Courts have debatably entered into the arena of the executive and the legislature, and have time and again monitored the working of various State Governments and the Central Government. Simply put, the Court, while enlarging the scope of access to justice and Part III of the Constitution, the Court also expanded its own powers. Prof. S.P. Sathe aptly said, “(a)long with the growth of the doctrinal law of individual liberty and governance, the Court also liberalized its procedure with a view to facilitate access to the common man and increasing public participation in the judicial process as a means to control the other organs of government.”
Over a period, the Court further relaxed the PIL jurisdiction to include letter petitions and also took suo motu cognizance of infringement of violation of fundamental rights of the disadvantaged, in fully realizing its role as the protectors of fundamental rights guaranteed in Part III of the Constitution. Thus began the journey for the constitutional courts, i.e. the High Courts and the Supreme Court, taking cognizance of Newspaper reports or letters written to the individual Judges and exercising its writ jurisdiction in furtherance of protection of fundamental rights of “We, the people”. This was done without their being an actual list brought before the Court, and with the help of an appointed Amicus Curie to assist the Court – something that is unknown to conservative jurisprudence.
The Journey of Suo Motu’s Begins
Amongst the first recognized letter petitions was that of Sunil Batra, where a letter to Krishna Iyer, J. by an inmate complaining about the brutal assault of a co-prisoner was brought to the notice of the Supreme Court, and the Supreme Court, suo motu, treated the same as a PIL and the Court issued guidelines to be followed for administration of prison justice. In Kadra Pahadiya the Court treated a letter by a social scientist about persons languishing in jail without trail as a PIL and sought information from the Government of Bihar, as well as the High Court details of undertrials.
Soon thereafter, in 1985, a practicing lawyer addressed a letter to a Judge of the Supreme Court annexing a petition of the copy of a newspaper report about bonded labor in Raisen, Madhya Pradesh, which the Court treated as a public interest petition and issued certain directions. Four Judges of the Supreme Court of India, who played a pivotal role in conceptualizing and expanding PIL jurisprudence in India in dealing with cases involving violation of basic human rights of the less privileged – Justices Krishna Iyer, P.N. Bhagwati, O. Chinnappa Reddy and D.A. Desai.
Justice Vivian Bose’s famous words, that the fundamental rights were “for the butcher, the baker and the candlestick maker” were brought to fruition.
It was these four Judges who ensured that fundamental rights were not just the black letter of the law, but reached the doorstep of many people who could not bring their grievances to the doors of the Court. More recently, the Court suo motu entertained a PIL in respect of sex abuse of children in orphanages and passed a slew of directions while monitoring the actions of the States. On the letter of former Chief Justice R.C. Lahoti which was based on a newspaper report, the Court registered a PIL to examine the inhuman conditions of 1382 prisons in India.
The Court also took suo motu cognizance of deaths occurring due to poor arrangements during the pilgrimage to the Amarnath shrine based on newspaper reports and passed directions. Similarly, Re: Ramlila Maidan Incident, the Court took a serious view about police excesses in the din of the night forcing the eviction of sleeping people from a closed public ground. The High Courts have not been far behind. The Delhi High Court took cognizance of the outbreak of dengue in 1996 and issued various directions to the Delhi Government based on a newspaper report. The Delhi High Court also took note of a newspaper report titled “Man dies as 3 hospitals refuse him treatment”, and directed that interim compensation of Rs. 3 lakhs to the family of the man, who was a vegetable vendor.
The Delhi High Court also directed investigation of the death of a young girl which was shrouded in mystery as well as custodial deaths both based on newspaper reports. Similarly, the Bombay High Court in a case involving juveniles in conflict with the law being incarcerated took suo motu cognizance of the need to extend the benefits of the amendments in the law to those who were in prison and issued appropriate directions. The Bombay High Court also took notice of a news item about the collapse of a four-story building in Nagpur, and after monitoring the situation for some time, issued several directions to the municipal authorized in Nagpur.
