Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Dr. Dhananjaya Y Chandrachud* and B V Nagarathna, JJ., partly allowed the petition challenging Union Government’s disinvestment of its shareholding in Hindustan Zinc Ltd. (HZL). The Bench, though held that the government was within its powers to disinvest its shares, it was of the opinion that a full-fledged CBI enquiry was required regarding previous disinvestment by the government. The Bench stated,

“There is no bar on the constitutional power of this Court to direct the CBI to register a regular case, in spite of its decision to close a preliminary enquiry.”

HZL was incorporated as a public sector company to develop the mining and smelting capacities, so as to substantially fulfil the domestic demand for zinc and lead. In 1991-92, the Union Government disinvested 24.08 per cent of its shareholding in HZL and again in 2002 it disinvested 26 per cent of its shareholding in HZL to a ‘strategic partner, Sterlite Opportunities & Ventures Ltd. (SOVL). Consequently, the Union Government was left with an equity holding of 49.92 per cent.

Res Judicata and PILs

While determining the issue that the first relief sought by the petitioners, i.e. residual disinvestment can occur only after the amendment of the Nationalisation Act 1976 was  substantially similar to the reliefs sought by Maton Mines Mazdoor Sangh when the disinvestment of 2002 and 2014, the Bench opined that the Court must be alive to the contemporary reality of “ambush Public Interest Litigations” and interpret the principles of res judicata or constructive res judicata in a manner which does not debar access to justice. The Bench expressed,

“While determining the applicability of the principle of res judicata under Section 11 of the Code of Civil Procedure 1908, the Court must be conscious that grave issues of public interest are not lost in the woods merely because a petition was initially filed and dismissed, without a substantial adjudication on merits.”

Considering that the three judges Bench had rejected the petition filed by Maton Mines Mazdoor Singh in limine, without a substantive adjudication on the merits of their claim, the Bench held that the instant petition was not barred by res judicata.

Whether disinvestment was barred by the Nationalisation Act 1976?

Relying on the object of the Nationalisation Act, 1976 which was to acquire control over the strategic mineral deposits of lead and zinc, since zinc plays important role in the country’s economy, the petitioners contended that disinvestment could not be made without amending the Nationalisation Act 1976. Assailing the contention of the petitioners, the Union Government made following submissions:

  1. After 16 March 1999, the mining of zinc has ceased to retain a strategic character, given the changes in industrial policy.
  2. There was no challenge to the disinvestment which took place in 1991-92 or in 2002.
  3. The HZL had ceased to retain its status as a government company within the meaning of Section 617 of the Companies Act 1956.

In view of the above, the Bench opined that it would be inconsistent to read an implied limitation on the transfer by the Union Government of its residual shareholding in HZL representing 29.54 per cent of the equity capital. Considering that HZL was not a government company, the Bench stated, when a decision has been taken by the government as a shareholder of a company to sell its shares, it acts as any other shareholder in a company who makes the decision on the basis of financial and economic exigencies.

Whether the decision in Centre for Public Interest Litigation would result in a bar on the disinvestment of the residual shareholding?

In Centre for Public Interest Litigation v. Union of India, (2003) 7 SCC 532, the Court had held that that the divestment of the shareholding of the Union Government in HPCL and BPCL, as a result of which the companies would cease to be government companies, could not be undertaken without amending the statutes under which they were nationalized. Distinguishing the decision in Centre for Public Interest Litigation, the Bench stated that HPCL and BPCL were government companies when the disinvestment action was challenged while HZL ceased to be a government company as a consequence of the disinvestment in 2002, since its shareholding fell below 51 per cent. The Bench opined,

“The fact that the Union Government is amenable to the norms set out in Part III of the Constitution would not impose a restraint on its capacity to decide, as a shareholder, to disinvest its shareholding, so long as the process of disinvestment is transparent and the Union Government is following a process which comports with law and results in the best price being realized for its shareholding.”

Hence, the Bench held that the decision of the Union Government, as an incident of its policy of disinvestment, to sell its shares in the open market, could not be questioned by reading a bar on its powers to do so, from the provisions of the Nationalisation Act 1976.

CBI’s preliminary enquiry

Evidently, in spite of conflicting opinion of the Director of CBI and the Director of Prosecution, CBI regarding the closure of the preliminary enquiry and conversion of it into a regular case; and the fact that the matter was referred to the Attorney General but the Court was not apprised of the status of referral, the preliminary enquiry was closed.

Upon perusal of reports and recommendations in favour of registration of a regular case, which indicated irregularities in the decision to disinvest 26 per cent, instead of 25 per cent, in the bidding process and the valuation of 26 per cent equity for disinvestment, the Bench opined that the disinvestment in 2002 evinced a prime facie case for registration of a regular case. The Bench stated,

“We are desisting from commenting on some crucial facts and names of individuals involved, so as to not cause prejudice to the investigation of the matter.”

Accordingly, opining that there was a prima facie case for cognizable offence, as mandated in para 9.1 of the CBI Manual, the Bench held that a full-fledged investigation must be conducted.

Hence, the petition was partially allowed. The CBI was directed to register a regular case and periodically submit status reports of its investigation to the Court.

[National Confederation of Officers Association of Central Public Sector Enterprises v. Union of India, 2021 SCC OnLine SC 1086, decided on 18-11-2021]


Kamini Sharma, Editorial Assistant has put this report together 


Appearance by:

For the Petitioners: Prashant Bhushan, Senior Counsel

For Union of India: Tushar Mehta, Solicitor General

For Sterlite Opportunities & Ventures Ltd. (SOVL): Harish Salve, Senior Counsel


*Judgment by: Justice Dhananjaya Y Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Ritu Raj Awasthi CJ and Sachin Shankar Magadum, J disposed of the petition and directed the petitioner to file his complaint within 10 days from the date of order.

The present petition was filed in the nature of public interest litigation wherein the petitioner has prayed for a direction to the respondent 1 to issue necessary directions to all the Municipal and police authorities in the State with regard to removal of unauthorized statues and flag post in the cities and towns.

Counsel for the petitioner Mr. K N Haridasan Nambiar submitted that serious inconvenience is being caused to the public at large and there is traffic hazard due to the installation of these statues and flag post in the State.

Counsel appearing for BBMP Mr. Sreenidhi submitted that no specific allegations have been made with respect to any particular statue which is causing any hindrance or problem for the public or pedestrians. It was further submitted that the statues are there from quite a long time i.e. 20 to 25 years old. In case of specific instance, the same can be enquired into and appropriate remedial measures can be taken.

The Court observed and held that the petitioner may make a complaint to the Chief Commissioner, BBMP giving specific instances where the said statues or flag post are causing any inconvenience to the public or creating any traffic hazard.