The same Court also took suo motu cognizance of a note by a former Judge of the High Court, highlighting the pathetic conditions of the roads, which was causing accidents. The Punjab and Haryana High Court, on the basis of news items about the appalling conditions in Children’s homes, took suo motu cognizance and passed substantive directions to the State. The Jharkhand High Court, on the basis of news reports, entertained a PIL suo motu in regard to the fast undertaken by inmates convicted for life who had spent more than 14 years in jail and passed directions to the State. Another field in which the Courts have had a tremendous impact is that of environmental law.
The Court suo motu entertained a PIL in respect of sex abuse of children in orphanages and passed a slew of directions while monitoring the actions of the States.
It would be no exaggeration to say that the entire environmental jurisprudence in India is based on the exercise of the writ of jurisdiction in public interest. The Supreme Court has, by the issuance of a writ of continuing mandamus monitored various environmentally degrading activities around the country, and have passed directions to the various states to take corrective steps. The establishment of the Central Empowered Committee by the Green Bench of the Supreme Court has been a landmark event in ensuring that developmental activities keep environmental degradation to the minimum.
After the establishment of the National Green Tribunal, the Tribunal has repeatedly exercised suo motu powers and also entertained letter petitions to check pollution, environmental degradation, and issues relating to wildlife. The Tribunal has also ensured that the respective Governments take action against polluters, and the fines are imposed to ensure that environmental degradation is undone. On the issue of corruption in public life, the Courts have taken a strong stand and ensured that the Court monitor trials which involved high profile persons, especially Government functionaries.
For example, in what is famously called the 2G Spectrum case, the Supreme Court not only approved the appointment of the Special Judge and appointed the special prosecutor but also monitored the trial on a continuous basis exercising their powers of issuance of the writ of mandamus. Critics have made out a case against PIL on the ground that the Courts have breached the principle of separation of powers, by taking on a role of supervising the executive and legislative functions.
Although, in India, the framers did not envisage a strict separation of powers between the three organs of the State, a system of checks and balances was envisioned. Policymaking was seen traditionally in the realm of the legislature and the executive; with the innovation of PILs, and the exercise of suo motu writ powers, that barrier seems to have been long forgotten. The PIL jurisprudence has ensured that judicial legislation is not frowned upon anymore, and the Courts have time and again used their power to issue directions to ensure that Government do not just what they are legally bound to do, but what in utopia, they ought to do.
The Supreme Court has, by the issuance of a writ of continuing mandamus monitored various environmentally degrading activities around the country, and have passed directions to the various states to take corrective steps.
Interestingly, in Sudipt Mazumdar a Bench of two Judge referred the question of whether the Court must entertain, suo motu, on the basis of letters or newspaper was referred to a Constitution Bench for laying down guidelines. However, the reference has not yet been decided more than three decades after and the constitutional courts continue to exercise their suo motu power. Undoubtedly, there have been times when the Courts have overstepped their jurisdiction and made orders which are squarely in the executive’s domain.
In Union of India v. Rajasthan High Court, (2017 2 SCC 599), when the High Court had directed the Directorate of Civil Aviation to exempt sitting Judges of the High Court from pre-embarkation security checks taking suo motu notice of a newspaper article, the Supreme Court held that the issue was in the domain of the executive, and issues in relation to security were not to be formulated thus by the High Courts. Perhaps this example will suffice to explain the occasional overstepping that the Courts have indulged in while exercising their writ powers suo motu.
While there can be no two views about the concern that the Courts have shown to the basic human rights of the disadvantaged and destitute group, the exercise of powers suo motu ought to be a rarity. For, while the Supreme Court and the High Courts have done a tremendous job in protecting and promoting human rights, the exercise of writ powers when no actual dispute is brought before Court, tilts the balance of the separation of powers in favor of the judiciary – perhaps contrary to the wishes of the framers, allowing the judiciary in the role of the executive without checks and balances.
Amit A Pai is an advocate of the Indian Supreme Court. The views expressed in this article are author’s own and do not necessarily reflect the editorial policy of Global Village Space.