It was further held “The said instances would be enquired into by the authorities concerned and appropriate remedial measures shall be taken.”
[K S Suresh v. Government of Karnataka, WP No. 2377 of 2021, decided on 28-10-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Meghalaya High Court: The Division Bench of Ranjit More, CJ. and H.S.Thangkhiew, J., took up a petition which prayed for the following:

  • a writ in the nature of mandamus directing the Respondent’s authorities to utilize the amount of Rs. 19.84 crore received by the State Respondents and to constitute inquiry as to the in-ordinate delay in completion of the Cancer Treatment Centre at Civil Hospital, Shillong till date for the non-proper utilization of funds amounting to Rs. 26.16 crore sanctioned by the Department of Atomic Energy (DAE), Government of India.
  • a writ in the nature of mandamus directing the State Respondents to establish an Oncology Department in the various District Hospitals of the state so as to ensure the easy access of treatment to the cancer patients of the state.
  • a writ in the nature of mandamus directing the Respondents to improve the quality of cancer care treatment in their respective hospitals and also to strengthen the Community Health Centres (CHCs) and Primary Health Centres (PHCs) in early diagnosis and screening according to the Operational Guidelines of the National Programme for Prevention and Control of Cancer, Diabetes, Cardiovascular Disease & Stroke (NPCDCS), to establish Tertiary Cancer Care in the various districts and also to appoint specialist in the different oncology department of the respondents hospitals providing cancer treatment to the patients.
  • a writ in the nature of mandamus directing the Respondents to make cancer as a notifiable disease and to conduct mass awareness programmes or outreach programmes in sensitizing people about the various causes of cancer and the importance of early diagnosis.
  • a writ in the nature of mandamus directing the Respondents to include the remaining seven District of the states i.e. West Garo Hills (Tura), East Jaintia Hills (Khliehriat), East Garo Hills (Williamnagar), South Garo Hills (Baghmara), South West Garo Hills (Ampati), South West Khasi Hills (Mawkyrwat) and North Garo Hills (Resubelpara) in the State Population Based Cancer Registry (PCRB) programme so as to acquire the accurate data of patients suffering from the disease.
  • a writ in the nature of mandamus directing the state respondents to create a component under MHIS or a separate cancer patients fund for providing speedy, effective and better financial aid to the cancer patients of the state.
  • a writ in the nature of prohibition and mandamus directing the State Respondents not to allow the advertising agencies to publicly display any advertisements which will affect the health and safety of the people of the state especially the minors.

The petitioner contended that there was arbitrary and inordinate delay on the part of the respondents in establishing a comprehensive and modern cancer care facilities in the State of Meghalaya even after attaining forty-nine years of Statehood and that non-availability of a comprehensive Cancer Hospital and failure of the respondents to strengthen and establish screening centres for early detection and treatment of cancer in the Community Health Centres and Primary Health Centres have caused serious inconveniences and financial problems to the citizens of the State.

It was further grievance of the petitioner that though the Department of Atomic Energy, Government of India had sanctioned Rs.26.16 crore for establishment of a Cancer Treatment Centre at Civil Hospital, Shillong, however, due to lapses and negligence on the part of the concerned authorities, out of the amount of Rs.19.84 crore received by the State respondents, only Rs.9.77 crore of Utilization Certificates were furnished to the Government of India. The petitioner had also made grievance about the implementation of the Megha Health Insurance Scheme in the State of Meghalaya. In this regard, he contends that though the said scheme provides for financial aid amounting to Rs.5,00,000/- (Rupees Five lakhs) to all the citizens of the State, however, due to non-availability of the Cancer Hospital and medicines in the State, the said scheme has remained on paper only.

The Court was of the opinion that the issues in the PIL were of serious concern and the respondents needed to respond to the same, issuing a notice to the respondents.[Lurshaphrang Shongwan v. Union of India, 2021 SCC OnLine Megh 205, order dated: 28-10-2021]


Advocates before the Court:

For the Petitioner/Appellant(s): In-person with Mr AG.Momin, Adv.

For the Respondent(s): Dr N.Mozika, Sr. Adv. With Ms T.Sutnga, Adv.


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Satish Chandra Sharma, CJ and Sachin Shankar Magadum, J. directed State Government to ensure that no display boards, unauthorized advertisements, hoardings at public places as well as in respect of various Government projects are displayed in future.

The instant petition was filed as a public interest litigation (PIL) to seek issuance of appropriate writ, order or direction directing the respondents to take action and to remove unauthorized advertisements, hoardings, display boards of political functionaries and political leaders and also to remove photographs of political persons in respect of government projects.

Counsel for the petitioners submitted that in the light of the judgment Common Cause v. Union of India in WP (Civil) Nos. 13/2003, 197/2004 and 302/2012 delivered by the Court, the respondents are certainly under an obligation to remove all such display boards, advertisements, hoardings, etc., in terms of the order passed by the Supreme Court.

The State Government submitted that they have taken various steps for complying with the order passed by the Supreme Court

It was also made clear before the Court that a meeting was held under the Chairmanship of the Secretary to the Government of Karnataka, Urban Development Department and all statutory bodies in the State have been issued instructions including the Bruhat Bengaluru Mahanagara Palike to remove all such hoardings and to comply with the order passed by the Supreme Court.

After perusal of the compliance report Court asked State Government to issue specific directions to the authorities and local bodies which has already been initiated.

The Court directed respondent State “to ensure that in future also, no display boards, unauthorized advertisements, hoardings at public places as well as in respect of various  Government projects are displayed in future.”

The Court further directed the Government “to take prompt action in the matter keeping in view the Circular and the orders passed by the Supreme Court in the case of Common Cause (supra).”

[H.M. Venkatesh v. State of Karnataka, 2021 SCC OnLine Kar 14703, decided on 17-09-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

For petitioners: Mr. Chidananda

For respondents: Mr. Sreenidhi and H. Devendrappa

Case BriefsHigh Courts

Sikkim High Court: The Division Bench of Biswanath Sommader, CJ. and Meenakshi Madan Rai, J., decided on a petition which had been treated as Public Interest Litigation on the basis of a letter dated 3rd March, 2020, received from the public of Syari, East Sikkim, Gangtok, stating that the public of Syari, East Sikkim, were facing problem after they were barred from using the footpath along the entry point from the Army area, Ganju Lama Dwar, Ward no. 01, 02, 03 and 04 under Syari, East Sikkim.

It was stated that the fencing of the entire Army area by the Army personnel and locking the area and barring the residents of the said area from commuting through the said route had led to harassment and difficulties.

Affidavit affirmed by the Special Secretary of Land Revenue and Disaster Management Department mentioned:

“4. I say that after thorough discussions, the following resolutions were passed and agreed upon by all:-

  1. The road from ‘VC Ganju Lama Dwar’, Deorali to Syari, falling under the jurisdiction of Indian Army will remain open for commuters and for Public Transport till an alternative solutions is worked out.
  2. There will be no restrictions for transportation of essential commodities, milk supply and others necessary items from this road/route.
  3. The contact no. of concerned person (Army) will be displayed on the gate in case any sort of permission is required for emergency entry and exit.
  4. Alternative road will be constructed subject to NOC from the landowners.
  5. Principal Chief Engineer, Roads and Bridges Department, GOS will facilitate to carry out the survey of the proposed alternative road in consultations with the public of the area if NOC for the same is obtained.
  6. The village Panchayat will work on the modalities for identification of genuine vehicle/person entering the gate.

A copy of the minutes of the meeting held on 29.07.2021 is filed herewith and marked as Annexure R- 1.”

The Court disposed off the petition stating that an amicable solution has been arrived at by all concerned including representatives from the Army with a direction upon all concerned to adhere to the Resolution which was agreed upon by all and passed on 29th July, 2021, in a meeting held under the Chairmanship of the Hon’ble Minister, Shri Kunga Nima Lepcha, at the Minister’s chamber.

[Closure of entry point for the public of Syari by the army at Ganju Lama Dwar, Syari, In Re.; 2021 SCC OnLine Sikk 158, decided on 21-10-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Satish Chandra Sharma CJ and Sachin Shankar Magadum J allowed the petition, quashed the initial allotment of the site to respondent 3 and sets aside the allotment order made in favour of respondent 3.

The facts of the case are such that PIL was filed on the ground that a civic amenity site No. 35, situated at 5th phase, Yelahanka New Town, Bengaluru, was allotted by the Karnataka Housing Board (KHB) to  Murthy Charitable Trust respondent 3, and there were specific conditions like the allottee was required to construct a building suitable for Education and public service within a period of two years and that the Housing Board shall be entitled to cancel the allotment without issuing any notice after expiry of five years. As no construction was carried out, KHB then executed an absolute sale deed in favour of respondent 3 for a sum of Rs 3,87,000/-. The value of the land is more than 10 Crores and an additional amount was received by KHB i.e., Rs 18, 00,000/- for additional area allotted to respondent No.3. Undisputedly, at no point of time, the procedure provided under the Karnataka Housing Board (allotment) Regulations, 1983 was followed.

Counsel for KHB submitted that PIL is not maintainable in the facts and circumstances of the case and the petitioner cannot seek cancellation of a registered document in exercise of writ jurisdiction under Article 226 of the Constitution of India and the petitioner has to take shelter of the provisions of the Specific Relief Act.

The Court observed that “The most shocking aspect of the case is that an instrumentality of the State i.e., KHB has allotted the site in question without following the allotment regulations. There is a detailed procedure provided under the KHB Regulations for allotment of sites and the procedure has not been followed at all especially when the site was reserved as a Civic Amenity Site.” 

The Court further observed that the provisions of KHB Act of 1962 and KHB (Allotment) Regulations, 1983 makes it very clear that a site can be allotted / can be sold only through a transparent process that too after wide publicity through tender notice/auction notice.

The Court observed that State largesse should not be marred by any arbitrariness. Fairness, in the action of the State or local bodies or instrumentalities of the State while leasing out / disposing any public property is a sine qua non. The State and the instrumentality of the State are required to follow a transparent procedure. The statutory provisions as contained under the Act and the Regulations are required to be followed. However, in the present case favoritism has been done by respondent 2 to respondent 3 without following the prescribed procedure.

The Court held that in the present case, the land has been allotted by the KHB without following a transparent procedure. Therefore, “the allotment order, as well as the subsequent sale deed in favour of respondent No.3, deserves to be quashed.”

[Adinarayan Shetty v. Principal Secretary, Writ Petition 9616 of 2020, decided on 30-09-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

For petitioners: Mr Sunil Kumar H.

For respondents: Mr Vijayakumar Patil, Mr B J Mahesh, Mr Chandrashekhar, and Mr H S Prashanth

Case Briefs

Supreme Court: The Division Bench of L. Nageswara Rao and S. Ravindra Bhat*, JJ., dismisses the appeal initiated by the accused contractors in Integrated Housing and Slum Development corruption case. The Bench observed,

“The constructions, according to the reports, were sub-standard – in respect of 100 such houses, so severe that the units were unusable. The main objective of providing housing to 1206 eligible and deserving families remains unfulfilled despite expenditure of substantial amounts.”

Factual Fulcrum

The criminal Public Interest Litigations were filed by the respondents seeking directions to the Union of India, the State of Maharashtra, the Maharashtra Housing and Urban Development Authority (MHADA) and state officials to initiate criminal proceedings against the responsible officers and office bearers of Municipal Council, Naldurg and the contractors concerned for misappropriation of government funds in implementation of the housing scheme in the municipality.

An Integrated Housing and Slum Development Programme (IHSDP) was initiated by the Union Government through the State Government, under the “Jawaharlal Nehru National Urban Renewal Mission” for providing basic services to the urban poor including affordable prices, improved housing, water supply, sanitation, wherein the Maharashtra Government had appointed MHADA as the nodal agency.

The petitioners-respondents alleged that the quality of work carried out by the appellants was very poor and the officials (i.e. MHADA, municipality, etc.) did not inspect or supervise the work, and did not submit the quarterly reports as required under the scheme. It was submitted that the municipality diverted funds meant for the said development project, for other works as the observation made by technical team showed that the municipal council made an excess payment of Rs. 2,43,79,017/- to the contractors as compared to the work done. The allegations were also made with regard to failure to complete the project, and various other omissions were highlighted.

Findings of the High Court

Observing the dereliction of duties on the part of the authorities and certain other irregularities, the High Court had directed the Divisional Commissioner to take actions to its logical end as expeditiously as possible. Pursuant to the direction of the High Court and the report of the technical team the Collector directed the Municipal Council to recover the excess amount paid to the contractors, and blacklist them from Government work, to initiate criminal prosecution against the person(s) who had committed the irregularities, and lastly allot the repairable houses.

Analysis and Conclusion

Noticing that the appellants were all involved as persons or authorized individuals, acting on behalf of entities that were awarded the contract of construction and completion of the housing units, pursuant to the scheme, and that the spot inspection report alleged that they had not performed their task, the made the following observations:

Effect of Delay in Giving Reasoning of the Judgment by the High Court

Rejecting the first grievance of the appellants that the reasoning for the impugned judgment was given and published long after its operative portion was pronounced, i.e. a year and over three months which had prejudiced their case, the Bench stated that though it is clear that the High Court’s order, against which an aggrieved litigant has a right to approach in appeal, under special leave jurisdiction should contain reasons without which it would be well-nigh impossible to exercise that right of seeking special leave, to that extent, the appellants’ grievance was held to be justified, however, the Bench denied to hold that the absence of reasons struck at the legitimacy of the impugned judgment. The Bench stated,

“…prejudice stood off-set with the interim orders of this court, which recognized the piquancy of the situation, and directed stay of further action against the appellants.”

However, the Bench deprecated the High Court’s conduct in not furnishing reasons, either at the time of pronouncement of the operative part of the judgment, or before the commencement of the next working day (of the court).

Motive of PIL

The appellant’s next challenge to the impugned judgment emphasized the need to keep out “busybodies” who “have no interest in matters of public interest” on the ground that the petitioners-respondents had personal motive as they were former Councillors of the municipality. Rejecting the contention of the appellants, the Bench expressed,

“The cause espoused by the said individuals was undoubtedly one of public interest, because it concerned housing for the economically disadvantaged sections of society, in such great numbers.”

The scheme was meant to benefit thousands of persons, and over a thousand housing units were to be constructed and allotted to the beneficiaries. Therefore, in view of the inquiries and the reports, the Bench held that the initiation of public interest proceedings was justified even if the public interest litigants’ motives were ambiguous, or not immediately bona fide, that could not have led to dismissal of the writ petition, before the High Court.

Right to be Heard

Lastly, rejecting the main arguments of the appellants that criminal proceedings had been initiated against them even though they were not heard in the public interest proceedings, and that being adverse to them the judgment was vitiated on account of their non-participation, the Bench opined that the High Court disposed of the PILs directing the Divisional Commissioner to take appropriate steps to its logical end as expeditiously as possible, making it evident that the High Court did not by itself direct initiation of investigation nor did it direct registration of an FIR, hence, the appellants were not required to be on party array. The Bench emphasised,

“Whilst the reasoning for the impugned judgment was undoubtedly published after a long and unexplained delay, the effect of its operative directions was not to per se prosecute.”

Moreover, the constructions were sub-standard – in respect of 100 such houses, so severe that the units were unusable and dilapidated which rendered the main objective of providing housing to 1206 eligible and deserving families unfulfilled despite expenditure of substantial amounts.

Hence, rejecting the argument of the appellants that they ought to have been heard even before action was initiated as unsound, since, according to the decision of the Constitutional Bench in Lalita Kumari v. Govt. of U.P., if there are allegations with respect to commission of cognizable offences, brought to the notice of the police authorities, ordinarily an FIR has to be lodged.

Verdict

Lastly, noticing that High Court did not comment on whether the allegations were true or whether the submissions on behalf of the petitioners justified their conduct or omission, and that the FIR was registered by the police following the imperative nature of the law declared in Lalita Kumari where it was held that a preliminary enquiry ordinarily is to be eschewed whenever cognizable offences are reported, the Bench dismissed the appeals.

[Shaikh Ansar Ahmad Md. Husain v. State of Maharashtra, 2021 SCC OnLine SC 867, decided on 05-10-2021]

_________________________________________________________________________

Kamini Sharma, Editorial Assistant has put this report together 

_________________________________________________________________________

Appearance by:

For the Appellants: Shyam Divan, Senior Advocate


*Judgment by: Justice S. Ravindra Bhat 

Know Thy Judge| Justice S. Ravindra Bhat

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Satish Chandra Sharma, CJ. and Sachin Shankar Magadum J. directed the State Government to provide textbooks in Braille for all specially abled children having visual disabilities within a period of 15 days.

The instant petition in the nature of PIL i.e. Public Interest Litigation was filed on behalf of the children who are specially abled children as in the State of Karnataka, text books are not available in Braille and they have also not uploaded the books on the website in PDF form so that a print out can be taken in Braille.

An interim order was passed last year wherein Additional Government Advocate submitted that the text books in Brailee for Class-I to X of the kannada medium will be available from the next academic year.

The Court thus directed “As next academic year has already been commenced, the State Government is directed to provide text books in Brailee for all special children (visual disabilities) positively within a period of 15 days from today, if the same has not been done”

The matter is next posted for 07-10-2021.[National Federation of Blind v. State of Karnataka, WP No. 52201 of 2019, decided on 17-09-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Mohammad Rafiq, CJ. and Vijay Kumar Shukla, J., dismissed a PIL which was filed by the Nagrik Upbhokta Margdarshak Manch with a prayer that the Election Commission of India may be directed not to conduct bye-elections of Parliamentary Constituency of Khandwa and Assembly Constituencies of Prathvipur, Jobat and Rajgarh in the State of Madhya Pradesh and direct the respondents to conduct the bye-elections only after assessing the ground situation of coronavirus in the State.

Election Commission of India has filed reply to the writ petition stating that the Commission has reviewed the matter and has decided that due to outbreak of the second wave of Covid-19 in the country, it would not be appropriate to hold bye-elections till the pandemic situation significantly improves and conditions become conducive to hold these bye elections. A recently issued Press Note dated 04-09-2021 however stated that after taking into consideration the inputs and views of the Chief Secretaries of the concerned States and respective Chief Electoral Officers, the Commission has decided not to hold bye-elections in other 31 Assembly Constituencies and 3 Parliamentary Constituencies. However, considering the constitutional exigency and special request from State of West Bengal, it has decided to hold bye-election in 159 – Bhabanipur. Much stricter norms have been kept by the Commission as an abundant caution to safeguard from Covid-19 pandemic.

The Court stated that Article 324 of the Constitution is a reservoir of power for the Election Commission to act in such vacuous area where enacted laws make no provisions or make ‘insufficient provisions’ to deal with the situation confronting the Election Commission in the conduct of elections as held in catena of judgments referring to the judgment of Supreme Court in Mohinder Singh Gill v. The Chief Election Commissioner, (1978) 1 SCC 405; Kanhiya Lal Omar v. R.K. Trivedi, AIR 1986 SC 111; Union of India v. Association for Democratic Reforms, AIR 2002 SC 2112.

The Curt further reiterated the paragraph from Special Reference No.1 of 2002, AIR 2003 SC 87 where it was categorically held that the decision regarding elections should not be interfered with as the Election Commission of India is best suited to decide the same.

“80. So far as the framing of the schedule or calendar for election of the Legislative Assembly is concerned, the same is in the exclusive domain of the Election commission, which is not subject to any law framed by the Parliament. The Parliament is empowered to frame law as regards conduct of elections but conducting elections is the sole responsibility of the Election Commission. As a matter of law, the plenary powers of the Election Commission can not be taken away by law framed by Parliament. If Parliament makes any such law, it would repugnant to Article 324.”

The Court while dismissing the PIL held that only the Election Commission of India is competent to decide as to when should the bye-elections to Parliamentary Constituency of Khandwa and Assembly Constituencies of Prathvipur, Jobat and Rajgarh should be held.[Nagrik Upbhokta Margdarshak Manch v. State of M.P., WP-15280-2021, decided on 22-09-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


For the petitioner: Mr Dinesh Kumar Upadhyay

For the respondents/ State: Mr Pushpendra Yadav and Mr Siddharth Seth

Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of Prashant Kumar Mishra and Rajani Dubey JJ. disposed of the petition holding that Public Interest Litigation is not the appropriate approach to decide the lis.

 The instant public interest litigation has been filed by the petitioner seeking declaration/clarification of the legal position that the Nazul property (lease hold lands) cannot be dedicated for waqf for the reason that the lease land holder is simply a user and the ownership remains with the Government.

The Court observed that the writ Courts ordinarily do not decide abstract principles of law. If a proper lis is brought before the Court between the contesting parties on the given set of facts, the competent jurisdictional Court will decide the legal position.

The Court further observed that the Court cannot decide as to when a Hindu can execute a will or as to when and which property a Muslim can dedicate for waqf, in a PIL jurisdiction as such matters are decided in an individual petition.

The Court thus held the “PIL is disposed of reserving liberty in favour of the petitioner to agitate the issue in an appropriate lis, wherein, the subject issue is involved on the facts of the case.”

[Saiyad Iqbal Ahamed Rizvi v. State Of Chhattisgarh, WPPIL No. 28 of 2021, decided on 13-08-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

For Petitioner Mr. Manoj Kumar Dubey

For State Mr. SC Verma and Mr. Sudeep Agarwal

Case BriefsHigh Courts

Gauhati High Court: The Division Bench comprising of Sudhanshu Dhulia, CJ, and Manash Ranjan Pathak, J., directed to connect CCTV cameras of Hospitals to the nearest Police Station to put a check on increasing instances of violence against medical practitioners amid Covid-19.

The instant petition was heard along with a suo motu case registered with regard to the barbaric incident which took place in Assam’s Hojai district. According to reports[i], family members of the deceased patient brutally thrashed a young doctor following the patient’s demise at a Covid care centre.

As far as the abovementioned incident was concerned, the police had completed its investigation, charge-sheet had been filed and as many as twenty-four persons had already been arrested so far. Evidently, in its earlier order, the Court had directed the authorities concerned to ensure installation of CCTV cameras in hospitals, where no CCTV camera has been installed.  And provide compensation to the Medicare Service Persons, who may be the victims of violence during discharge of their duties.

The Court, on being informed that almost all the Government Medical Colleges and the District Government Hospitals except some government and Model Hospitals were having CCTV cameras, directed that mere installation of CCTV cameras in the hospitals concerned was not enough and the CCTV cameras have to be connected to the nearest Police Station for further monitoring.[Asif Iqbal v. State of Assam, 2021 SCC OnLine Gau 1529, decided on 30-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

Counsel for the Petitioner: S Islam

Counsel for the Respondent: D. Saikia

For the Gauhati High Court: S. Kalita, Standing counsel

[i] https://www.indiatoday.in/india/story/arrested-attack-junior-doctor-assam-hojai-ima-1809795-2021-06-02

Case BriefsHigh Courts

Sikkim High Court: The Division Bench of Jitendra Kumar Maheshwari and Meenakshi Madan Rai, JJ., heard a Public Interest Litigation relating to the issue of extraction of the groundwater through sufficient surface water was available in the State.

Central Government Counsel was asked to give reasons as to why after having sufficient surface water, the necessity of extraction of groundwater arose. Central Ground Water

Board was required to explain that on availability of sufficient surface water, why the permission had been granted to 22 companies.

The Court observed that permission so granted for extracting the ground water was conditional and nothing was available on record to show those conditions have been complied with by the industries and the Regional Authorities have recorded its satisfaction. It was also observed that it was not on record that the condition as specified had been truly implemented and who was the Authority verifying those facts and whether they had checked by spot verification.

The Court was surprised to see that even during pendency of this Public Interest Litigation permissions have been granted for extracting the ground water without mentioning the fact that such permission was subject to condition of the orders passed by the Court.

The Court went on to find that the Central Ground Water Board and its Authorities had not specified reason for granting no objection for extracting the ground water and without such reason conditional permissions were granted. The Court stated that this type of functioning of the authority could not be appreciated.

The Court concluded that as nothing was available to explain the aforesaid issue, therefore, it’s appropriate to observe that any of the permission of extraction of the ground water granted to the industries in the State must be after recording the satisfaction and by assigning the reason and in case permission/renewal was found in violation of any conditions, action taken was required to be specified to the Court. It was made clear that if any Authority was found violating the Order of the Court or power not duly exercised then they may be held responsible. A further matter to be taken up on 10-09-2021.[Discharge of Effluents by Pharma Companies, In Re., 2021 SCC OnLine Sikk 101, decided on 27-07-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


For petitioner : Ms Manita Pradhan, Amicus Curiae, Mr Sajal Sharma, Amicus Curiae.

For respondents: Dr Doma T. Bhutia, Addl. Advocate General

Case BriefsHigh Courts

Orissa High Court: A Division Bench of S. Muralidhar, CJ and S.K. Panigrahi, J., directed to ascertain the actual living conditions and medical facilities available to the leprosy patients in the State.

The instant petition under Article 226 of the Constitution of India was filed in the nature of public interest litigation seeking inter alia directions to the Opposite parties – State authorities for effective implementation of the National Leprosy Eradication Programme (NLEP) and to give directions for composite post-management treatment and eradication of leprosy form the State.

Submissions

  1. Despite interventions through the National Leprosy Eradication Programme (NLEP) and integrating it with the general health system, the incidence of leprosy has not gone down.
  2. While the State of Odisha was quick to declare Odisha as leprosy free State in 2006-07, it dismantled several posts of paramedical workers and field officers that earlier existed to deal with the situation.
  3. There is a callous neglect by the State authorities to the medical and health care needs of leprosy patients as training program of a three day training program is devised to train Multi-Purpose Health Workers (MPHW) and 2 days’ training given to Block Nodal Leprosy Worker (BNLW) to convert them to LTPWs which is inadequate.
  4. Not even single counselor, dresser or health care staff has been appointed by the Government of Odisha to provide counseling services to the victims of leprosy and their family members.

The Court relied on Pankaj Sinha v. Union of India, (2014) 16 SCC 390 as the facts and prayers are very similar and laid down extensive directions

  • The Union and the States are to undertake periodical national surveys for determining the prevalence rate and new cases detection rate of leprosy and, at the same time, publish and bring the reports of the National Sample Survey of Leprosy conducted in 2010-11 and subsequent thereto into the public domain. That apart, the activities of the National Leprosy Eradication Programme (NLEP) must be given wide publicity
  • On leprosy day which is internationally observed every year on the last Sunday of January, the Union of India along with all State Governments should organize massive awareness campaigns to increase public awareness about the signs and symptoms of leprosy and the fact that it is perfectly curable by the Multi Drug Therapy (MDT). Awareness should also be spread about the free availability of MDT at all government health care facilities in the country, the prescribed course for MDT treatment and all other relevant information related to MDT. The content and information contained in the awareness programmes should discontinue to use frightening images of people disabled with leprosy and instead use positive images of cured persons sharing their experiences of being cured of leprosy;
  • The Union and the States are to ensure that drugs for management of leprosy and its complications including the MDT drugs are available free of cost and do not go out of stock at all Primary Health Centres (PHCs) or, as the case may be, public health facilities in the country;
  • All-year awareness campaigns should also be run, by the Union as well as the States, to inform the citizenry that under the National Leprosy Eradication Programme (NLEP), treatment is provided free of cost to all leprosy cases diagnosed through general health care system including NGOs
  • The Union and the States must organize seminars at all levels which serve as platforms to hear the views and experiences directly from the former patients and their families as well as doctors, social workers, experts, NGOs and Government officials;
  • The awareness campaigns must include information that a person affected by leprosy is not required to be sent to any special clinic or hospital or sanatorium and should not be isolated from the family members or the community. The awareness campaigns should also inform that a person affected with leprosy can lead a normal married life, can have children, can take part in social events and go to work or school as normal. Acceptability of leprosy patients in the society would go a long way in reducing the stigma attached to the disease;
  • Health care to leprosy patients, at both Government as well as private run medical institutions, must be such that medical officials and representatives desist from any discriminatory behaviour while examining and treating leprosy patients. Treatment of leprosy should be integrated into general health care which will usher in a no-isolation method in general wards and OPD services. In particular, it must be ensured that there is no discrimination against women suffering from leprosy and they are given equal and adequate opportunities for treatment in any hospital of their choice. To this effect, proactive measures must be taken for sensitization of hospital personnel;
  • Patients affected with leprosy, for whom partial deformity can be corrected by surgery, should be advised and provided adequate facility and opportunity to undergo such surgeries;
  • The possibility of including leprosy education in school curricula so as to give correct information about leprosy and leprosy patients and prevent discrimination against them should be explored;
  • The Union and the State Governments must ensure that both private and public schools do not discriminate against children hailing from leprosy affected families. Such children should not be turned away and attempt should be made to provide them free education;
  • Due attention must be paid to ensure that the persons affected with leprosy are issued BPL cards so that they can avail the benefits under AAY scheme and other similar schemes which would enable them to secure their right to food;
  • The Union and the States should endeavour to provide MCR footwear free of cost to all leprosy affected persons in the country;
  • The States together with the Union of India should consider formulating and implementing a scheme for providing at least a minimum assistance, preferably on a monthly basis, to all leprosy affected persons for rehabilitation;
  • The Union and the State Governments must proactively plan and formulate a comprehensive community-based rehabilitation scheme which shall cater to all basic facilities and needs of leprosy affected persons and their families. The scheme shall be aimed at eliminating the stigma that is associated with persons afflicted with leprosy.
  • The Union Government may consider framing separate rules for assessing the disability quotient of the leprosy affected persons for the purpose of issuing disability certificate in exercise of the power granted under the Rights of Persons with Disabilities Act, 2016

The Court directed “Director, Health Services, Odisha should specifically address the above issues and place before this Court by the next date by way of an affidavit the complete up to date statistics regarding (a) prevalence of leprosy of both varieties (b) status of compliance with each of the directions issued in Pankaj Sinha as far as Odisha is concerned (c) Status of availability of treatment, beds, drugs (including MDT) at the various hospitals, PHCs, health care centres in urban and rural locations (d) status of filling up of vacant posts of medical officers and staff.”

 The case was next listed for 02-09-2021.[Bipin Bihari Pradhan v. State of Odisha, 2021 SCC OnLine Ori 972, decided on 14-07-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For Petitioner- Mr B.K. Ragada

Opposite Parties- Mr M.S. Sahoo

Case BriefsCOVID 19High Courts

Orissa High Court: A Division Bench of S Muralidhar, CJ and Savitri Ratho, J., directed State to file an affidavit addressing concerns raised in the instant PIL.

The instant Public Interest Litigation was filed concerning numerous issues related to COVID-19 care and treatment and urgent directions were sought regarding the availability of RTPCR testing facilities at the rural and block levels throughout the State of Odisha.

Counsel for petitioners submitted that the existing facilities for testing are inadequate and with the suspension of public transport, there is considerable delay in samples being collected at the block levels and being sent to the District Headquarters for testing and for the results to be obtained. He also points out that isolation centers and ambulance services are not available in rural areas for critical patients.

The Court directed the State-Opposite Parties to file, by the next date i.e. 20th July, an affidavit of the Additional Chief Secretary, Department of Health and Family Welfare, Government of Odisha addressing the specific issues highlighted in the writ petition.

The matter is next posted on 20-07-2021.[Sanjiv Joshi v. State of Odisha, WP (C) No.18607 of 2021, decided on 06-07-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For petitioner: Mr S. Pattjoshi and Mr S.K. Nanda

For respondent: Mr M.S. Sahoo

Case BriefsHigh Courts

Kerala High Court: T.R. Ravi, J., held that draft stipulation could not be accepted for the challenge as the same is premature to be assailed by the Public Interest Litigation.

The instant PIL was filed to assail a few regulatory measures initiated by the State of Kerala concerning Lakshadweep Islands. The case of petitioner was that the impugned regulations were motivated by ulterior motive of destroying the traditional life, culture, etc. of the inhabitants of the island. The petitioner alleged that the steps initiated by the State through impugned regulations were illegal and violative of Articles 15, 16, 19 and 21 of the Constitution.

Noticeably, the petitioner never had any direct participation or concern with the people, affairs, or administration of Lakshadweep Island, and had made sweeping allegations that the he was interested about the issues faced by the public at large and was a social worker. The Bench noticed that at the present stage the impugned notifications were at either preliminary stage or drafts were kept in public domain inviting suggestion, views etc., from Islanders. The writ prayer referred to Exts.P3 to P7. Ext.P3 was a Circular issued by the Assistant Director (Disaster Management) stipulating the modalities to be followed by persons or travelers interested in visiting Lakshadweep island. The apprehension expressed by the petitioner on Ext.P3 was held to be misconceived and unavailable as the challenge to that circular had been rejected in by an earlier order.

Ext.P4 was a notification issued eliciting public opinion on the draft regulation appended to the said Notification; the petitioner had assailed the same contending that if the Draft Rules were implemented, nobody could challenge it later, as it gave immense power to the State. The Bench opined that,

“Examination of legality of draft regulation which is in the active consideration of respondent is completely premature.”

Regarding the Exts.P5 and P6 which were related to discontinuation of temporary staff engaged by the administration in a few facilities, the Bench stated that,

“Championing cause concerning service matters by way of PIL is impermissible and also unavailable on the ground that the petitioner lacked the locus to question the legality of Exts.P5 and P6.

Noticing that the Ext.P7 stipulated the procedure to be followed for auctioning livestock in Lakshadweep islands, the Bench held that the petitioner in the name of PIL could not expand the consideration with inchoate knowledge about the inhabitants of the island and the island.  In other words, it was stated that Ext.P8 was also a draft and it could not be treated as regulation that had come into force upon receiving the assent of the President. Hence, every prayer made by the petitioner was unavailable or premature and entertaining the prayers by way of PIL was not warranted as the impugned exhibits were at the stage of confabulation.

Moreover, holding that though the prayers was one for mandamus/certiorari still it had the effect of acting as writ of prohibition against the State from discharging the function or the duty conferred on them by the Constitution. The draft stipulation, therefore, could not be accepted for challenge in the PIL. Accordingly, holding that the petitioner had not satisfied his standing vis-à-vis the affairs of Lakshadweep island to entertain the PIL and that the same was premature. Hence, the same was dismissed.[Sajesh N. T.  v. State of Kerala, WP(C) NO. 11321 of 2021, decided on 15-06-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Adv. N.Sasidharan Unnithan

For the Respondent: T.P.Sajan

Case BriefsCOVID 19High Courts

Karnataka High Court: A Division Bench of Satish Chandra Sharma and M. Nagaprasanna, JJ., dismissed the petition being devoid of merits.

The facts of the case are such that the petitioner is an Advocate and a trade unionist as well as a social activist who filed this present public interest litigation stating that the Karnataka Police is assaulting persons as and when they are going out from houses during the lockdown period.

The petitioner appears in person and requests court a roving enquiry to be done by the Court on the basis of unsubstantiated allegations made in the public interest litigation writ petition.

The Court relied on Tehseen Poonawalla v. Union of India, (2018) 6 SCC 72 wherein it was held “Misuse of Public Interest Litigation is a serious matter of concern for the judicial process. Frivolous are motivated petitions, ostensibly involving the public interest detracts from time and attention which Courts must devote to genuine causes.”

The Court observed that the petitioner has not has been brought on record any instance or documentary proof to demonstrate that persons have been assaulted by the police for violating the lockdown orders.

It was also observed that the petitioner being a party in person, who is also an Advocate is fully aware of the process of filing an FIR and in case, the police is not registering a case, he has a remedy of filing a complaint under Section 200 of Code of Criminal Procedure, 1973.

The Court further observed “This Court does not rule out the possibility of one or two cases of such alleged atrocities, but there is a remedy available in law of filing a compliant under the Code of Criminal Procedure. Roving enquiry cannot be done as prayed for by the learned counsel for petitioner.”

 The Court held the petition is a frivolous public interest litigation which deserves to be dismissed with costs of Rs.1,000/-“[S. Balakrishnan v. State of Karnataka, Writ Petition No.8939/2021, decided on 19-05-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

Counsel for petitioner: In person

Counsel for respondents: Mr. R. Srinivasa Gowda

Case BriefsSupreme Court

Supreme Court: The bench of Sanjay Kishan Kaul and Hemant Gupta, JJ has imposed a cost of Rs. 50, 000 on petitioners for filing a “publicity interest litigation” seeking initiation of proceeding against former J&K Chief Minister Farooq Abdullah for his “pro-China” comments over the abrogation of Article 370 of the Constitution.

As reported by India Today, Farooq Abdullah had last year, in an interview, said,

“Whatever they are doing at LAC in Ladakh all because of the abrogation of Article 370, which they never accepted. I am hopeful that with their support, Article 370 will be restored in J&K,”

Stating that the expression of a view which is a dissent from a decision taken by the Central Government itself cannot be said to be seditious, the Court observed that there was nothing in the statement which we find so offensive as to give a cause of action for a Court to initiate proceedings.

“Not only that, the petitioners have nothing to do with the subject matter and this is clearly a case of publicity interest litigation for the petitioners only to get their names in press.”

In a bid to discourage such endeavours, the Court dismissed the Writ Petition with costs of Rs.50,000/- which is to be deposited with the Supreme Court Advocates Welfare Fund within four weeks.

[Rajat Sharma v. Union of India, 2021 SCC OnLine SC 162, order dated 03.03.2021]

Case BriefsHigh Courts

Jharkhand High Court: A Division Bench of Dr Ravi Ranjan, CJ and Sujit Narayan Prasad, J., while issuing directions for encircling the infrastructure, laid emphasis on State obligation for maintaining Institutions of eminence.

Court while responding to the State’s counter-affidavit promising Rs 70 Crore to the institution, said, “… the University like the other universities and various other National Law Universities in other States cannot thrive on the revenue collected through fees deposited by the students for its development and meeting the routine expenses. Like other universities, certain grants on regular basis, monthly or yearly should be given by the State of Jharkhand. For example, there is a provision in the Patna University Act regarding meeting the budgetary expenses from the consolidated fund of the State… let our sentiment be conveyed to the State that being a prime institution of the State, NUSRL definitely needs regular support of the State Government and it is high time that the State Government should think over it that for every small or big expenditure the Vice-Chancellor of the University should not be compelled to move door to door. Therefore, in our view, the State Government should come up with a policy for such type of support to the institution if it is of the opinion that this institution is beneficial for the State of Jharkhand especially when we have been informed that 50% of seats in the University has been reserved for the candidates of State of Jharkhand

 With respect to the present assistance required from the State government, Court directed; “immediate issue of encircling the land of the university lying on the other side of the road by erecting boundary wall has to be taken as urgent basis.”[Bar Association, Jharkhand High Court v. State of Jharkhand, 2020 SCC OnLine Jhar 1060, decided on 11-12-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Allahabad High Court: The Division bench of Govind Mathur, CJ and Saumitra Dayal Singh, J., directs the Chief Judicial Magistrate to submit a report after conducting an inquiry in regard to a matter wherein a Practicing Advocate was beaten and manhandled by the police at Etah.

The Bar Council of Uttar Pradesh addressed a letter to the Chief Justice of this Court with a request to take appropriate action in relation to an incident said to have taken place at Etah on 21-12-2020.

As per the averments contained in the letter, it was submitted that Rajendra Sharma, a practicing advocate at Etah was beaten and manhandled by the police along with humiliation and harassment to his relatives.  Secretariat of the Chief Justice from the High Court Bar Association also had sent a letter in regard to the same issue.

Bench in light of the above held that it would be appropriate to have a complete report of the said incident through Chief Judicial Magistrate, Etah.

Hence, Chief Judicial Magistrate, Etah shall make a necessary inquiry by availing all relevant facts including audiovisual electronic documents and submit to this Court.

District Magistrate, Etah as well as Senior Superintendent of Police, Etah have been directed to co-operate with the Chief Judicial Magistrate, Etah and they shall supply all relevant facts and documents as desired by the Chief Judicial Magistrate, Etah to furnish a report of the incident to this Court.

Matter to be listed on 08-01-2021.[Suo Moto Cognizance of The Police Atrocitities Over an Advocate, In Re., 2020 SCC OnLine All 1556, decided on 29-12-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of Tarlok Singh Chauhan and Sandeep Sharma, JJ., while dismissing the present petition said, “The petitioner has not placed on record any material which may suggest that he is a public-spirited person, so as to conclude that the instant petition has been filed in public interest.”

Background

The present Public Interest Litigation was moved to seek a writ of Mandamus, directing respondent to postpone the upcoming election to be held under Himachal Pradesh Panchayati Raj Act, 1994 in the wake of COVID-19 pandemic in the State. The public interest, apparently, seem to be the possibility of an increase in cases in the State due to the said election, which the petitioners aim to avoid through the instant petition.

 Observation

In pursuance of its decision, Court referred the following precedents;

  1. Sachidanand Pandey v. State of West Bengal, (1987) 2 SCC 295;

“Today public spirited litigants rush to Courts to file cases in profusion under this attractive name. They must inspire confidence in Courts and among the public. They must be above suspicion. It is only when Courts are apprised of gross violation of fundamental rights by a group or a class action or when basis human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the Courts, especially the Supreme Court, should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the underdog and the neglected. It is necessary to have some self-imposed restraint on Public Interest Litigants.”

  1. P. Anand v. H.D. Deve Gowda, (1996) 6 SCC 734;

“…It is of utmost importance that those who invoke this Court’s jurisdiction seeking a waiver of the locus standi rule must exercise restraint in moving the Court by not plunging in areas wherein they are not well-versed. Such a litigant must not succumb to spasmodic sentiments and behave like a knight-errant roaming at will in pursuit of issues providing publicity. He must remember that as a person seeking to espouse a public cause, he owes it to the public as well as to the Court that he does not rush to Court without undertaking a research, even if he is qualified or competent to raise the

issue.”

  1. ‘X’ v. Hospital ‘Z’, (1998) 8 SCC 296;

“… ‘Right’ is an interest recognised and protected by moral or legal rules. It is an interest the violation of which would be a legal wrong. Respect for such interest would be a legal duty. That is how Salmond has defined ‘Right’. In order, therefore, that an interest becomes the subject of a legal right, it has to have not merely legal protection but also legal recognition, the elements of a “legal right” are that the ‘right’ is vested in a person and is available against a person who is under a corresponding obligation and duty to respect that right.”

  1. BALCO Employees Union v. Union of India, (2002) 2 SCC 333;

“Public interest litigation, or PIL as it is more commonly known, entered the Indian judicial process in 1970. It will not be incorrect to say that it is primarily the judges who have innovated this type of litigation as there was a dire need for it. At that stage, it was intended to vindicate public interest where fundamental and other rights of the people who were poor, ignorant or in socially or economically disadvantageous position and were unable to seek legal redress, were required to be espoused. PIL was not meant to be adversarial in nature and was to be a co-operative and collaborative effort of the parties and the Court, so as to secure justice for the poor and the weaker sections of the community who were not in a position to protect their own interests. Public interest litigation was intended to mean nothing more than what words themselves said viz, ‘litigation in the interest of the public’.”

  1. Ashok Kumar Pandey v. State of West Bengal, (2004) 3 SCC 349;

“When there is material to show that a petition styled as a public interest litigation is nothing but a camouflage to foster personal disputes, said petition is to be thrown out… Public Interest Litigation which has now come to occupy an important field in the administration of law should not be ‘publicity interest litigation’ or ‘private interest litigation’ or ‘politics interest litigation’ or the latest trend ‘paise income litigation’. If not properly regulated and abuse averted it becomes also a tool in unscrupulous hands to release vendetta and wreck vengeance, as well. There must be real and genuine public interest involved in the litigation and not merely an adventure of a knight errant or poke ones nose into for a probe.”

 Reliance was further placed on, Dr B. Singh v. Union of India, (2004) 3 SCC 363, R&M Trust v. Koramangala Residents Vigilance Group, (2005) 3 SCC 91, Gurpal Singh v. State of Punjab, (2005) 5 SCC 136, Kusum Lata v. Union of India, (2006) 6 SCC 180, Common Cause v. Union of India, (2008) 5 SCC 511.

Decision

Court while rejecting the present petition on lack of merits, enumerated the ten pointers that must be considered before allowing any Public Interest Litigation;

(i) That the impugned action is violative of any of the rights enshrined in Part III of the Constitution of India or any other legal right and relief is sought for its enforcement;

(ii) That the action complained of is palpably illegal or malafide and affects the group of persons who are not in a position to protect their own interest or on account of poverty, incapacity or ignorance;

(iii) That the person or a group of persons were approaching the Court in public interest for redressal of public injury arising from the breach of public duty or from violation of some provision of the Constitutional law;

(iv) That such person or group of persons is not a busy body or a meddlesome inter-loper and have not approached with malafide intention of vindicating their personal vengeance or grievance;

(v) That the process of public interest litigation was not being abused by politicians or other busy bodies for political or unrelated objective. Every default on the part of the State or Public Authority being not justiciable in such litigation;

(vi) That the litigation initiated in public interest was such that if not remedied or prevented would weaken the faith of the common man in the institution of the judicial and the democratic set up of the country;

(vii) That the State action was being tried to be covered under the carpet and intended to be thrown out on technicalities;

(viii) Public interest litigation may be initiated either upon a petition filed or on the basis of a letter or other information received but upon satisfaction that the information laid before the Court was of such a nature which requiredexamination;

(ix) That the person approaching the Court has come with clean hands, clean heart and clean objectives;

(x) That before taking any action in public interest the Court must be satisfied that its forum was not being misused by any unscrupulous litigant, politicians, busy body or persons of groups with mala fide objective or either for vindication of their personal grievance or by resorting to black-mailing or considerations extraneous to public interest. [Sailesh Sharma v. State of HP,  2020 SCC OnLine HP 3056, decided on 17-12-2020]


Sakshi Shukla, Editorial Assistant hs put this story together